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https://www.courtlistener.com/api/rest/v3/opinions/1591599/ | 936 So. 2d 851 (2006)
Darryl DEAN
v.
The CITY OF NEW ORLEANS (NOPD).
No. 2005-CA-1347.
Court of Appeal of Louisiana, Fourth Circuit.
July 12, 2006.
Darryl Dean, New Orleans, Louisiana, In Proper Person, Plaintiff/Appellant.
Thomas Louis Colletta, Jr., Wayne J. Fontana, Courtenay, Hunter & Fontana, L.L.P., New Orleans, Louisiana, for Defendant/Appellee.
(Court composed of Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR.).
JAMES F. McKAY III, Judge.
The plaintiff, Darryl Dean, appeals the granting of an exception of res judicata in favor of the defendant, City of New Orleans, and the dismissal of his case with prejudice. We affirm.
FACTS AND PROCEDURAL HISTORY
On April 6, 2000, Darryl Dean was injured while in the course and scope of his employment as an officer in the New Orleans Police Department. His injuries consisted of a partial rotator cuff tear and a slight contusion to his right hand.
*852 The City of New Orleans initiated workers' compensation benefits to and on behalf of Officer Dean. Officer Dean began treating with Dr. Christopher Marrero. Although conservative treatment was initially prescribed for Officer Dean, Dr. Marrero ultimately performed rotator cuff surgery when Officer Dean's symptoms did not resolve with conservative treatment. Sometime thereafter, Officer Dean was released to return to light duty work.
On October 4, 2001, Officer Dean filed a disputed claim for compensation. After the initial mediation, the City propounded written discovery and a notice of deposition to Officer Dean on February 4, 2002. Officer Dean failed to respond to the interrogatories and request for production of documents. Officer Dean also failed to appear for a deposition which he was subpoenaed to attend on June 3, 2002. On June 13, 2002, the trial court signed an order dismissing Officer Dean's disputed claim for compensation with prejudice. Officer Dean did not appeal this dismissal.
On August 9, 2004, Officer Dean filed a second disputed claim for compensation regarding the April 6, 2001 work-related accident. Officer Dean failed to attend the scheduled mediation conference and the trial court issued an order dismissing the plaintiff's suit for non-prosecution on October 27, 2004.[1]
On October 25, 2004, Officer Dean filed a third disputed claim for compensation regarding the April 6, 2001 work-related accident. On March 9, 2004, Officer Dean, at the direction of the trial court filed another disputed claim for compensation. On February 4, 2005, the City filed a peremptory exception of res judicata. The trial court granted the City's exception on June 10, 2005 and dismissed Officer Dean's case with prejudice. On June 14, 2005, Officer Dean filed this appeal.
DISCUSSION
The issue before this Court is whether the trial court erred in granting the defendant's exception of res judicata.
In accordance with Louisiana case law, a dismissal with prejudice has the effect of a final judgment of absolute dismissal after trial and constitutes a bar on the same cause of action. O'Brien v. Johnson, 99-2773 (La.App. 4 Cir. 10/17/01), 800 So. 2d 64. Furthermore, a final judgment acquires the authority of the thing adjudged ["res judicata"] if no further review of the judgment is sought within the time fixed by law or if the judgment is confirmed on review. Tolis v. Bd. Of Supervisors of Louisiana State University, 95-1529 (La.10/16/95), 660 So. 2d 1206. In the instant case, the trial court granted the City's exception of res judicata based on the fact that Officer Dean's earlier lawsuit on the identical claim had been dismissed with prejudice and never appealed. Accordingly, we find no error in the trial court's granting of the defendant's exception of res judicata.
DECREE
For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED
NOTES
[1] This dismissal was without prejudice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591597/ | 686 N.W.2d 334 (2004)
Angela COLE, Relator,
v.
METROPOLITAN COUNCIL HRA, Respondent.
No. A04-261.
Court of Appeals of Minnesota.
September 14, 2004.
*335 Shelley D. Jensen, Judicare of Anoka County, Inc., Blaine, MN, for relator.
Mary G. Dobbins, Mary G. Dobbins & Associates, Edina, MN, for respondent.
Considered and decided by WILLIS, Presiding Judge, MINGE, Judge, and FORSBERG, Judge.
OPINION
FORSBERG, Judge.[*]
In this certiorari appeal, relator tenant argues that respondent improperly terminated her Section 8 housing assistance because (1) respondent lacked authority to terminate Section 8 benefits when the underlying eviction judgment was by default, there was no violation of the lease, and any violation of the lease was not ruled to be the "serious" violation required to terminate Section 8 benefits; (2) the hearing officer failed to recognize that the eviction judgment was by default, make credibility determinations, and make adequate findings; and (3) the hearing officer failed to consider mitigating circumstances. We affirm.
FACTS
Relator Angela Cole obtained a Section 8 rental voucher from respondent Metropolitan Council Housing and Redevelopment Authority in 2000. On October 1, 2003, relator gave notice to her landlord that she would be vacating her apartment at the end of November. Shortly thereafter, relator faxed a copy of her notice to vacate to respondent. Upon receipt of relator's notice to vacate, respondent mailed recertification paperwork to relator. Completion of the paperwork was necessary for relator to obtain Section 8 rental assistance at her new residence. As part of the recertification process, relator was required to sign a Statement of Responsibilities, which provided in part:
I understand that I must give [respondent] a copy of any eviction notice I receive within ten (10) days of receipt of that notice. I understand that if I violate a provision of my lease and am evicted by a court ordered judgment on behalf of the owner [respondent] will terminate my Section 8 Rental Assistance. *336 Relator signed the statement on October 23, 2003, and respondent subsequently approved a Section 8 voucher for relator's new residence.
On November 3, 2003, relator's landlord commenced an eviction action against her. Relator's landlord provided respondent with a copy of the eviction complaint on November 6, and an eviction hearing was held a week later. Relator failed to attend the hearing, and, consequently, the district court granted a default judgment in favor of the landlord and issued a writ of recovery. Relator's landlord faxed a copy of the writ of recovery to respondent on November 13, 2003. Relator was evicted as of November 17, 2003.
Upon receipt of the writ of recovery, respondent sent relator a letter informing her that her participation in the Section 8 program would be terminated effective January 1, 2004. Relator requested a hearing to contest respondent's decision to terminate her Section 8 rental assistance. An informal hearing was conducted on December 17, 2003.
At the informal hearing, relator testified that she failed to attend the eviction hearing because she thought the hearing was to be held on November 17, rather than November 13. In addition, relator pointed out that the eviction complaint sent to respondent had been altered. The complaint filed in district court stated: "causing damages totaling $1,259.00; using crack cocaine in unit regularly," but the complaint sent to respondent added "police calls for disturbances between 2:00 and 3:00 a.m." Relator also produced the only two police reports made from her residence during the preceding six months. The two complaints were made by relator or a friend to report burglaries, neither of which occurred between 2:00 and 3:00 a.m. Finally, relator testified that she believed the eviction action was filed for retaliatory reasons.
The hearing officer upheld the termination of benefits on the basis that respondent followed proper procedures and policies in terminating relator's benefits. The hearing officer explained that relator had signed the Statement of Responsibilities and that there were no extenuating circumstances to be considered. This certiorari appeal followed.
ISSUES
1. Did respondent have legal authority to terminate relator's Section 8 housing benefits?
2. Did the informal hearing officer comply with the applicable law and procedure when affirming the termination of relator's Section 8 housing benefits?
3. Did the informal hearing officer err by failing to consider the hardship that would result from the termination of relator's Section 8 benefits?
ANALYSIS
By taking evidence and hearing testimony, respondent acted in a quasi-judicial capacity. See American Fed'n of State, County Mun. Employees, Council 14 v. County of Ramsey, 513 N.W.2d 257, 259 (Minn.App.1994). "An agency's quasi-judicial determinations will be upheld unless they are unconstitutional, outside the agency's jurisdiction, procedurally defective, based on an erroneous legal theory, unsupported by substantial evidence, or arbitrary and capricious." Carter v. Olmsted County Hous. and Redevelopment Auth., 574 N.W.2d 725, 729 (Minn.App. 1998).
I.
Relator contends that respondent's sole basis for terminating the Section 8 *337 voucher was the Statement of Responsibilities, which requires both a violation of the lease and a court-ordered eviction in order for Section 8 rental assistance to be terminated. Relator argues that because the eviction was obtained through a default judgment, respondent failed to prove a lease violation. Relator argues, therefore, because respondent did not apply both prongs of the Statement of Responsibilities, respondent did not have authority to terminate her housing voucher.
A default judgment is defined as "[a] judgment entered against a defendant who has failed to plead or otherwise defend against the plaintiff's claim, often by failing to appear at trial." Black's Law Dictionary 428 (7th ed.1999). A judgment by default is just as conclusive an adjudication between parties as any other. Geo. Benz Sons v. Hassie, 208 Minn. 118, 124, 293 N.W. 133, 136 (1940).
Here, the landlord filed an eviction complaint, alleging that relator was using crack cocaine in her apartment unit on a regular basis and that she had caused damages to the unit totaling $1,259. A hearing was held on November 13, 2003, but relator failed to appear. Consequently, the district court entered judgment by default, and relator was evicted from the apartment. Because a default judgment was entered against relator due to her failure to answer the complaint or appear at the hearing, the facts of the complaint were deemed to be true. See id. Accordingly, there was a violation of the lease, and both prongs of the Statement of Responsibilities were met.
Relator also contends that even if there was a violation of the lease, respondent did not have authority to terminate her Section 8 housing voucher because respondent failed to apply the standard set forth in 24 C.F.R. 982.552(b)(2) (2003), which requires a "serious" violation of the lease.
24 C.F.R. 982.552(b)(2) provides that "[the Public Housing Authority] must terminate program assistance for a family evicted from housing assisted under the program for serious violation of the lease." Although section 982.552 does not define what conduct constitutes a serious violation, 24 C.F.R. § 982.310 (2003) provides some insight as to what constitutes a serious violation. 24 C.F.R. § 982.310(a)(1), (3) permits an owner to terminate tenancy when the tenant commits a serious violation or repeated violation of the terms and conditions of the lease, or for other good cause. The regulation goes on to define "good cause" as a family history of destruction of property or of living or housekeeping habits resulting in damage to the unit or premises. 24 C.F.R. § 982.310(d)(1)(ii). The regulation further provides that drug use on the property may provide a basis for termination of tenancy. 24 C.F.R. § 982.310(c)(1).
Here, the default judgment is proof that relator violated the terms of the lease. As stated above, the complaint alleged that relator caused $1,259 worth of damage to the apartment unit and that she was using drugs regularly in the apartment. These are "serious" violations of a lease. Under 24 C.F.R. 982.310(d)(1)(ii), $1,259 is a substantial amount of money, and the destruction of property can be considered "good cause" to terminate a tenancy. Also, the use of drugs in an apartment is not only a violation of Minn.Stat. 504B.171, subd. 1(1)(i) (2002), but it can also provide a basis for the termination of a tenancy under 24 C.F.R. 982.310(c)(1). We conclude that respondent complied with 24 C.F.R. 982.552(b)(2) and properly terminated relator's Section 8 housing voucher.
*338 II.
A recipient of Section 8 benefits is entitled to an informal hearing to consider whether the termination of recipient's benefits under 24 C.F.R. § 982.552 is in accordance with the law, federal regulations, and departmental policies. 24 C.F.R. § 982.555(a)(1)(v) (2003). The hearing officer must issue a written decision, stating briefly the reasons for the determination. 24 C.F.R. § 982.555(e)(6). Agency action must be based on objective criteria applied to the facts and circumstances of the record. Carter, 574 N.W.2d at 729. The agency must explain on what evidence it is relying and how that evidence connects rationally with its choice of action. Hiawatha Aviation v. Minnesota Dep't of Health, 375 N.W.2d 496, 501 (Minn.App. 1985), aff'd 389 N.W.2d 507 (Minn.1986).
Relator argues that the informal hearing officer's findings were insufficient because there were no findings concerning the landlord's credibility. Specifically, relator asserts that the landlord was not credible because he altered the complaint and filed the eviction for retaliatory reasons.
In support of the decision to uphold the termination of relator's Section 8 benefits, the hearing officer noted the following.
At the hearing, [relator] pointed out that the unlawful detainer action had been altered. She said that additional information had been added to the unlawful detainer after it had been served. She said that she believes the eviction was filed for retaliatory reasons and because of these two things the landlord has no credibility. I asked whether they had gone to court for the hearing. They said they had not. . . . I said that it was a big mistake not to go to court.
Although the findings and credibility determinations are somewhat vague, the overarching concern of the appellate court is that the record be sufficient to facilitate meaningful review. See Carter, 574 N.W.2d at 729. The statements in the hearing officer's order permit but one inference: that the hearing officer rejected relator's credibility allegations and that relator should have gone to court to challenge the eviction action. Because meaningful review can be conducted in this case, we conclude that the hearing officer complied with the applicable law in terminating relator's Section 8 benefits.
III.
Finally, relator argues that the hearing officer failed to consider the hardship that would result from the termination of her benefits, such as the fact that relator and her four children would be homeless. We disagree. Relator's Section 8 benefits were terminated under 24 C.F.R. § 982.552(b). Section 982.552(b)(2) states that "[t]he [Public Housing Authority] must terminate program assistance for a family evicted from housing assisted under the program for serious violation of the lease." Under the canons of statutory interpretation, "must" is mandatory. See Minn.Stat. § 645.44, subd. 15a (2002) (alteration in original). Therefore, the hearing officer was not allowed to consider the hardship that would result from the termination of relator's Section 8 benefits.
DECISION
Relator was evicted from her apartment for a serious violation of the lease. Under 24 C.F.R. 982.552(b)(2), respondent was required to terminate relator's Section 8 benefits. We therefore conclude that relator's Section 8 benefits were properly terminated.
Affirmed.
NOTES
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2455613/ | 798 S.W.2d 543 (1990)
STATE of Tennessee, Appellee,
v.
Charles R. MENCER, Appellant.
Court of Criminal Appeals of Tennessee, at Nashville.
June 29, 1990.
*545 Charles W. Burson, Atty. Gen. & Reporter, Linda Ann Hammond, Asst. Atty. Gen., Robert C. Sanders, Asst. Dist. Atty. Gen., for appellee.
John S. Colley, III, Columbia, for appellant.
OPINION
BIRCH, Judge.
The Circuit Court of Maury County entered judgment upon a jury verdict convicting Charles R. Mencer, the defendant, of conspiracy to possess a Schedule VI controlled substance (marijuana) with intent to sell or deliver.[1] For this offense the trial court imposed a five-year sentence to be served in the Department of Correction. In addition, the jury found Mencer guilty of keeping a room or table for gaming,[2] for which the trial court fixed a sentence of three years and approved a jury-imposed fine of $500. These sentences are consecutive.
Mencer appeals as a matter of right. Besides contesting the sufficiency of the convicting evidence, he presents five issues for our determination:
1) Whether the trial court erred in refusing to dismiss the indictment;
*546 2) Whether the trial court erred in admitting evidence seized during the search of his office;
3) Whether the trial court erred in admitting money seized from his wallet;
4) Whether the trial court erred in refusing to grant him a trial separate from his co-defendant; and
5) Whether the sentences imposed are proper in length and manner of service.
Because of reversible error in the trial court's refusal to dismiss the indictment, we vacate the conspiracy conviction and sentence. The judgment as modified is affirmed.
I
Mencer first contends that the trial court should have dismissed count one[3] of the indictment because of its failure to allege an overt act in furtherance of the conspiracy. This omission, he maintains, voids the indictment.
At common law, there is no requirement that an overt act be alleged in a conspiracy indictment. Cline v. State, 204 Tenn. 251, 319 S.W.2d 227 (1958). Such is not the case here, for the statute abrogates the common law rule by establishing the commission of an overt act in furtherance of the conspiracy as an essential element of the offense.[4] The rationale upon which this requirement is based is most compelling, and the case of United States v. Cecil, 608 F.2d 1294 (1979), cited with approval in State v. Lloyd, C.C.A. No. 90, Jackson (Opinion filed July 10, 1980), perhaps states it best:
[t]o allow a prosecutor or Court to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection that the grand jury was designed to secure, because a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury that indicted him.
608 F.2d at 1297.
Our courts have consistently held that all essential elements of the offense must be alleged in the indictment. See e.g., State v. Thorpe, 614 S.W.2d 60, 65 (Tenn. Crim. App. 1980). Therefore, the omission of an overt act from the indictment under review is fatal to its validity. 614 S.W.2d at 66.
After hearing the defendant's motion to dismiss the indictment, the trial judge ruled that the state had cured the defect by furnishing him with a bill of particulars. We find to the contrary; this effort was ineffective because a bill of particulars does not assume the character of an indictment and cannot resuscitate it. See State v. Lloyd, cited above.
Thus, we conclude that under prevailing case law and the requirements of Tennessee Code Annotated § 39-6-417(a), the trial judge erred reversibly in failing to dismiss the indictment.
II
As to the first of the two suppression issues, the record discloses that Mencer sought pretrial to suppress the admission of evidence seized as a result of a search by warrant of an office located in a building described as the Bunny Bread[5] building. The facts pertinent to this issue, as adduced at a jury-out hearing, established that the Maury County Sheriff's Department and the Tennessee Bureau of Investigation joined in an effort to identify and apprehend persons selling drugs in Maury County. Because of his reputation as a drug supplier, Mencer's co-defendant, Warner Bolton, was a target of this operation. Bolton made several sales of controlled substances under circumstances which were arranged and closely monitored by participating officers. The operation *547 was to culminate in Bolton's sale of one hundred ninety-six grams of cocaine to Maxie Gilliland, the TBI agent in charge. The agents rented several rooms in a local motel for use as a command post and for completing post-arrest matters.
William H. "Tick" Wright was also slated for arrest that evening; his case, however, was unrelated to Mencer and Bolton. Following Bolton's arrest, sheriff's deputies and TBI agents closed in to arrest Wright at his jewelry store, which was four miles from the motel. Agent Gilliland, maintaining surveillance, drove past the store three or four times. As he was doing so, he noticed an orange Chevrolet Blazer doing the same thing driving back and forth past the establishment and watching what was happening. He recognized the driver of the Blazer as the same individual whom he had seen with Bolton during a previous drug buy at the Bunny Bread office.
The Blazer turned off its lights and pulled to a vantage point above the jewelry store. It remained for three or four minutes and then returned to the road with its lights still off. Deputy Griffin, who had first noticed the Blazer parked above the store, passed this information on to the officers at the motel. Upon returning to the motel, Griffin again observed the Blazer in the parking lot. He suspected that its driver was engaged in counter-surveillance and felt that the operation was imperiled. He stopped the Blazer and asked Mencer to get out. Griffin took Mencer's license and detained him. Officers seized approximately $3,000 contained in his wallet.
Soon after Bolton's arrest, he and Agent Gilliland began to discuss the possibility of Bolton cooperating with the authorities. On the following day, Bolton agreed to cooperate; he consented to a search of the Bunny Bread office, Warner's Lounge, and apartment A-2 in the Willows apartment complex. Furthermore, he accompanied authorities to the Bunny Bread location and the Willows apartment and gave them a key.
Mencer remained in custody for an uncommonly long period of time.[6] He argues that the search of the Bunny Bread office violated his constitutional rights. We reject this argument primarily because the search of the Bunny Bread office was accomplished by consent obtained from one with the authority to consent (Bolton). But more significantly, in light of our holding as to the conspiracy count, only evidence tending to prove that Mencer kept a gaming table is relevant at this juncture. And from the record, it cannot be disputed that the investigators obtained consent to search the office before the several gaming tables and gambling paraphernalia were found there. Thus we find that none of the defendant's constitutional rights were violated in the search of the office and the seizure of the tables and equipment used for gaming. This issue is overruled.
III
With regard to the seizure of money, we think that the $3,000 Mencer had when detained should have been excluded, as did the trial judge who first considered the question. However, in light of the cogent and abundant evidence linking Mencer to gambling, failure to exclude this evidence constitutes harmless error, at best. See Rule 52(a), Tenn.R.Crim.P.
IV
Mencer also assigns as error the refusal of the trial judge to sever his trial from that of his co-defendant, Bolton. He argues that the sheer weight of the evidence against Bolton also convicted him, and that admission of certain statements made by Bolton during the course of the police investigation violated his (Mencer's) constitutional right of confrontation.[7]
We cannot agree with these contentions because Mencer's acquittal on three of the five charges contradicts his "conviction by association" argument. But even more significantly, the statements made by his co-defendant did not in any way relate *548 to the gaming charge. Thus, we find that the necessity for severance with respect to the gaming charge is not supported by the record, and the necessity for severance with respect to the conspiracy charge is moot.
In any event, Mencer's motion for a severance was addressed to the discretion of the trial judge. State v. Coleman, 619 S.W.2d 112, 116 (Tenn. 1981). As Mencer has not shown that he was prejudiced by the trial judge's denial of a severance, we decline to reverse this ruling. 619 S.W.2d at 116.
V
We next consider Mencer's sufficiency issue, and for that, we focus upon the evidence heard by the jury.
The facts of record establish that a citizen formerly addicted to cocaine volunteered to assist TBI agents in their effort to apprehend Maury County drug dealers. With the help of the Sheriff's Department, TBI Agents Gilliland and Bolin arranged for the citizen to make a series of drug purchases from Bolton. These transactions were visually monitored and most were recorded on audio tape, video tape, or both.
With the help of the citizen, Agent Gilliland was able to pose as the citizen's uncle "James." Through this ruse, Gilliland was able to accompany the citizen on three of the controlled buys. Eventually, Bolton felt sufficiently comfortable with "James" to sell drugs to him directly. The trap was sprung when Bolton met Gilliland at the motel and sold him a large quantity of cocaine for $9,100. Bolton was immediately arrested.
Another suspected drug dealer, "Tick" Wright, was also scheduled for arrest that night. Immediately prior to Wright's arrest, Agent Gilliland observed an orange Blazer driving back and forth in the vicinity. As officers were arresting Wright, they saw the orange Blazer parked above them. The vehicle's driver appeared to be monitoring their activities. When the officers returned to the motel command post, they again saw the Blazer in the parking lot. The driver passed them, made a U-turn, and drove back in their direction. Suspecting that his interest in their activity was more than casual, the officers stopped the vehicle and told Mencer to get out.
Mencer was carrying approximately $3,000 in his wallet when he was stopped; officers seized the money and detained him in a room at the motel. An inventory search of the Blazer yielded marijuana residue, marijuana packaging material, and a portion of an airline ticket to Houston, Texas.
When asked to identify his partner in the enterprise, Bolton implicated Mencer. Bolton also told the authorities that he did not personally transport the drugs; instead "his man" [Mencer] traveled to Texas to get them. Bolton consented to a search of the Bunny Bread office and surrounding premises that he shared with Mencer. The search produced a great deal of evidence: several gambling tables, an assortment of gambling paraphernalia, a set of scales, cocaine, chemicals used to dilute cocaine, ten pounds of marijuana packaged in one-pound bags, "drug bags" typically used to package drugs for resale, literature relating to the care and feeding of marijuana plants, personal papers belonging to Mencer, and business cards advertising Quality Motor Sales embossed with both Bolton's and Mencer's names.
As a part of their gambling operation, Mencer and Bolton maintained an apartment at the Willows for the purpose of receiving telephoned bets. Following a consent search of this apartment, investigators seized two sets of scales, a quantity of a chemical cutting agent, numerous drug repacking supplies, fifty-one pounds of marijuana, nearly two pounds of cocaine in rock form, cocaine in smaller packages, and an airline baggage claim stub. Investigators also found two suitcases which had been heavily dusted with talcum powder.
Besides the evidence heretofore described, the state produced a witness whose part-time employment had been to accept bets called in on two telephone lines serving the apartment.
*549 Here, Mencer argues that the jury's verdict is contrary to the law and the evidence. Limiting our examination to the gambling conviction, we have no difficulty finding that the evidence is sufficient to support the conviction. After viewing the evidence in the light most favorable to the state, we find that any rational trier of fact could have found the defendant guilty of operating a gaming table or gaming room beyond a reasonable doubt. Tennessee Rule of Appellate Procedure 13(e); Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
VI
The defendant also complains that he should have been sentenced under the Community Corrections Act, and that his sentence[8] is excessive.
Since Mencer was sentenced prior to November 1, 1989, we review these issues de novo with no presumption that the trial court imposed a proper sentence. Tenn. Code Ann. § 40-35-402 (Supp. 1988).
We must consider in this review:
1) Any evidence received at the trial and sentencing hearing;
2) The pre-sentence report;
3) The principles of sentencing;
4) The arguments of counsel relative to sentencing alternatives;
5) The nature and characteristics of the offense;
6) Any mitigating or enhancing factors;
7) Any statements made by the accused in his own behalf; and
8) The accused's potential or lack of potential for rehabilitation or treatment.
See Tenn. Code Ann. §§ 40-35-103 and -210; State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986); and State v. Taylor, 744 S.W.2d 919, 920 (Tenn. Crim. App. 1987).
Where a defendant contends, as Mencer does here, that he should have been sentenced to community correction, this court must also consider the eligibility criteria contained in the Community Corrections Act, Tennessee Code Annotated § 40-36-106(a), as well as the report of the entity administering the Community Corrections Act in Maury County.
Following trial, the defendant sought an order of reference to the South Central Tennessee Community Corrections Program so that the defendant could be considered for the Community Corrections Program pursuant to Tennessee Code Annotated § 40-36-101 et seq.
The trial court denied the motion, thereby effectively foreclosing a sentence to Community Corrections.
Surprisingly enough, Mencer meets the eligibility criteria for Community Corrections Act sentencing. Under ordinary circumstances, where it is apparent from the record that the trial judge misapprehended eligibility for community correction, we would remand for the trial judge to order a report and consider the issue on its merits.
But in Mencer's case, no remand is necessary because we are unconvinced that sentencing Mencer under the Community Corrections Act would accomplish the desired amount of rehabilitation and deterrence.
The second part of Mencer's sentencing issue concerns the trial judge's order that the sentences be served consecutively. This issue is now moot, and we find the remaining three-year sentence appropriate.
In summary, we vacate the conviction and sentence on the count charging conspiracy, and we dismiss the conspiracy count of the indictment. We affirm the judgment of conviction and the sentence on the gambling count.
DWYER and JONES, JJ., concur.
NOTES
[1] Tenn. Code Ann. § 39-6-417(a).
[2] Tenn. Code Ann. § 39-6-613.
[3] Count one of No. 4105, charges conspiracy to possess marijuana with intent to sell or deliver, in violation of Tenn. Code Ann. § 39-6-417(a).
[4] See Tenn. Code Ann. § 39-6-417(a). [P]rovided, however, that no agreement shall be deemed a conspiracy unless some act be done to effect the object thereof.
[5] This location was formerly a bread store.
[6] Between sixteen and twenty-six hours.
[7] Bolton did not testify at trial.
[8] At this point, only the three-year sentence imposed for the gaming offense remains. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591796/ | 936 So. 2d 1251 (2006)
STATE of Louisiana
v.
Talvin WARREN.
No. 2005-KK-2248.
Supreme Court of Louisiana.
September 15, 2006.
Granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591779/ | 389 F. Supp. 47 (1975)
Kenyon F. BALLEW, Plaintiff,
v.
UNITED STATES of America, Defendant.
Civ. No. 72-283-H.
United States District Court, D. Maryland.
February 7, 1975.
*48 John T. Bonner, Silver Spring, Md., for plaintiff.
J. Charles Kruse and David B. Waller, U. S. Dept. of Justice, Washington, D. C., and George Beall, U. S. Atty., and James E. Anderson, Asst. U. S. Atty., Baltimore, Md., for defendant.
ALEXANDER HARVEY, II, District Judge:
In this civil action, plaintiff is suing the United States under the Federal Tort Claims Act[1], seeking damages for personal injuries sustained by him when he was shot while federal agents and county police officers were attempting to conduct a search of his apartment, pursuant to a search warrant issued by a United States Magistrate. By agreement of the parties, a trial has been held first in this case solely on the issue of liability, with the issue of damages reserved for later trial, if necessary.
Armed with a search warrant issued by a United States Magistrate, a team consisting of agents of the Alcohol, Tobacco and Firearms Division of the Department of the Treasury (ATFD) and officers of the Montgomery County and Prince George's County Police Departments went to plaintiff's apartment in Silver Spring, Maryland, on June 7, 1971. The federal agent who was in charge of the operation, Marcus J. Davis, had submitted an affidavit to the Magistrate, stating that he had reason to believe that there was then being concealed in plaintiff's apartment hand grenades which were not registered as required by law.[2] Although there were indications that someone in the apartment was aware of the presence of the law enforcement officers seeking entrance, *49 plaintiff did not respond to several knocks at the door. A battering ram was then used to open the door, and upon entry, the agents and police officers were confronted by plaintiff pointing a revolver in their direction. Gunfire ensued, and plaintiff was shot in the head and seriously wounded. In this suit, he claims that his injuries were proximately caused by a series of acts of negligence of agents of the federal government. Pursuant to applicable statutes, the case was tried by the Court sitting without a jury. 28 U.S.C. §§ 1346(b), 2402, 2674.
Besides denying that its agents were negligent and alleging contributory negligence on the part of the plaintiff, the government asserts a number of other defenses, as follows: (1) that if plaintiff were shot by a federal agent, his claim would be barred by 28 U.S.C. § 2680(h) which makes the Federal Tort Claims Act inapplicable to a claim arising out of an assault and battery; (2) that if plaintiff were shot by a county police officer, then any negligence of agents of the federal government was not the proximate cause of his injuries; (3) that plaintiff's suit is barred by the discretionary function exception contained in 28 U.S.C. § 2680(a) of the Act; and (4) that plaintiff may not recover in this action because the government agents acted in good faith and with a reasonable belief in the validity of the search and the way it was conducted.
Under the facts of this case, the first two defenses asserted by the government place plaintiff on the horns of a dilemma. Plaintiff did not sue the federal agents here involved individually, asserting a federal cause of action under the Fourth Amendment of the type recognized by Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). Nor did plaintiff sue the county police officers involved under 42 U.S.C. § 1983, asserting a violation of his Fourth Amendment rights by persons acting under color of state law. See Street v. Surdyka, 492 F.2d 368 (4th Cir. 1974); Hill v. Rowland, 474 F.2d 1374 (4th Cir. 1973). Rather plaintiff chose to invoke the Federal Tort Claims Act and sue the United States, alleging that the negligence of government agents proximately caused his injuries. But if an agent of the United States fired the shot which wounded plaintiff, he is barred from bringing suit by § 2680(h) of the Act.[3] Alaniz v. United States, 257 F.2d 108 (10th Cir. 1958); United States v. Faneca, 332 F.2d 872 (5th Cir. 1964), cert. den, 380 U.S. 971, 85 S. Ct. 1327, 14 L. Ed. 2d 268 (1965); Nichols v. United States, 236 F. Supp. 260 (N.D.Miss. 1964); Smith v. United States, 330 F. Supp. 867 (E.D.Mich.1971). And if a county police officer fired the critical shot, the question presented is whether plaintiff can prove that the negligence of agents of the federal government was the proximate cause of his injuries or whether the intentional act of a third person was not a superseding legal cause. See Restatement Torts, 2d §§ 448 and 449.
Plaintiff argues that the evidence here shows that the critical shot was fired by a county police officer and relies on those cases which have held that the assault exception to the Federal Tort Claims Act applies only to assaults by agents of the federal government and not to assaults by third parties which the government fails to prevent. Muniz v. United States, 305 F.2d 285, 287 (2d Cir. 1962), aff'd 374 U.S. 150, 83 S. Ct. 1850, 10 L. Ed. 2d 805 (1963); Panella v. United States, 216 F.2d 622 (2d Cir. 1954); see Gibson v. United States, 457 F.2d 1391 (3rd Cir. 1972); Rogers v. United States, 397 F.2d 12, 15 (4th Cir. 1968). Quite clearly, the facts of those cases are quite different from what occurred here. But it is not necessary in this case to determine whether plaintiff *50 has been able to avoid the twin pitfalls of the assault exception and the existence of a superseding legal cause. There are more compelling reasons why plaintiff cannot recover in this case. On the record here, this Court concludes both that agents of the United States were not negligent in acting as they did before the shooting, and that plaintiff's injuries were caused by his own contributory negligence. A full recounting of the facts is necessary.[4]
The Facts
Shortly after the middle of May, in 1971, Special Agent Marcus J. Davis of the ATFD received information from Detective W. F. Seminuk, of the Prince George's County Police Department, indicating that a quantity of hand grenades had been observed by a confidential reliable source in Apartment No. 2 at 1014 Quebec Terrace, Silver Spring, Maryland. Davis had worked with Seminuk before, and the county police officer had previously supplied him with verified information which Davis had used in his work as a federal law enforcement officer.
Several weeks later, Agent Davis decided to seek a search warrant for the apartment in question. On Friday, June 4, 1971, Davis telephoned Assistant United States Attorney Charles G. Bernstein and relayed to him the information received from Seminuk. Seminuk had been told by a confidential reliable source that he had seen a quantity of hand grenades and also handguns in Apartment No. 2 at 1014 Quebec Terrace. The source also told Seminuk that the reported owner of these firearms was a white male known as Ken, that Ken owned a white Jeep with Maryland license plate HJ-5337 and that Ken had been observed in the recent past playing with several hand grenades in the rear of 1014 Quebec Terrace.
After being apprised of the information which Davis had received from Seminuk, Bernstein told Davis that he did not think it was sufficient for a search warrant and suggested that he develop more information before seeking the warrant. On Saturday, June 5, 1971, Davis spoke to Police Officer Louis Ciamillo of the Montgomery County Police Department, who told him that he had received information from a source residing in the vicinity of 1014 Quebec Terrace that the police would receive a false criminal report in the vicinity of that apartment building and that police would be shot when they responded to this call. On Sunday, June 6, 1971, Davis spoke to Police Officer Royce R. Hibbs of the Montgomery County Police Department, who told him that other officers had that very day interviewed an individual who advised them that they had observed a quantity of firearms in Apartment No. 2 at 1014 Quebec Terrace and that the owner of those firearms was a white male who owned a white Jeep. Officer Hibbs also told Davis that on an average of once a week, his police department received reports of firearms being discharged in the vicinity of the apartment building in question, but when the police went to the area to investigate all firearms and suspects had disappeared.
On Monday, June 7, 1971, Davis had another agent of ATFD check with the Maryland Department of Motor Vehicles, and it was ascertained that the owner of the vehicle with Maryland license plate HJ-5337 was Kenyon Franklin Ballew, 1014 Quebec Terrace, Apartment No. 2, Silver Spring, Maryland. Davis next telephoned Detective Seminuk and verified the information he had received from Seminuk several weeks before. Davis had also ascertained that Kenyon Franklin Ballew had been arrested on November 20, 1970 for carrying a concealed weapon and that the National Firearms Registration and Transfer Record revealed no firearms registered in the name of Kenyon Franklin Ballew.
*51 Thereupon, Davis called Assistant United States Attorney Bernstein and told Bernstein of the additional information he had secured in the past several days.[5] Bernstein advised Davis that in his opinion Davis had sufficient probable cause for the issuance of a search warrant, and he told Davis to go ahead and apply for the warrant. Davis did so, preparing the necessary papers, including an affidavit, and presenting them to United States Magistrate F. Archie Meatyard, Jr. After reviewing the papers, Magistrate Meatyard signed the search warrant on the afternoon of June 7, 1971, authorizing a search of Apartment No. 2, 1014 Quebec Terrace, Silver Spring, Montgomery County, Maryland, for hand grenades not registered as required by law. The affidavit executed by Davis in support of his application for the warrant provided as follows:
Your affiant stated that on June 7, 1971, he received information from Det. W. F. Seminuk, Prince Georges County Police Department, Hyattsville General Assignment Section, Hyattsville, Maryland to the effect as follows: that a confidential reliable source (the source's reliability is based on three separate reports of burglaries in the Langley Park area of Montgomery and Prince Georges Counties, Maryland which, according to police reports, in fact, took place or were attempted) told that detective that on May 5 or 6, 1971, the source observed a quantity of hand grenades in Apartment # 2, 1014 Quebec Terrace, Silver Spring, Maryland. The source stated it also observed a quantity of hand guns in that apartment. The source stated that the reported owner of these firearms is a white male known as "Ken", who operates a white jeep. The source stated that it also observed "Ken" playing with several hand grenades in the rear of 1014 Quebec Terrace, Silver Spring, Maryland, in the recent past. Det. Seminuk stated that the white jeep, reported by the source as "Ken's", has 1971 MD. license HJ-5337 affixed thereto. Department of Motor Vehicles for the state of Maryland reveal that this license plate is registered to Kenyon Franklin Ballew, 1014 Quebec Terrace, Apartment # 2, Silver Spring, Maryland.
Your affiant stated that in June 6, 1971, he received information from Pvt. Royce R. Hibbs, Montgomery County Police Department, Silver Spring, Maryland, as follows: On that date, Det. Sgt. Roger Milstead, MCPD, and Det. Sgt. Wreford Norris, MCPD, interviewed a source at Silver Spring Detective Bureau, MCPD, Silver Spring, Maryland. The source stated that it had observed in the recent past, a quantity of firearms, mainly a carbine, a .44 caliber pistol, a .45 caliber pistol, and other firearms, in Apartment # 2, 1014 Quebec Terrace, Silver Spring, Maryland. The source identified the owner of those firearms as a white male who owns a white jeep.
Private Hibbs also advised your affiant that on an average of once a week, his police department has received reports of firearms being discharged from the vicinity of 1014 Quebec Terrace, Silver Spring, Maryland. Upon arrival in the area, in response to these reports, all firearms and suspects had disappeared.
Your affiant stated that on June 5, 1971, he received information from Private Louis Camillo, MCPD, Silver Spring, Maryland, as follows: That on 1/1/71, in the presence of Cpl. James Mahoney, MCPD, a source, who resides in the vicinity of 1014 Quebec Terrace, Silver Spring, Maryland, *52 stated that one day the police would receive a false criminal report in the vicinity of 1014 Quebec Terrace, Silver Spring, Maryland. When the police responded to this call, they would be shot. Private Camillo stated, to his knowledge, several other threats of this nature have been received by this police department.
Maryland State Police Department records reveal that Kenyon Franklin Ballew was arrested on November 20, 1970, for carrying a concealed weapon (Case No. # 24587).
Your affiant states that a check with the National Firearms Registration and Transfer Record, Alcohol, Tobacco and Firearms Division, Washington, D. C., by Special Investigator William H. Seals, June 7, 1971, reveals no firearms are registered to Kenyon Franklin Ballew.
Agent Davis then called Assistant United States Attorney Bernstein again, advising him that the search warrant had been issued. Bernstein told Davis to keep him advised, whereupon Davis undertook to brief and assemble a team of federal agents of ATFD and of county police officers to conduct the search as soon as possible.[6] Some 12-14 law enforcement officers were assembled, consisting of 8-10 county policemen and 4 federal agents. In fact, there were two search warrants to be served at the same time at 1014 Quebec Terrace, one for Apartment No. 2, occupied by the plaintiff, and the other at Apartment No. 102, occupied by an individual named James Russell Thomas. Half the team was assigned to the Thomas apartment and the other half to the Ballew apartment. The apartment building at 1014 Quebec Terrace was located in a high crime area, which was described by one witness as a "haven for known criminals."[7] The agents and police officers had been warned to take special precautions in serving the warrant, in view of the reports of firearms in Apartment No. 2 and the threat received that a police officer responding to a call might be shot without warning.
Shortly before 8:30 P.M. on June 7, 1971, the law enforcement officers entered the building through a laundry room and then proceeded by way of a flight of stairs to an interior hallway and a door which led from the hallway into the living room of Apartment No. 2.[8] At the time, the apartment was occupied by both plaintiff and the woman he was then living with, Mrs. Saraluise McNeil.[9] Special Agent William H. Seals of the ATFD approached the door first and knocked in a normal manner. When there was no response, Agent Seals pounded on the metal door with his fist and shouted in a loud voice, "Federal officers with a search warrant, open up."[10] Again there was no response. Agent Seals then put his ear to the door and heard sounds as if someone were moving away from the door. At this point, having concluded that the occupants of the apartment did not intend to comply with his order to open up, Agent Davis ordered the use of a battering ram which the officers had brought with them. Several blows with the ram were necessary before the door finally came open some 12 to 18 inches. Agent Seals entered first, noticing immediately that some effort had been made to barricade *53 the door.[11] As Agent Seals moved into the room, he suddenly looked up and saw the plaintiff standing nude in an area beyond the living room with a long-barreled revolver pointed in the Agent's direction. Shouting, "He's got a gun," Agent Seals drew his own pistol from his holster, fired a shot and moved to the left to take cover.[12]
Montgomery County Police Officer Royce R. Hibbs was the next member of the team to enter the room. He likewise observed plaintiff pointing a handgun in his direction. Hibbs ducked to the right, firing several shorts as he sought to move to a place of safety.
Next into the room was Officer Louis Ciamillo of the Montgomery County Police. When he saw plaintiff pointing a revolver in his direction, he took careful aim with his pistol and fired. From the evidence, this Court finds that Officer Ciamillo fired the shot which struck plaintiff in the head. Plaintiff fell to the floor bleeding profusely, firing his own weapon as he fell. It cannot be determined on the record here whether plaintiff attempted to fire his weapon at the police officers before he himself was struck. What is clear is that his revolver did not discharge until he was actually falling and that the projectile from his revolver was discharged in a downward direction.
Also in the apartment at the time was Mrs. McNeil, who had likewise armed herself with a loaded pistol before the shooting occurred. Clad only in her underwear, she surrendered to the officers when ordered to do so, becoming hysterical and shouting, "Help, murder, police," when she saw plaintiff lying wounded on the floor. An ambulance was called, and plaintiff was removed to the hospital. The agents and officers then undertook a search of the premises, recovering a large quantity of firearms, powder, ammunition, primers, fuses and other firearm parts, including the following grenade-type items:[13]
(1) 1 practice rifle grenade, marked "inert";
(2) 1 smoke or gas grenade canister, with no fuse assembly;
(3) 1 smoke or gas grenade canister, with fuse assembly;
(4) 1 practice hand grenade, with fuse assembly;
(5) 1 plastic grenade, baseball type, with fuse assembly.
The Issue of Negligence
From the facts set forth hereinabove, this Court concludes that agents of the federal government were not negligent in securing a search warrant for plaintiff's apartment and in undertaking to conduct a search of such premises after the warrant was issued. In preparing and presenting the affidavit submitted to Magistrate Meatyard, Agent Davis acted reasonably and in the exercise of due care. In thereafter planning the search and in actually carrying it out, Agent Davis and the other federal agents acted as reasonably prudent persons would under all the circumstances. When Agent Seals fired his pistol at plaintiff inside the apartment, he was acting reasonably under the emergency conditions then existing in order to avoid injury to himself.[14] Acts performed under the stress of an emergency are to be judged for negligence with a different measure from that used in weighing acts performed under normal conditions. United States v. Jasper, 222 F.2d 632, 633 (4th Cir. 1955).
*54 When he first entered plaintiff's living room, Agent Seals became immediately aware of the attempted barricade of the door, and it was reasonable for him to assume that the occupants of the apartment were actively resisting the entry of the law enforcement officers. When he was then confronted with the plaintiff pointing a revolver at him, he was justified in shooting first before the plaintiff fired at him. In a Federal Tort Claims suit such as this one in which acts of a government agent are being challenged, the court "must not too strictly limit what a federal officer should do in carrying out a dangerous duty imposed on him * * * by virtue of his office." United States v. Folk, 199 F.2d 889, 892 (4th Cir. 1952).
Plaintiff argues that Agent Davis should have undertaken a more extensive and careful investigation before seeking a search warrant from the Magistrate. The simple answer to this contention is that Davis' belief stated in the affidavit that there were unregistered hand grenades in Ballew's apartment proved to be entirely accurate. This Court finds that several of the grenades seized by the federal agents on June 7, 1971 in Ballew's apartment, in combination with components likewise seized, were firearms as defined in the National Firearms Act and had not been registered as required by law.
Plaintiff contends that the items seized were harmless when found, were neither designed nor intended to be used as firearms and therefore were not in violation of federal law. The evidence in this case does not support such contention.
26 U.S.C. § 5861(d) makes it unlawful for any person "to * * * possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record; * * *." § 5845(a)(8) defines firearm as "a destructive device." The term "destructive device" is further defined as follows in § 5845(f):
(f) Destructive device. The term "destructive device" means (1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellant charge of more than four ounces, (D) missile having an explosive or incendiary charge of more than one-quarter ounce, (E) mine, or (F) similar device; (2) any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary or his delegate finds is generally recognized as particularly suitable for sporting purposes; and (3) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subparagraphs (1) and (2) and from which a destructive device may be readily assembled. The term "destructive device" shall not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordinance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of section 4684(2), 4685, or 4686 of title 10 of the United States Code; or any other device which the Secretary of the Treasury or his delegate finds is not likely to be used as a weapon, or is an antique or is a rifle which the owner intends to use solely for sporting purposes.
In United States v. Freed, 401 U.S. 601, 609, 91 S. Ct. 1112, 1118, 28 L. Ed. 2d 356 (1971), Mr. Justice Douglas observed that the National Firearms Act "is a regulatory measure in the interest of public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act." More recently, the United States Court of Appeals for the Fourth Circuit *55 has had occasion to construe § 5845(f) in United States v. Morningstar, 456 F.2d 278 (4th Cir. 1972). At page 280 of that opinion, the Court said the following:
Section 5845(f), subparagraph (1) deals with explosive and incendiary devices which have no business or industrial utility. They are covered regardless of their intended use. Subparagraph (2) is inapplicable because it refers to weapons. Subparagraph (3) deals with two types of materials "from which a destructive device may be readily assembled." The first type is a "combination of parts . . . designed . . . for use in converting any device into a destructive device. . . ." [Emphasis added] such as a bomb. This type includes, for example, the unassembled parts of a military fragmentation or incendiary bomb. Because of their design they are proscribed regardless of how the possessor intends to use them. If Congress had resolved not to include commercial explosives, it could have stopped at this point. Instead, in subparagraph (3) it defined a second type of illegal materials as a "combination of parts . . . intended for use in converting any device into a destructive device. . . ." [Emphasis added] such as a bomb. It is apparent, therefore, that Congress provided that the use for which these materials are intended determines whether they fall within the Act. (Emphasis in original.)
At page 281, the Court went on to say:
On its face, the definition of a destructive device gives fair notice to a person of ordinary intelligence that it includes any combination of parts intended to be used as a bomb or weapon and from which a bomb or weapon can be readily assembled. See United States v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 98 L. Ed. 989 (1954).
Included among the many items seized in plaintiff's apartment on June 7, 1971 were a practice fragmentation hand grenade, a plastic, baseball type grenade, and a smoke or gas grenade canister. (Defendant's Exhibits Nos. 6, 7 and 8). Each of these items was equipped with a grenade fuse assembly. Also recovered in proximity to the grenades were several cans of black powder and a number of cans of smokeless powder suitable for use in rifles, pistols and shotguns. (Defendant's Exhibits Nos. 10-15, inclusive). From the testimony of the witness Scroggie (called as an expert by the government) and from an examination of the exhibits themselves, including photographs of various tests conducted by the government, this Court finds that these three grenades together with the powder seized were in combination both designed and intended to be used as destructive devices. Although these grenades could not have been exploded as found, they could have been fully activated merely by adding either the black powder or the smokeless powder likewise seized in plaintiff's apartment on June 7, 1971.[15] Unassembled parts of a hand grenade, like parts of a military fragmentation bomb, would be a combination of parts "designed" for use in converting any device into a destructive device within the meaning of § 5845(f)(3). See United States v. Morningstar, supra, 456 F.2d at 280. In United States v. Shafer, 445 F.2d 579 (7th Cir. 1971), cert. den. 404 U.S. 986, 92 S. Ct. 448, 30 L. Ed. 2d 370 (1971), the Court held that grenade shells, fuses and powder in combination constituted a "destructive device" under § 5845(f), even though unassembled. In United States v. Kiliyan, 456 F.2d 555 (8th Cir. 1972), a training grenade, similar to Defendant's *56 Exhibit No. 6 in this case, was held to be in violation of this statute.
Plaintiff relies on that part of § 5845(f) which provides that "the term `destructive device' shall not include any device which is neither designed nor redesigned for use as a weapon, * * *." It is argued that possession of ordinary household articles would result in a violation of the law if the government's interpretation of the statute is accepted here. Such argument was specifically rejected in United States v. Davis, 313 F. Supp. 710, 714 (D.Conn. 1970), in which the Court found that cloth, gasoline and bottles which could be used to construct a Molotov cocktail were a combination of parts in violation of § 5845(f). The Court concluded that what Congress meant by the term "combination" was "an association of the components of a destructive device, at the same time and place, capable of being converted into a destructive device not an actual union of parts in an assembled device." See also United States v. Ross, 458 F.2d 1144, 1145 (5th Cir. 1972).
Moreover, the grenade shells themselves in this case had been "redesigned" for use as a weapon. Thus, the component parts seized here would also fall within the second type of illegal materials proscribed by § 5845(f)(3), as the evidence shows that in combination they were "intended" to be converted into destructive devices such as active hand grenades.[16] Plaintiff was a collector of firearms and ammunition of various types and was in possession of a large quantity of weapons, devices and component parts at the time of the raid on June 7, 1971. Plaintiff spent much of his spare time disassembling, cleaning and re-assembling his weapons and firing them at practice ranges. He had inserted pistol primers in the fuse assemblies of the smoke grenade (Defendant's Exhibit No. 8) and the practice hand grenade (Defendant's Exhibit No. 6), had placed paper caps in the fuse assembly of the plastic grenade (Defendant's Exhibit No. 7) and had done other work on these devices designed to reactivate them. By placing live pistol primers in two of these grenades, plaintiff clearly disclosed his intention to make them explosive. Plaintiff argues that the smoke grenade contained no delay element and therefore could not in fact be used as a true hand grenade. Although as reactivated the smoke grenade could not be thrown without causing injury to the thrower, it was quite capable of being used with other items in the apartment as a booby trap and as such constituted a destructive device within the meaning of § 5845(f) (3).
Plaintiff next argues that the affidavit of Agent Davis, submitted in support of the application for the search warrant, does not meet the standards laid down by the Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). In particular, it is claimed that the information used was stale, that Davis should not have included in his affidavit hearsay information received by Detective Seminuk and relayed to Agent Davis, and that some of the information in the affidavit was erroneous.[17] There is no merit to any of these contentions. The information included in the affidavit indicating that plaintiff had illegal hand grenades in his apartment later proved to be completely accurate, as the original and supplementary returns disclosed. When information comes to an affiant through official channels, as here, it is not necessary that the affiant must personally know that the source was reliable. Travis v. United States, 362 F.2d 477, 481 (9th Cir. 1966); United States v. Shipstead, 433 F.2d 368, 372 (9th Cir. 1970); see United States v. Ventresca, 380 U.S. 102, 111, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965). Finally, the accuracy of the affidavit *57 is not significantly affected because the motor vehicle owned by plaintiff was described therein as a white Jeep when in fact plaintiff owned a white Ford Bronco. There was no material misrepresentation of the facts here. The evidence indicates that a Ford Bronco looks like and could readily be described as a Jeep. The significance of information in the affidavit relating to the so-called "Jeep" is that records of the Maryland Department of Motor Vehicles confirmed the accuracy of the confidential informant's report that a man named Ken owned a motor vehicle with Maryland license HJ-5337 and lived in Apartment No. 2, 1014 Quebec Terrace. This Court concludes that the affidavit of Agent Davis under attack here satisfies the requirements of Aguilar v. Texas, supra, and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).
Plaintiff claims that Davis was negligent in assembling a team as large as 12 to 14 men to carry out the raid. But the evidence shows that plaintiff lived in a high crime area and that two search warrants were to be served in the building at the same time. Two county police officers were left outside to guard the police cruisers, leaving 5 or 6 federal agents and county officers to serve the warrants at each apartment. Agent Davis was not negligent in assembling a team of this size.
Finally, plaintiff argues that Agent Davis did not wait long enough at the door of plaintiff's apartment before ordering the use of the battering ram. But the evidence discloses that fair and adequate warning had been given to the occupants of plaintiff's apartment before efforts were undertaken to open the door forcibly. After twice knocking on the door and announcing the presence of federal agents in a loud voice and after hearing sounds from within indicating that someone was moving away from the door, Agent Davis acted reasonably in ordering the use of the battering ram. Five or six blows by the ram were necessary before the door was forced open. At any time while the ram was being used, plaintiff could have avoided damage to his door (and presumably the later personal injuries he sustained) by opening the door and admitting the officers who were then lawfully engaged in serving this federal warrant.
The Issue of Contributory Negligence
Even had he been able to produce at trial proof of negligence on the part of agents of the government, plaintiff would still not be entitled to recover damages in this case. The evidence here indicates that plaintiff's injuries were the direct result of his own contributory negligence.
From the evidence here, this Court finds that plaintiff heard the law enforcement officers at his door.[18] Rather than admitting the officers and submitting to a search of his premises, plaintiff chose to resist the lawful right of the agents to enter his apartment. Attempts were made to barricade the door and prevent entry by the officers. Even more imprudently, plaintiff and Mrs. McNeil armed themselves and prepared to shoot it out with the officers. After Agent Seals had entered the apartment and fired the first shot, plaintiff continued to point his loaded revolver at the other agents and officers who followed Seals into the room. Even after the first shot, plaintiff could have avoided injury to himself by taking cover and surrendering his weapon, or at the very least by not pointing his revolver at the other officers who entered the room after Agent Seals. His own negligent actions led directly to the serious injuries he suffered.
The credible evidence in this case does not support plaintiff's contention that he did not know that these men in his apartment were law enforcement officers. *58 This Court finds that plaintiff did in fact hear the knocking and the loud announcement that federal officers were at the door with a search warrant. Although dressed in civilian clothes, a badge was prominently displayed by Agent Seals who was the first law enforcement officer to enter the apartment.
Whatever plaintiff was doing in the nude before the officers entered his apartment, he was not, as he claims, in the bathtub when they first knocked on his door. The evidence discloses, in the words of one witness, that he was "bone dry" when shot. More likely, plaintiff was not dressed when he first heard law enforcement officers at his door and in his haste to arm himself and try to keep them out, he did not take the time to clothe himself.
Conclusion
For the reasons stated, the plaintiff is not entitled to recover damages for the injuries he has sustained. Judgment is therefore entered in favor of the defendant, with costs.
NOTES
[1] 28 U.S.C. §§ 2671-2680.
[2] Provisions of the National Firearms Act make it unlawful for any person to possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record. 26 U.S.C. § 5861(d). As used in the Act, the term "firearm" includes a "destructive device", and an explosive grenade is a destructive device. 26 U.S.C. §§ 5845(a) (8) and 5845(f).
[3] Under 28 U.S.C. § 2680, the provisions of the Federal Tort Claims Act do not apply to "(h) Any claim arising out of assault, battery, * * *".
[4] Findings of fact and conclusions of law pursuant to Rule 52(a), F.R.Civ.P., are embodied in this opinion, whether or not expressly so characterized.
[5] Bernstein did not remember two telephone calls to him made by Davis on June 7. However, Bernstein's recollection of these events was understandably poor. This Court accepts Davis' testimony that he called Bernstein once during the morning of June 7, 1971 before applying for the search warrant and again in the afternoon after the warrant had been issued.
[6] The federal agents were briefed at the ATFD office at Falls Church, Virginia. Subsequently, another briefing was held with all the participating law enforcement officers in attendance at the Silver Spring District Police Station.
[7] Mrs. Ballew herself described the area as a "rough neighborhood."
[8] Plaintiff argues that the officers did not enter through the "front" door. Whether or not the door entered could be called the front door, the evidence discloses that it was one of the principal means of gaining entrance into plaintiff's apartment.
[9] Some seven months after this incident, Mrs. McNeil married plaintiff. Thus, when she testified at the trial, she was plaintiff's wife.
[10] One police officer, stationed outside the building, testified that he could hear the pounding and the command from where he was then located.
[11] Pillows had been stacked against the door and a chair had been placed so as to block access to Ballew's living room.
[12] The evidence indicates that Seals did not enter the room with his gun in his hand. Seals drew his pistol only after he saw the plaintiff aiming at him with a revolver.
[13] Items (2) through (5) were included in the original return filed with Magistrate Meatyard on June 14, 1971. Item (1) was included in the supplementary return of July 1, 1971.
[14] Of course, the federal agent's shot did not strike plaintiff. Even assuming that the shot fired by Agent Seals caused County Officer Ciamillo to shoot plaintiff, the federal agent was not negligent in opening fire first under the circumstances here.
[15] In addition, the practice hand grenade would have required a plug in the bottom to retain the charge. Any ordinary material such as wood, wax, lead or paper would have been sufficient for this purpose.
[16] The law requires merely that the component parts be "designed or intended" to be converted into a destructive device. Here, both parts of the test have been satisfied.
[17] The evidence indicated that plaintiff owned a Ford Bronco rather than a Jeep.
[18] Because of his injuries, plaintiff was unable to testify at the trial. Other testimony and evidence in the case lead to this finding that he knew of the presence of these federal agents and of their purpose. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592058/ | 135 S.W.3d 719 (2003)
Daniel CASTANEDA, Jr., Appellant,
v.
The STATE of Texas, Appellee.
No. 05-02-01271-CR.
Court of Appeals of Texas, Dallas.
June 25, 2003.
*720 Terri Hamby, Dallas, for appellant.
William T. (Bill) Hill, Jr., Judith S. King, Asst. Dist. Atty., Dallas, for state.
Before Justices JAMES, FITZGERALD, and LANG.
OPINION
Opinion by Justice JAMES.
Daniel Castaneda, Jr. appeals his conviction for burglary of a habitation, enhanced by two prior felony convictions. Appellant pleaded not guilty, was tried before a jury, and was found guilty. Appellant entered pleas of true to both enhancement paragraphs, the court found both paragraphs true, and it assessed punishment at confinement for thirty years. In six issues, appellant generally contends (1) he received ineffective assistance of counsel and (2) his punishment violated the cruel and unusual punishment clause of the Eighth Amendment. We affirm the trial court's judgment.
BACKGROUND
Appellant went with another man to the Ivy Apartments on November 29, 2001. The other man kicked in the door to Ivonne Pedroza's apartment while appellant acted as the lookout. Appellant followed *721 the other man into the apartment, and they took a television and video cassette recorder. Shortly thereafter, appellant approached maintenance workers in the apartment complex. Appellant had the stolen property in a cloth bag or sheet, showed it to the workers, and tried to sell it to them. While still holding the bag, appellant then approached one of the residents, had a conversation with her, and left her presence no longer carrying the bag. Edgar Huerta, one of the maintenance workers, saw this occur and suggested to the resident she take the television and video cassette recorder to the apartment office. The items were turned in to the office and returned to Ms. Pedroza.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his first, second, and third issues, appellant contends he was denied effective assistance of counsel at trial due to counsel's unfamiliarity with appellant's indictment and Texas law. More specifically, appellant complains his counsel instigated an implausible trial strategy, failed to familiarize himself with a common-law exception to rule 609(b), and failed to familiarize himself with appellant's record and the State's notices of extraneous offenses. Appellant moved for a new trial and stated the basis of his motion was that "the verdict is contrary to the law and the evidence." The court overruled appellant's motion.
A strong presumption exists that counsel is competent. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002); Weeks v. State, 894 S.W.2d 390, 391 (Tex. App.-Dallas 1994, no pet.). The right to effective assistance of counsel does not mean the right to errorless counsel or counsel whose competency is to be judged by hindsight. Mercado v. State, 615 S.W.2d 225, 227 (Tex.Crim.App. [Panel Op.] 1981). To prove ineffective assistance of counsel, an appellant must show (1) counsel's representation was deficient and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Bone, 77 S.W.3d at 833. To prove deficient performance, the appellant must show counsel's performance diverged from "prevailing professional norms." Cardenas v. State, 30 S.W.3d 384, 391 (Tex.Crim.App. 2000) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). To establish prejudice, the appellant must show a reasonable probability that the trial's result would have been different but for counsel's deficient performance. Id. A reasonable probability is a probability that sufficiently weakens confidence in the trial and its outcome. Id.
An appellant has the burden of showing ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999); Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App.1985). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Bone, 77 S.W.3d at 833. In most cases, a silent record will not overcome the strong presumption of reasonable assistance. Thompson, 9 S.W.3d at 813. Where the record is silent regarding counsel's strategy or tactics, we will not speculate as to the basis for counsel's decision. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). Without evidence of the strategy and methods involved concerning counsel's actions at trial, the court will presume sound trial strategy. Thompson, 9 S.W.3d at 813. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id.
Appellant bases his complaint on counsel's objection to the admission of a prior burglary of a vehicle conviction. According *722 to appellant, counsel did not understand that the burglary of a vehicle conviction was admissible for impeachment, leading appellant to agree to testify under the assumption the conviction would not be admitted. Appellant argues counsel's objection to the admission of the conviction shows an implausible trial strategy, unfamiliarity with the common-law exception to rule 609(b), and unfamiliarity with appellant's record and the State's notices of extraneous offenses.
Before trial, the State notified appellant of its intent to introduce evidence of appellant's prior convictions, including the 1989 burglary of a vehicle. Before appellant testified, the following exchange took place:
COURT: All right. Mr. Castaneda are there also other offenses that would be used to impeach him?
DEFENSE COUNSEL: Yes, sir. Mr. Castaneda understands there's two paragraphs in this indictment and he understands that he can be impeached with the delivery of a controlled substance offense and also burglary of a vehicle offense that's set out in his indictment.
THE COURT: Mr. Castaneda, you understand that if you choose to testify, you can be questioned about your prior convictions and that could have an influence upon the jury? That's a chance you're gonna take?
DEFENDANT: That's a chance I'm taking.
THE COURT: You're fully aware of that could very likely occur?
DEFENDANT: Yes, sir.
As noted above, counsel referred to the burglary of a vehicle conviction listed in appellant's indictment. After the above exchange, though, appellant's counsel objected to the admissibility of the burglary of a vehicle offense because the offense occurred more than ten years earlier. See TEX.R. EVID. 609(b).
Appellant does not appeal the admission of the conviction. He recognizes the exceptions to rule 609(b), allowing for admissibility of the 1989 burglary of a vehicle conviction. See TEX.R. EVID. 609(b) (allowing for admission of conviction if "the court determines, in the interests of justice, that the probative value . . . substantially outweighs its prejudicial effect"); Lucas v. State, 791 S.W.2d 35, 51 (Tex. Crim.App.1989) (noting exception of intervening felony convictions demonstrating lack of reformation). Instead, appellant argues counsel erroneously advised him on the prospective admissibility of the prior offense. He argues further that this advice also led to his decision to have a jury trial.
Contrary to appellant's argument, however, the exchange between appellant and the court clearly shows appellant was aware of the possibility the burglary of a vehicle conviction could be used to impeach him, and "that's a chance" he took. Moreover, even without the above exchange, appellant fails to meet his burden of showing ineffective assistance of counsel. Appellant argues counsel gave him erroneous advice. The record does not support appellant's allegation. Nothing in the record reveals counsel's advice to appellant regarding the admissibility of the burglary of a vehicle conviction. Such a silent record cannot overcome the strong presumption of reasonable assistance of counsel. See Thompson, 9 S.W.3d at 813. Furthermore, the record does not reveal counsel's strategy for making his objection, and we will not speculate as to counsel's strategy. See Jackson, 877 S.W.2d at 771.
Even if appellant made a showing that counsel's representation was deficient, appellant has not shown any prejudice to his defense. Appellant's only argument is *723 that "[n]o doubt he would have been given the minimum, twenty-five years, had he... pleaded guilty before the court." Other than appellant's assumption, though, he has not shown any probability that sufficiently weakens our confidence in the trial or its outcome had he either not testified or not elected to have a jury trial. See Cardenas, 30 S.W.3d at 391.
We conclude appellant has not made a showing of deficient performance or sufficient prejudice. Other than his statements in his brief, which are not supported by the record, appellant has not shown that counsel was ineffective or that the results of the proceeding would have been different. See Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052; Thompson, 9 S.W.3d at 813. Accordingly, we resolve appellant's first, second, and third issues against him.
CRUEL AND UNUSUAL PUNISHMENT: EIGHTH AMENDMENT VIOLATION
In his fourth, fifth, and sixth issues on appeal, appellant argues his punishment violates the cruel and unusual punishment clause of the Eighth Amendment. Appellant specifically claims the punishment is not proportionate to his offense because of the lack of gravity of the offense and the harshness of the punishment. He also argues the sentence is disproportionate to that of other criminals in the same and different jurisdictions. Appellant, however, has waived this complaint.
For error to be preserved for appeal, the record must show appellant made a timely request, objection, or motion. See TEX.R.APP. P. 33.1(a)(1). Constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App.1996); Rodriguez v. State, 71 S.W.3d 778, 779 (Tex.App.-Texarkana 2002, no pet.); see also Stewart v. LaGrand, 526 U.S. 115, 119, 119 S.Ct. 1018, 143 L.Ed.2d 196 (1999) (concluding the defendant waived his right to complain the gas chamber was cruel and unusual where he elected that method over Arizona's default election of death by lethal injection). When his sentence was announced, appellant did not object to the sentence as violating his constitutional rights. He did not raise the argument in a post-trial motion.[1] Accordingly, he has not preserved this issue for appellate review. Notwithstanding appellant's failure to preserve error, however, his argument fails. Punishment assessed within the statutory range is not unconstitutionally cruel and unusual. Kirk v. State, 949 S.W.2d 769, 771 (Tex.App.-Dallas 1997, pet. ref'd). Burglary of a habitation is a second-degree felony. TEX. PEN.CODE ANN. § 30.02(c)(2) (Vernon 2003). A defendant on trial for a second-degree felony who is shown to have been once before convicted of a felony, "shall be punished for a firstdegree felony." TEX. PEN.CODE ANN. § 12.42(b) (Vernon 2003). Furthermore, if a defendant has twice been convicted of prior felonies, the second having been committed after the first became final, the range of punishment increases from five to ninety-nine years or life to twenty-five to ninety-nine years or life. Id. § 12.42(d). Appellant pleaded true to two enhancement paragraphs, setting out convictions for delivery of a controlled substance, a felony, and burglary of a vehicle, a thirddegree felony at the time appellant committed that offense. The indictment stated the conviction for burglary of a vehicle was prior to the commission of the delivery of a controlled substance. Appellant's *724 punishment was within the statutory range.
Appellant argues that because burglary of a vehicle is now a class A misdemeanor we should consider his punishment as if not enhanced with that felony. See TEX. PEN.CODE ANN. § 30.04(d) (Vernon 2003). However, appellant was convicted in 1989, and at that time, burglary of a vehicle was a third-degree felony. See Act of May 23, 63d Leg., R.S., ch. 399, § 30.04, 1973 Tex. Gen. Laws 883, 927, amended by Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3634. When the legislature changed burglary of a vehicle to a misdemeanor, it provided that an offense committed before the effective date of that amendmentSeptember 1, 1994is governed by the law in effect when the offense was committed, in this case, the law stating burglary of a vehicle was a felony. See Act of May 29, 1993, 73d Leg., R.S., ch. 900, §§ 1.01, 1.18, 1993 Tex. Gen. Laws 3586, 3634, 3705 (amended 1999). Because appellant committed the offense of burglary of a vehicle prior to September 1, 1994, his burglary of a vehicle conviction was appropriately used as a felony-enhancement for section 12.42(d) of the penal code. See TEX. PEN.CODE ANN. § 12.42(d) (Vernon 2003); see also Wilson v. State, 944 S.W.2d 444, 447-48 (Tex.App.-Houston [14th Dist.] 1997), affd on other grounds, 977 S.W.2d 379 (Tex.Crim.App. 1998); State v. Lewis, 918 S.W.2d 557, 559 (Tex.App.-Dallas 1996, no pet.). Accordingly, appellant's argument lacks merit.
Moreover, even if we did not consider appellant's prior burglary of a vehicle conviction, his argument still fails. Appellant pleaded true to the enhancement paragraph alleging he had been previously convicted of the felony offense of delivery of a controlled substance. As long as the punishment is within the range prescribed by the legislature in a valid statute, the punishment is not excessive, cruel, or unusual. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex.Crim.App.1973). As stated above, a defendant on trial for a second-degree felony, such as burglary of a habitation, who is shown to have been once before convicted of a felony, is punished as for a first-degree felony. See TEX. PEN.CODE ANN. § 12.42(b) (Vernon 2003). Appellant had a prior felony conviction, and his thirty-year sentence falls within the range of punishment for a first-degree felony.
Appellant also argues, though, that even if punishment is within the statutory range, it may not survive under the Eighth Amendment if the punishment was grossly disproportionate to the offense. In Jackson v. State, the Texarkana court recognized that a prohibition against grossly disproportionate punishment survives under the Eighth Amendment apart from any consideration of whether or not the punishment assessed was within the statutory range. 989 S.W.2d 842, 846 (Tex. App.-Texarkana 1999, no pet.) (applying the test set out in Solem v. Helm, 463 U.S. 277, 291, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)). The court first made a threshold comparison of the gravity of the offense against the severity of the sentence, asking then if the sentence was grossly disproportionate to the offense. Id. The court stated it would compare that sentence to sentences imposed for similar crimes in that and other jurisdictions only if it found a gross disproportionality. Id.
Even if we were to meet the threshold comparison and determine the gravity of the offense was disproportionate to the sentence, appellant has presented nothing for comparison, specifically sentences for other persons convicted of burglary of a habitation enhanced by two prior felonies. As we stated above, when appellant committed the burglary of a vehicle offense, it was a felony. See Act of May 23, 63d *725 Leg., R.S., ch. 399, § 30.04, 1973 Tex. Gen. Laws 883, 927, amended by Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3634. The amendment to the penal code clearly states an offense committed before the amendment was effective is governed by the law in effect when the offense was committed. See Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.18, 1993 Tex. Gen. Laws 3586, 3705. Accordingly, appellant's arguments addressing persons convicted of a misdemeanor as an enhancement are irrelevant because the arguments do not compare sentences of persons who committed the same offensethat of burglary of a habitation enhanced by two prior felonies.
Appellant did not preserve his constitutional complaint regarding the Eighth Amendment. Even if he had preserved it, though, appellant's argument fails because his punishment fell within the statutory range. Appellant does not present sufficient argument that his sentence was disproportionate to sentences received by defendants who committed the same offense in this or other jurisdictions. We resolve issues four, five, and six against appellant.
We affirm the trial court's judgment.
NOTES
[1] Appellant's motion for new trial merely alleges "the verdict is contrary to the law and the evidence." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591818/ | 470 N.W.2d 558 (1991)
238 Neb. 268
STATE of Nebraska, Appellee,
v.
Aaron C. GIBBS, Appellant.
Nos. 81-920, 82-026 and 82-027.
Supreme Court of Nebraska.
June 7, 1991.
*560 Michael J. Lehan of Kelley, Kelley & Lehan, P.C., Omaha, for appellant.
Robert M. Spire, Atty. Gen. and Susan M. Ugai, Lincoln, for appellee.
HASTINGS, C.J., WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ., and COLWELL, District Judge, Retired.
COLWELL, District Judge, Retired.
This is a consolidated appeal of four separate Douglas County felony convictions of defendant, Aaron C. Gibbs, that were reinstated as direct appeals by virtue of the decision from the U.S. Court of Appeals for the Eighth Circuit, based on ineffective assistance of counsel, finding that "Gibbs has never had a full adversarial briefing on all arguable issues before the state court *561 much less a meaningful appellate determination as to whether any exist." Gibbs v. Dahm, No. 88-2319, slip op. at 3 [881 F.2d 1080 (table) ] (8th Cir. May 30, 1989).
Gibbs challenges his 1981 convictions of burglary in case No. 81-920, see Neb.Rev. Stat. § 28-507(1) (Reissue 1989); of escape in case No. 82-027, see Neb.Rev.Stat. § 28-912(1) (Reissue 1989); and of two counts of receiving stolen property in case No. 82-026, see Neb.Rev.Stat. §§ 28-517 (Reissue 1989) and 28-518 (Reissue 1979). Gibbs received an aggregate sentence of 10 to 19 years' imprisonment. We affirm.
In Gibbs' direct appeals of the escape and receiving stolen property convictions, his appointed counsel filed a motion and brief seeking to withdraw, following the procedure in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The motion was granted and Gibbs' sentences were affirmed by this court. See State v. Gibbs, 211 Neb. xxi (case Nos. 82-026, 82-027, May 12, 1982).
In Gibbs' direct appeal of the burglary conviction, his appointed counsel in like manner filed a motion and brief. This court advised Gibbs of his right to respond, to which Gibbs personally replied with a motion to dismiss the appeal without prejudice. Accordingly, Gibbs' appeal was dismissed. See State v. Gibbs, 212 Neb. xxii (case No. 81-920, Sept. 8, 1982).
After the state district court denied Gibbs postconviction relief on all four convictions, Gibbs filed a federal habeas corpus action. The federal district court ordered that the writ of habeas corpus be granted on the basis of Gibbs' ineffective assistance of counsel. The U.S. Court of Appeals for the Eighth Circuit affirmed, and this court has since reinstated each of Gibbs' direct appeals.
Gibbs' seven assignments of error combine to urge error, (1) in the burglary conviction, in the trial court's not suppressing an identification tainted by unnecessarily suggestive pretrial identification procedures; (2) in the escape and receiving stolen property convictions, in the trial court's accepting guilty pleas that were not intelligently and voluntarily made because Gibbs was not advised at the time that he entered each guilty plea that each sentence could be imposed consecutively; (3) in the burglary and receiving stolen property convictions, in the trial court's not affording Gibbs a speedy preliminary hearing and trial; (4) in all four convictions, in denying Gibbs effective assistance of counsel; and (5) in all four convictions, in the trial court's imposition of excessive sentences.
I. FACTUAL SUMMARIES
1. BURGLARY CONVICTION, CASE No. 81-920 (JURY TRIAL)
On the morning of December 15, 1980, the home of Karen Mason and her two sons, Robert, age 13, and John, age 8, was burglarized. At approximately 7 a.m., Robert left home to catch the schoolbus. The bus stop is only two houses away from the Mason residence. At the bus stop, Robert met his friend, Cathy Batter. Cathy told Robert that while she was walking to the bus stop, a car had followed her. She informed Robert that she got scared and ran to the bus stop after the occupants of the car had rolled down their window.
They boarded the schoolbus, and as the bus passed in front of the Mason residence, Cathy pointed out to Robert that the car was parked near his house. Looking out the bus window, Robert noticed that there were three men standing next to the car, who were pointing at his house. Robert testified that the schoolbus came within 5 feet of the three men. He further testified that as the bus passed, he got a 30-second look at their faces and, as a result, would be able to recognize two of them again if he were to see them.
Robert became suspicious. He and Cathy exited the bus at its next stop. While walking toward his house, Robert saw a man, later identified as Gibbs, walking toward the car he had previously observed. Robert testified that he came within 10 or 15 feet of Gibbs and that he had an opportunity to see him for approximately 1 minute. Robert then hid behind a bush that was located across the street from his house. He observed Gibbs walk into his *562 driveway and he saw someone open the garage door.
Alarmed, Robert hurriedly went to a friend's house, and the police were called. Next, he returned to his hiding place in the bushes, and then, having determined that everyone was gone, Robert entered his house and discovered that it had been burglarized.
The next day, on December 16, 1980, Robert identified Frederick Perkins and Gibbs in a five-man photographic array, prepared by Officer Wolf, as being two of the men seen in front of his house. The array consisted of separate photos of the faces and upper torsos of five individuals, one of whom was Gibbs. As a result of the identification, Gibbs was arrested on December 30, 1980.
At a suppression hearing, Robert again identified Gibbs as the man he had seen outside his house on the morning of December 15, 1980. The trial court then ruled that the "photograph identification by Robert Mason was not unduly suggestive and is admissible at time of trial." On October 29, 1981, at trial, Robert Mason again identified Gibbs as a perpetrator of the burglary.
Following the jury trial, Gibbs was found guilty, and Gibbs was sentenced to 4 to 6 years' imprisonment, with credit for 141 days served.
2. ESCAPE CONVICTION, CASE No. 82-027 (GUILTY PLEA)
On September 15, 1981, Gibbs was charged with escape after he ran out of a courtroom on September 3, 1981. Gibbs was arrested in the hall and returned to custody.
On November 24, 1981, Gibbs pled guilty to the escape charge. The court determined that there was a factual basis for the charge and accepted Gibbs' plea. On December 18, 1981, Gibbs was sentenced to 2 to 5 years' imprisonment, with credit for 108 days served. The escape sentence was to run consecutively to the receiving stolen property and burglary sentences.
3. RECEIVING STOLEN PROPERTY CONVICTIONS, CASE No. 82-026 (GUILTY PLEAS)
On October 20, 1981, Gibbs was charged with two counts of receiving stolen property. Count I charges Gibbs with the possession on October 15, 1980, of a 1979 Mercury Cougar stolen from Rosen Novak Chevrolet. Count II charges Gibbs with the possession on October 23, 1980, of a 1980 Buick Century sedan stolen from Barbara Magnuson.
On November 24, 1981, pursuant to a plea bargain, Gibbs entered pleas of guilty to both counts of receiving stolen property. The court determined that there was a factual basis for both counts and accepted Gibbs' guilty pleas. On December 18, 1981, the court sentenced Gibbs to 2 to 4 years' imprisonment on each of the receiving stolen property counts. The sentences for the receiving stolen property counts were to run consecutively to each other as well as to the burglary sentence.
Additional facts are later discussed.
II. ANALYSIS
1. SUPPRESSION OF PHOTOGRAPHIC IDENTIFICATION
In his first assignment of error, Gibbs contends that the use of the photographic array was so unduly suggestive that his suppression motion should have been sustained.
In determining the correctness of a trial court's ruling on a motion to suppress, the Supreme Court will uphold the trial court's findings of fact unless those findings are clearly erroneous. State v. Garcia, 235 Neb. 53, 453 N.W.2d 469 (1990); State v. Sardeson, 231 Neb. 586, 437 N.W.2d 473 (1989). In making this determination, the Supreme Court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that the trial court has observed the witnesses testifying in regard to such motions. State v. Garcia, supra; State v. Sardeson, supra.
*563 At the suppression hearing, Robert Mason testified as to the identification procedures used by Officer Wolf for the photographic array on December 16, 1980. Officer Wolf laid out five photographs on a table face up and asked Robert if he could identify any of the photos as being of a person at the scene. According to Robert's testimony, he was able to identify Gibbs from the burglary because he remembered Gibbs' face structure and his nose and eyes.
With regard to the use of photographic arrays, this court has held that whether identification procedures were unduly suggestive and conducive to a substantial likelihood of irreparable mistaken identification is to be determined by a consideration of the totality of the circumstances surrounding the procedures. State v. Price, 229 Neb. 448, 427 N.W.2d 81 (1988), citing State v. Swoopes, 223 Neb. 914, 395 N.W.2d 500 (1986), which also held that "an array of five photographs is sufficient to constitute a fair and adequate array when attempting to identify a single perpetrator." 223 Neb. at 918, 395 N.W.2d at 504.
Gibbs claims the photographic array was unduly suggestive because, in the five photographs, Gibbs was the only individual depicted without facial hair. There is nothing in the record to indicate that the lack of facial hair was the method by which Robert Mason differentiated between the five photographs. Robert testified that he remembered Gibbs from the burglary because of Gibbs' face, nose, and eyes. He stated that he remembered Gibbs' nose because it was flared. Officer Wolf testified that Robert picked out Gibbs after looking at the photographs for a couple of minutes. An examination of the five photographs shows that Gibbs' dress, height, weight, age, and hairstyle in no way singled him out from the other four individuals. Even if the array had been improper, Robert's identification of Gibbs at trial was completely supported, independently, by Robert's observations at the time of the burglary. In that connection, the totality of circumstances supports a finding that the identification was based on his observation of Gibbs during the burglary and was the basis for the subsequent identification. See State v. Richard, 228 Neb. 872, 424 N.W.2d 859 (1988). There was no error in denying the motion to suppress.
2. INTELLIGENT AND VOLUNTARY PLEAS
The second summarized assignment of error contends that Gibbs' guilty pleas to the charges of escape and theft by receiving stolen goods were not made intelligently and voluntarily because the court failed to inform Gibbs that the sentences for his convictions might run consecutively.
In order to support a finding that a plea of guilty or nolo contendere has been entered freely, intelligently, voluntarily, and understandingly, the court must inform the defendant concerning (1) the nature of the charge, (2) the right to assistance of counsel, (3) the right to confront witnesses against the defendant, (4) the right to a jury trial, and (5) the privilege against self-incrimination. State v. Irish, 223 Neb. 814, 394 N.W.2d 879 (1986). We also held in Irish that it was sufficient for the trial court to explain the possible range of penalties for each crime and that it was not necessary to explain that each sentence might run concurrently or consecutively to any other sentence imposed.
In the instant case, Gibbs argues that State v. Irish, supra, was not the law in effect at the time he entered his guilty pleas. Gibbs points out that in 1981, the year in which his pleas were entered, State v. Irish, supra, had yet to be decided. Therefore, according to Gibbs, this court must apply State v. Turner, 186 Neb. 424, 183 N.W.2d 763 (1971), because it was the law in effect at the time of his pleas. See State v. Schaeffer, 218 Neb. 786, 359 N.W.2d 106 (1984).
Gibbs asserts that under State v. Turner, supra 186 Neb. at 426, 183 N.W.2d at 765, this court held that the ABA Standards Relating to Pleas of Guilty "outline what should be the minimum procedure in the taking of such pleas." Further, he asserts that the ABA standards provide *564 that a defendant pleading guilty should be advised of the effect which may result from the possible imposition of consecutive sentences.
As ingenious as Gibbs' argument may appear, we are not persuaded. In State v. Turner, supra, this court stated that the ABA standards outline what should be the minimum procedure, which suggests that the ABA standards are discretionary and not mandatory in nature. Therefore, the trial court's failure to inform Gibbs that the sentences for his convictions might run consecutively does not constitute reversible error. Furthermore, Gibbs presumes that this court would not have explicitly rejected the ABA standards as a guideline in this area if it had been given an earlier opportunity. This court may well have rejected the ABA standards in 1981 had Gibbs' cases been heard.
3. FAILURE TO RECEIVE A SPEEDY PRELIMINARY HEARING AND TRIAL ON THE BURGLARY CHARGE OR THE RECEIVING STOLEN PROPERTY CHARGES
Gibbs' third summarized error contends that he was not afforded a speedy preliminary hearing and trial on either the burglary charge (case No. 81-920) or the receiving stolen property charges (case No. 82-026), contrary to Neb.Rev.Stat. § 29-1207 (Reissue 1989) and to the Constitutions of the United States and Nebraska. Section 29-1207 requires trial within 6 months from the filing of the information.
(a) Burglary Charge
The original municipal court complaint charging Gibbs with burglary was filed on January 2, 1981. Although there is no explanation, the record indicates that Gibbs' preliminary hearing was continued on February 25, 1981, until August 7, 1981. On August 7, 1981, Gibbs' preliminary hearing was held, wherein probable cause was found and Gibbs was bound over. On August 11, 1981, the information was filed against Gibbs charging him with burglary. The jury trial commenced on October 29, 1981, and Gibbs was found guilty. Gibbs now claims there was more than a 6-month delay between the filing of the original complaint and the preliminary hearing, the filing of the information, and the jury trial, constituting a violation of his constitutional right to a speedy trial and a violation of his right to an absolute discharge, as provided in Neb.Rev.Stat. § 29-1208 (Reissue 1989).
Neb.Rev.Stat. § 29-1209 (Reissue 1989) provides: "Failure of the defendant to move for discharge prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to speedy trial."
It is the duty of the trial court and the prosecutor to bring defendants in criminal cases to trial within the time provided by section 29-1207 [Reissue 1989]. However, under the provisions of section 29-1209 [Reissue 1989], it is incumbent upon defendant and his counsel to file a timely motion for discharge in order to avoid the waiver provided for by that statute.
(Syllabus of the court.) State v. Hert, 192 Neb. 751, 224 N.W.2d 188 (1974). Gibbs failed to timely raise his right to discharge under the statute.
Under the provisions of the U.S. and Nebraska Constitutions, the right to a speedy preliminary hearing and trial is relative and depends upon existing circumstances; it is not denied where the delay is satisfactorily explained by the government and the defendant was brought to trial as soon as was reasonably possible. State v. McNitt, 216 Neb. 837, 346 N.W.2d 259 (1984) (construing U.S. Const. amend. VI and Neb. Const. art. I, § 13). Moreover, even the "unexplained delay between arrest and arraignment or preliminary hearing does not demonstrate a violation of the right of speedy trial in the absence of prejudice." SapaNajin v. Johnson, 219 Neb. 40, 41-42, 360 N.W.2d 500, 501 (1985), citing State v. Ellis, 184 Neb. 523, 169 N.W.2d 267 (1969).
Here, there was a search and review by counsel of all available records; however, there is no showing as to the reason or reasons for the delay, nor a showing that the delay was purposeful or oppressive. Furthermore, Gibbs makes no *565 showing that the pretrial delay caused substantial prejudice to his right to a fair trial. Any claim of possible prejudice to Gibbs resulting from the delay in the preliminary hearing and trial is speculative. There is no merit to this claimed error except as may relate to ineffective counsel.
(b) Receiving Stolen Property Charges
Gibbs further contends that his convictions for receiving stolen property violated his right to a speedy trial.
The record indicates that on October 20, 1981, Gibbs was charged in a two-count information with two counts of receiving stolen property. The first count charges Gibbs with the possession on October 15, 1980, of a 1979 Mercury Cougar stolen from Rosen Novak Chevrolet. The second count charges Gibbs with the possession on October 23, 1980, of a 1980 Buick Century sedan stolen from Barbara Magnuson. The record shows that on November 24, 1981, Gibbs pled guilty to both counts, which pleas were made 2 months after the filing of the information. There was no delay.
4. INEFFECTIVE ASSISTANCE OF COUNSEL
Gibbs' fourth assignment of error and the basis for reinstatement of this appeal is the claim that he was denied effective assistance of counsel at the time of his appeals in 1981 and 1982.
At issue here are the motions supported by briefs of the public defender's office asking for leave to withdraw as counsel for Gibbs in the direct appeals. The motions attempted to comply with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); however, the U.S. Court of Appeals for the Eighth Circuit found them insufficient since "they do not refer with advocacy to all claims which might have arguably supported Gibbs' appeal," Gibbs v. Dahm, No. 88-2319, slip op. at 3 [881 F.2d 1080 (table) ] (8th Cir. May 30, 1989), and no prejudice need be shown in light of Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). As arguable error has now been briefed as required in Penson, we review all of the records and proceedings.
To sustain a claim of ineffective assistance of counsel as a violation of the sixth amendment to the U.S. Constitution or article I, § 11, of the Nebraska Constitution, the defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defense, that is, a demonstration of reasonable probability that, but for counsel's deficient performance, the result of the proceedings would have been different. State v. Chapman, 234 Neb. 369, 451 N.W.2d 263 (1990). A criminal defendant must demonstrate prejudice was suffered from ineffectiveness of counsel. Id. Defendant has the burden of demonstrating ineffective assistance of counsel, and the record must affirmatively support the claim. State v. Domingus, 234 Neb. 267, 450 N.W.2d 668 (1990). Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), provides:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
An examination of the record reveals that Gibbs has failed to meet the two-pronged test described in State v. Chapman, supra. Gibbs' argument does not show how counsel either was deficient or made serious errors, or that there is a reasonable probability that, but for deficiencies of counsel, the outcome of his cases would have been different. Counsel does argue that defendant's cases were prejudiced by counsel's inaction, since defendant *566 has already served most of his sentences, and the only proper decision of this court is to reduce the sentences imposed, as provided in Neb.Rev.Stat. § 29-2308 (Reissue 1989). There is no showing that Gibbs did not receive a fair hearing, and there is no showing that Gibbs was prejudiced by his counsel's actions concerning the failure of counsel to file a timely motion for discharge, see § 29-1209, in the burglary case. There is no record before us from which we can fully consider the fact question that required an evidentiary hearing; therefore, we cannot consider it. See, State v. Hert, 192 Neb. 751, 224 N.W.2d 188 (1974); State v. Dixon, 223 Neb. 316, 389 N.W.2d 307 (1986). Gibbs has not shown that he was denied effective assistance of counsel except in the instance of his direct appeals to this court, and that has been remedied by the reinstatement of these appeals.
5. EXCESSIVE SENTENCES
A sentence imposed within the statutory limits will not be disturbed on appeal unless the sentencing court has abused its discretion in the sentence imposed. State v. Glover, 236 Neb. 402, 461 N.W.2d 410 (1990); State v. Garza, 236 Neb. 215, 459 N.W.2d 747 (1990).
A review of the presentence report shows that Gibbs has a lengthy criminal record beginning as a juvenile, age 15 years, including a felony conviction for burglary and juvenile violations involving burglary and auto theft. At the time of his guilty pleas for the escape and receiving stolen property charges, three other felony charges were dismissed as a part of the plea bargain. There was no error in the sentences imposed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591803/ | 19 So. 3d 1128 (2009)
Eugenia DERESPINA, Appellant,
v.
NORTH BROWARD HOSPITAL DISTRICT d/b/a Coral Springs Medical Center, Appellee.
No. 4D08-2670.
District Court of Appeal of Florida, Fourth District.
October 14, 2009.
*1129 Derek H. Lloyd and Christopher W. Wadsworth of Wadsworth Huott, L.L.P., Miami, for appellant.
Daniel Alter, Roland E. Schwartz, and Jeffrey T. Kuntz of GrayRobinson, P.A., Fort Lauderdale, for appellee.
PER CURIAM.
Appellant, Eugenia Derespina, appeals a final order dismissing her pleadings with prejudice in her medical malpractice suit. This court has jurisdiction. Fla. R.App. P. 9.030(b)(1)(A) (2008). We affirm.
In October 2005, Derespina was admitted to a hospital in the North Broward Hospital District ("NBHD") where a doctor performed an elective total hip replacement on Derespina. After the surgery, nurses at NBHD applied an anti-embolism stocking to Derespina's left thigh on the doctor's orders. Derespina alleged that the stocking was too small and caused blistering and eventually scarring. She instituted a medical malpractice action against NBHD.
Accompanying Derespina's notice of intent to initiate litigation was the affidavit of her sister, a nurse with forty-six years of experience, who was also the mother of Derespina's attorney. The affiant stated she had reviewed Derespina's medical records and concluded the medical malpractice claim had merit.
NBHD subsequently filed a motion to strike Derespina's pleadings, claiming the affidavit failed to demonstrate that Derespina and her counsel had reasonably investigated the merits of the action. NBHD emphasized that the affiant was both Derespina's sister and the mother of Derespina's attorney. NBHD thus submitted that the affiant's bias showed the affidavit was not the product of a reasonable investigation.
Following a hearing, the trial court granted NBHD's motion to strike on account of Derespina's failure to conduct a reasonable pre-suit investigation of her claim and dismissed the case. At this point, the statute of limitation had run. This appeal ensued.
Derespina argues on appeal that the trial court erred in finding she failed to conduct a reasonable pre-suit investigation because the affidavit of her sister, a nurse, shows her medical negligence claim has merit. Florida statutory law imposes a pre-suit investigation procedure that both *1130 the plaintiff and defendant must follow before a medical negligence claim may be brought in court. Ch. 766, Fla. Stat. (2008). No medical negligence action shall be filed "unless the attorney filing the action has made a reasonable investigation as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant." § 766.104(1) (emphasis added). Counsel may show good faith by a written opinion of an expert "that there appears to be evidence of medical negligence." Id.
After completing the pre-suit investigation and prior to filing a complaint for medical negligence, the plaintiff must notify the defendant of her intent to initiate litigation. § 766.106(2). Section 766.203(2) requires that the notice be corroborated by a "verified written medical expert opinion" furnished to the defendant. § 766.203(2). If a court finds the plaintiff's notice of intent to initiate litigation does not comply with the pre-suit investigation requirements of the statute, a court shall dismiss the claim. § 766.206(2).
NBHD relies on the case of Grau v. Wells, in which a patient brought a medical malpractice suit against his doctor after plastic surgery. 795 So. 2d 988, 989 (Fla. 4th DCA 2001). The defendant doctor attached the affidavit of his business partner in support of his pleadings. Id. The trial court found that because the affiant was "`clearly biased,'" his affidavit was insufficient to show that the defendant and his counsel conducted a reasonable pre-suit investigation. Id. at 990. The trial court thus concluded that no reasonable investigation occurred and entered a default judgment in favor of the patient. Id. On appeal, this court held that the trial court was authorized to strike the defendant doctor's pleading for failure to conduct a reasonable investigation. Id. at 991.
In the present case, Derespina submitted the affidavit of her sister, who happened to be the mother of Derespina's attorney. After an evidentiary hearing at which the sister testified, the court determined that the affiant was not unbiased, as she was the sister of the plaintiff and mother of the plaintiff's attorney. She had not billed for her time in reviewing the file, something an independent expert would have done, expecting compensation for the effort. While the sister-expert was a nurse of long-standing, she had no special expertise in the subject matter, nor was any needed. The court concluded that the plaintiff could have easily obtained a nurse without family ties to give an expert opinion in the Fort Lauderdale area, but none was ever sought. Based upon the findings of the trial court after an evidentiary hearing, the trial court's conclusion that the investigation of malpractice conducted by the plaintiff did not constitute the reasonable investigation contemplated by the statute was not an abuse of its discretion.
Affirmed.
WARNER, POLEN and TAYLOR, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2859679/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-93-00250-CR
Dwayne Lee Wood, a/k/a Mickey, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
NO. 92-658-K368, HONORABLE BURT CARNES, JUDGE PRESIDING
After finding appellant guilty of aggravated sexual assault of a child, and indecency
with a child, Act of May 26, 1987, 70th Leg., R.S., ch. 573, § 1, 1987 Tex. Gen. Laws 2275,
amended by Act of July 18, 1987, 70th Leg., 2d C.S., ch. 16, § 1, 1987 Tex. Gen. Laws 80
(Tex. Penal Code Ann. § 22.021, since amended), the jury assessed punishment at confinement
for fifty-five years and ten years probated, respectively. In six points of error, appellant contends
the trial court erred in: (1) denying appellant's motion for instructed verdict because the evidence
was legally insufficient; (2) entering judgment on the jury's verdict because the evidence was
factually insufficient; (3) admitting the testimony of an incompetent witness; (4) allowing the State
to cross-examine appellant about an extraneous offense; (5) disallowing evidence that charges
against appellant arising from the extraneous offense had been dismissed and; (6) denying
appellant's motion for new trial. We will overrule appellant's points of error and affirm the
judgment of the trial court.
It is undisputed that the three-year-old victim had been sexually abused.
Appellant's challenge to the legal and factual sufficiency of the evidence is based on the alleged
insufficiency of the evidence to prove that appellant was the offender. In reviewing the legal
sufficiency of the evidence, we must determine whether, viewing the evidence in the light most
favorable to the conviction, any rational trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979);
Casillas v. State, 733 S.W.2d 158, 160 (Tex. Crim. App. 1986), appeal dismissed, 484 U.S. 918
(1987).
The victim's mother, Mona Hanson, testified that she took the victim to the
emergency room of the hospital in Round Rock in May 1992 after the victim started having
seizures. Dr. Paula Price testified that in the course of conducting a complete physical
examination of the victim, she found indication of sexual abuse. The victim told Dr. Price that
Mickey did it. The medical records of Dr. Beth Nauert, a specialist in sexual abuse of children,
reflected the results of her examination of the victim on May 27, 1992. Dr. Nauert's findings
were consistent with the victim's history of prior vaginal and rectal penetration. Dr. Nauert's
records further showed an interview in which the victim told her that "Mickey touched my private
and my butt. Mickey was our friend. He is a big boy. I was getting dressed. He touched me
with his peanut. He pulled my panties off. He had nothing on."
Hanson testified that on the way home from the initial visit with Dr. Price, the
victim told her that "Mickey stuck his peanut in me." Hanson stated that appellant was the only
person living in the home she and several other people occupied who was known by the name
"Mickey." Hanson paid appellant "about $50 or $100 every two weeks" along with the privilege
of staying in the house to baby-sit her three small children.
The victim, age four at the time of trial, testified that Mickey was a mean person
who used to live at her house. Using anatomically correct dolls representing the victim and
Mickey, the victim was asked where Mickey placed the crayon on the girl doll. The trial court
directed that the record reflect that the victim pointed to the vagina and the rectum. In response
to a question as to whether the Mickey doll placed anything else on the girl doll (identified by the
name of the victim), the victim answered "where he goes tee-tee." After the victim had answered
further questions regarding events that had occurred, the trial court ordered that the record reflect
that the child put the Mickey doll's penis on the girl doll's vagina. The victim stated that Mickey
"is here today" and that "He's in that room." The victim's testimony further showed that the
Mickey doll took off his clothes and that the two dolls got in the bathtub together.
Appellant testified that he baby-sat the children and bathed the victim, but he denied
that he ever touched the victim as charged. Appellant points to the considerable difficulty the
prosecutor had in getting the victim to answer his questions; that before the State was able to get
the desired answers to its questions, it resorted to leading the victim into making statements
prejudicial to appellant. Appellant notes that a large number of people lived in the five-room
house, and that the victim admitted under cross-examination that she had told people that "Rick"
did this to me. Appellant testified that a person named Rick had lived in the house until shortly
before his own arrival.
Appellant's attack on the sufficiency of the evidence is directed to the weakness of
the victim's testimony, the difficulty in getting the victim to answer questions, and the victim's
conflicting testimony about the person who had assaulted her. The jury may accept portions of
the testimony of a witness and reject other portions. Losada v. State, 721 S.W.2d 305, 309 (Tex.
Crim. App. 1986). When there are conflicts in the evidence, we must defer to the factfinder's
resolution. See Farris v. State, 819 S.W.2d 490, 495 (Tex. Crim. App. 1990), cert. denied, 112
S. Ct. 1278 (1992). If there is evidence that establishes guilt beyond a reasonable doubt and the
trier of the fact believes that evidence, we are not in a position to reverse the judgment on
sufficiency of the evidence grounds. Cochran v. State, 874 S.W.2d 769, 771 (Tex. App.--Houston
[1st Dist.] 1994, pet. ref'd).
The jury believed the victim when she identified appellant as the person who
exposed himself and the person who "assaulted her." Medical testimony established sexual abuse
of the victim. While there was conflicting evidence as to the identity of the attacker, the jury had
before it the testimony of witnesses who stated that the victim told them that appellant was the one
who violated her person. Viewing the evidence in the light most favorable to the verdict, we hold
that a rational trier of fact could have found that there was sufficient evidence to support the jury's
verdict. The trial court did not err in overruling appellant's motion for instructed verdict.
Appellant's first point of error is overruled.
In Stone v. State, 823 S.W.2d 375 (Tex. App.--Austin 1992, pet. ref'd untimely
filed), this Court set forth the following standard for a factual review of the evidence:
[T]he court views all the evidence without the prism of 'in the light most favorable
to the prosecution.' Because the court is not bound to view the evidence in the
light most favorable to the prosecution, it may consider the testimony of defense
witnesses and the existence of alternative hypothesis. The court should set aside
the verdict only if it is so contrary to the overwhelming weight of the evidence as
to be clearly wrong and unjust.
Id. at 381 (citations omitted).
After considering and weighing all the evidence pursuant to the dictates of Stone,
we hold that the jury's verdict is not so contrary to the overwhelming weight of the evidence as
to be clearly wrong and unjust. Appellant's second point of error is overruled.
In his third point of error, appellant asserts that the trial court abused its discretion
in admitting the testimony of the four-year-old victim. The standard for reviewing competency
is generally a question for the trial court, and its ruling will not be disturbed on appeal absent a
showing of abuse of discretion. Watson v. State, 596 S.W.2d 867, 871 (Tex. Crim. App. 1987).
On appeal, this Court must review the entire testimony of the child witness in addition to the
preliminary competency examination. Clark v. State, 558 S.W.2d 887, 890 (Tex. Crim. App.
1977). The child need not understand the obligation of the oath; the trial court must simply
impress on her the duty of being truthful. Dufrene v. State, 853 S.W.2d 86, 88 (Tex.
App.--Houston [14th Dist.] 1993, pet. ref'd).
Appellant directs our attention to the victim's nonresponsive answers, the inability
of defense counsel to conduct meaningful cross-examination of the victim, and the prosecutor's
need to propound leading questions to the victim during the essential portion of her testimony.
In support of his position, appellant relies on Texas Rule of Criminal Evidence 601, which states:
(a) Every person is competent to be a witness except as otherwise provided in
these rules. The following witnesses shall be incompetent to testify in any
proceeding subject to these rules:
. . .
(2) Children. Children or other persons who, after being examined by the
court, appear not to possess sufficient intellect to relate transactions with respect
to which they are interrogated.
Tex. R. Crim. Evid. 601.
Three elements must be considered in determining whether a witness is competent
to testify: (1) the competence to observe intelligently the events in question at the time of their
occurrence, (2) the capacity to recollect the events, and (3) the capacity to narrate them, which
involves the ability to understand questions asked and to frame intelligent answers and the ability
to understand the moral responsibility to tell the truth. Watson, 596 S.W.2d at 870.
When asked what happens to people when they tell a lie, the victim stated, "Their
mama will spank their butt." In addition, the victim stated it was "bad" to tell a lie. The victim
gave her name, age, the month of her birth, the names of her sisters, and when asked if they were
older or younger, the victim responded, "They are big." The victim identified the portion of the
body where she "tee-teed" and related that Mickey touched her there. Under cross examination,
the victim stated her mother's name, the street where she lived and counted through thirteen.
Appellant correctly points out that many of the victim's answers were not
responsive and that many of her answers were in response to leading questions. The fact that a
child witness made inconsistent statements as to details of the offense or gave much of her
testimony in response to leading questions does not render her testimony incompetent. Clark, 558
S.W.2d at 890. Despite the fact that the victim's testimony contains conflicting and sometimes
confusing answers, our review of her entire testimony shows that she was competent to recollect
and narrate the events in question. See Dufrene, 853 S.W.2d at 89. Appellant's third point of
error is overruled.
In his fourth point of error, appellant asserts the trial court erred in allowing the
State to cross-examine him regarding an extraneous offense. On direct examination, appellant
testified that his prior problems with the law consisted of an arrest for shoplifting in 1988 or 1989
and a charge of criminal mischief in 1989. In response to defense counsel's question as to
whether there was anything else, appellant responded, "No, sir."
Under cross-examination by the prosecutor, appellant testified that the "only times
I was ever questioned by a detective or arrested was those two times that I can remember." The
prosecutor then asked, "Isn't it a crime to touch a girl under age--approximately 8 to 9 with your
hand on her butt--in a sexual way to gratify yourself"? Following appellant's objections that the
prosecutor was going into an extraneous offense and asking a question that called for a legal
opinion, a hearing was held outside the presence of the jury.
In a hearing before the trial court, appellant stated that he was aware that it was
against the law to touch a child on the butt for sexual gratification. Appellant further stated that
he gave Sergeant Linda Bunte of the Williamson County Sheriff's Department a statement in
which he admitted having committed such an act against the victim's sister. Appellant denied that
he had touched the victim's sister in a sexual way; that he gave the statement only after Sergeant
Bunte told him that his conduct constituted an offense despite the fact that he had told her that
there was no malice or sexual gratification in his act. After the trial court overruled appellant's
objections, he testified in the presence of the jury that he gave Sergeant Bunte the following
statement: "I'd like to say that [the victim's sister] is the only child at that house-- that I touched
in a sexual way. The only thing I did to her is brush my hand against her butt." Appellant stated
that he did not understand the statement when he signed it. Sergeant Bunte testified that the words
in the statement were appellant's and that she reduced them to writing. The trial court instructed
the jury that the evidence in question was "admitted only for the purpose of rebutting the
testimony of the [appellant], if it does."
It has been a long-standing rule that the defendant opens the door to arrests that did
not result in convictions when he testifies on direct examination that he has never been in trouble
with the law on occasions other than those about which he offered direct testimony. See Nelson
v. State, 503 S.W.2d 543, 545 (Tex. Crim. App. 1974) ("In that situation, it was legitimate to
prove that the witness had been in trouble on occasions other than those about which he offered
direct testimony."). The rationale for admission of such evidence under cross-examination is to
remove the false impression of the accused's exemplary conduct. See Muse v. State, 815 S.W.2d
769, 774 (Tex. App.--Waco 1991, no pet.). We perceive no reason why admissible impeachment
evidence should be subjected to the two-part test set forth in Montgomery v. State, 810 S.W.2d
372 (Tex. Crim. App. 1990), to determine admissibility to prove an elemental fact or an
evidentiary fact of consequence. We hold that appellant's testimony on direct examination about
the only times that he had problems with the law opened the door for the prosecutor to cross-examine him about his arrest and interrogation on another matter. Appellant's fourth point of
error is overruled.
In his fifth point of error, appellant contends that the trial court erred in refusing
to admit evidence that charges brought against him arising from the extraneous offense had been
dismissed. Initially, appellant was charged in a nine-count indictment. One of the counts appears
to have been for an alleged offense against the victim's sister growing out of the extraneous matter
used for impeachment of appellant. The State's motion to dismiss gave as its reason for dismissal
that the case had been refiled. The subsequent three-count indictment only alleged offenses
against the victim in the instant cause and forms the basis of this prosecution. Appellant urges
that the harm in the trial court's action in refusing to admit the order of dismissal aggravated the
harm resulting to him as a result of the admission of the extraneous offense. The impeachment
testimony showed that appellant had been arrested and questioned relative to another offense. No
evidence was introduced that appellant had been charged with an offense growing out of the
alleged conduct. The trial court limited the jury's consideration of such evidence to the issue of
impeachment. Under these circumstances, we find that the proffered evidence did not come
within the definition of relevant evidence. (1) If it be appellant's position that the dismissal order
constituted evidence of an acquittal of any offense growing out of the extraneous conduct, the
dismissal of an indictment does not prevent a grand jury from returning a subsequent indictment
charging the same transaction. See Ex parte Williams, 379 S.W.2d 911, 912 (Tex. Crim. App.
1964). We hold that the trial court did not err in refusing to admit evidence that charges brought
against appellant arising from the extraneous conduct had been dismissed.
In his sixth point of error, appellant asserts that the trial court erred in denying his
motion for new trial. Appellant urges that evidence presented favorable at the motion for new
trial that was favorable to him that was not discovered until after the trial on its merits. See
Meriwether v. State, 840 S.W.2d 959, 961 (Tex. App.--Beaumont 1992, pet. ref'd). (2)
Appellant's trial attorney testified that he was approached by Tara Simpson, one
of several persons who lived in the house where the alleged offense occurred, at the conclusion
of the sentencing hearing. Trial counsel testified that this was his first contact with Simpson.
Simpson testified that the victim told her that Rick McMinnis was the one who used the crayon
on her. Simpson further related that two weeks prior to the hearing on the motion for new trial,
she saw the victim's eight-year-old sister masturbating with a tube of lipstick while the victim and
another sister were "asleep in the bed with her."
Simpson's testimony about her observations of the older girl's conduct occurred
after the trial on the merits. Thus, this evidence was not in existence at the time of the trial. Nor
does it meet the requirements of relevant evidence. See Tex. R. Crim. Evid. 401. Under cross-examination at the trial on its merits, the victim testified that she told "Judy, my mom, I tell my
Gran-Flossie--I tell Mrs. Germane--I tell you" that "Rick did this." Simpson's testimony
concerning what the victim told her about Rick was before the jury during the course of the trial
in the form of an admission. "If the witness unequivocally admits having made such statement,
extrinsic evidence of same shall not be admitted." Tex. R. Crim. Evid. 612. We hold that the
trial court did not abuse its discretion in overruling appellant's motion for new trial. Appellant's
sixth point of error is overruled.
The judgment is affirmed.
Tom G. Davis, Justice
Before Justices Jones, Kidd and Davis*
Affirmed
Filed: March 15, 1995
Do Not Publish
* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment.
See Tex. Gov't Code Ann. § 74.003(b) (West 1988).
1. Texas Rules of Criminal Evidence 401 provides:
"Relevant evidence" means 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.
2. Rule 30(b)(6) of the Texas Rules of Appellate Procedure, in effect at the time of Meriwether
and the instant cause, provided: "A new trial shall be granted an accused . . . [w]here new
evidence favorable to the accused has been discovered since trial."
After Meriwether, the Legislature withdrew the rulemaking authority granted the Court of
Criminal Appeals under Section 22.108 of the Government Code "relating to granting a new trial
on the grounds of evidence other than material evidence discovered after the trial of an offense."
Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 11.03, 1993 Tex. Gen. Laws 3586, 3765.
Article 40.001 of the Texas Code of Criminal Procedure now provides: "A new trial shall
be granted an accused where material evidence favorable to the accused has been discovered since
trial." Tex. Code Crim. Proc. Ann. art. 40.001 (West Supp. 1995). | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1592519/ | 453 So.2d 482 (1984)
NO-RISK CHEMICAL CO., INC., a Corporation, Appellant,
v.
Lisa EL-KERDI, Appellee.
No. 83-2085.
District Court of Appeal of Florida, Second District.
July 27, 1984.
Howard J. Hochman, Miami, for appellant.
George Vega, Jr. and Harold S. Smith, II of Vega, Brown, Nichols, Stanley & Martin, Naples, for appellee.
RYDER, Chief Judge.
On September 25, 1977, appellee, Lisa El-Kerdi, offered to buy a piece of real property owned by Duke and Grace Durfee. The written offer contained the following clause, which provided, inter alia, "Upon the understanding that all machinery, equipment, and appliances will be in working order at closing, the property covered by the agreement is acceptable to the buyer in its condition as of the date of this offer." Handwritten in the form contract was the following sentence, "Seller to submit termite inspection report." Mr. and Mrs. Durfee accepted the offer on October 12, 1977, the same day on which appellant, No-Risk Chemical Co., Inc. (No-Risk) submitted a termite inspection report stating that a visual inspection of the property evidenced no termite infestation but that the report was based on a visual inspection only and was not to be construed as a guarantee against termites.
At closing, El-Kerdi received a copy of the termite inspection report and became aware that the house had previously been treated for termites when she received a copy of a subterranean termite contract between No-Risk and the Durfees. Approximately two weeks later, El-Kerdi discovered a termite on the property and contacted No-Risk who treated the house free of charge several times over the next four years until El-Kerdi stopped seeing termites.
*483 El-Kerdi sued No-Risk for breach of warranty and negligence in conducting its termite inspection. At trial, No-Risk's inspector testified that he was familiar with the prior termite problems in the house on his October 12, 1977 inspection and searched the structure for signs of active infestation, but found none. Although there was obvious termite damage to the house after closing, no witness testified that the house was infested with termites on October 12, 1977 when No-Risk made its report. Even the HRS entomologist who inspected the house three months after closing was unable to state that a visible infestation was present on October 12, 1977.
We hold, therefore, that the trial court erred in entering a judgment for El-Kerdi because the record lacks competent, substantial evidence to support the judgment. Holland v. Gross, 89 So.2d 255 (Fla. 1956); Richards v. Dodge, 150 So.2d 477 (Fla. 2d DCA 1963). Furthermore, El-Kerdi may not complain about damage from the previous infestation because she purchased the property "as is" and was informed of the previous infestation at closing.
Accordingly, the judgment entered by the trial court is REVERSED and set aside, and the cause REMANDED with instructions that judgment be entered in favor of No-Risk.
DANAHY and CAMPBELL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2455670/ | 255 P.3d 51 (2011)
STATE
v.
SOUKUP.
No. 104864.
Court of Appeals of Kansas.
July 15, 2011.
Decision Without Published Opinion
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591864/ | 19 So. 3d 471 (2009)
STATE of Louisiana
v.
Marquis DALTON.
No. 2009-KO-0150.
Supreme Court of Louisiana.
October 16, 2009.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591853/ | 936 So. 2d 1 (2006)
M.H., a juvenile, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D05-1357.
District Court of Appeal of Florida, Third District.
April 5, 2006.
Opinion Denying Rehearing and Rehearing September 1, 2006.
*2 Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
Charles J. Crist, Jr., Attorney General, and Valentina M. Tejera, Assistant Attorney General, for appellee.
Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
Opinion Denying Rehearing and Rehearing En Banc September 1, 2006.
ROTHENBERG, Judge.
M.H., a juvenile, appeals from the trial court's order finding him guilty, withholding adjudication, and placing him on probation for criminal mischief following an adjudicatory hearing. We affirm.
June Peterson, the owner of the motor scooter in question, testified that after riding her scooter on July 29, 2004, she chained it to a tree outside her home. Officer Johns of the Miami-Dade Police Department testified that on that same evening at approximately 7:25 p.m., while on patrol, he heard a loud muffler and observed the appellant riding the scooter with a passenger seated behind him. The scooter had no license tag. Officer Johns activated his lights and siren and attempted to stop the scooter. While both the appellant and his passenger turned and looked at the officer, the appellant refused to stop and attempted to elude the officer by driving through an opening in a fence too small for the officer's vehicle to drive through. During this maneuver, the appellant hit a parking space bumper and the scooter flipped over, resulting in significant damage to the scooter. The appellant and his passenger who fled on foot, were subsequently apprehended. Ms. Peterson testified that the scooter the appellant was riding belonged to her, and that it was in perfect condition when she chained it to the tree. She stated that when she identified it the next day, it was totaled. The battery had fallen out, the odometer was broken, the ignition was damaged, the wires "were hanging," and it could not be driven.
The appellant was charged with and convicted of criminal mischief in violation of section 806.13(1)(a), Florida Statutes (2004), which provides that:
A person commits the offense of criminal mischief if he or she willfully and maliciously injures or damages by any means any real or personal property belonging to another....
In the appellant's brief, the appellant's attorney argued that criminal mischief is a specific intent crime because the statute requires the State to prove a willful and malicious intent to injure or damage the property. As there was insufficient evidence to support a finding that the appellant specifically intended to damage the scooter, the appellant's attorney argued that the trial court erred in denying the appellant's motion for judgment of acquittal. We disagree. Criminal mischief is not a specific intent crime, it does not require proof of a specific intent to injure or damage the property, and at oral argument the appellant's attorney, to her credit, recognized that criminal mischief is not a specific intent crime and properly conceded that it is not.
The jury instructions specifically provide that:
*3 "Willfully" means intentionally, knowingly, and purposely.
"Maliciously" means wrongfully, intentionally, without legal justification or excuse and with the knowledge that injury or damage will or may be caused to another person or the property of another person.
Fla. Std. Jury Instr. (Crim.) 12.4 (emphasis added).
We begin with the premise that our legislature is fully cognizant of the general intent/specific intent dichotomy, and when it intends to create a specific intent crime, it explicitly does so. For example, burglary is the "[e]ntering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein ...." § 810.02(1)(b), Fla. Stat. (2004)(emphasis added). It is a specific intent crime because it requires that the "entering or remaining in" be with the intent to commit a crime. It is this specific intent which distinguishes burglary from a simple trespass, which requires no such intent. Likewise, the crime of possession of burglary tools is a specific intent crime, as it provides that "[w]hoever has in his or her possession any tool, machine, or implement with intent to use the same, or allow the same to be used, to commit any burglary or trespass shall be guilty of a felony of the third degree...." § 810.06, Fla. Stat. (2004)(emphasis added). What makes possession of burglary tools a specific intent crime is the requirement that the person not simply have these tools in his/her possession, but that he/she actually intends to use them to commit a burglary or trespass. Specific intent is also what separates a first degree premeditated murder from second degree murder. First degree premeditated murder requires a premeditated intent to kill, whereas second degree murder requires an intentional act done from ill will, hatred, spite or an evil intent without a specific intent to kill. § 782.04(2), Fla. Stat. (2004).
Criminal mischief is similar to the general intent crime of second degree murder, in that it requires an act that is willful (intentional) and wrongful (with evil intent and the knowledge that injury or damage will or may be caused). If the legislature had intended to create a specific intent crime, it would have done so by specifying that the crime is committed if the person "willfully and maliciously does an act with the intent to injure or damage by any means any real or personal, property belonging to another...." It, however, did not include any specific intent language.
The District of Columbia Court of Appeals, in Carter v. United States, 531 A.2d 956 (D.C.1987), addressed the accuracy and completeness of a jury instruction for malicious destruction of property, a crime similar to our criminal mischief, and in doing so, specifically found that the malicious destruction of property does not require specific intent.
The case law makes clear, however, that malice is not synonymous with, and does not require, a specific intent to injure or destroy the property.... All that is required is a conscious disregard of a known and substantial risk of the harm which the statute is intended to prevent. [T]he only intent required to be proven is the intent to do the act which results in the injury-in other words, a general intent.
Carter, 531 A.2d at 962.
While malice does not require a specific intent to damage the property, malice cannot be presumed based upon a finding of property damage. Therefore, one must look to the circumstances surrounding the conduct which caused the damage, to determine whether the element of malice was present. J.R.S. v. State, 569 *4 So.2d 1323, 1325 (Fla. 1st DCA 1990). For example, the Fourth District reversed a defendant's conviction for criminal mischief in Gonedes v. State, 574 So. 2d 1198 (Fla. 4th DCA 1991), based upon a finding that the act which caused the damage was an accidental act, rather than one committed wantonly or maliciously. The uncontroverted evidence was that the defendant drove through a set of glass doors and into a church when he accidentally accelerated forward, believing he was in reverse. Since Gonedes did not intend to commit the act (driving forward) which caused the damage, the element of malice was not proven. Gonedes, 574 So.2d at 1199; see also K.G. v. State, 330 So. 2d 519 (Fla. 1st DCA 1976)(reversing conviction for vandalism based upon trial court's finding that the window in question was broken accidentally).
Likewise, the doctrine of transferred intent cannot sustain a conviction for criminal mischief. Thus, "[t]he intent to damage the property of another does not arise by operation of law where the actor's true intention is to cause harm to the person of another.... [T]he criminal mischief statute requires that the offender act against the property of another willfully and with malice . . . ." In re J.G., 655 So. 2d 1284, 1285 (Fla. 4th DCA 1995)(emphasis added); see also Sanchez v. State, 909 So. 2d 981, 985 (Fla. 5th DCA 2005)(finding that where defendant, with ill will and malice toward a store clerk attempted to rob him, and in the process damaged the clerk's telephone, there was insufficient evidence that the ill will or malice was in any way redirected from the clerk to the telephone); Insignares v. State, 847 So. 2d 1063 (Fla. 3d DCA 2003)(reversing conviction for criminal mischief based upon insufficient intent to damage the property of another; holding that "`[t]he intent to damage the property of another does not arise by operation of law where the actor's true intention is to cause harm to the person of another'")(quoting In re J.G., 655 So.2d at 1285).
In the instant case, the appellant's act of driving the scooter through an opening in a fence in order to elude the police was an intentional act, not an accident, as was the case in Gonedes, J.R.S., and K.G. This is also not a case of transferred intent, as in In re J.G., Sanchez, and Insignares. The appellant's actions were willful and intentional, and were directed toward the scooter, not the owner of the scooter or any other person or property. While there is no evidence of a specific intent to injure or destroy the property, no such specific intent is required. Because we find, as did the jury, that there is sufficient record evidence to establish that the appellant willfully (intentionally, knowingly, and purposely), and maliciously (wrongfully, intentionally, without legal justification or excuse) committed an act (drove the scooter through a narrow opening in a fence in an attempt to elude the police), with the knowledge that injury or damage will or may be caused, we conclude that there was sufficient evidence presented to sustain the appellant's conviction for criminal mischief.
Affirmed.
On Motion for Rehearing
ROTHENBERG, Judge.
The appellant, M.H. moves for rehearing pursuant to Rule 9.330, Florida Rules of Appellate Procedure. Although this court denies the motion for rehearing, we write briefly to clarify our ruling. In Insignares v. State, 847 So. 2d 1063 (Fla. 3d DCA 2003) and Valdes v. State, 510 So. 2d 631 (Fla. 3d DCA 1987), this court found that the defendant lacked the requisite intent to support a conviction for criminal mischief because his intent was to cause harm *5 to the person of another. The crime of criminal mischief was never intended to apply where the malice or ill will is directed towards the person. Thus, we held in Insignares and Valdes, because the malice was directed towards the person, rather than the property, the doctrine of transferred intent could not be relied upon to sustain a conviction for criminal mischief. We, therefore, clarify that the holdings in Insignares and Valdes were intended to apply only to those cases in which the prosecution of criminal mischief is dependant upon the doctrine of transferred intent, and where the willful act and malice are directed towards the person, which we concluded cannot sustain a conviction for criminal mischief. To the extent that either Insignares or Valdes may be interpreted to suggest that criminal mischief is a specific intent crime, we emphatically hold that it is not. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591852/ | 470 N.W.2d 253 (1991)
Tamera COOPER, Plaintiff and Appellee,
v.
Donald Jacob MERKEL, Defendant and Appellant.
No. 17205.
Supreme Court of South Dakota.
Considered on Briefs February 15, 1991.
Decided May 15, 1991.
*254 Randy S. Bingner, Clark, for plaintiff and appellee.
Michael B. Thompson of Bartron, Wiles & Rylance, Watertown, for defendant and appellant.
PER CURIAM.
Donald Jacob Merkel (Donald) appeals an order dismissing his motion for visitation rights with the minor child of Tamera Cooper (Tamera). We affirm.
FACTS
Donald and Tamera lived together for seven years, however, Donald is not the legal or biological father of Tamera's son. On September 5, 1989, Tamera filed a pro se petition for protection from domestic abuse against Donald. A hearing was held and, on October 6, 1989, the trial court entered an order restraining Donald from committing any acts of domestic abuse against Tamera and further restraining him from going to Tamera's residence. The order also provided that Donald, "may be allowed to contact the son of [Tamera]... at a reasonable time and in a reasonable manner for the purpose of visitation."
On March 29, 1990, Donald filed a motion for a trial court order granting him a schedule of visitation with Tamera's son. The motion asserted that Donald had assumed part of the responsibility for raising the boy, that Donald was a de facto parent to him and, therefore, that Donald should be granted the opportunity to visit him. On May 16, 1990, the trial court informed Donald's counsel that it wanted the parties to brief the question of whether Donald, not being the boy's biological father, had standing to request visitation. The parties stipulated to a briefing schedule approved by the trial court and subsequently submitted their briefs.
The trial court issued its decision on June 6, 1990, holding at common law a nonparent had no right to visitation with a minor child and in the absence of any statute it lacked authority to order nonparent visitation. The trial court entered its order of dismissal and Donald appeals.
ISSUE
WHETHER THE TRIAL COURT ERRED IN DISMISSING DONALD'S MOTION FOR VISITATION?
A court may, on its own initiative, dismiss a complaint under SDCL 15-6-12(b)(5) for failure to state a claim on which relief can be granted. See, K/O Ranch, Inc. v. Norwest Bank of Black Hills, 748 F.2d 1246 (8th Cir.1984); Martin-Trigona *255 v. Stewart, 691 F.2d 856 (8th Cir.1982). If, on a motion to dismiss for failure to state a claim, matters outside the pleadings are presented to, and not excluded by, the trial court, the motion should be treated as one for summary judgment. Glanzer v. St. Joseph Indian School, 438 N.W.2d 204 (S.D.1989) (citing SDCL 15-6-12(b)). Thus, in Glanzer, supra, where the record indicated that matters outside the pleadings were presented to, and considered by the trial court in dismissing the case, this court reviewed the dismissal under the rules applicable to summary judgment.
Donald contends that factual matters outside the pleadings were submitted to the trial court in Tamera's brief. As a consequence, Donald argues that the trial court erred in not converting the dismissal proceeding to a summary judgment proceeding. He argues this denied him an opportunity to present the trial court with additional matters pertinent to his claim. We disagree.
While extraneous matters were submitted to the trial court in Tamera's brief, the only matters pertinent to the ultimate decision were contained in the pleadings, i.e., that Donald is a nonparent seeking visitation rights with a minor child. This fact is clear from Tamera's original petition for a protection order and is not disputed on appeal. Thus, although extraneous matters may have been submitted, the record is clear that, in contrast with Glanzer, the extraneous matters were not relevant to the trial court's ultimate legal determination that nonparents have no visitation rights with minor children. Thus, the trial court did not err in failing to convert the dismissal proceeding to one for summary judgment. Such a conversion would have served no useful purpose as the key facts relevant to the trial court's decision were contained in the pleadings and were not disputed.
Donald contends that he should have been afforded the opportunity to present facts establishing that he was a de facto parent to Tamera's son or that he stood in loco parentis[1] to the boy. He argues that proof of these facts would have established his claim for visitation rights with the child.[2]
This court has not spoken directly to the issue of the visitation rights of a nonparent. However, "[t]he right of visitation derives from the right of custody and is controlled by the same legal principles." 59 Am.Jur.2d Parent and Child § 36 (1987). This court has spoken to the custodial rights of nonparents.
Before a parent's right to custody over his or her own children will be disturbed in favor of a nonparent a clear showing against the parent of "gross misconduct or unfitness, or of other extraordinary circumstances affecting the welfare of the child" is required, and an award cannot be made to [nonparents] simply because they may be better custodians.
Langerman v. Langerman, 336 N.W.2d 669, 670 (S.D.1983). Accord, Langerman v. Langerman, 321 N.W.2d 532 (S.D.1982). It follows that in order to grant a nonparent visitation rights with a minor child over *256 the wishes of a parent, a clear showing against the parent of gross misconduct, unfitness or other extraordinary circumstances affecting the welfare of the child is required.[3]
A similar test was employed by the District of Columbia Court of Appeals in Jackson v. Fitzgerald, 185 A.2d 724 (D.C.1962). In Jackson, a grandparent sought custody or visitation rights with a four-year-old grandchild against the wishes of the child's father. As in this case, the lower court dismissed the grandparent's complaint for failure to state a claim. The substance of the complaint was that the child and its mother had lived with the grandparent for a period of time, that during that time the grandparent expended considerable money for the support of the child and devoted much care and attention to it and that the child would benefit by the grandparent's companionship. There was, however, no charge in the complaint of parental unfitness or misconduct. In upholding the dismissal, the D.C. Court stated:
In the absence of any charge of unfitness or misconduct, there was plainly no basis for disturbing the father's right to custody. And, logically, the same must be said as to the claim for visitation rights. The right of visitation derives from the right to custody. The court could not award the plaintiff visitation rights without impinging on the father's vested right of custody. And that could not be done on the basis of the barren complaint we have described.
Jackson, 185 A.2d at 725-26. See also, Chodzko v. Chodzko, 66 Ill. 2d 28, 4 Ill. Dec. 313, 360 N.E.2d 60 (1976) (right to determine third parties who have visitation privileges with children should vest with parent who has responsibility of rearing children and normally should not be a judicial concern).
Like the complaint in Jackson, Donald's motion for visitation contained no charge that Tamera was unfit or guilty of misconduct nor was there any allegation of unusual circumstances. The motion merely alleged that Donald helped raise Tamera's son and that having assumed part of that responsibility he should be granted the opportunity to visit the boy. Thus, as in Jackson and under the settled law of Langerman, the trial court appropriately dismissed Donald's motion for failure to state a claim.
Affirmed.
MILLER, C.J., and WUEST, HENDERSON and SABERS, JJ., and HERTZ, Circuit Judge, acting as a Supreme Court Justice, participating.
AMUNDSON, J., not having been a member of the Court at the time this action was submitted did not participate.
NOTES
[1] "A person standing in loco parentis to a child is one who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation, without going through the formalities necessary to a legal adoption, and the rights, duties, and liabilities of such person are the same as those of the lawful parent...." Cornhusker Christian Child. Home v. DSS, 227 Neb. 94, 416 N.W.2d 551, 561 (1987) (quoting Austin v. Austin, 147 Neb. 109, 112-13, 22 N.W.2d 560, 563 (1946)).
[2] Of the numerous in loco parentis cases cited in Donald's brief, the only one specifically addressing the issue of nonparent visitation rights is Gribble v. Gribble, 583 P.2d 64 (Utah 1978). In Gribble, a man married a woman who had a minor child from a previous marriage. When this couple also divorced, the man sought visitation rights with the minor child. Observing that Utah statutes allowing visitation rights to parents, grandparents and other relatives could allow visitation where custodial rights would not exist, the Utah Court found greater flexibility in determining visitation rights than in determining custody. Accordingly, the Utah Court held that if the man could establish in loco parentis status with the child he should have a hearing to determine his visitation rights. South Dakota has not expanded such visitation rights by statute other than to extend such rights to grandparents if in the best interests of the child. SDCL 25-4-52.
[3] We do not reach the issue of whether a similar test would be applicable to a grandparent's claim for visitation rights under SDCL 25-4-52. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591883/ | 936 So. 2d 715 (2006)
SHANDS TEACHING HOSPITAL AND CLINICS, INC. and University of Florida, Board of Trustees, Appellants,
v.
Adel SIDKY, M.D., Jean Foucauld, M.D., Steven Borzak, M.D., Florida Cardiology Group, P.A., Damien Joy, M.D., Western Surgical Specialists, P.A., and Kim Ambry, as Personal Representative of the Estate of Daniel Williams, deceased, Appellees.
No. 4D06-680.
District Court of Appeal of Florida, Fourth District.
August 16, 2006.
Rehearing Denied September 20, 2006.
*716 Warren B. Kwavnick and Ronald L. Harrop of Cooney, Mattson, Lance, Blackburn, Richards & O'Connor, P.A., Fort Lauderdale, for appellants.
Shelley H. Leinicke of Wicker, Smith, O'Hara, McCoy, Graham & Ford, P.A., Fort Lauderdale, for appellees Adel Sidky, M.D. and Jean Foucauld, M.D.
James C. Blecke of Deutsch & Blumberg, P.A., Miami, and Frederick A. Gunion, Jr. of Frederick A. Gunion, Jr., P.A., Miami, for appellee Kim Ambry.
GUNTHER, J.
University of Florida Board of Trustees appeals the denial of its Motion to Dismiss and/or Transfer on the Grounds of Improper Venue. Based on our consideration of the construction of the statutory home venue privilege set forth in Florida Statutes section 768.28(1), we reverse.
Kim Ambry, as the Personal Representative of the Estate of Daniel Williams (her husband), filed suit against Adel Sidky, M.D., Jean Foucauld, M.D., Steven Borzak, M.D., Florida Cardiology Group, P.A., Damien Joy, M.D., Western Surgical Specialists, P.A., Shands Teaching Hospital and Clinics, Inc., and University of Florida Board of Trustees. Ambry asserted that jurisdiction was proper in Palm Beach County "because the Defendants are joint tortfeasors and the interests of `justice, fairness and convenience' are best served by maintaining this action in Palm Beach County" and cited Board of County Commissioners v. Grice, 438 So. 2d 392 (Fla. 1983), and Florida State Lottery v. Woodfin, 871 So. 2d 931 (Fla. 5th DCA 2004), in support of this contention.
*717 Ambry alleged the following facts in the complaint. Sidky was Williams's primary care physician, diagnosed him with severe valvular heart disease in June 2000, continued to treat Williams until November 2000, and never recommended valvular repair.
In July 2003, Williams presented at the Palms West Hospital Emergency Department with gallstones, and Joy planned to perform a cholecystectomy. However, the operation was cancelled because Williams was suffering from unstable angina. Two days later, Foucauld performed a cardiac catheterization and diagnosed Williams with aortic stenosis, aortic insufficiency, and a dilated left ventricle, but did not recommend aortic valve replacement. Borzak, a cardiologist, visited Williams three days later, indicated that Sidky was aware of Williams's aortic stenosis, and did not recommend aortic valve replacement. Later that day, Joy performed a cholecystectomy on Williams and prescribed Cefazolin rather than penicillin, the preferred drug to prevent infection in patients with heart disease.
From August 2003 to September 2003, Sidky resumed treating Williams for recurrent chest pain, shortness of breath, and other symptoms, but did not recommend valve replacement surgery because his aortic stenosis was not severe enough to warrant surgery. Williams also saw other specialists during this time period, all of whom were unable to diagnose the cause of his continued symptoms.
On December 11, 2003, Williams visited Shands due to worsening shortness of breath and difficulty eating. A Shands physician diagnosed Williams with congestive heart failure and admitted him to the hospital. On the morning of December 12, 2003, Williams complained of pain throughout his body and was given medication, but was not seen by a physician. Soon thereafter, Williams was found on the floor, unresponsive and hypoxic, and was unable to be resuscitated. An autopsy concluded that Williams died of aortic valve endocarditis caused by aortic stenosis.
Counts I-VI of Ambry's complaint stated negligence causes of action against Sidky, Foucauld, Borzak, Joy, and two medical groups for their failure to properly diagnose and treat Williams. Count VII alleged vicarious liability by Shands for the failure of seven of its staff physicians to properly diagnose and treat Williams. Count VIII stated a similar cause of action against Shands for the negligence of its other medical staff. Count IX stated another similar cause of action against Shands for the negligence of its residents. Count X claimed vicarious liability by UF for the negligence of the Shands staff physicians based on an affiliation agreement.
UF filed an answer to Ambry's complaint. UF denied that the defendants were joint tortfeasors and that venue was proper in Palm Beach County. UF's Tenth Affirmative Defense alleged that "the proper venue for Plaintiff's action against Defendant, [UF] does not lie in Palm Beach County. Rather, Defendant, [UF] asserts its `home venue' privilege such that venue is only proper in Alachua County, Florida."
UF simultaneously filed a Motion to Dismiss and/or Transfer on the Grounds of Improper Venue. UF asserted the following in the motion:
2. The Defendant, University of Florida, Board of Trustees is an agency or subdivision of the State of Florida. Consequently, it is entitled to assert a "home venue" privilege, that is, the right to be sued in the county where the agency maintains its principal headquarters, Alachua County. See Carlile v. Game & Fresh Water Fish Commission, 354 So. 2d 362 (Fla.1977).
*718 3. Contrary to the allegations of Plaintiff's Complaint, Defendant, [UF] cannot be considered a "joint tortfeasor" with those co-defendants, who reside in Palm Beach County, Florida. Under the provisions of § 766.112(2), Fla. Stat., the doctrine of joint and several liability has been completely abrogated with regard to any claim for damages for personal injury or wrongful death arising out of medical negligence in any case against a Board of Trustees of a State University.
4. Even in the event Defendant, [UF] is considered a "joint tortfeasor" with the remaining defendants, considerations of justice, fairness and convenience, under the circumstances, require transfer of this action to Alachua County, Florida. Plaintiff's claims against the Alachua County Defendants, [UF] and Shands, involve events which are remote in place and time from the acts or omissions which give rise to Plaintiff's claim or cause of action against the Palm Beach County defendants. For example, the alleged negligence of Defendant, [UF] and Shands occurred on December 11 and 12, 2003 in Alachua County. However, Plaintiff's Complaint against the four physicians who reside in Palm Beach County, alleges acts or omissions which occurred between June 29, 2000 and September 30, 2003. See Paragraphs 32 through 39 of Plaintiff's Complaint. Furthermore, Plaintiff's claim against Defendant, [UF] alleges the negligence of seven physicians-employees of [UF]. Furthermore, Plaintiff's claim against Defendant, Shands involves the alleged negligence of a number [of] additional nurses-employees of Defendant, Shands, all of whom reside in Alachua County or its environs. Furthermore, it would entail undue hardship and inconvenience if numerous physicians-employees of [UF] were required to defend this action in Palm Beach County. Plaintiff's claims against Defendant, [UF] and Shands are so intertwined, however, that these claims should be tried together.
UF requested that Ambry's complaint be dismissed for improper venue, that the case be transferred to Alachua County, or that at least the claims against UF and Shands be severed and transferred to Alachua County.
Shands also filed a Motion to Transfer Venue. Shands sought the transfer of venue from Palm Beach County to Alachua County based on Florida Statutes section 47.122, addressing forum non conveniens. Shands requested that the trial court enter an order transferring the case to Alachua County or severing Shands and UF from the case against the Palm Beach County defendants.
Ambry filed a response to Shands and UF's venue motions. Ambry contended that Board of County Commissioners of Madison County v. Grice, 438 So. 2d 392, 394 (Fla.1983), established exceptions to the home venue privilege, including when the action involves joint tortfeasors. Ambry also maintained that the fact that Shands and UF relied on the statutory home venue privilege rather than the common law home venue privilege was a distinction without significance to the applicability of Grice based on Florida State Lottery v. Woodfin, 871 So. 2d 931 (Fla. 5th DCA 2004). Finally, Ambry asserted that severance of the claims against Shands and UF was inappropriate because the effect of the defendants' care is interrelated.
*719 The trial court held a hearing on the venue motions. Counsel for UF and Shands contended that the joint tortfeasor exception did not apply in the case at bar because under Florida Statutes section 766.112, neither can be considered joint tortfeasors. When asked by the trial court, Ambry's counsel stated his belief that Florida Statutes section 768.28 is subject to Grice. Counsel for UF and Shands responded:
Point number two, the Court asked the question does the Grice exception for joint tortfeasors apply to a statutory home venue privilege. Well, the answer has unfortunately been addressed adverse to my position in the [Florida State Lottery v. Woodfin] case. It's a Fifth DCA case, [871 So. 2d 931]. In that case, the Court held under a similar home venue provision for the State Lottery Commission that Grice still applied. I think that case is wrongly decided, but that is the case. There is no other case contradicting that so it's probably binding precedent on this Court.
Following the hearing, the trial court entered an Order on Defendant University of Florida Board of Trustee's Amended Motion to Dismiss and/or Transfer for Improper Venue. The trial court reached the following conclusions:
This is a medical malpractice action filed by the Plaintiff against [UF] as well as a number of other medical providers, all of whom other than [UF] are located in Palm Beach County, Florida. [UF] has moved to transfer venue or to dismiss based upon its claimed "home venue" privilege pursuant to Florida Statutes Section 766.11 and Florida Statutes Section 768.28. As set forth by the Supreme Court in Board of County Commissioners of Madison County v. Grice, 438 So. 2d 392, 394 (Fla.1983), the home venue privilege is not absolute and under certain circumstances the beneficial purposes of this privilege are not furthered. This is specifically true, as in the present case, when there are alleged "joint tortfeasors". While under statute, [UF] may not be "joint and severally liable" with the remaining defendants, the jury in this case will be required to apportion liability between the respective defendants. Therefore, severance of the lawsuits would not be beneficial and would not minimize expenditure of public funds, manpower, etc. Likewise, the majority of witnesses and Defendants are located in Palm Beach County, and the cost associated with transferring all of those Defendants to Alachua County would not promote fairness, convenience and justice.
Therefore, under the discretion afforded the trial court pursuant to Grice, supra, this Court holds that applying the principles set forth in Grice that circumstances of the current case do not promote the public policy behind the "home venue" privilege and the case is better tried in Palm Beach County. Therefore, the Defendant [UF's] Motion to Dismiss and/or to Transfer for Improper Venue is hereby denied.
Before turning to the merits of this appeal, we address two preliminary matters. First, we do not reach the issue of whether the case against Shands should be transferred or severed, because Shands's forum non conveniens motion was not ruled upon by the trial court and Shands presents no appealable order to this Court. Second, we conclude that UF preserved this issue for appellate review by counsel's comments that the Fifth District case of Woodfin had been decided "adverse to [its] position" and that the case was "wrongly decided."
We now turn to the merits of this appeal. "It has long been the established common law of Florida that venue in civil *720 actions brought against the state or one of its agencies or subdivisions, absent waiver or exception, properly lies in the county where the state, agency, or subdivision maintains its principal headquarters." Carlile v. Game & Fresh Water Fish Comm'n, 354 So. 2d 362, 363-364 (Fla. 1977). "Such a rule promotes orderly and uniform handling of state litigation and helps to minimize expenditure of public funds and manpower." Id. at 364.
Following Carlile, in Board of County Commissioners of Madison County v. Grice, 438 So. 2d 392, 395 (Fla.1983), the Florida Supreme Court explored whether there were exceptions to the common law home venue privilege, and wrote:
[T]he objective of minimizing public expenditures in the operation of the courts is not furthered when the home venue privilege results in multiple lawsuits. We therefore hold, as did the district court that home venue privilege for government entities is not absolute.
We hold further that a trial court has discretion to dispense with the home venue privilege when a governmental body is sued as a joint tortfeasor. The exercise of this discretion must be guided by considerations of justice, fairness, and convenience under the circumstances of the case. In its discretion the trial court may retain the entire case, sever and transfer the cause of action against the entity asserting the privilege if it is severable, or transfer the entire case. The home venue privilege, although not absolute, should be given substantial consideration in this process along with the other circumstances presented and the interests of the other parties.
Id. at 395. In reaching this decision, despite not being asked to review any statutory home venue privilege, the court noted that "[t]here is a modern trend ... toward allowing exceptions to such statutory requirements where government bodies are sued as joint tortfeasors." Id. at 394.
Thereafter, in 2002, the Legislature amended a statutory home venue privilege, Florida Statutes section 768.28(1), to address university boards of trustees:
In accordance with s. 13, Art. X of the State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employee's office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act. Any such action may be brought in the county where the property in litigation is located or, if the affected agency or subdivision has an office in such county for the transaction of its customary business, where the cause of action accrued. However, any such action against a state university board of trustees shall be brought in the county in which that university's main campus is located or in the county in which the cause of action accrued if the university maintains therein a substantial presence for the transaction of its customary business.
In this appeal, UF contends that the trial court erred by applying the Grice joint tortfeasor exception to the statutory *721 home venue privilege set forth in section 768.28(1), largely based on the mandatory language of the statute and the fact that no exceptions to the privilege are included in the statutory text. Ambry, Sidky, and Foucauld, the only appellees actively involved in this appeal, maintain that based on Woodfin, the Grice joint tortfeasor exception applies to the statutory home venue privilege set forth in section 768.28(1).
Focusing on whether exceptions to the statutory home venue privilege are provided for in the text of section 768.28(1) does not provide us with any convincing guidance regarding whether the Grice joint tortfeasor exception applies to the privilege. UF contended that because Grice was decided before the university board of trustees amendment to section 768.28(1), the Legislature was aware of the joint tortfeasor exception and could have included it if it was intended to apply, rather than using mandatory language that could be interpreted to foreclose all exceptions to the statutory home venue privilege. On the other hand, the appellees asserted that because the Legislature was aware of the Grice joint tortfeasor exception and other actual and potential exceptions to the common law home venue privilege, it was incumbent on the Legislature to exclude these exceptions in the text of section 768.28(1) if they were not intended to apply. Both the positions of UF and the appellees are viable and the intent of the Legislature is unclear on this basis, so it is apparent that the answer to the statutory conundrum presented by this issue lies elsewhere.
The language of section 768.28(1) includes the following two sentences of importance for resolving the issue presented on appeal:
Any such action may be brought in the county where the property in litigation is located or, if the affected agency or subdivision has an office in such county for the transaction of its customary business, where the cause of action accrued. However, any such action against a state university board of trustees shall be brought in the county in which that university's main campus is located or in the county in which the cause of action accrued if the university maintains therein a substantial presence for the transaction of its customary business.
At first glance, these two sentences seem largely identical in nature in that they both provide for a statutory home venue privilege permitting an action to be brought in the county where the agency has its headquarters or where the cause of action accrued if that county contains an office transacting the customary business of the agency. However, there are two significant differences between the sentences, the distinction between the use of the words "may" and "shall" and the use of the introductory transition "however."
The distinction between "may" and "shall" has often been discussed in Florida cases. "The word `may' when given its ordinary meaning denotes a permissive term rather than the mandatory connotation of the word `shall.'" The Florida Bar v. Trazenfeld, 833 So. 2d 734, 738 (Fla. 2002). Additionally, regarding "shall":
The use of the word "shall" is generally mandatory, although it may be merely directory under appropriate circumstances. See Belcher Oil Co. v. Dade County, 271 So. 2d 118 (Fla.1972). Its interpretation depends upon the context in which it is found and upon the intent of the legislature as expressed in the statute. See S.R. v. State, 346 So. 2d 1018 (Fla.1977). Generally, "shall" is interpreted to be mandatory where it refers to some action preceding the possible deprivation of a substantive right and directory where it relates to some *722 immaterial matter in which compliance is a matter of convenience. See Neal v. Bryant, 149 So. 2d 529 (Fla.1962).
Kinder v. State, 779 So. 2d 512, 514 (Fla. 2d DCA 2000). Additionally, "however" is a transition employed to contrast. See Laurel Currie Oates, et al., The Legal Writing Handbook 613-614 (3d ed.). As such, the use of "however" in section 768.28(1) indicates that the meaning and operation of each of the two sentences is intended to be different.
As such, although the Legislature did not clearly express its intent regarding the application of exceptions, including the Grice joint tortfeasor exception, to the statutory home venue privilege set forth in section 728.28(1), its intent can be gleaned from the construction of the statute. The first sentence employs the permissive word "may" and was drafted before the Grice joint tortfeasor exception was adopted. The second sentence employs the mandatory word "shall" and was drafted after the Grice tortfeasor exception was adopted. The use of the word "however" as a transition between the sentences indicates that the Legislature recognized that the landscape on which the statutory home venue privilege operates changed with the adoption of the Grice joint tortfeasor exception. Although the state agencies addressed in the first sentence using "may" are not always protected by the statutory home venue privilege, such as potentially when an exception, such as the Grice joint tortfeasor exception, applies, the Legislature made certain to close the door to exceptions left open by the combination of "may" and the subsequent development of the Grice exception when university boards of trustees are defendants. In the second sentence, the Legislature indicates that notwithstanding the fact that the state agencies addressed in the first sentence might potentially lose their statutory home venue privilege where an exception applies, that is not to be the case for university boards of trustees, for which the statutory home venue privilege is always to apply without exception. Consequently, we conclude that the Grice joint tortfeasor exception does not apply to section 768.28(1) based upon the context of the sentences and "the intent of the legislature as expressed in the statute." Therefore, venue in the case at bar was proper only in Alachua County, so that UF's venue motion should have been granted.
In reaching this conclusion, we recognize that Woodfin involved a statute that also employed the mandatory language of "shall." However, that statute, Florida Statutes section 24.110, did not involve two sentences providing home venue privileges yet differentiating between them as in the present case. In the present case, section 768.28(1) not only employs the mandatory construction of "shall," but it also indicates that this structure exists notwithstanding the permissive construction of "may" in the preceding sentence, a construction which might permit exceptions to the statutory home venue privilege. In closing the door to exceptions to section 768.28(1) for university boards of trustees, the Legislature not only put a lock on the door ("shall"), but added a deadbolt ("however") to secure the statute against any intruder that might hope to pry open the door just enough to let an exception slide through and upset the statutory home venue privilege.
In sum, we hold that the Grice joint tortfeasor exception does not apply to section 768.28(1) based on the construction of the statute. Consequently, venue in the case at bar for UF is proper only in Alachua County, and UF's venue motion should have been granted. We reverse and remand for further proceedings consistent with this opinion, at which time the *723 trial court should consider whether to transfer the entire action to Alachua County or sever the action into Palm Beach County and Alachua County parts (a matter not considered by this Court). Further, we note that although we are reversing the trial court's denial of UF's venue motion, the trial court was bound to follow Woodfin, because Woodfin was the only case addressing the application of the Grice joint tortfeasor exception to a statutory home venue privilege. See Progressive Express Ins. Co. v. Devitis, 924 So. 2d 878, 880 (Fla. 4th DCA 2006)("[I]n the absence of conflicting decisions, a decision of the district court of appeal is binding in all Florida trial courts.").
Reversed.
HAZOURI and MAY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591890/ | 936 So. 2d 255 (2006)
STATE of Louisiana, Appellee,
v.
Jonathon Lee SMITH, a/k/a Jonathon Louis Smith, Chavis C. Grant and Quincy Hill, Appellants.
No. 40,894-KA.
Court of Appeal of Louisiana, Second Circuit.
July 26, 2006.
*257 Louisiana Appellate Project by Edward K. Bauman, for Appellant, Quincy Hill.
J. Spencer Hays, Bossier City, for Appellant, Jonathon Lee Smith.
Louisiana Appellate Project, by James E. Beal, for Appellant, Chavis C. Grant.
Paul J. Carmouche, District Attorney, Lea Hall, Jr., Brian H. Barber, Ron Christopher Stamps, Assistant District Attorneys, for Appellee.
Before PEATROSS, MOORE & LOLLEY, JJ.
PEATROSS, J.
Three defendants, Jonathon Lee Smith, Chavis C. Grant and Quincy Hill, were tried together and convicted as charged with one count of armed robbery committed with a firearm, violations of La. R.S. 14:64 and La. R.S. 14:64.3. The court sentenced Hill to serve 20 years' imprisonment at hard labor without benefit of probation, parole or suspension of sentence for the armed robbery, and further sentenced him to serve a consecutive sentence *258 of 5 years' imprisonment without benefit of probation, parole or suspension of sentence for the use of a firearm. The court sentenced Grant as a habitual offender, second, to serve the statutory minimum 49½-year sentence of imprisonment at hard labor without benefit of probation, parole or suspension of sentence, and to a consecutive 5-year sentence of imprisonment without benefit of probation, parole or suspension of sentence for the use of a firearm. The court sentenced Smith as a habitual offender, second, to serve 55 years' imprisonment at hard labor without benefit of probation, parole or suspension of sentence, and to a consecutive 5-year sentence of imprisonment without benefit of probation, parole or suspension of sentence for the use of a firearm. All three defendants now appeal. For the reasons stated herein, the convictions of all three defendants are affirmed. Hill's sentence is affirmed. Grant's and Smith's sentences are amended and, as amended, are affirmed.
FACTS
James Robinson is a resident of Shreveport who, in 2003, lived on Myrtle Street in the Lakeside neighborhood. In addition to his disability income, Mr. Robinson earned money mowing lawns. On September 4, 2003, Mr. Robinson had been out shopping. During his shopping trip, Mr. Robinson told an acquaintance at the store that he had a good day at work and had around five hundred dollars on his person. That afternoon, he returned home and, at about 4:45, he was sitting on his car in his driveway having a conversation with an acquaintance he knew as Marcus. Mr. Robinson's next door neighbors, Chameka Black and Breon Kelly, were sitting outside on their porch at this time.
As Mr. Robinson talked to Marcus, two vehicles drove up and stopped in front of Mr. Robinson's home. Ms. Black also saw the cars arrive. Mr. Robinson testified that Grant and Smith got out of the car in front and Hill got out of the following car. Mr. Robinson recognized all of the men and testified that he had been acquainted with these men for over ten years; he said that they all "grew up in the neighborhood together." He further testified that he and Smith had once had a fight, but that had occurred long prior to this incident. Ms. Black did not recognize and could not identify any of the men who got out of the car.
When the men got out of the cars, they all approached Mr. Robinson to make small talk. Mr. Robinson said that he did not see the men with any guns; Ms. Black said that she saw one of the men armed with a handgun and at that point, she and her boyfriend left their porch and went inside. Mr. Robinson testified that, after speaking to him, the men all walked away and gathered in a huddle. Mr. Robinson said that the men then walked back to the cars and retrieved weapons. He described the weapons; Grant had a large chrome revolver, Hill had a rifle Mr. Robinson called a "chopper" (appearing to be either an AK-47 or an SKS), and Smith had a small semi-automatic pistol. Mr. Robinson testified that, when the men approached him, they all pointed the guns at him and began cursing him and that Grant then said, "[p]layboy, let me get that with you." Mr. Robinson then gave the money to Grant and the three men left.
Mr. Robinson called the Shreveport Police Department ("SPD"). Police interviewed Mr. Robinson, who identified the robbers by their names. Police also interviewed a man who identified himself as Marcus George. This man gave his date of birth as June 23, 1982, and told police that he knew all three Defendants. The interview with George was tape recorded; *259 the tape was apparently not provided to Defendants because it contained no exculpatory material. Later, Mr. Robinson and George identified all three Defendants in a photo lineup; George's identification was also tape recorded.
The three Defendants were then arrested, charged and tried for armed robbery with a firearm. Witnesses at the trial included Mr. Robinson, James Cromer (the investigating SPD detective), Ms. Black and Mr. Kelly. The jury heard Mr. Robinson and Ms. Black talk about the robbery; Mr. Kelly denied that he saw anything or that he was even present. The jury also heard that Mr. Robinson had a criminal record; he had convictions for aggravated battery, attempted possession of a firearm by a convicted felon, theft of goods and disturbing the peace. Mr. Robinson's firearm conviction was obtained by a guilty plea in exchange for a "time served" sentence. The plea and sentence agreement occurred during the pendency of this robbery case where Mr. Robinson was the victim; an assistant district attorney testified that the sentence was the result of the weakness of the State's case against Mr. Robinson and not due to Mr. Robinson's testimony against these Defendants.
A subpoena was issued for George to appear at the trial but the subpoena was never served, apparently because George was not at the address he gave police. Consequently, he did not testify and his positive identification of Defendants as the robbers was not put before the jury. The jury voted 11-1 to convict all three men as charged.
All three Defendants filed motions for post-verdict judgment of acquittal and new trial alleging that the prosecution failed to prove their guilt beyond a reasonable doubt, which the trial court denied. All three Defendants also filed amended motions for new trial alleging that newly discovered evidence, namely, the testimony of Marcus George, warranted a new trial.
The trial court held a hearing on the motions for new trial, and a witness named Marcus George was called to testify. This witness, born on October 20, 1983, testified that he did not know the victim, Defendants or anything about this robbery and that he had never spoken to police. The detective who interviewed Marcus George in the course of the robbery investigation also testified; he said that the Marcus George called to testify at the new trial hearing was not the same person he had interviewed during the investigation. The Marcus George who testified at the hearing gave his address as Fulton Street in Shreveport; the original Marcus George had given the police a Fulton Street address, albeit at a different house number. The court allowed into evidence the tapes of the two interviews with Marcus George and the SPD detective.
The court denied the motions for new trial, finding that the testimony of the newly-discovered Marcus George would not have changed the verdict because he was not the same person who was a witness to the crime. Smith alone filed a motion to reconsider sentence, which the trial court denied. Defendants now appeal.
DISCUSSION
Quincy Hill
Assignment of Error 1. Was there sufficient evidence presented to convict Appellant of armed robbery?
Assignment of Error 2. Did the Trial Court err in denying Appellant's Motion for Post-Verdict Judgment of Acquittal and / or Motion for New Trial?
*260 Jonathan Lee Smith
Assignment of Error 3. The State of Louisiana failed to prove the guilt of Appellant, Jonathan Lee Smith, beyond a reasonable doubt.
Assignment of Error 4. The Trial Court committed error when it denied Appellant's Motion for a New Trial which motion alleged the insufficiency of the evidence.
Assignment of Error 5. The Trial Court committed error when it denied Appellant's Motion for Post-Verdict Judgment of Acquittal.
Smith and Hill, but not Grant, challenge the sufficiency of the State's evidence to convict them. When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S. Ct. 970, 67 L. Ed. 2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So. 2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So. 2d 347, writ denied, 97-1203 (La.10/17/97), 701 So. 2d 1333.
The standard of appellate review for a sufficiency of the evidence claim 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 proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Cummings, 95-1377 (La.2/28/96), 668 So. 2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So. 2d 488, writ denied, 02-2634 (La.9/5/03), 852 So. 2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So. 2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So. 2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So. 2d 508, writ denied, 02-3090 (La.11/14/03), 858 So. 2d 422.
In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App.2d Cir.5/8/96), 674 So. 2d 1018, writs denied, 96-1459 (La.11/15/96), 682 So. 2d 760 and 98-0282 (La.6/26/98), 719 So. 2d 1048.
In cases involving a defendant's claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Powell, 27,959 (La.App.2d Cir.4/12/96), 677 So. 2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So. 2d 520. Positive identification by only one witness may be sufficient to support a defendant's conviction. State v. Davis, 27,961 (La.App.2d Cir.4/8/96), 672 So. 2d 428, writ denied, 97-0383 (La.10/31/97), 703 So. 2d 12; State v. Miller, 561 So. 2d 892 (La.App. 2d Cir. 1990), writ denied, 566 So. 2d 983 (La. 1990).
In the instant case, the victim positively identified the three Defendants, both in a *261 pretrial lineup and at trial. The victim was personally acquainted with all three Defendants and their appearance and had ample time to observe the men during the robbery. The victim said that all three men were armed with firearms during the robbery, that Grant forced him to hand over his money and that all three Defendants were acting in concert to commit the crime. This testimony describes all of the elements of the crime of armed robbery committed by all three Defendants and further shows that each Defendant was armed with a firearm. The jury was called upon to evaluate the credibility of the victim and decided to accept his version of events as true. Nothing in the victim's testimony presented an internal inconsistency or an irreconcilable conflict with physical evidence, so the jury's decision to credit his testimony was not manifestly erroneous or clearly wrong.
These assignments of error are without merit.
Chavis Grant
Assignment of Error 2. The Court erred in failing to grant a new trial after it was discovered that the only eyewitness to the alleged crime, besides the victim, was not the person whom the state had tried to subpoena for trial, and could not be located, even though the state referred to said individual as an eye witness in opening argument, unintentionally misleading the jury as to corroboration of the victim's testimony.
Quincy Hill
Assignment of Error 2. Did the Trial Court err in denying Appellant's Motion for Post-Verdict Judgment of Acquittal and / or Motion for New Trial?
Jonathan Lee Smith
Assignment of Error 6. The Trial Court committed error when it denied Appellant's Motion for a New Trial alleging the discovery of new and material evidence.
Each of the Defendants urges that the trial court should have granted his motion for new trial upon the discovery that the person named Marcus George who testified at the hearing on the motion did not witness the crime. One defense theory advanced at the hearing was that there was, in reality, no witness named Marcus George.
La. C. Cr. P. art. 853 provides, in part:
The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
. . .
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty; . . . .
In State v. Talbot, 408 So. 2d 861 (La.1980) (on rehearing), cited with approval in State v. Watts, 00-0602 (La.1/14/03), 835 So. 2d 441, the supreme court stated:
The scope of the trial judge's duty toward the motion for a new trial based upon the new evidence must be kept in mind. It was not for him to determine the guilt of [another alleged suspect] or the innocence of [the defendant]; it was not for him to weigh the new evidence as though he were a jury, determining what is true and what is false. The judge's duty was the very narrow one of *262 ascertaining whether there was new material fit for a new jury's judgment. If so, will honest minds, capable of dealing with evidence, probably reach a different conclusion, because of the new evidence, from that of the first jury? Do the new facts raise debatable issues? Will another jury, conscious of its oath and conscientiously obedient to it, probably reach a verdict contrary to the one that was reached on a record wholly different from the present, in view of evidence recently discovered and not adducible by the defense at the time of the original trial?
Appellate courts should defer to a trial court's reasonable decision in resolving a new trial motion. Talbot, supra. In the instant case, Defendants put forth the testimony of a person bearing the same name as an eyewitness to the crime who identified them as the perpetrators. This new witness was not the witness who saw the crime and identified the perpetrators to police. The fact that this new witness was unfamiliar with the crime or Defendants and could have so testified is irrelevant and could not possibly have affected the verdict. These assignments of error are without merit.
Jonathan Lee Smith
Assignment of Error 1. The State of Louisiana committed reversible error by commenting on a prior judicial determination of the sufficiency of the evidence against the defendants in its opening statement.
During his opening statement, the prosecutor described the process by which Defendants were identified and arrested. He said:
This case happened in the way that I described. Got you've got a robbery. You've got three armed guys getting in cars, and they go away. And, when something like that happens, the police aren't immediately there. They don't have someone to nab, and whoever has done a crime like this has gotten far enough away where you can't easily find them.
What, ordinarily, happens then is you get a warrant. And warrants were gotten in this case for all three defendants, and they were subsequently arrested on different dates.
In order to get a warrant, you have to have what's called probable cause to arrest them. And, in order in order to do that in an investigation, a detective, like the one you will hear from in this case, Detective Cromer, will begin investigating. And he'll try and find out exactly what happened in the crime and exactly who did it. (Emphasis added.)
The prosecutor then went on to describe the photo lineup process and correctly told the jury that Mr. Robinson had identified all three Defendants in a photo lineup.
There is no indication in the record that Smith objected to the emphasized language at trial. La. C. Cr. P. art. 841 provides, in part:
A. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.
This error, if any, was waived by Smith's failure to object to the prosecutor's statement. Further, even if the alleged error was reviewable on appeal, the emphasized language was a correct statement of the law insofar as it reflects the requirement of La. C. Cr. P. art. 202(A)(2) that, in *263 order to issue an arrest warrant, a magistrate find probable cause to believe that an offense was committed and that the person against whom the complaint was made committed it. This assignment of error is without merit.
Jonathan Lee Smith
Assignment of Error 2. The Trial Court committed error by not ordering a mistrial because of direct references by the State to another crime committed or alleged to have been committed by the defendant during questions of a witness during direct examination.
At the commencement of questioning the victim, the prosecutor asked the victim if he had moved from his former address on Myrtle Street. When the victim said that he had moved, the prosecutor and the victim engaged in the following exchange:
Q: Has it been in connection with this incident that you're here to testify about today?
A: Yes. Yes.
Q: Are you scared to be here?
A: Yes.
Q: Okay. Why are you scared?
A: Because they kept intimidating my family and me.
At that point, Grant's attorney asked for a bench conference, which was had, but not recorded. No objection to the question or the answer was put forth on the record. Thereafter, the prosecutor did not ask any other questions about whether Mr. Robinson was afraid to testify.
On appeal, Smith urges that the prosecutor's question was a direct reference to other crimes allegedly committed by Defendant, specifically that of intimidating witnesses, a violation of La. R.S. 14:129.1.
La. C. Cr. P. art. 770 provides, in pertinent part:
Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
. . .
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.
The failure to object to such a reference constitutes a waiver of the issue. See, e.g., State v. Owens, 32,640 (La.App.2d Cir.10/27/99), 763 So. 2d 628, writ denied, 00-0010 (La.6/16/00), 764 So. 2d 963; comment (b) to La. C. Cr. P. art. 770.
Further, the prosecutor's question did not directly refer to any other crime allegedly committed by Defendant. The comment regarding intimidation was made by the witness, not by the prosecutor. Further, the question was not inevitably calculated to lead to the witness' response; the witness said "they kept intimidating" him, but could have simply said that he was afraid of the potential for retaliation.
Since the comment was made by the witness, not the prosecutor, La. C. Cr. P. art. 771 applies; that rule provides:
In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
*264 (2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.
Since the bench conference was unrecorded, there is no evidence that any party asked for an admonishment or a mistrial; and, as noted, there is no formal objection on the record, only a request for a bench conference that was not made by Smith's attorney. In the absence of an objection or even an on-the-record request for an admonition, this assignment of error is not properly preserved for review and is without merit.
Quincy Hill
Pro-se Assignment of Error 3. Trial court erred when allowing evidence (tape) to be used in / at trial and not induced into record as evidence, nor was it disclosed to defendant or defendant(s) attorney.
Pro-se Assignment of Error 4. Trial court under authority of sole discretion erred in not ruling / declaring mistrial due to perjury and tainted testimony and useage (sic) of (tape) recording.
In two pro-se assignments of error, Hill complains that his conviction cannot stand because the State did not produce the tape of Marcus George's statement to his attorney.
La. C. Cr. P. Art. 716 provides:
A. Upon motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph or otherwise reproduce any relevant written or recorded confession or statement of any nature, including recorded testimony before a grand jury, or copy thereof, of the defendant in the possession, custody, control, or knowledge of the district attorney.
B. Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the existence, but not the contents, of any oral confession or statement of any nature, made by the defendant, which the district attorney intends to offer in evidence at the trial, with the information as to when, where and to whom such oral confession or statement was made.
C. Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the substance of any oral statement which the state intends to offer in evidence made by the defendant, whether before or after arrest, in response to interrogation by any person then known to the defendant to be a law enforcement officer.
La. C. Cr. P. art. 718 provides:
Subject to the limitation of Article 723, on motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect, copy, examine, test scientifically, photograph, or otherwise reproduce books, papers, documents, photographs, tangible objects, buildings, places, or copies or portions thereof, which are within the possession, custody, or control of the state, and which:
(1) are favorable to the defendant and which are material and relevant to the issue of guilt or punishment, or
(2) are intended for use by the state as evidence at the trial, or
(3) were obtained from or belong to the defendant.
The court may determine whether evidence is subject to the provisions of *265 Paragraph (1) hereof by in camera inspection.
La. C. Cr. P. art. 723 provides:
Except as provided in Articles 716, 718, 721, and 722, this Chapter does not authorize the discovery or inspection of reports, memoranda or other internal state documents made by the district attorney or by agents of the state in connection with the investigation or prosecution of the case; or of statements made by witnesses or prospective witnesses, other than the defendant, to the district attorney, or to agents of the state.
The taped interviews with George were not used as evidence at trial; so, under these facts, they were not discoverable unless they contained exculpatory evidence.
In State v. Tate, 38,576 (La.App.2d Cir.8/18/04), 880 So. 2d 255, writ denied, 04-2554 (La.1/14/05), 889 So. 2d 268, this court explained the need for the production of exculpatory evidence during discovery:
The purpose of pretrial discovery procedures is to eliminate unwarranted prejudice to a defendant that could arise from surprise testimony. State v. Mitchell, 412 So. 2d 1042, 1044 (La.1982). Discovery procedures enable a defendant to properly assess the strength of the state's case against him in order to prepare his defense. State v. Roy, 496 So. 2d 583 (La.App. 1st Cir.1986), writ denied, 501 So. 2d 228 (La.1987). If a defendant is lulled into a misapprehension of the strength of the state's case by the failure to fully disclose, such a prejudice may constitute reversible error. State v. Ray, 423 So. 2d 1116, 1118 (La.1982).
Under the United States Supreme Court decision in Brady [v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)], the state, upon request, must produce evidence that is favorable to the accused where it is material to guilt or punishment. This rule has been expanded to include evidence that impeaches the testimony of a witness where the reliability or credibility of that witness may be determinative of guilt or innocence. Giglio v. U.S., 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972). Where a specific request is made for such information and the subject matter of such a request is material, or if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the information to the trial judge for an in camera inspection. See U.S. v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976); State v. Cobb, 419 So. 2d 1237 (La.1982).
The test for determining materiality was firmly established in U.S. v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985), and has been applied by the Louisiana Supreme Court. See State v. Rosiere, 488 So. 2d 965 (La.1986). The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383.
Two tapes of interviews between Detective Cromer and witness Marcus George were introduced into evidence at the hearing on the motion for new trial. The first interview was done on September 4, 2003. Among other things, George said that he arrived almost simultaneously with the robbers, that he knew all of the robbers from growing up in the neighborhood and that Hill had the AK-47 during the robbery. *266 His story differed from the victim's primarily in that he said the robbers all had their guns out when he (George) arrived on the scene. There is nothing exculpatory in his statement for any of the Defendants. The second interview was done on September 5, 2003, where the detective showed George the photo lineups, including Defendants. George identified all three Defendants in the three lineups; again, there was nothing exculpatory for any Defendant in this interview. Accordingly, there was no Brady violation and no violation of proper discovery procedures, so these assignments of error are without merit.
Chavis Grant
Assignment of Error 1. A forty-nine and one-half year sentence for armed robbery with a firearm, plus a five year consecutive sentence, pursuant to the statute, is excessive for this offender in this case.
Grant received the mandatory minimum sentence of 49½ years as a habitual offender, second, for armed robbery, and additionally was sentenced to serve an additional 5 years for the use of a firearm in the crime. He verbally objected to the sentence at the sentencing hearing, but did not file a motion to reconsider sentence or any pleading to invoke the rule of State v. Dorthey, 623 So. 2d 1276 (La.1993). He now complains that his sentence is constitutionally excessive. See La. C. Cr. P. art. 881.1. He also complains that the trial court erred by imposing his entire sentence without the benefit of parole. La. R.S. 15:529.1(G).
Since the habitual offender law is constitutional in its entirety, the minimum sentences it imposes upon recidivists are also presumed to be constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So. 2d 672; State v. Gay, 34,371 (La.App.2d Cir.4/4/01), 784 So. 2d 714. The burden is on the defendant to rebut the presumption that a mandatory minimum sentence is constitutional. To do so, the defendant must "clearly and convincingly show that he is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case." Johnson, supra, at 676; State v. Wade, 36,295 (La.App.2d Cir.10/23/02), 832 So. 2d 977, writ denied, 02-2875 (La.4/4/03), 840 So. 2d 1213.
At sentencing, the court observed that Grant's prior felony conviction was for possession of cocaine and that Grant had numerous misdemeanor convictions. The judge also noted that Grant had "a sporadic work history" even though he was 29 years old. The judge further stated that Grant was the offender who actually took the money from the victim. As in State v. Mason, 39,936 (La.App.2d Cir.8/17/05), 908 So. 2d 1250, nothing in Grant's history indicates that he is the exceptional defendant for whom the imposition of the mandatory is constitutionally excessive. Further, because the underlying offense here was armed robbery and, since the punishment for that crime includes a prohibition against parole, the trial court did not err in imposing the habitual offender sentence without the benefit of parole. State v. Carroll, 41,001 (La.App.2d Cir.4/12/06), 926 So. 2d 827. The minimum sentence imposed upon Grant should be affirmed.
As error patent, however, this court's decision in State v. White, 39,634 (La. App.2d Cir.6/16/05), 907 So. 2d 180, writ denied, 05-2097 (La.3/10/96), 925 So.2d *267 510,[1] requires the court to delete the additional 5-year sentence enhancement imposed by the trial court under the authority of La. R.S. 14:64.3. In White, this court stated, "[t]he applicable sentence under the habitual offender law effectively replaces the sentence for the underlying crime under La. R.S. 14:64 and 14:64.3." Thus, the additional 5-year term is deleted from Grant's sentence.
Jonathan Lee Smith
Assignment of Error 7. The Trial Court committed error when it imposed an excessive sentence, which sentence constitutes cruel and unusual punishment in violation of the Constitutions of the United States of America and the State of Louisiana.
The court sentenced Smith to serve a 55-year sentence as a habitual offender, second, and an additional 5-year term for the firearms enhancement. Like the similar term in Grant's sentence, the firearms enhancement term is hereby deleted from Smith's sentence.
As to the 55-year term, the test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So. 2d 688 (La.1983); State v. Dunn, 30,767 (La. App.2d Cir.6/24/98), 715 So. 2d 641. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So. 2d 475 (La.1982). The important elements which should be considered are a defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So. 2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So. 2d 864.
Second, a sentence violates La. Const. art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, supra; State v. Bonanno, 384 So. 2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So. 2d 288 (La.1985); State v. Bradford, supra. A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So. 2d 1158.
In sentencing Smith, the trial court observed that Smith was actually a third-felony offender, not a second-felony offender, because he had prior convictions for possession of cocaine in 1998 and for attempted distribution of cocaine in 2002. The trial court also noted that Smith quit school in the 11th grade, had worked at "some fast food restaurants, lawn care" and claims to have obtained a GED in 1997. The trial court further noted that Smith had admitted to using marijuana *268 since the age of 18 and had admitted to his probation officer that he sold cocaine. Smith is unmarried and had two children, ages 4 and 1 at the time of sentencing. The judge also stated, among other things, that Smith had a weapon and marijuana in his car when he was arrested for this offense. Primarily because of Defendant's history of criminal activity, which included a felony drug conviction that was not included in the habitual offender bill, this is an adequate factual basis for the imposition of the 55-year sentence, only slightly higher than the minimum allowed by law. Apart from the error patent modification deleting the consecutive 5-year sentence mentioned above, this assignment of error is without merit.
CONCLUSION
For the foregoing reasons, the convictions of Defendants Jonathon Lee Smith, Chavis C. Grant and Quincy Hill are affirmed. The sentence of Quincy Hill is affirmed. The sentences of Jonathon Lee Smith and Chavis C. Grant are amended to delete the consecutive 5-year sentence for the use of a firearm and, as amended, are affirmed.
CONVICTIONS AFFIRMED; SENTENCE OF QUINCY HILL AFFIRMED; SENTENCES OF JONATHON LEE SMITH AND CHAVIS C. GRANT AMENDED AND, AS AMENDED, AFFIRMED.
NOTES
[1] The first circuit has recently disagreed with White in State v. Bonit, 05-0795 (La.App. 1st Cir.2/10/06), 928 So. 2d 633. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591911/ | 470 N.W.2d 719 (1991)
Janet L. ANDERSON and County of Beltrami, Appellants,
v.
Donald E. ANDERSON, Respondent.
No. C7-91-69.
Court of Appeals of Minnesota.
June 4, 1991.
*720 Timothy L. Tingelstad, Beltrami County Atty., Bemidji, for appellants.
Steven A. Nelson, Steven A. Nelson, Ltd., International Falls, for respondent.
Considered and decided by FORSBERG, P.J., and CRIPPEN and KLAPHAKE, JJ.
OPINION
FORSBERG, Judge.
Appellant Beltrami County brought this action to obtain reimbursement and ongoing support for assistance furnished for the support of respondent Donald E. Anderson's child. The matter was heard by an administrative law judge (ALJ) under the procedure established by Minn.Stat. § 518.551, subd. 10 (1990). The county argues the ALJ erred in ruling that the reservation of child support in the dissolution decree precluded reimbursement for past assistance furnished under Minn.Stat. § 256.87, subd. 1 (1990). We reverse and remand.
FACTS
A decree dissolving the marriage of respondent and Janet L. Anderson was entered on September 17, 1986. Respondent was awarded physical custody of the parties' two older children, and Janet Anderson was awarded physical custody of the youngest child. The trial court found that both parties were unemployed and receiving AFDC. The court reserved child support "until such time as the parties become employed and/or receiving other sources of income."
In March 1988, respondent obtained fulltime employment. Janet Anderson continued to receive an AFDC grant in the amount of $437 per month. No party moved to set a child support obligation for respondent until the county commenced this action under section 256.87 in April 1990.
*721 The ALJ ordered respondent to pay on-going support of $270 per month and to reimburse the county in the amount of $1,080 for assistance provided since May 1, 1990. The county moved for amended findings or a new trial, arguing it was entitled to reimbursement for assistance furnished during the two years immediately preceding this action. The ALJ denied the motion, concluding that section 256.87, subd. 1, limited AFDC reimbursement to child support payments accrued under the dissolution decree. The ALJ reasoned that because the decree reserved child support, there could be no arrearages and no right to reimbursement.
ISSUE
Did the ALJ err in refusing to order AFDC reimbursement for the two-year period prior to the commencement of the county's action because the dissolution decree reserved child support?
ANALYSIS
It is within the trial court's discretion to determine whether reimbursement should be ordered under section 256.87 and what amount should be reimbursed. State, ex rel. Region VIII North Welfare v. Evans, 402 N.W.2d 158, 161 (Minn.App.1987). The outcome in this case, however, results from the ALJ's interpretation of section 256.87, subd. 1. Statutory construction is a question of law and is subject to de novo review on appeal. Doe v. Minnesota State Bd. of Medical Examiners, 435 N.W.2d 45, 48 (Minn.1989).
The parent has the primary responsibility to support the child, and the county should only be expected to contribute to the extent that the parent is unable. Nicollet County v. Larson, 421 N.W.2d 717, 720 (Minn.1988). This policy is served by the statutory mechanism allowing the county to recover past public assistance provided to the child or the child's caretaker from the noncustodial parent.
A parent of a child is liable for the amount of assistance furnished under sections 256.72 to 256.87 to and for the benefit of the child, including any assistance furnished for the benefit of the caretaker of the child, which the parent has had the ability to pay. Ability to pay must be determined according to chapter 518. The parent's liability is limited to the amount of the assistance furnished during the two years immediately preceding the commencement of the action, except that where child support has been previously ordered, the state or county agency providing the assistance, as assignee of the obligee, shall be entitled to judgments for child support payments accruing within ten years preceding the date of the commencement of the action up to the full amount of assistance furnished.
Minn.Stat. § 256.87, subd. 1 (1990) (emphasis added).
The ALJ determined that reimbursement for assistance furnished during the two years prior to commencement of the action was not available to the county because the reservation of support in the original dissolution decree was an "order" for support. We disagree. The express reservation of a child support obligation does not constitute a determination of child support. Bennyhoff v. Bennyhoff, 406 N.W.2d 92, 94 (Minn.App.1987). Accordingly, where support is reserved in the original decree, the subsequent establishment of a support obligation is treated as an initial matter rather than a modification of a prior support order. Bennyhoff, 406 N.W.2d at 94.
The letter of the law shall not be disregarded when the words of the law and their application to an existing situation are clear and free from all ambiguity. Minn. Stat. § 645.16 (1990). Under the clear language of section 256.87, subd. 1, the exception to the parent's liability for actual assistance furnished in the two years prior to the action does not apply here because child support was reserved, not "previously ordered."
DECISION
The ALJ erred in concluding that the county was precluded from obtaining reimbursement *722 for assistance furnished during the two years immediately preceding the reimbursement action because of the terms of a prior dissolution decree. Respondent is liable for assistance furnished during that period according to his ability to pay. We reverse and remand for reconsideration of the county's action for reimbursement under section 256.87, subd. 1.
Reversed and remanded.
CRIPPEN, Judge (concurring specially).
In my opinion, the majority misconstrues statutory law and is apt to produce confusion and future litigation.
1. Under the assistance reimbursement statute, liability of a parent "is limited to the amount of assistance furnished during the two years immediately preceding the commencement of the action." Minn.Stat. § 256.87, subd. 1 (1990). Under this provision, the reimbursement right is limited only by "the amount of assistance furnished" for the preceding two year period. Id. There is no other exception in the statute that limits the amount of recovery during the stated two year period. The subsequent clause contains an exception;[1] however, this language does not limit but enlarges the potential reimbursement by permitting recovery for an additional period of eight years in cases where the agency seeks to collect arrearages under a prior support award. Id.
The administrative law judge did not pretend to deal here with a supposed exception regarding previously ordered support. The majority opinion invites an issue of the kind premised on construction of language in a prior decree, but no such issue can exist under the present statute. Regardless of the prior decree, the statute permits reimbursement for support during the prior two years, limited only by the amount of assistance furnished and the obligor's ability to pay.
2. As indicated, the error of the trial court does not involve confusing the two year recovery provision and the ten year clause on previously ordered support. Rather, the trial judge misconstrued the statute in another way. The judge concluded that all reimbursement proceedings, including those for assistance paid during the preceding two years, constitute a collection of arrearages. To the contrary, reimbursement during the two year period is entirely independent of dissolution decree obligations, paid or unpaid. Under the statute, reimbursement is absolutely permissible for the preceding two year period, limited only by the actual amount of assistance furnished and the obligor's ability to pay.
The administrative judge understandably attempted to conform his decision to the ruling of this court in County of Crow Wing v. Thoe, 451 N.W.2d 357 (Minn.App. 1990), pet. for rev. denied (Minn. Apr. 20, 1990). In Thoe, the trial court permitted a reimbursement for the preceding three months, but limited the amount of reimbursement to the sum stated in a preexisting dissolution divorce decree. Id. at 358-59. In my opinion, the trial court erred in Thoe and we should not have affirmed the decision. Our opinion in Thoe misconstrues the two year reimbursement right by studying at some length the expanded right to collect arrearages for an additional period of years. Id. at 359-60. Clearly, the expanded right concerns actual accruals under an existing dissolution decree. The expanded reimbursement period, however, has nothing to do with the reimbursement right for the preceding two years. To repeat, reimbursement for assistance furnished during the preceding two years is limited only by the amount of assistance furnished.
The Thoe holding, as well as the administrative judge's holding here, invites some further discussion. Is there any rationale for the notion that the preexisting dissolution decree affects recovery under the statute *723 for assistance furnished during the preceding two years?
Historically, it is true that the county collects reimbursement as an assignee of the accrued arrearages. See Minn.Stat. § 256.74, subd. 5 (1990). Nevertheless, the legislature has expanded the county's rights under section 256.87, subd. 1. For the two years preceding an action, the county has a reimbursement right which is premised on the ability to contribute, not on a prior decree. The legislative decision conforms with an overriding public policy that "the primary obligation of support of a child should fall on the parent and the County should only be expected to contribute to the extent that the parent is unable." County of Nicollet v. Larson, 421 N.W.2d 717, 720 (Minn.1988) (quoting County of Anoka v. Richards, 345 N.W.2d 263, 267 (Minn.App.1984)).
Under section 256.87, subd. 1, prior ability to pay "must be determined according to chapter 518." Does a prior decree constitute such a determination? This question must be answered in the negative. The decree shows the obligor's ability to pay at the time the decree was issued. It does not demonstrate a chapter 518 determination on the obligor's ability to pay during the two years preceding a reimbursement action of the county.
As noted in Thoe, there may be public policy that "[a] parent should be able to place reasonable reliance on a prior child support award." Thoe, 451 N.W.2d at 360. Notwithstanding this policy, the legislature, pursuing another policy, has declared an independent reimbursement right for the two years preceding a county action under section 256.87.
In addition, it should be noted that the trial court's application of Thoe is inappropriate on the facts of the immediate case. In Thoe, the reimbursement proceedings occurred after a decree specifically determining a child support obligation. Thoe, 451 N.W.2d at 358. Here there was no such prior determination as a matter of fact. Neither party was employed at the time of the divorce decree, and the trial court at that time concluded that the child support issue should be "reserved by the Court until such time as the parties become employed and/or receiving [sic] other sources of income." Such a reservation does not constitute a child support decision. Bennyhoff v. Bennyhoff, 406 N.W.2d 92, 94 (Minn.App.1987) (support award following reservation of the issue treated as "initial" support decision). Under Thoe, no matter what may be the effect of a prior decree, the court stated that those situations must be distinguished from cases where the court is "initially setting support." Thoe, 451 N.W.2d at 360.
Finally, the administrative judge reasoned that the county in seeking reimbursement "according to chapter 518" had to utilize a dissolution case petition to set or modify a support award if it wished to recover more than permitted by the last prior support decision of the dissolution court. This reasoning misconstrues the reference to chapter 518, which does not concern process under the chapter, but rather substantive measurement of the reimbursement amount according to the standards of Minn.Stat. § 518.551 (1990); section 256.87, subd. 1, states that it is the "ability to pay" which is to be determined "according to chapter 518."
NOTES
[1] The "except" clause is worded as follows:
[E]xcept that where child support has been previously ordered, the state or county agency providing the assistance, as assignee of the obligee, shall be entitled to judgments for child support payments accruing within ten years preceding the date of the commencement of the action up to the full amount of assistance furnished.
Minn.Stat. § 256.87, subd. 1 (1990). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591935/ | 936 So. 2d 43 (2006)
James D. STERLING and Carolyn, Sterling, as Parents and Natural Guardians of James D. Sterling, Jr., a minor; and James D. Sterling and Carolyn Sterling, individually, Appellants,
v.
The OHIO CASUALTY INSURANCE COMPANY, Appellee.
No. 2D05-1875.
District Court of Appeal of Florida, Second District.
July 21, 2006.
Rehearing Denied August 25, 2006.
George A. Vaka of Vaka, Larson & Johnson, P.L., Tampa, for Appellant.
*44 Wayne Tosko of Vasquez & Tosko, LLP, Orlando, for Appellee.
WALLACE, Judge.
James D. Sterling and Carolyn Sterling appeal a final summary judgment in favor of The Ohio Casualty Insurance Company. The trial court declared that the underinsured motorist coverage provided by Ohio Casualty on a business automobile insurance policy issued to "James D. Sterling, d/b/a J.D.'s Backhoe Service" did not provide coverage for the Sterlings' minor son when, as a pedestrian, he was struck by an underinsured motorist. We affirm. A business automobile insurance policy issued in Florida insuring exclusively business or commercial vehicles is not statutorily compelled to utilize a definition of "insured" that would provide uninsured or underinsured motorist coverage to a family member of the owner of the insured commercial vehicle when the family member is struck as a pedestrian. Ohio Casualty's policy did not voluntarily provide coverage for this claim. If the Sterlings desired to have higher limits of uninsured motorist coverage, they were free to purchase that coverage on their family automobiles.
On December 14, 2002, the Sterlings' minor son was walking near the intersection of Bell Tower Road and State Road 674 in Hillsborough County when he was struck by a vehicle driven by Crystal Freitas. Freitas had liability insurance on her vehicle, but it was insufficient to cover the damages sustained by the Sterlings' son.
At the time of the accident, the Sterlings had two insurance policies that had been obtained from an independent insurance agent. Southern-Owners Insurance Company, a member of the Auto-Owners Insurance Group, had issued a policy to "James D. & Carolyn Sterling" that provided coverage on two family automobiles, one driven for pleasure and the other driven to work or school. The policy provided uninsured motorist coverage in the amount of $50,000 per person on each of the two vehicles. This coverage stacked to provide $100,000 in total underinsured motorist coverage for this claim. The Sterlings paid a premium for this coverage of approximately $150 for a six-month term. The Sterlings settled their claim with Auto-Owners during the pendency of the proceedings in the trial court. There is no dispute that this policy, providing family automobile insurance coverage, was required to insure family members for such claims.
Mr. Sterling had obtained a second insurance policy, issued by Ohio Casualty, on a Ford F450 flatbed truck and a "gooseneck" trailer. This policy was issued with a declarations page entitled "Business Automobile Policy Declarations," and the coverage was provided using a standard "Business Auto Coverage Form" that is copyrighted by the Insurance Services Office and identified as form CA 00 01 07 97. The named insured on this policy is "James D. Sterling, d/b/a J.D.'s Backhoe Service." This policy provides $300,000 in uninsured motorist coverage on the truck at an annual cost of $106. It did not provide or charge for uninsured motorist coverage on the trailer.[1] The description of "covered autos" for this policy included only those autos described on the declarations page.
The liability coverage in the Ohio Casualty policy covered Mr. Sterling as the named insured, anyone driving the scheduled vehicles with his permission, employees under certain circumstances, and a few *45 other narrow categories of people. Unlike a family automobile insurance policy, this business policy did not provide liability coverage for the family members of the named insured.
The uninsured and underinsured motorist coverage was provided on a form identified as form CA 86 14 02 01, entitled "Florida Uninsured Motorists Coverage Non-Stacked." This form indicates that it is to be used with a business auto coverage form. In this form, Ohio Casualty agrees to "pay all sums the `insured' is legally entitled to recover . . . from the owner or driver of an `uninsured motor vehicle.'" The definition of "insured" for purposes of this uninsured motorist coverage included anyone occupying a covered auto or occupying a temporary substitute for such an auto. It also covered anyone entitled to recover damages because of bodily injury sustained by an insured occupying such an auto. The policy does not expressly cover the family members of the named insured.
The policy was also issued with a form identified as form NP 71 13 05 01 and entitled "An Important Notice to Our Commercial Automobile Policyholders Regarding Changes to Your Uninsured Motorist Coverage." This notice states:
The intent of Uninsured and/or Underinsured Motorist Coverage on a Commercial Automobile Policy is to cover you or your employees while operating or occupying an owned automobile described on the policy. Court decisions in other jurisdictions have expanded the scope of the Uninsured/Underinsured Motorist Coverage beyond this intent. The Courts have ruled that the language in the Commercial Automobile Uninsured/Underinsured Motorist Covered endorsement was confusing. As a result of the confusing language, the Courts went on to say that employees of a business were entitled to the Uninsured/Underinsured Motorist Coverage of the employer's Commercial Automobile policy while operating a non-business owned automobile for non-business purposes.
This broadening of coverage, unless corrected, will result in higher insurance premiums and increased legal fees for you and your business.
We want to help you protect what's yours, so in response to these decisions, we have corrected the confusing language and returned the scope of Uninsured/Underinsured Motorist Coverage to its original intent. The Uninsured/Underinsured Motorist endorsement attached will only provide Uninsured/Underinsured Motorist Coverage to you or your employees while operating or occupying an owned auto described on the policy.
If you feel there is a need to extend any of the coverages of your Commercial Auto Policy to you or your employees for the use of any other automobile not described on the policy, we suggest you consult with your agent for assistance and guidance.
The Sterlings made a claim for underinsured motorist benefits under both the Auto-Owners and the Ohio Casualty insurance policies. When Ohio Casualty declined to provide uninsured motorist coverage for the Sterlings' claim, they filed an action for declaratory relief. The action also sought coverage from Auto-Owners. Both insurance policies were properly attached to the complaint. As explained earlier, the action against Auto-Owners settled. Thereafter, both the Sterlings and Ohio Casualty filed motions for summary judgment that are essentially motions for judgment on the pleadings because neither party relies on facts or matters beyond the content of the complaint and the insurance policies attached to the complaint. The *46 trial court ruled in favor of Ohio Casualty, and the Sterlings appeal that judgment.
On appeal, the Sterlings do not claim that the language of the business automobile policy is ambiguous. They recognize that Ohio Casualty wrote the policy to exclude coverage for the claim of the Sterlings' son as a pedestrian. They argue that Florida law and the public policies surrounding that law prohibit Ohio Casualty from issuing such a policy and that the policy must be construed to provide coverage to the Sterlings' son as a "Class I" insured. We disagree.
Section 627.727(1), Florida Statutes (2002), states, in relevant part:
No motor vehicle liability insurance policy which provides bodily injury liability coverage shall be delivered or issued for delivery in this state with respect to any specifically insured or identified motor vehicle registered or principally garaged in this state unless uninsured motor vehicle coverage is provided therein or supplemental thereto for the protection of persons insured thereunder . . . .
This statute has never mandated that specific persons be included in the policy's definition of "persons insured thereunder." No other statute requires a special definition of insured either for liability or uninsured motorist coverage. We note that the Florida Motor Vehicle No-Fault Law expressly requires PIP coverage on a motor vehicle policy to insure "the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle, and other persons struck by such motor vehicle." § 627.736(1), Fla. Stat. (2002). Thus, in at least one circumstance in which the legislature intended to mandate the definition of "insured," it has done so expressly.
The Sterlings argue that the language in section 627.727(9)(d), which allows an insurance company to issue policies excluding coverage for "the named insured or family members residing in her or his household" under certain circumstances, compels all other policies issued to individuals to be written using the definition of "insured" that is appropriate for a family automobile insurance policy even if the vehicle is a business motor vehicle. The fact that the legislature approved this limitation on coverage does not suggest to this court that it intended to compel coverage in a business insurance policy for risks beyond the needs of a business.
In the absence of a statutory requirement, the Sterlings argue that Florida has announced a strong public policy favoring uninsured motorist coverage in Mullis v. State Farm Mutual Automobile Insurance Co., 252 So. 2d 229 (Fla.1971). There is no question that the courts favor uninsured motorist coverage, but even in Mullis the court described this coverage as "family protection." Id. at 233. The concept of providing coverage to family residents in the household of the named insured was based on the fact that the liability coverage in a family policy provided protection for family members. Even when the supreme court clarified the scope of this coverage in Government Employees Insurance Co. v. Douglas, 654 So. 2d 118 (Fla. 1995), it did so in the context of family automobile coverage. Admittedly, much of our case law and even portions of the statute are written with the expectation that the law applies to family automobile insurance policies, but we are unconvinced that this fact prohibits unincorporated businesses from purchasing the same business-oriented policies that are purchased by corporations. See Liberty Mut. Ins. Co. v. Weiss, 790 So. 2d 475 (Fla. 3d DCA 2001) (business automobile policy did not provide UM coverage for pedestrian who was not insured thereunder). The holdings in Mullis and Douglas do not require an insurer to provide uninsured motorist *47 coverage using a definition of "insured" in a business automobile policy that is a substantial expansion of the definition normally used in a business policy. The courts of Florida have never held that an unincorporated business must purchase a more expensive insurance policy covering nonbusiness risks unless it takes special steps to opt out of that coverage.[2]
The leading treatise on uninsured motorist insurance observes:
When a motor vehicle insurance policy is issued to a partnership, the courts have usually concluded that it is appropriate to extend coverage to family members of the partners. Similarly, when insuranceacquired by the owner of a businessis issued in the trade name of the owner, coverage claims by that individual's relatives have usually been sustained.
1 Alan I. Widiss & Jeffrey E. Thomas, Uninsured and Underinsured Motorist Insurance § 4.4, at 99-100 (rev.3d ed.) (footnote omitted). The cases cited for that proposition, however, seem to be distinguishable from the facts in this case. In several cases, the insurance policy expressly stated that if issued to an individual, coverage would extend to family members. See O'Hanlon v. Hartford Accident & Indem. Co., 639 F.2d 1019 (3d Cir.1981) (applying Delaware law); Gallups v. Aetna Cas. & Sur. Co., 513 F. Supp. 1074 (N.D.Ala.1981); Bushey v. N. Assurance Co. of Am., 362 Md. 626, 766 A.2d 598 (2001). We agree that the language of the insurance policy would control in such a situation, but the language of the policy in this case without ambiguity does not insure the Sterlings' child.
In Patrevito v. Country Mutual Insurance Co., 118 Ill.App.3d 573, 74 Ill. Dec. 259, 455 N.E.2d 289 (1983), the court held that uninsured motorist coverage should be available for the individual who was actually the named insured on a policy issued in the name of the individual unincorporated business. It reasoned correctly that the trade name was not a separate entity and that the person insured was the individual who was doing business using the trade name. In this case, if Mr. Sterling had been the pedestrian, rather than his family member, coverage may have existed. The issue in this case, however, is not whether a trade name is a separate entity but whether a business automobile policy issued exclusively on commercial vehicles must use a definition of insured that includes the business owner's family members. Nothing in the Florida statutes or the courts' expressed public policies would appear to compel such a result.
Because the Sterlings also sued the insurer providing their family automobile coverage, this case clearly demonstrates that individuals have the ability to provide adequate uninsured motorist coverage for their families without intermingling family and business expenses. We emphasize that this is not a case in which a family placed its personal vehicle on a business policy. No one suggests that the insurance company issued an improper insurance policy. The flatbed truck was a business vehicle, and nothing in Florida law appears to compel an insurance company to issue uninsured motorist coverage on such a vehicle as if it were a family car.
Affirmed.
FULMER, C.J., and CANADY, J., Concur.
NOTES
[1] A trailer is not self-propelled and has no motor. No one argues in this case that the policy was required to provide uninsured motorist coverage on a trailer.
[2] If the courts were to so hold in the absence of an express statute, it is an interesting question how a business would prorate the cost of the policy for tax and accounting purposes to separate the deductible business expense from the nondeductible family expense. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1023158/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7220
MARC S. CASON, SR.,
Plaintiff - Appellant,
versus
MARYLAND DIVISION OF PAROLE AND PROBATION,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:06-cv-01186-CCB)
Submitted: February 7, 2007 Decided: July 19, 2007
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Remanded by unpublished per curiam opinion.
Marc S. Cason, Sr., Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marc S. Cason, Sr., seeks to appeal the district court’s
order dismissing his 42 U.S.C. § 1983 (2000) complaint as barred by
the statute of limitations. We remand to the district court for
the reasons below.
Parties are accorded thirty days after the entry of the
district court’s final judgment or order to note an appeal. Fed.
R. App. P. 4(a)(1)(A). A district court may extend the time to
appeal upon motion filed within thirty days after expiration of the
prescribed time, and a showing of excusable neglect or good cause.
Fed. R. App. P. 4(a)(5). This appeal period is “mandatory and
jurisdictional.” Browder v. Dir., Dep’t of Corr., 434 U.S. 257,
264 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229
(1960)).
The district court’s order was entered on its docket on
May 17, 2006. Cason filed his notice of appeal on July 11, 2006,
which was after the thirty-day appeal period expired but within the
thirty-day excusable neglect period.* Cason moved for an extension
of time to file the appeal, and the district court ordered Cason to
file a supplement to his notice of appeal to show good cause for
*
July 11, 2006, is the date the document construed as Cason’s
notice of appeal was filed by the district court. We cannot
determine when Cason submitted it to prison officials for mailing
because it was not dated and the envelope in which it was sent has
not been included as part of the district court’s record.
- 2 -
the untimely filing. Cason timely responded but the district court
has not ruled on the motion for extension.
Because the notice of appeal was filed within the
excusable neglect period and because the district court has not
ruled on the motion for an extension, we remand the case to the
district court for the limited purpose of permitting the court to
determine whether Cason has shown excusable neglect or good case
warranting an extension of the thirty-day appeal period. The
record, as supplemented, will then be returned to this court for
further consideration. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
REMANDED
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https://www.courtlistener.com/api/rest/v3/opinions/1021836/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4545
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAIME SALAZAR GALLEGOS, a/k/a Flaco,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (4:05-cr-00092-H)
Submitted: January 31, 2007 Decided: February 21, 2007
Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Anne Margaret Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jaime Salazar Gallegos pled guilty pursuant to a plea
agreement to one count of conspiracy to distribute and possess with
intent to distribute more than 500 grams of cocaine, in violation
of 21 U.S.C. §§ 841(a)(1), 846 (2000). Because the district court
determined Gallegos was responsible for 2.5 kilograms of cocaine
powder, Gallegos was sentenced to 100 months’ imprisonment. We
find no error and affirm Gallegos’s conviction and sentence.
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967). He first asserts that there is “a
genuine issue about whether the appeal waiver in the plea agreement
is knowing and intelligent.” Counsel next questions whether the
magistrate judge fully complied with the requirements of Rule 11.1
Finally, counsel contends the district court violated Blakely v.
Washington, 542 U.S. 296 (2004), because it sentenced Gallegos
based on a drug weight that was not admitted, alleged in the
indictment, nor found by jury beyond a reasonable doubt. However,
counsel concluded this argument was “foreclosed” by United
States v. Booker, 543 U.S. 220 (2005).2
1
Gallegos consented to enter his plea before a magistrate
judge pursuant to 28 U.S.C. § 636 (2000).
2
As Gallegos was sentenced post-Booker, and Gallegos concedes
there was not a Sixth Amendment violation under Booker, we do not
address this issue.
- 2 -
In his pro se supplemental brief, Gallegos joins his
counsel’s assertion that his appellate waiver was not knowingly and
intelligently made. Additionally, Gallegos contends the district
court erred by finding the drug weight by a preponderance of the
evidence rather than beyond a reasonable doubt. Gallegos further
contends his sentence is procedurally unreasonable because the
district court failed to make specific findings on the record. The
Government elected not to file a responsive brief.
Gallegos first challenges the voluntariness of the
appellate waiver provision in his plea agreement. However, because
the Government has not sought to enforce the waiver, we have not
considered it. Accordingly, we need not address whether Gallegos’s
agreement to the appellate waiver was knowing, intelligent, or
voluntary.
Next, Gallegos contends the magistrate judge did not
fully comply with the requirements of Rule 11. Because Gallegos
did not seek to withdraw his guilty plea in the district court, we
review any alleged Rule 11 error for plain error. United States v.
Martinez, 277 F.3d 517, 524-26 (4th Cir. 2002). To establish plain
error, Gallegos must show that an error occurred, that the error
was plain, and that the error affected his substantial rights.
United States v. White, 405 F.3d 208, 215 (4th Cir.), cert. denied,
126 S. Ct. 668 (2005). We have reviewed the record and find no
error.
- 3 -
Gallegos next contends the district court erred by
sentencing him based on facts that were not proven beyond a
reasonable doubt. However, after Booker, sentencing courts are
still required to calculate and consider the guideline range
prescribed thereby as well as the factors set forth in 18 U.S.C.
§ 3553(a) (2000). United States v. Hughes, 401 F.3d 540, 546 (4th
Cir. 2005). This court has previously noted that sentencing
factors should continue to be evaluated based on the preponderance
of the evidence. United States v. Morris, 429 F.3d 65, 72 (4th
Cir. 2005). As Gallegos’s sentence was imposed post-Booker, the
district court’s use of a preponderance of the evidence standard
was proper.
Further, in imposing Gallegos’s sentence, the district
court stated that it had considered the advisory guideline range,
the relevant § 3553(a) factors, and Booker. The court determined
that a sentence at the low end of the guideline range was
appropriate as it was “a significant sentence.” Though Gallegos
asserts in his pro se supplemental brief that his sentence is
procedurally unreasonable because the district court failed to make
specific findings, and the court concededly failed to explicitly
discuss the various § 3553(a) factors on the record, we conclude it
does not render Gallegos’s sentence unreasonable. The district
court satisfied its obligations by explicitly stating at the
sentencing hearing that it had considered both the advisory
- 4 -
guidelines as well as the relevant factors set forth in § 3553(a).
See United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006)
(“Requiring district courts to address each factor on the record
would . . . be an exercise in unproductive repetition that would
invite flyspecking on appeal.”).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly we affirm Gallegos’s conviction 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 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
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https://www.courtlistener.com/api/rest/v3/opinions/1021853/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4238
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CLARENCE DESMOND MOORE, a/k/a Dollar,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:05-cr-00768-TLW)
Submitted: February 15, 2007 Decided: February 20, 2007
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David B. Betts, Columbia, South Carolina, for Appellant. Alfred
William Walker Bethea, Jr., Assistant United States Attorney,
Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clarence Desmond Moore pleaded guilty, pursuant to a plea
agreement, to one count of conspiracy to possess with intent to
distribute and to distribute fifty grams or more of crack cocaine
and five kilograms of more of cocaine, in violation of 21 U.S.C.A.
§§ 846, 841(a)(1), (b)(1)(A) (West 1999 & Supp. 2006). At
sentencing, Moore and the Government agreed that a base offense
level of thirty-six and a total offense level of thirty-three
applied under the Sentencing Guidelines.1 This offense level,
combined with Moore’s criminal history category IV, yielded a
sentencing range of 188 to 235 months of imprisonment. The
district court sentenced Moore to 192 months of imprisonment. On
appeal, counsel for Moore filed an Anders2 brief, in which he
states there are no meritorious issues for appeal, but questions
whether the district court complied with the requirement of Fed. R.
Crim. P. 11 in accepting Moore’s plea. In a pro se supplemental
brief, Moore asserts that his sentence is improper. We affirm.
Moore did not move in the district court to withdraw his
guilty plea; therefore this court reviews his challenge to the
adequacy of the Fed. R. Crim. P. 11 hearing for plain error. See
United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002).
Prior to accepting a guilty plea, the trial court must ensure the
1
U.S. Sentencing Guidelines Manual (2004).
2
Anders v. California, 386 U.S. 738 (1967).
- 2 -
defendant understands the nature of the charges against him, the
mandatory minimum and maximum sentences, and other various rights,
so it is clear that the defendant is knowingly and voluntarily
entering his plea. The court must also determine whether there is
a factual basis for the plea. Fed. R. Crim. P. 11(b)(1), (3);
United States v. DeFusco, 949 F.2d 114, 116, 120 (4th Cir. 1991).
Our review of the plea hearing transcript reveals that the district
court failed to advise Moore that he would be protected against
self-incrimination if he pleaded not guilty and went to trial, and
that the court was required to impose a special assessment as part
of his punishment. Fed. R. Crim. P. 11(b)(1)(E), (L). We
conclude, however, that these errors did not affect Moore’s
substantial rights, as the district court otherwise conducted a
thorough Rule 11 colloquy that assured Moore’s plea was made both
knowingly and voluntarily.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We have
also considered the arguments asserted in Moore’s pro se
supplemental brief and find them to be without merit. We therefore
affirm Moore’s conviction and sentence. This court requires that
counsel inform Moore, in writing, of the right to petition the
Supreme Court of the United States for further review. If Moore
requests that a petition be filed, but counsel believes that such
a petition would be frivolous, then counsel may move in this court
- 3 -
for leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Moore.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
- 4 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1021854/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4953
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEFFERY AUSTIN MCNEFF,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:05-cr-00369)
Submitted: February 15, 2007 Decided: February 20, 2007
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Angela Parrott, Federal Defenders of Western North Carolina, Inc.,
Charlotte, North Carolina, for Appellant. C. Nicks Williams,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffery Austin McNeff pled guilty to one count of
possession of a firearm after having been convicted of a crime
punishable by more than one year of imprisonment in violation of 18
U.S.C. § 922(g) (2000). The district court determined that McNeff
qualified for sentencing as an armed career criminal and sentenced
him to the statutory minimum 180 months of imprisonment. On
appeal, counsel filed an Anders* brief, in which she states that
there are no meritorious issues for appeal, but suggests that the
district court erred in sentencing McNeff as an armed career
criminal. McNeff has filed a pro se supplemental brief in which he
repeats counsel’s assertion and raises other claims related to his
conviction and sentence. We affirm.
In considering whether the district court properly
designated McNeff as an armed career criminal, this court reviews
the district court’s legal determinations de novo and its factual
findings for clear error. United States v. Wardrick, 350 F.3d 446,
451 (4th Cir. 2003). Our review of the record leads us to conclude
that no error occurred in applying the armed career criminal
statute in this case. United States v. Thompson, 421 F.3d 278, 284
(4th Cir. 2005), cert. denied, 126 S. Ct. 1463 (2006).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
*
Anders v. California, 386 U.S. 738 (1967).
- 2 -
appeal. We have considered the arguments asserted in McNeff’s pro
se supplemental brief and find them to be without merit. We
therefore affirm McNeff’s conviction and sentence. This court
requires that counsel inform McNeff, in writing, of the right to
petition the Supreme Court of the United States for further review.
If McNeff 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 McNeff. 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
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https://www.courtlistener.com/api/rest/v3/opinions/1021865/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-2185
MORRIS E. LEWIS,
Plaintiff - Appellant,
versus
SALLIE MAE CORPORATION (SLM), and Other
Unnamed Defendants,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (1:06-mc-00041-LMB)
Submitted: February 15, 2007 Decided: February 20, 2007
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Morris E. Lewis, Appellant Pro Se. Joseph Paul Esposito, AKIN,
GUMP, STRAUSS, HAUER & FELD, LLP, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Morris E. Lewis appeals the district court’s order
denying his motion for an extension of time in which to file a
notice of appeal pursuant to Fed. R. App. P. 4(a)(5).* Parties in
a civil action in which the United States is not a party have
thirty days following a final order in which to file a notice of
appeal. Fed. R. App. P. 4(a)(1)(A). The only exceptions to the
appeal period are when the district court extends the time to
appeal based upon excusable neglect under Fed. R. App. P. 4(a)(5),
or reopens the appeal period under Fed. R. App. P. 4(a)(6). These
time periods are “mandatory and jurisdictional.” Browder v. Dir.,
Dep’t of Corr., 434 U.S. 257, 264 (1978) (internal quotations and
citations omitted). We review the district court’s denial of a
motion for an extension of time for abuse of discretion.
Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 532 n.2 (4th
Cir. 1996). Our review of the record leads us to conclude that the
district court did not abuse its discretion. Accordingly, we
affirm. We deny Lewis’ “Motion to Supplement Appeals File” and
*
Although Lewis noted only the order denying an extension of
time in his notice of appeal, in his informal brief he states that
he is appealing the district court’s orders dismissing his
complaint, denying his motion to amend judgment, and denying his
amended motion to amend judgment. The latest of these orders was
entered on the district court’s docket on August 23, 2006, and
Lewis had until September 22, 2006, to file a notice of appeal. He
did not file his notice of appeal until October 27, 2006. We
therefore lack jurisdiction to consider his arguments related to
these orders.
- 2 -
his “Motion to Overcome Dismissal with Prejudice Orders.” We
dispense with oral argument because the facts and legal conclusions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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https://www.courtlistener.com/api/rest/v3/opinions/1021874/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5006
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARIUS DANTONI TANZYMORE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge. (1:04-
cr-00022-JFM)
Submitted: February 14, 2007 Decided: March 2, 2007
Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kenneth W. Ravenell, SCHULMAN, TREEM, KAMINKOW, GILDEN & RAVENELL,
P.A., Baltimore, Maryland, for Appellant. Rod J. Rosenstein,
United States Attorney, Barbara S. Sale, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After we remanded this case to the district court for
further proceedings, Darius Dantoni Tanzymore was convicted after
a bench trial of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1) (2000). On appeal, Tanzymore
contends the district court erred by rejecting his justification
defense. We affirm.
We review the district court’s denial of the
justification defense de novo. United States v. Perrin, 45 F.3d
869, 871 (4th Cir. 1995). In Perrin, we detailed the following
four part test to be used in order to determine whether a defendant
is entitled to a justification defense for being a felon in
possession of a firearm:
The defendant must produce evidence which would allow the
factfinder to conclude that he (1) was under unlawful and
present threat of death or serious bodily injury; (2) did
not recklessly place himself in a situation where he
would be forced to engage in criminal conduct; (3) had no
reasonable legal alternative (to both the criminal act
and the avoidance of the threatened harm); and (4) a
direct causal relationship between the criminal action
and the avoidance of the threatened harm.
Perrin, 45 F.3d at 873-74 (citing United States v. Crittendon, 883
F.2d 326, 330 (4th Cir. 1989)). The focus is not on whether the
defendant held a sincere belief that he was under a present threat
of death or serious bodily injury. The justification defense is
used in very narrow circumstances and generalized fears are
- 2 -
insufficient to support the defense. There must be a showing of
imminent danger. Perrin, 45 F.3d at 874.
We find Tanzymore failed to establish the threat to his
life and safety was imminent. As a result, we find the district
court did not err in rejecting the defense.
Accordingly, we affirm the conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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https://www.courtlistener.com/api/rest/v3/opinions/1021899/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4284
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GREGORY JOHNSON, a/k/a Little Greg,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Peter J. Messitte, District Judge. (8:02-
cr-00178-PJM)
Submitted: January 10, 2007 Decided: March 1, 2007
Before WIDENER and MOTZ, Circuit Judges, and Glen E. CONRAD, United
States District Judge for the Western District of Virginia, sitting
by designation.
Affirmed by unpublished per curiam opinion.
Timothy J. Sullivan, SULLIVAN & SULLIVAN, College Park, Maryland,
for Appellant. Deborah A. Johnston, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This case is before the court after resentencing on
remand. In our prior decision, we affirmed Gregory Anthony
Johnson’s convictions of one count of kidnaping, in violation of 18
U.S.C. §§ 1201(a)(1), 2 (2000), one count of attempting to kill a
witness, in violation of 18 U.S.C. §§ 1512(a)(1)(C), 2 (2000); and
two counts of using and carrying a firearm during and in relation
to a crime of violence, in violation of 18 U.S.C. §§ 924(c), 2
(2000). We also rejected Johnson’s arguments that the district
court’s order of restitution was improper, but vacated his sentence
and remanded for resentencing under an advisory Guideline* scheme
pursuant to United States v. Booker, 543 U.S. 220 (2005). United
States v. Johnson, 400 F.3d 187 (4th Cir.), cert. denied, 126 S.
Ct. 134 (2005).
On remand, the district court utilized the same Guideline
calculations that were applied in Johnson’s initial sentencing,
without objection. The total offense level of forty-one and
Johnson’s criminal history category of I yielded a sentencing range
of 324 to 405 months on the kidnaping and witness tampering counts.
The firearm counts were subject to statutory minimum consecutive
sentences of seven and twenty-five years. At the resentencing
hearing the district court heard argument from counsel and a
statement by Johnson, discussed its consideration of the factors in
*
U.S. Sentencing Guidelines Manual (USSG) (2002).
- 2 -
18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), and sentenced
Johnson to 405 months of imprisonment on the kidnaping count,
twenty years concurrent on the witness tampering count, seven years
consecutive on the first § 924(c) count, and twenty-five years
consecutive on the second § 924(c) count, for a total of 789 months
of imprisonment. The district court also ordered restitution in
amounts identical to the original judgment, and ordered that the
restitution be paid in monthly installments of $25. Johnson timely
appealed.
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), in which he states there are no
meritorious issues for appeal, but questions whether the district
court erred in permitting Johnson to be tried and sentenced on an
indictment that did not allege specific violations of
§ 924(c)(1)(C), and whether the district court exceeded its
authority on remand by imposing a payment schedule for the
restitution. In a pro se supplemental brief, Johnson asserts that
the district court violated his Fifth Amendment rights by
converting generic § 924(c) convictions into § 924(c)(1)(C)
offenses by a preponderance of the evidence in violation of Booker,
that the court erred in finding separate uses of a firearm and
consequently imposing consecutive sentences, and that the district
court erred in calculating the Guideline range because the
imposition of an enhancement under USSG § 2A3.1(b)(1) amounted to
- 3 -
double counting in light of the sentences on the § 924(c)
convictions. The Government declined to file a brief.
Because Johnson did not challenge the validity of the
indictment or his § 924(c) convictions or sentences in the first
appeal, the mandate rule precludes him from asserting these
challenges at this point. United States v. Bell, 5 F.3d 64, 66-67
(4th Cir. 1993). Johnson does not assert any of the exceptions to
the mandate rule, but relies on the principles of Booker to argue
error related to his § 924(c) sentences. Even if we consider his
arguments, Johnson is not entitled to any relief. This court has
held that the mandatory consecutive sentencing scheme established
in § 924(c) for multiple convictions under the statute was not
affected by Booker. United States v. Robinson, 404 F.3d 850, 862
(4th Cir.), cert. denied, 126 S. Ct. 288 (2005), and 126 S. Ct. 469
(2005). Nor did the district court engage in impermissible fact-
finding to impose separate consecutive sentences under § 924(c), as
the two § 924(c) counts in the indictment clearly charged separate
incidents, and the jury’s verdict thus supported the enhanced
sentence mandated by § 924(c)(1)(C) for a second conviction. Deal
v. United States, 508 U.S. 129, 133 (1993). Finally, this court
has concluded that the sentencing enhancements under § 924(c)(1)(C)
for successive § 924(c) convictions fall within the prior
convictions exception to the rule announced in Apprendi v. New
Jersey, 530 U.S. 466 (2000), and thus are not required to be
- 4 -
alleged in the indictment or submitted to the jury. United States
v. Cristobal, 293 F.3d 134, 146-47 & n.20 (4th Cir. 2002).
Counsel next suggests that the district court erred in
imposing a restitution payment schedule because no payment schedule
was imposed in the original restitution order and the restitution
order was affirmed on appeal. We conclude that this argument is
without merit. The statute that prescribes the administrative
details of restitution requires the district court to specify a
payment schedule in the restitution order. 18 U.S.C. § 3664(f)(2)
(2000). The district court erred in failing to include a payment
schedule in the original restitution order, but our mandate in
Johnson’s prior appeal did not preclude the district court from
imposing a payment schedule in the amended judgment on remand.
We have considered the issues raised in Johnson’s pro se
brief and find them to be without merit. In accordance with
Anders, we have reviewed the entire record in this case and have
found no meritorious issues for appeal. We therefore affirm
Johnson’s sentence. This court requires that counsel inform
Johnson, in writing, of the right to petition the Supreme Court of
the United States for further review. If Johnson 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 Johnson. We dispense with oral argument
- 5 -
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
AFFIRMED
- 6 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1034434/ | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-1748
___________________________
Randy Bennett; Darla Y. Harb,
Plaintiffs - Appellees,
v.
Riceland Foods, Inc.,
lllllllllllllllllllll Defendant - Appellant.
___________________________
No. 12-1833
___________________________
Randy Bennett; Darla Y. Harb,
Plaintiffs - Appellants,
v.
Riceland Foods, Inc.,
lllllllllllllllllllll Defendant - Appellee.
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Pine Bluff
____________
Submitted: January 16, 2013
Filed: July 19, 2013
____________
Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.
____________
COLLOTON, Circuit Judge.
Randy Bennett and Richard Turney1 brought this action against Riceland
Foods, Inc., their former employer, alleging that Riceland terminated them in
retaliation for filing grievances against their supervisor. The grievances complained
that a supervisor at Riceland used racially discriminatory language and created a
hostile work environment. The claims were submitted to a jury under 42 U.S.C.
§ 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the
Arkansas Civil Rights Act. A jury found that Riceland retaliated against the
employees and awarded backpay and $300,000 in damages for emotional distress to
each. The district court2 declined to submit punitive damages to the jury. Both sides
appeal, and we affirm.
I.
Riceland is a farmer-owned cooperative that mills, markets, and sells rice.
Bennett and Turney are white men who were maintenance workers at Riceland’s
1
Turney died while this appeal was pending, and his attorney filed a suggestion
of death with this court. Within 90 days of that filing, see Fed. R. Civ. P. 25(a)(1),
Darla Y. Harb, the executrix and representative of Turney’s estate, moved pursuant
to Federal Rule of Appellate Procedure 43(a) for an order substituting her as a party
for Turney. We grant the motion and substitute Harb as a party.
2
The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
-2-
facility in Stuttgart, Arkansas. In April 2009, Turney filed an internal grievance
alleging that his supervisor, Ralph Crane, said that a black maintenance worker
“smelled like a nigger.” The grievance listed Bennett as one of two witnesses. Crane
responded that he had no recollection of the alleged incident.
If a grievance is not resolved after the supervisor’s response, Riceland’s
procedures provide for review by a “department manager or a representative of
management designated by the company.” Martin Jones, the director of warehousing,
packaging, and shipping at the Stuttgart facility, conducted this review by
interviewing the witnesses named in the grievance. Bennett corroborated Turney’s
account; the other maintenance worker whom Turney listed could not “honestly say
what was said at [the] incident.” Deeming these statements “[i]nconsistent,” Jones
concluded that “a[n] offense ha[d] not been committed” and determined the grievance
“to have no merit.” Around the time of this investigation, Jones told Rick Chance,
the warehouse superintendent at the Stuttgart facility, that he had been unable to
convince Bennett “to drop the grievance.” Chance testified that Bennett’s refusal to
do so “made [Jones] mad” and “really bothered [Jones].”
Scott Lindsey, manager of the Stuttgart rice division, performed the next stage
of the investigation. He agreed with Jones’s assessment, concluding that the
“[g]rievance is determined to have no merit.” At trial, Lindsey testified that he based
his determination on an investigation conducted by David Hoover, human resources
manager of the Stuttgart rice division. Lindsey testified that Hoover “informed [him]
that [Hoover] had interviewed several of the employees involved and could not find
corroborating evidence” of Turney’s account. Hoover testified that his investigation
was limited to asking two minority maintenance workers “if they had been subjected
to offensive language.” Neither of these employees was involved in the grieved
incident, and one told Hoover that he had heard Crane use such language.
-3-
Turney filed a second grievance—in response to Crane’s use of similar racially
offensive language—during the investigation into his first grievance. He filed
another grievance nearly two weeks later, alleging that he had not received a response
to his second grievance. Around this time, Bennett delivered a “formal complaint to
[Linda Dobrovich,] the director of Human Resources . . . requesting that Ralph Crane
be removed as supervisor, permanently.” Bennett referred to Turney’s grievances,
made similar allegations regarding Crane’s language, and offered to provide
“documentation and witnesses.” Dobrovich requested Bennett’s documentation, and
Bennett gave her “some, but not all, in case this [matter] goes to the [Equal
Employment Opportunity Commission] or to court.”
Following this meeting with Bennett, Dobrovich commenced an investigation
into Crane’s use of inappropriate language. In her report of May 19, 2009, Dobrovich
expressed doubt about Crane’s denial of using offensive language in the workplace.
She noted that “[i]f Mr. Crane remains in a leadership position, he should understand
that he will be held accountable for his behavior and language. . . . It is strongly
recommended that he attend some diversity training if he continues as the crew
foreman.” Riceland subsequently required Crane to complete a computer-assisted
diversity training program.
Riceland’s CEO had issued a directive to division heads to reduce operating
costs in early 2009. On June 29, 2009, Jones proposed reorganizing the Stuttgart
facility’s warehousing, packaging, and shipping department’s maintenance staff
“[d]ue to financial considerations.” His proposal called for “reassigning 2 positions
currently working in the warehouse [i.e., the positions of Bennett and Turney] to
other open positions in the company,” outsourcing one of those positions, and using
Riceland’s central maintenance staff to perform the work of the other eliminated
position.
-4-
Under Riceland company policy, such job eliminations required the approval
of Lindsey as manager of the division, the human resources department, the vice
president of rice milling and engineering, and Riceland’s CEO. Lindsey determined
that “the proposal had merit,” because the Stuttgart facility was the only Riceland
facility that had not “contracted [its] maintenance out to a professional service.”
Dobrovich from human resources concluded that eliminating the positions was
consistent with the practices in effect in the other Riceland facilities, and that “it was
a good business decision.” Lindsey testified that both the vice president of rice
milling and engineering and the CEO approved the reorganization. But Chance, the
warehouse superintendent, testified that the job eliminations were a poor business
decision and would not have occurred if Bennett and Turney had not pursued their
grievances.
On June 30, 2009, Jones informed Bennett and Turney that their positions
would be eliminated and that they “would be terminated at the end of the day on July
30, 2009.” At the time of the proposal and job-elimination decision, Riceland’s
maintenance staff included several workers junior to Bennett and Turney. Although
Riceland’s policies list seniority as a factor in layoff decisions and do not provide
specifically for “job eliminations,” Dobrovich testified that seniority is irrelevant to
job-elimination decisions.
Bennett and Turney filed charges with the EEOC, which issued each a notice
of right to sue. They then brought this action, alleging that Riceland terminated them
in retaliation for their grievances, in violation of Title VII, 42 U.S.C. § 1981, and the
Arkansas Civil Rights Act. They advanced the so-called “cat’s paw” theory of
liability, seeking to hold Riceland liable for the discriminatory animus of a supervisor
(Jones) who influenced but did not make the ultimate decision on their employment.
At trial, each of the employees testified briefly to the emotional distress he suffered
as a result of his termination. Turney testified that “the stress . . . [wa]s immense” and
that he was “[n]ot . . . able to sleep at night.” Bennett testified that the situation was
-5-
“depressing, causes you not to sleep at night, causes stress at home with other people,
people that’s dependent on you.” He testified further that he suffered from “stress”
and that he worried about the future. The jury found that Riceland retaliated against
the employees and awarded each lost wages and benefits, plus $300,000 for
emotional distress.
Riceland moved for judgment as a matter of law on the basis that neither of
“these two nonminority plaintiffs can state a claim under [§] 1981.” The district court
denied the motion, finding that sufficient evidence had been presented to show that
the employees’ “complaints of the use of racial epithets by Mr. Crane in the
workplace were made in an attempt to vindicate the rights of minorities.” Riceland
also moved for judgment as a matter of law during trial and for judgment as a matter
of law notwithstanding the verdict on the basis that the evidence was insufficient to
submit the retaliation claims to the jury. The district court denied the motions, noting
that the employees had presented sufficient evidence to establish that they had
participated in a protected activity—i.e., filing grievances about Crane’s use of racial
epithets—and that Riceland terminated them in retaliation for that activity.
In denying Riceland’s motions for judgment as a matter of law and for new trial
or remittitur on compensatory damages, the district court held that the employees’
evidence “was sufficient to present the compensatory damages issue to the jury as
both . . . testified to depression, extreme stress, worry and sleeplessness,” and that the
evidence supported the jury’s $300,000 emotional-distress award to each employee.
But the district court did not accept the employees’ proffered jury instruction on
punitive damages, concluding that there was insufficient evidence “from which the
jury could conclude that any of the decision-makers here acted with [the] malice or
reckless indifference [necessary] to award punitive damages.”
Riceland appeals the district court’s denial of several motions. The employees
cross-appeal the district court’s refusal to instruct the jury on punitive damages.
-6-
II.
Riceland challenges the district court’s denial of its motion for judgment as a
matter of law on the employees’ retaliation claims. The company asserts that there
was insufficient evidence from which a jury could find a causal connection between
the employees’ grievances and their termination. We view the sufficiency of the
evidence in the light most favorable to the verdict, drawing all reasonable inferences
in favor of the nonmoving party. Brown v. Fred’s, Inc., 494 F.3d 736, 740 (8th Cir.
2007).
To establish a retaliation claim under Title VII, an employee must show that
he engaged in statutorily protected conduct, that he suffered an adverse employment
action, and that the protected conduct was a but-for cause of the adverse action. Univ.
of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2013 WL 3155234, at *16 (June 24,
2013); McCullogh v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 864 (8th Cir. 2009).
Although it is not dispositive, “the length of time between protected activity and
adverse action is important” in the causation calculus. Smith v. Allen Health Sys.,
Inc., 302 F.3d 827, 833 (8th Cir. 2002). In a cat’s paw case, an employer may be
vicariously liable for an adverse employment action if one of its agents—other than
the ultimate decision maker—is motivated by discriminatory animus and intentionally
and proximately causes the action. See Staub v. Proctor Hosp., 131 S. Ct. 1186,
1190-91, 1194 (2011) (applying the Uniformed Services Employment and
Reemployment Rights Act, which is “very similar to Title VII”).
The employees supported their case with evidence that Jones, who proposed
eliminating the employees’ jobs, was “mad” and “bothered” that he could not
convince the employees to drop their complaints. They demonstrated that neither
Jones nor Lindsey engaged in a meaningful investigation of their grievances. They
also showed that Jones proposed—and Lindsey and upper management
approved—eliminating the employees’ jobs six weeks after Dobrovich found their
-7-
grievances to have merit. And the employees produced testimony from the
warehouse superintendent that eliminating their positions was unnecessary from a
business perspective and would not have happened but for their grievances.
Riceland explains its decision to eliminate the employees’ positions as strictly
a cost-cutting measure in furtherance of the CEO’s directive to reduce operating
costs. To bolster its business-judgment argument, Riceland notes that Dobrovich, the
director of human resources, approved the termination decision after an independent
review.
The employees’ evidence of Jones’s discriminatory animus was sufficient to
submit their retaliation claims to the jury. Riceland’s proffered non-discriminatory
explanation for the terminations—cutting operational costs—failed to address Jones’s
discriminatory motivation in proposing the warehouse reorganization plan. And
Riceland’s argument that Dobrovich’s review cured Jones’s discriminatory
motivation is unavailing. The Staub Court specifically noted that such an
“independent investigation” does not “somehow relieve[] the employer of fault. The
employer is at fault because one of its agents committed an action based on
discriminatory animus that was intended to cause, and did in fact cause, an adverse
employment decision.” Staub, 131 S. Ct. at 1193 (internal quotation marks omitted).
Riceland next challenges the district court’s decision to instruct the jury that
it could award damages for emotional distress. The evidence of emotional distress
was limited to testimony from the plaintiff employees. Turney testified that “the
stress from [his termination] [wa]s immense” and that he was “[n]ot . . . able to sleep
at night.” Bennett testified that his termination was “depressing, causes you not to
sleep at night, causes stress at home with other people, people that’s dependent on
you.” He also testified that he suffered from stress and that he worried about the
future.
-8-
A compensatory damage award for emotional distress may be based on a
plaintiff’s own testimony. Forshee v. Waterloo Indus., Inc., 178 F.3d 527, 531 (8th
Cir. 1999). Such an award must be “supported by competent evidence of genuine
injury,” id. (internal quotation omitted), but medical or other expert evidence is not
required. Kim v. Nash Finch Co., 123 F.3d 1046, 1065 (8th Cir. 1997). We agree
with the district court that the employees’ evidence is “scant” but submissible.
Unlike cases in which we have held evidence of emotional distress insufficient to
submit to the jury, the employees’ damages were directly connected to Riceland’s
retaliation, persisted for a period of years, and were not remedied by obtaining new
employment shortly after termination. Cf. Forshee, 178 F.3d at 531. The question
is close, but the evidence is not insufficient as a matter of law.
We also conclude that the district court did not clearly abuse its discretion in
denying Riceland’s motion for new trial or remittitur. See Haynes v. Bee-Line
Trucking Co., 80 F.3d 1235, 1240 (8th Cir. 1996). A motion for new trial based on
sufficiency of the evidence should be granted only “if the verdict is against the weight
of the evidence and allowing it to stand would result in a miscarriage of justice.” The
Shaw Grp., Inc. v. Marcum, 516 F.3d 1061, 1067 (8th Cir. 2008) (internal quotation
and alteration omitted). Remittitur is appropriate where the verdict is so grossly
excessive as to shock the judicial conscience. Norton v. Caremark, Inc., 20 F.3d 330,
340 (8th Cir. 1994). We will not order a new trial or remittitur merely because we
may have arrived at a different amount from the jury’s award. See Frazier v. Iowa
Beef Processors, Inc., 200 F.3d 1190, 1193 (8th Cir. 2000). Although the jury’s
awards in this case are at the statutory limit for nonpecuniary losses, 42 U.S.C.
§§ 1981a(a)(1), (b)(3)(D), we have affirmed other six-figure awards for emotional
distress. See, e.g., Mathieu v. Gopher News Co., 273 F.3d 769, 783 (8th Cir. 2001).
The district court did not abuse its discretion in declining to set them aside.3
3
Riceland also argues that 42 U.S.C. § 1981 does not provide a cause of action
to a nonminority who brings a complaint on his own behalf, even if he does so in an
-9-
Finally, we affirm the district court’s decision to refuse an instruction on
punitive damages. Punitive damages are appropriate under Title VII where the
employer not only engages in intentional discrimination but also does so with “malice
or with reckless indifference to the [employee’s] federally protected rights.” 42
U.S.C. § 1981a(b)(1); see also Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535
(1999). An employer may be held vicariously liable in the punitive damages context
for the “discriminatory employment decisions of managerial agents” acting within the
scope of their employment, unless those decisions “are contrary to the employer’s
good-faith efforts to comply with Title VII.” Kolstad, 527 U.S. at 545 (internal
quotation omitted). The employees thus contend that because Jones was “acting
within the scope of [his] employment” when he disregarded Riceland’s anti-
discrimination policy and proposed terminating them, they were entitled to a jury
instruction on punitive damages.
The Court in Kolstad emphasized that punitive damages are not available
against an employer that “ma[d]e good-faith efforts to prevent discrimination in the
workplace.” Kolstad, 527 U.S. at 545-46 (internal quotation omitted). Before
Riceland reached a final decision to terminate Bennett and Turney, its head of human
resources conducted an independent review of the reorganization plan “in light of
their complaints” about Crane’s offensive language. Kolstad explained that
“Congress . . . sought to impose two standards of liability—one for establishing a
right to compensatory damages and another, higher standard that a plaintiff must
satisfy to qualify for a punitive award.” Id. at 534. So while Dobrovich’s
effort to vindicate the rights of minorities. Cf. Sullivan v. Little Hunting Park, Inc.,
396 U.S. 229, 237 (1969); Gacek v. Owens & Minor Distribution, Inc., 666 F.3d
1142, 1146 (8th Cir. 2012). The employees’ claims under Title VII and § 1981 are
alternative grounds for the same judgment. See 42 U.S.C. § 2000e-3(a); Gregory v.
Dillard’s, Inc., 565 F.3d 464, 468-69 (8th Cir. 2009) (en banc). As we have
concluded that the judgment under Title VII should be affirmed, it is unnecessary to
consider Riceland’s challenge to the § 1981 claim.
-10-
investigation was not enough to absolve Riceland of “fault,” see Staub, 131 S. Ct. at
1193, it constituted a “good-faith effort[] to prevent discrimination” sufficient to
preclude a punitive damage award. It was not error for the district court to decline
to submit the punitive damages issue to the jury.
* * *
The judgment of the district court is affirmed.
______________________________
-11- | 01-03-2023 | 07-20-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1034412/ | IN THE SUPREME COURT, STATE OF WYOMING
2013 WY 89
APRIL TERM, A.D. 2013
July 18, 2013
LONNIE C. McLAURY,
Appellant
(Defendant),
v. S-12-0240
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Laramie County
The Honorable Michael Davis, Judge
Representing Appellant:
Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel;
and Eric M. Alden, Senior Assistant Appellate Counsel.
Representing Appellee:
Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy
Attorney General; Theodore R. Racines, Senior Assistant Attorney General; and
Christyne Martens, Assistant Attorney General.
Before KITE, C.J., and HILL, VOIGT, BURKE, JJ., and GOLDEN, J., Retired.
HILL, J., delivered the opinion of the Court. BURKE, J., filed a specially concurring
opinion, in which VOIGT, J., joins.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.
[¶1] A jury convicted Lonnie McLaury of sexual assault in the first degree in violation
of Wyo. Stat. Ann. § 6-2-302(a)(iii). On appeal, McLaury contends that the district court
abused its discretion when it allowed a sexual assault nurse examiner (SANE nurse) to
testify, over his objection, as to the statements made by the victim during the physical
examination of her. We affirm the district court.
ISSUE
[¶2] McLaury presents one issue:
Did the trial court abuse its discretion in allowing hearsay
testimony?
FACTS
[¶3] On September 27, 2010, the victim and her boyfriend went to visit a friend at his
apartment. Lonnie McLaury was also there. While watching television, the victim and
her boyfriend fell asleep. The victim was awakened by McLaury digitally penetrating her
vagina. She realized the person was McLaury and immediately woke her boyfriend, who
told McLaury to stop, grabbed his arm, and threatened to cut his fingers off. The victim
and her boyfriend immediately left the apartment.
[¶4] After leaving, the victim and her boyfriend drove to the Cheyenne Police
Department where they reported the incident. The police officer then asked the victim if
she would like to go to the hospital, and she stated that she would. A police report was
filed after the victim’s report and after the examination at the hospital.
[¶5] Based on the police report, McLaury was charged with one count of first degree
sexual assault under § 6-2-302(a)(iii). The case went to jury trial, where the SANE nurse
testified for the prosecution. Prior to testifying, however, McLaury requested that the
district court prohibit the SANE nurse from repeating the statements made to her by the
victim during the exam. Defense counsel suggested that the statements were not proper
as prior consistent statements and would only serve to bolster the victim’s testimony.
The State, on the other hand, suggested that such testimony should be allowed as a
statement made for the purpose of medical treatment. The district court allowed the
testimony, as long as the SANE nurse did not vouch for the victim.
[¶6] During the SANE nurse’s testimony, she explained why the circumstances of the
assault were necessary to the exam – to determine potential injury and possibly collect
biological evidence. The SANE nurse then testified that the victim indicated she was
sexually assaulted by digital penetration. On cross-examination, defense counsel asked
1
the SANE nurse to clarify the nature of the assault, and then on redirect, the SANE nurse
refreshed her recollection with her exam report. The SANE nurse then testified that the
victim told her assailant to stop.
[¶7] A jury found McLaury guilty as charged, and on May 24, 2012, the district court
imposed a sentence of five to seven years, suspended in favor of five years of probation
(which was later revoked). This appeal followed.
STANDARD OF REVIEW
[¶8] “Our review of rulings by a trial court, admitting or excluding evidence, is
premised upon deference to the trial court, and we do not reverse a case because of
evidentiary rulings unless an abuse of discretion is demonstrated.” Oldman v. State, 998
P.2d 957, 960 (Wyo. 2000).
DISCUSSION
[¶9] In his only issue, McLaury argues that the district court abused its discretion in
allowing hearsay testimony from the SANE nurse who testified about her examination of
the victim in this case, and repeated a portion of the victim’s statements. Specifically,
McLaury contends that the district court did not properly apply the exception and the
foundational requirements found in W.R.E. 803(4), “Statements for Purposes of Medical
Diagnosis.” In response, the State contends that the victim’s statements to the SANE
nurse were properly admitted under Rule 803(4) and that the foundational requirements
under the rule were satisfied.
[¶10] Hearsay is “a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” W.R.E
801(c). Hearsay is inadmissible unless it falls into one of the exceptions recognized by
the rules of evidence, and the exception at issue in this case is found in Rule 803(4),
which reads as follows:
Rule 803. Hearsay exceptions; availability of declarant
Immaterial.
The following are not excluded by the hearsay rule,
even though the declarant is available as a witness:
....
(4) Statements for purposes of medical diagnosis or
Treatment. 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
2
general character of the cause or external source thereof
insofar as reasonably pertinent to diagnosis or treatment.
It has been said by this Court that the reason for this exception is the likelihood that the
declarant was motivated to tell the truth by the belief that the effectiveness of the
treatment depended upon the accuracy of the information relayed. Oldman, 998 P.2d at
961. A New Mexico Supreme Court case expounded on the line of thinking behind the
exception:
Two underlying rationales traditionally animate [the
exception]. First, the “help-seeking motivation” counsels that
the declarant’s self-interest in obtaining proper medical
attention renders “the usual risks of hearsay testimony …
minimal when associated with medical treatment.” In re
Esperanza M., 1998-NMCA-039, ¶ 9, 124 N.M. 735, 955 P.2
204 (1998). Indeed, statements made at the time of treatment
may be more reliable than live testimony from the declarant
offered at trial months or even years later. See White v.
Illinois, 502 U.S. 346, 356, 112 S.Ct. 736, 116 L.Ed. 2d 848
(1992) (“[A] statement made in the course of procuring
medical services, where the declarant knows that a false
statement may cause misdiagnosis or mistreatment, carries
special guarantees of credibility that a trier of fact may not
think replicated by courtroom testimony.”).
The second rationale behind [the exception],
commonly referred to as “pertinence,” is that if a statement is
pertinent to a medical condition, such that a medical care
provider reasonably relies upon it in arriving at a diagnosis or
treatment, the statement is deemed sufficiently reliable to
overcome hearsay concerns. Morgan v. Foretich, 846 F.2d
941, 951 (4th Cir. 1988) (Powell, J., concurring in part and
dissenting in part [footnote omitted]) (“[A] fact reliable
enough to serve as a basis for a physician’s diagnosis or
treatment generally is considered sufficiently reliable to
escape hearsay proscription.”). At common law, these two
rationales were considered separate, independent
requirements, each of which had to be satisfied to admit
statements under the Rule. See id.; United States v. Iron
Shell, 633 F.2d 77, 84 (8th Cir. 1980).
State v. Mendez, 148 N.M. 761, ¶¶ 20-21, 242 P.3d 328, 334 (N.M. 2010).
3
[¶11] To ensure that the reason for the rule is satisfied, the existence of the proper
foundation should be a primary consideration for the trial court when making its
evidentiary ruling on such statements. Stephens v. State, 774 P.2d 60, 72 (Wyo. 1989)
(“A proper foundation is essential, however, and the simple fact that the statement was
made to a doctor or other medical personnel during treatment does not justify
admission.”) (overruled on other grounds by Large v. State, 2008 WY 22, 177 P.3d 807)
(Wyo. 2008)). In Stephens, this Court explained “proper foundation” in relation to Rule
803 when it adopted the Eighth Circuit’s two-part Renville test:
* * * [F]irst, the declarant’s motive in making the
statement must be consistent with the purposes of
promoting treatment [or diagnosis]; and second, the
content of the statement must be such as is reasonably
relied on by a physician in treatment or diagnosis.
Stephens, 774 P.2d at 72 (quoting United States v. Renville, 779 F.2d 430, 436 (8th Cir.
1985)). “[W]hen a statement is made to a physician for the purpose of providing
evidence for a court proceeding rather than for treatment purposes, courts have held that
the declarant lacks a “treatment motive” and that therefore the statement is inadmissible.”
R.S. v. Knighton, 125 N.J. 79, 87 (1991), 592 A.2d 1157, 1161 (N.J. 1991); see also State
v. D.R., 214 N.J. Super. 278, 289, n.4 (1986), 518 A.2d 1122, 1127 (N.J. App. Div.
1986), rev’d on other grounds, 109 N.J. 348 (1988), 537 A.2d 667 (N.J. 1988); State in
Interest of C.A., 201 N.J. Super. 28, 33-34 (1985), 492 A.2d 683, 686 (App. Div. 1985).
Conversely, the medical diagnosis or treatment exception does not require an independent
showing of the declarant’s trustworthiness because the trustworthiness can be established
by a showing that it was reasonably pertinent to diagnosis and was relied upon by the
healthcare professional to arrive at an expert diagnosis. King v. People, 785 P.2d 596,
602 (Colo. 1990). Recently, even the United States Supreme Court weighed in on
statements made for purposes of medical diagnosis or treatment and said that “by their
nature,” these statements are “made for a purpose other than use in a prosecution.”
Michigan v. Bryant, ___ U.S. ___, 131 S.Ct. 1143, 1157 n.9 (2011).
[¶12] In looking at whether the victim’s statements, through the SANE nurse’s
testimony, are admissible in this case, decisions from other jurisdictions are instructive.
New Mexico, in the Mendez case, supra, specifically, has pointed out the tenuous
situation presented by SANE nurse testimony:
We acknowledge the special challenges posed by
determining the admissibility of statements made to SANE
nurses under Rule 11-803(D), but we reject the notion that
statements can be categorically excluded based on the
professional status or affiliation of the individual to whom the
statement is made. SANE nurses fill a void in our medical
4
system, providing critical treatment to patients at a time of
great physical, emotional, and psychological vulnerability. As
the State points out, SANE nurses may be better suited to
provide this treatment due to their special training than non-
SANE nurses and physicians. But they also have special
expertise in gathering evidence for subsequent prosecution of
the offender, which raises appropriate concerns about whether
the statement was made for the purposes of seeking medical
care or whether a medical provider could have reasonably
relied upon the statement for diagnosis or treatment of the
declarant.
Both Defendant and the State seem to agree that SANE
nurses have a dual role: the provision of medical care and the
collection and preservation of evidence. As the State’s brief
explains, SANE nurses “are overall more competent than
emergency room[] doctors and non-SANE nurses at
collecting and preserving evidence of value to the legal
system.” See Campbell, supra at 3 2 1 (“SANEs collect
forensic evidence correctly and, in fact, do so better than
physicians.”). When compared with other medical providers,
the goals of SANE nurses and SANE examinations can seem
more closely aligned with law enforcement, which presents
an acute risk that the SANE nurse’s expert status can be
abused to allow an end-run on the hearsay rule. Trial courts
must be aware of the potential for such abuses, subjecting to
close scrutiny the exchange between SANE nurse and patient
to determine the statement’s overall trustworthiness under
Rule 11-803(D) in light of the two rationales highlighted
above.
SANE nurses may be more adept at collecting and
preserving evidence, but any medical provider who treats
sexual abuse victims is engaged to some extent in the
collection of evidence, and most understand that the evidence
they collect--physical or otherwise--could be used in a
subsequent prosecution. See Robert P. Mosteller, Testing the
Testimonial Concept and Exceptions to Confrontation: “A
Little Child Shall Lead Them,” 82 Ind. L. J. 917, 952 (Fall
2007) (“There is every reason to assume that the vast majority
of doctors and nurses are aware both of reporting
requirements and the admissibility of many statements made
to them during the examination process. The medical
5
examination thus always has the potential to feed directly into
the criminal process, and use of the statements at trial is an
obvious possibility.” (footnote omitted)).
Mendez, ¶¶ 41, 42, 43, 242 P.3d at 339-40. The Mendez court further reasoned that
[a] trial court must therefore carefully parse each statement
made to a SANE nurse to determine whether the statement is
sufficiently trustworthy, focusing on the declarant’s
motivation to seek medical care and whether a medical
provider could have reasonably relied on the statement for
diagnosing or treating the declarant.
Id., ¶ 43, 242 P.3d at 340.
[¶13] While it rejected a per se ban on statements made to a SANE nurse during an
examination, the New Mexico Supreme Court held that the mere fact that the
examination has both medical and forensic purposes does not render inadmissible all
statements made during the course of the examination. Mendez, ¶ 38, 242 P.3d at 339.
During an exam, a declarant may make a statement for medical diagnosis or treatment
purposes, even if the primary purpose of the exam is forensic, and the question of
admissibility should turn on whether the declarant’s statements themselves are
trustworthy, not simply whether the purpose of the exam was medical or forensic. Id.,
¶¶ 31-32, 242 P.3d at 337-38.
[¶14] The Mendez case also details the multitude of ways that courts approach these
cases:
While some jurisdictions retain a two-part test for
determining admissibility, several others including New
Mexico regard the “pertinence” rationale to be independently
sufficient to establish trustworthiness and admissibility under
Rule 11-803(D). Compare 4 Michael H. Graham, Handbook
of Federal Evidence § 803:4, at 175-78 (6th ed. 2006) (citing
jurisdictions that impose traditional two-part requirement),
with State v. Massengill, 2003-NMCA-024, ¶ 25, 133 N.M.
263, 62 P.3d 354 (“‘[U]nlike the common law rule, [Rule 11-
803(D)] does not require inquiry into the patient’s motive in
making the statement,’ so long as the statements were relied
upon by the physician.” (quoting State v. Altgilbers, 109
N.M. 453, 460, 786 P.2d 680, 687 (Ct. App. 1989)));
Esperanza M., 1998 NMCA 039, ¶ 14, 124 N.M. 735, 955
P.2d 204 (“[T]his Court and our Supreme Court have relied
6
on the foundation established by the party seeking to admit
the hearsay testimony that testimony is admissible if it is
‘reasonably pertinent’ for medical diagnosis or treatment.”
(citing State v. Woodward, 121 N.M. 1, 8, 908 P.2d 231, 238
(1995), abrogation recognized by State v. Granillo-Macias,
2008-NMCA-021, 143 N.M. 455, 176 P.3d 1187));
Altgilbers, 109 N.M. at 459-60, 786 P.2d at 686-87; and
Graham, supra § 8 0 3 : 4 , a t 1 7 8 (“A third group of
jurisdictions does not require a specific showing of motive;
rather, they inquire whether the subject-matter of the
declarant’s statement was reasonably pertinent to diagnosis or
treatment.”).
… while we agree with the conclusion in Altgilbers
and other persuasive precedents that the “pertinence”
rationale alone can provide a sufficient basis upon which to
admit a statement under Rule 11-803(D), we would not go so
far as to ignore the help-seeking motivation of the declarant
altogether, whether in a child sexual abuse setting or any
other case. The better approach, in our view, is for trial
courts to take both rationales into consideration, depending on
the circumstances of each case, focusing all the while on the
trustworthiness of each statement. Trustworthiness can be
established under either rationale alone, or some degree of
both. In any event, trial courts are best suited to consider the
relevant facts and circumstances of a given case in order to
make the ultimate determination.
Mendez, ¶¶ 22, 23, 242 P.3d at 334-35.
[¶15] By and large, we agree with the New Mexico court, and agree that the most
practical approach for this Court is to look at both rationales, in keeping with our
adoption of the two-part test, while still focusing on the trustworthiness of the statements,
which can be established by considering one rationale or some degree of both rationales.
We also appreciate New Mexico’s focus on the inevitability that during an exam, a
declarant may make a statement for medical diagnosis or treatment purposes, even if the
primary purpose of the exam is forensic. The bottom line is the question of admissibility
and whether the declarant’s statements themselves are trustworthy. Mendez, ¶ 31, n.4,
242 P.3d at 337. After all, “The extent to which a statement as to cause is pertinent to
diagnosis or treatment rests within the discretion of the trial judge, who may consider the
health care provider’s testimony in making that determination.” 13 Robert Lowell Miller,
Jr., Indiana Practice: Indiana Evidence § 803.104 (3d ed. 2007) (citations omitted); see
also Ind. Evidence Rule 104(a) (“Preliminary questions concerning . . . the admissibility
7
of evidence shall be determined by the Court[.]”); 21A Charles Alan Wright & Kenneth
W. Graham, Jr., Federal Practice and Procedure § 5053.3, p. 90 (2d ed. 2005) (“The
judge determines the preliminary facts regarding the hearsay exceptions in Rule 803[.]”).
[¶16] That said, we turn to McLaury’s argument that the State did not satisfy the first
foundational requirement because it did not establish that the victim intended that her
statements to the SANE nurse would be used for medical diagnosis or treatment. Rather,
McLaury submits that the victim believed her statements were made for evidence
collection purposes and that the exam would be used for prosecution purposes. McLaury
argues that explicit testimony about the victim’s motive to make the statements was
required. We conclude that the victim’s statements were clearly admissible under the
first prong. The SANE nurse testified that the first thing she does during an examination
is meet the patient and discuss what happened during the assault. She explained that
inquiring into the circumstances of the assault is an important part of the medical
examination because “it helps guide me to areas where there could potentially be injury
that I would have to treat. It also guides me to areas where I might be able to collect
possible biological evidence.” The SANE nurse later testified that “the patient stated to
me that she had been sexually assaulted by the assailant placing his fingers into her
vagina.” Also, the SANE nurse testified on cross-examination that the victim “stated to
me that the assailant inserted his fingers into her vagina, but she did not state to me how
many times it had occurred or how many fingers were used.” The SANE nurse further
testified that the victim “reported some tenderness with the examination.”
[¶17] The trial court concluded that the victim’s statements qualified as statements made
for purposes of medical diagnosis or treatment without making any specific findings as to
the victim’s motive or the SANE nurse’s reliance. Nevertheless, the record supports that
conclusion. The nurse specifically testified that she relied on the medical history to guide
her examination and asks what happened during an alleged assault “for the diagnosis and
treatment of my patient,” thereby satisfying the first prong of the reliability test. She also
testified that SANE nurses normally rely on similar histories to “guide me to areas where
there could potentially be injury that I would have to treat.” McLaury’s argument that the
victim’s statements to the SANE nurse were made specifically for use in McLaury’s
prosecution falls short. The SANE nurse checked the victim for injuries and counseled
her about preventative treatments for sexually transmitted infections. While it is true that
evidence collected was turned over to police, the exam was conducted at the hospital for
medical purposes. All of the above demonstrates the reasonableness of the SANE nurse’s
reliance on the victim’s statements in satisfaction of the second prong of the reliability
test.
[¶18] As much as we look to the record for our conclusion, what is not in the record is
also telling. Nothing in this record indicates that the victim had an ulterior or
underhanded motive when telling her story to the SANE nurse. Moreover, there is
nothing in the record that indicates that the victim was motivated by anything other than a
8
desire to receive appropriate medical care or that she did not understand the importance
of telling the truth.
[¶19] McLaury’s argument that the victim’s statements to the SANE nurse were made
specifically for use in McLaury’s prosecution falls short. The SANE nurse checked the
victim for injuries and counseled her about preventative treatments for sexually
transmitted infections. The victim chose, when asked, to go to the hospital after reporting
the incident.
[¶20] The trial court did not abuse its discretion in allowing the SANE nurse to testify as
she did.
CONCLUSION
[¶21] McLaury’s conviction is affirmed, and we conclude that the district court did not
abuse its discretion when it admitted the victim’s statements made during her sexual
assault examination under W.R.E. 803(4).
9
BURKE, Justice, specially concurring, with whom VOIGT, Justice, joins.
[¶22] I concur in the result reached by the majority. I write separately because I would
take a different path to reach that result. I would conclude that the State failed to
demonstrate that the victim’s hearsay statements to the SANE nurse were admissible.
The State did not establish that the victim made those statements for the purpose of
receiving medical treatment. It was error to admit those statements into evidence.
However, I would also conclude that the error was harmless and would affirm the
conviction.
[¶23] It is undisputed that the victim’s statements to the SANE nurse were hearsay and
inadmissible unless they fell within a specific exception to the hearsay rule. At trial, the
State sought admission of the statements under the medical treatment exception to the
hearsay rule, W.R.E. 803(4). In order for the statements to qualify for admission under
this exception, a proper foundation must be provided. Stephens v. State, 774 P.2d 60, 72
(Wyo. 1989) (“A proper foundation is essential, however, and the simple fact that the
statement was made to a doctor or other medical personnel during treatment does not
justify admission.”), overruled on other grounds by Large v. State, 2008 WY 22, 177
P.3d 807 (Wyo. 2008). The proponent of the statement must establish that: (1) the
declarant’s motive in making the statement is consistent with the purposes of promoting
treatment or diagnosis; and (2) the content of the statement must be such as is reasonably
relied upon by a medical provider in treatment or diagnosis. Stephens, 774 P.2d at 72. In
this case, the State bore the burden of laying the proper foundation for admissibility of
the statements.
[¶24] The majority properly recognizes that the exchange between the SANE nurse and
the victim must be closely scrutinized to determine the overall trustworthiness of the
statements. Such scrutiny involves an evaluation of the declarant’s motivation in seeking
medical care and the reasonableness of the medical provider’s reliance on the statement
for diagnosis or treatment. Mendez, ¶ 43, 242 P.3d at 340. The majority concludes that
the State satisfied its foundational burden. I disagree.
[¶25] The majority concludes that “there is nothing in the record that indicates that the
victim was motivated by anything other than a desire to receive appropriate medical
care.” To the contrary, there is nothing in the record indicating that the victim went to
the hospital for treatment. The only evidence relevant to that issue establishes that the
victim went to the hospital for a forensic exam, not treatment.
[¶26] Prior to calling the SANE nurse as a witness, the State introduced testimony from
three witnesses: Officer Micah Veniegas, the victim, and the victim’s boyfriend. Their
testimony was consistent and undisputed. According to that testimony, the victim went
to the hospital at the request of law enforcement to have a “rape kit” administered. The
record reflects the following:
10
Officer Veniegas testified: “Based on that, after I contacted
the sergeant, [we] decided to have the victim . . . go down to
the [hospital] and have a sexual assault kit conducted on her.”
The victim testified that she went to the hospital because:
“After we had filled out the statement and everything like
that, the officer had asked me if I would like to go to the
hospital and do one of those, like, rape kits, sexual assault
kits. And I told him yes.”
The boyfriend testified that they went to the hospital for “a
rape kit.”
The victim did not immediately seek medical treatment upon
arriving at the hospital. According to Officer Veniegas, after
they arrived at the hospital, he learned that “they did not have
a SANE nurse at the hospital at that time.” He then “advised
them that they needed to contact the SANE nurse and have
her respond to the hospital.” They waited for an hour and a
half for the SANE nurse to arrive. There is no evidence that
the victim received or sought any medical treatment in the
interim.
All of this evidence is at odds with the majority’s conclusion that the victim’s motive for
the visit with the SANE nurse was treatment. The majority’s failure to address this
evidence is contrary to its recognition that statements made to a SANE nurse must be
subjected to “close scrutiny.”
[¶27] Based on this evidence, I would conclude that the State failed to provide an
adequate foundation for admissibility under the W.R.E. 803(4) exception. The district
court erred in admitting the statements. The error, however, was harmless.
[¶28] We have previously recognized that an appellant who claims error must also
establish that the error was prejudicial.
If we conclude the trial court erred, we must then determine if
the error was prejudicial. Bromley v. State, 2009 WY 133, ¶
24, 219 P.3d 110, 116 (Wyo. 2009). An error is prejudicial if
there is a reasonable possibility the verdict might have been
more favorable to the appellant if the error had never
occurred. Callen v. State, 2008 WY 107, ¶ 5, 192 P.3d 137,
141 (Wyo. 2008). The burden of proving prejudicial error
11
rests with the appellant. Skinner v. State, 2001 WY 102, ¶ 25,
33 P.3d 758, 767 (Wyo. 2001).
Silva v. State, 2012 WY 37, ¶ 14, 271 P.3d 443, 448 (Wyo. 2012), quoting Bloomfield v.
State, 2010 WY 97, ¶ 17, 234 P.3d 366, 373 (Wyo. 2010). Appellant has failed to
identify the specific statements he finds objectionable or explain how exclusion of those
statements would have resulted in a different outcome at trial. The victim did not identify
Appellant as the perpetrator in any of those statements. The statements were a miniscule
part of the evidence presented during the course of a four day trial and were, for the most
part, merely cumulative to other evidence presented during the trial.1 The victim testified
at trial about the assault, and her boyfriend also testified that he witnessed the assault.
There is no reasonable possibility that the verdict would have been more favorable to
Appellant if the statements had been excluded. Appellant has failed to establish that the
error was prejudicial.
[¶29] If statements made to a SANE nurse merit close scrutiny because of the close
connection between the SANE nurse and law enforcement, then we should apply that
standard in this case. The hearsay testimony is legally “trustworthy” and admissible only
if it satisfies the requirements for admission as an exception to the hearsay rule under
W.R.E. 803(4). The State, as the proponent of the evidence, had the burden of
establishing that foundation. There is significant evidence in this record indicating that
the victim went to the hospital solely for a forensic exam by the SANE nurse. That
evidence has been ignored by the majority and, because of that, the conclusion it reached
regarding admissibility is flawed.
1
One of the statements to the SANE nurse, and the most potentially prejudicial, was admitted by the court
because defense counsel had “opened the door” during cross examination of the SANE nurse. During
cross examination, defense counsel inquired about the number of times penetration occurred. The SANE
nurse testified that the victim did not tell her “how many times.” On redirect, the State was allowed to
address that issue. In response to a question from the prosecutor, the SANE nurse testified that the victim
“said that she had asked the assailant to stop, but the assailant did not stop.”
12 | 01-03-2023 | 07-19-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1549058/ | 50 F.2d 48 (1931)
STRATTON et al.
v.
UNITED STATES.
No. 2514.
Circuit Court of Appeals, First Circuit.
May 28, 1931.
G. Philip Wardner, of Boston, Mass., for appellants.
J. Duke Smith, Sp. Asst. to U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Boston, Mass., on the brief), for the United States.
*49 Before BINGHAM, ANDERSON, and WILSON, Circuit Judges.
ANDERSON, Circuit Judge.
Marian A. Sargent died on February 16, 1924, and her will was duly probated in Suffolk county, Mass. The Commissioner of Internal Revenue assessed a tax on her estate, including therein property valued at $1,494,182.27, the income of which she had during life, under trusts established by her father, T. Jefferson Coolidge, containing general powers of appointment by her will over the principal of the trust property, with gifts over in default of such appointment. These powers she exercised by her will.
In a brief but cogent opinion by Judge Morton, the tax on the aggregate estate thus computed, was sustained. Her executors have appealed to this court.
The question arises under the following provisions of the Revenue Act of 1921, § 402 (42 Stat. 278):
"That the value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated. * * *
"(e) To the extent of any property passing under a general power of appointment exercised by the decedent (1) by will," etc.
The decedent had the income of this property during her life, and full power to dispose of it after her death. Her exercise of her general powers of appointment subjected the property to her debts. Clapp v. Ingraham, 126 Mass. 200, and cases cited. These rights amounted, practically, almost to full ownership.
We are unable to adopt the contention of the plaintiff's learned counsel that, failing explicit statement of such intention, the statute does not apply to powers created before its passage. Plainly, until her death in February, 1924, the decedent possessed full power to leave the property by will to whomsoever she saw fit, or to permit the gifts over of her father to take effect. In Knowlton v. Moore, 178 U.S. 41, 20 S. Ct. 747, 753, 44 L. Ed. 969, the Supreme Court said:
"It is the power to transmit, or the transmission from the dead to the living, on which such taxes are more immediately rested." She transmitted this property by her will and this transmission was taxable. Compare Fidelity-Phil. Trust Co. v. McCaughn (C. C. A.) 34 F.(2d) 600; Leser v. Burnet (C. C. A.) 46 F.(2d) 756.
The case falls under the reasoning of Chase National Bank v. United States, 278 U.S. 327, 49 S. Ct. 126, 73 L. Ed. 405, 63 A. L. R. 388, and Reinecke v. Northern Trust Co., 278 U.S. 339, 49 S. Ct. 123, 73 L. Ed. 410, 66 A. L. R. 397. See, also, Lee v. Commissioner, 18 B. T. A. 251; Minis v. United States, 66 Ct. Cls. 58, certiorari denied 278 U.S. 657, 49 S. Ct. 186, 73 L. Ed. 566; Fidelity-Phil. Trust Co. v. McCaughn (C. C. A. 3d) 34 F.(2d) 600, certiorari denied 280 U.S. 602, 50 S. Ct. 85, 74 L. Ed. 647; Whitlock-Rose v. McCaughn (C. C. A. 3d) 21 F.(2d) 164; Blackburne v. Brown (C. C. A. 3d) 43 F.(2d) 320.
Whether overruled or modified or not, by the Chase Nat. Bank Case and the Reinecke Case, supra (see Heiner v. Grandin [C. C. A.] 44 F.[2d] 141), the decision in Lewellyn v. Frick, 268 U.S. 238, 45 S. Ct. 487, 69 L. Ed. 934, is not in point. In that case it was held that insurance policies taken out before the passage of the act, in which the decedent retained the power to change at will the beneficiaries, were not taxable as a part of his estate. See also, Reinecke v. Northern Trust Co., 278 U.S. 339, at page 345, 49 S. Ct. 123, 73 L. Ed. 410, 66 A. L. R. 397; Saltonstall v. Saltonstall, 276 U.S. 260, 271, 48 S. Ct. 225, 72 L. Ed. 565.
The appellants' contention that, under the law of Massachusetts, the property passing under the decedent's exercised powers of appointment was no part of her estate, and therefore not taxable, while possibly logically sound, is not practically tenable. Compare United States v. Field, 255 U.S. 257, 41 S. Ct. 256, 65 L. Ed. 617, 18 A. L. R. 1461. The federal power to tax is not thus limited. The decedent had, to repeat, not only the income during her life, but full power to dispose of it at her death. She actually transmitted the property by exercising the granted powers. Congress might tax such transmission. Tyler v. United States, 281 U.S. 497, 50 S. Ct. 356, 74 L. Ed. 991, 69 A. L. R. 758. The fact that the decedent's appointees took, technically, from the donor of her power, is, for present purposes, immaterial. Compare Third Nat. Bank & Trust Co. v. White (D. C.) 45 F.(2d) 911.
Appellants' learned counsel also contends that, thus construed, the act was unconstitutional. We fail to see wherein this is so.
The judgment of the District Court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1021983/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4991
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHNNY HYMAN PALMER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Terrence W. Boyle,
District Judge. (CR-04-13)
Submitted: February 7, 2007 Decided: March 9, 2007
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Vidalia Patterson, Research and
Writing Attorney, Raleigh, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P.
May-Parker, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnny Hyman Palmer pled guilty to possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)
(2000). Palmer’s adjusted total offense level of 19 and his
criminal history category of IV yielded a guideline range of 46 to
57 months imprisonment. At sentencing, Palmer’s attorney argued
for a sentence below the advisory guidelines range1 based on:
(1) the age of Palmer’s prior felony convictions (both of which
occurred when he was 18-19 years old); (2) Palmer’s poor health
(diabetes and kidney failure); and (3) his interest in maintaining
a relationship with his three children and the mother of his two
youngest children. The district court sentenced Palmer to 46
months imprisonment--the bottom of the guidelines range--without
any comment on his arguments for a below-guidelines sentence or any
mention of, or reference to, the factors enumerated in 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2006). Palmer’s only argument on
appeal is that the district court failed to adequately articulate
its reasons for his sentence. We agree.
This court reviews a district court’s sentence for
reasonableness. United States v. Hughes, 401 F.3d 540, 546-47 (4th
Cir. 2005). “Consistent with the remedial scheme set forth in
[United States v.] Booker, [543 U.S. 220 (2005),] a district court
1
Palmer was sentenced after United States v. Booker, 543 U.S.
220 (2005)
- 2 -
shall first calculate (after making the appropriate findings of
fact) the range prescribed by the guidelines.” Id. at 546. Next,
the district court must consider this range in conjunction with
other relevant factors under the guidelines and § 3553(a) and
impose a sentence. Hughes, 401 F.3d at 546. The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Id. at 546-47 (citations omitted). “[A] sentence within the proper
advisory Guidelines range is presumptively reasonable.” United
States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006) (citations
omitted). “[A] defendant can only rebut the presumption by
demonstrating that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir.) (internal quotation marks and citation
omitted), petition for cert. filed, ___U.S.L.W.___ (U.S. July 21,
2006) (No. 06-5439).
A post-Booker sentence may be unreasonable for procedural
or substantive reasons. “A sentence may be procedurally
unreasonable, for example, if the district court provides an
inadequate statement of reasons or fails to make a necessary
factual finding.” United States v. Moreland, 437 F.3d 424, 434
(4th Cir.) (citations omitted), cert. denied, 126 S. Ct. 2054
(2006). While a district court must consider the various factors
listed in § 3553(a) and explain its sentence, it need not
“robotically tick through § 3553(a)’s every subsection” or
- 3 -
“explicitly discuss every § 3553(a) factor on the record.”
Johnson, 445 F.3d at 345. “This is particularly the case when the
district court imposes a sentence within the applicable Guidelines
range.” Id. (citation omitted).
However, “a district court’s explanation should provide
some indication (1) that the court considered the § 3553(a) factors
with respect to the particular defendant; and (2) that it has also
considered the potentially meritorious arguments raised by both
parties about sentencing.” Montes-Pineda, 445 F.3d at 380
(citations omitted). “[I]n determining whether there has been an
adequate explanation, [the court does] not evaluate a court’s
sentencing statements in a vacuum.” Id. at 381. Rather, “[t]he
context surrounding a district court’s explanation may imbue it
with enough content for [the court] to evaluate both whether the
court considered the § 3553(a) factors and whether it did so
properly.” Id.
On the record before us, we are unable to discern whether
the district court considered the § 3553(a) factors or whether it
did so properly. Accordingly, we vacate Palmer’s sentence and
remand for resentencing in order to allow the district court to
articulate its reasons in imposing sentence.2 We dispense with
2
We note that the district court sentenced Palmer prior to our
decisions in Moreland, Johnson, and Montes-Pineda, and thus did not
have the benefit of the guidance provided by those cases. We
further note that the district court is free on remand to impose
the same sentence or a different one; nothing in this opinion
- 4 -
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
VACATED AND REMANDED
should be read to suggest that we have formed any view regarding
the appropriate outcome of Palmer’s resentencing.
- 5 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304554/ | FELTS, J.
S. B. Rundle bought a second-hand automobile from the Capitol Chevrolet, Inc. The price was $150. He paid $50 cash and promised to pay the balance, plus a carrying charge of $29.60, in 12 monthly installments of $10.80 each. The sale was upon condition that title should not pass until the car was paid for, and was evidenced by a written contract to this effect.
Before the first installment came due Rundle learned that the Capitol Chevrolet, Inc., did not have title to two of the tires which it had sold him on the car. The Apex Oil Corporation had previously sold these tires under a conditional sale, and it still held the title to them and had a debt of $28.50 against them. It called on Rundle to pay this debt or surrender the tires. He notified the Capitol Chevrolet, Inc., and asked it to adjust the matter, which it declined to do. The Apex Oil Corporation came to replevy the tires, and he surrendered them. He thereupon asked the Capitol Chevrolet, Inc., *154to take back tbe car and refund tbe $50 be bad paid it, wbieb it also declined to do.
About a week later tbe first installment matured, and tbe General Motors Acceptance Corporation, to whom tbe Capitol Chevrolet, Inc., had transferred tbe conditional sale contract, repossessed tbe car, stored it in tbe garage of tbe Capitol Chevrolet, Inc., advertised and sold it for $100 to tbe Capitol Chevrolet, Inc. This company paid tbe deficit of $29.60 to tbe General Motors Acceptance Corporation and took an assignment of tbe conditional sale contract.
Three days later Bundle brought this suit in tbe court of general sessions to recover what be bad paid on tbe car. Defendant Capitol Chevrolet, Inc., denied bis right to recover and by cross-action sought to recover of him tbe deficit of $29.60, plus interest and attorney’s fees, under tbe conditional sale contract. That court allowed him a recovery of $28.50 and defendant a recovery of $29.60, and the offset tbe latter against tbe former.
He brought tbe case to tbe circuit court by certiorari. That court, trying tbe case without a jury, held that be was entitled to recover $11, the amount tbe court found it would have cost to replace tbe tires; and that defendant was entitled to recover of him $39.60, tbe deficit of $29.60 and $10 attorney’s fees; and tbe court, off-setting tbe $11 against $39.60, rendered judgment in favor of defendant against him for $28.60, taxing each party with one-half tbe costs.
Plaintiff appealed in error to this court and has assigned errors insisting that, upon tbe facts shown, defendant’s breach of warranty of title entitled him to rescind tbe sale and recover the $50 be paid on tbe car; and that tbe circuit court should have so held and allowed him a judgment for this amount against defendant and should not have allowed it any recovery against him.
Defendant has moved to dismiss tbe appeal in error because it was not perfected in time. Plaintiff was allowed 30 days from June 4, 1938, in which to perfect bis appeal in error either by giving bond or taking tbe oath. At tbe same term and on July 2 tbe court granted him “fifteen (15) days additional time within which to file bis bill of exceptions and otherwise perfect bis said appeal.” He filed the oath on July 5, which was within tbe additional time allowed; and tbe court bad power to grant such additional time. Physicians Mut. Health & Acc. Ins. Co. v. Grigsby, 165 Tenn., 151, 53 S. W. (2d), 381; Strain v. Roddy, 171 Tenn., 181, 101 S. W. (2d), 475. This additional time was allowed not only “to file bis bill of exceptions,” but also to “otherwise perfect bis said appeal,” which he did by taking tbe oath, as allowed by tbe orders of June 4 and July 2. Defendant’s motion is denied.
Defendant insists that it made no warranty of title to tbe car but that plaintiff purchased from it at bis peril. We cannot assent to this. Under the circumstances here appearing, tbe law raised *155a warranty of title by defendant. Note, 16 Ann. Cas., 59; 2 Mecbem on Sales, sections 1300-1302, Benjamin on Sales (6tb Am. Ed.), section 639; 1 Williston on Sales (2 Ed.), sections 216-218.
Mecbem says (vol. 2, section 1300) : “It is also everywhere agreed that,-in a sale of a specific and ascertained chattel, any affirmation by the seller that the chattel is his is equivalent to an express warranty of title;, and that this affirmation may be implied from his conduct as well as from his words, and may also result from the nature and circumstances of the sale.”
Benjamin says (sec. 639) : “A sale of personal chattels implies an affirmation by the vendor that the chattel is his, and therefore he warrants the title, unless it be shown by the facts and circumstances of the sale that the vendor did not intend to assert ownership, but only to transfer such interest as he might have in the chattel sold.”
Summing up his discussion of the rule in United States, Mechem states (vol. 2, section 1302) : “It seems universally to be conceded here that where the seller is in possession of the goods a warranty of title accompanies the sale, upon the ground that his undertaking to sell under such circumstances is of itself an affirmation of his title” (citing many authorities).
In Trigg v. Faris, 24 Tenn. (5 Humph.), 343, the Court said: “It is a well settled principle, applicable to all sales of chattels in the possession of the vendor, that the act, or fact of sale, of itself, by operation of law, implies and involves a warranty of the title. This principle operates with as much force when the sale and transfer of the property is evidenced by writing, or by deed, as if the evidence of sale were merely verbal. And this principle does not contravene the general • rule of evidence, alluded to by the judge; because the warranty of his title is as strongly implied from the fact of sale, which fact is proved by deed, as if it were proved otherwise. It does not enlarge the writing; it arises by operation of law, from the act or fact of sale itself. ’ ’
The Court in Gookin v. Graham, 24 Tenn. (5 Humph.), 480, page 484, said: “In a sale of personal property there is always an implied warranty of title, unless it be purchased under such circumstances as clearly show that the vendee intended to risk the title; as if the vendor be not in the possession, but the same be adversely in another.”
Where one in possession of goods sells them as owner, 'the law, in order to discourage dishonesty and fraud, will import into his contract of sale a warranty of title by him. On this point the Court in Word v. Cavin, 38 Tenn. (1 Head.), 506, 509, said:
“And it is clear, that although the terms of a written contract, though it be under seal, do not in themselves, contain -or import any express covenant as to the title, yet the law, in order to give a prop*156er force and effect to tbe contract, and to discourage dishonesty and bad faith, will create and supply as a necessary result and consequence of the contract, certain covenants and obligations, which will bind the parties as effectually as if they had been expressed in the strongest and most explicit terms. Id. [Addison on Con.], 49.
“This doctrine is not at variance with any established principle of the law. It is not adding a new term to the agreement of the parties, in the sense of the law; nor is it any infringement of the principle that parol evidence is inadmissible to enlarge or vary the written agreement of the parties, because such implied covenant is regarded as an inherent term of the contract, not necessary to be expressed, and having the same force as if stated in terms.”
Defendant was a dealer in automobiles, new and used, having them in its possession, holding itself out as owner and as having the right to sell them, and selling them to the public in general. It sold the car here in question to plaintiff in the ordinary course of its business, retaining the title thereto in itself to secure the balance of the purchase price. To permit a vendor under such circumstances to say it did not warrant the title and its vendee purchased at his peril, would open the door to imposition and fraud upon the public. In Gross v. Kierski, 41 Cal., 111, it is said:
“When the goods are at the time in the possession of the vendor, who deals with them as owner, and under such circumstances sells and delivers them to the purchaser, the law will imply against the vendor that he warrants the title to the property sold. This implication is indulged for the protection of the purchaser against what would otherwise be the fraud of the vendor, practiced upon him when he is himself not chargeable with negligence; for it is unreasonable to exact of the purchaser of goods that he is in every case to institute an inquiry into the title of his merchant, upon pain of losing both the goods and their price. The purpose of the law in implying the warranty is the protection of the purchaser; it determines that the vendor did warrant the title to the goods, because it considers that, under the circumstances, he ought to have done so. ’ ’
To the same effect is Word v. Cavin, supra.
Such was the common law of this State upon the subject of warranties of title by the vendor in sales of personalty when the Uniform Sales Act (Code, secs. 7194-7270) was enacted. This act we think, was but declaratory of the common law on this subject. It provides (sec. 7206) :
“In a contract to sell or a sale, unless a contrary intention appears, there is
“ (1) An implied warranty on the part of the seller that in case of a sale he has a right to sell the goods, and that in case of a contract to sell he will have a right to sell the goods at the time when the property is to pass.
*157“ (2) An implied warranty tbat tbe buyer shall have and enjoy quiet possession of tbe goods as against any lawful claims existing at tbe time of tbe sale.
“(3) An implied warranty tbat tbe goods shall be free at tbe time of tbe sale from any charge or encumbrance in favor of any third person, not declared or known to tbe buyer before or at tbe time when tbe contract or sale is made.
“(4) This section shall not, however, be held to render liable a sheriff, auctioneer, mortgagee, or other person professing to sell by virtue of authority in fact or law goods in which a third person has a legal or equitable interest. (Ib., see. 13.)”
These warranties by the vendor protect the vendee against liens or charges upon the goods. Johnson City v. Press, Inc., 171 Tenn., 80, 87, 100 S. W. (2d), 657.
Defendant, however, contends that it relieved itself of all warranties of every sort by the provisions of the contract, which were: “No warranties, expressed or implied, representations, promises or statements have been made by the seller unless endorsed hereon in writing.” The only endorsements were those by which defendant transferred the contract to the General Motors Acceptance Corporation and certified, among other things, that “said contract arose from the sale of the within described property, warranting that the title to said property was at the time and now is vested in the undersigned (defendant) free of all liens and encumbrances. . . .”
It is true stipulations like those here invoked have been held to exclude parol warranties or representations contradictory of the writing. Somerville v. Gullett Gin Co., 137 Tenn., 509, 194 S. W., 576; Deaver v. Mahan Motor Co., 163 Tenn., 429, 43 S. W. (2d), 199; Searcy v. Brandon, 167 Tenn., 218, 68 S. W. (2d), 112; White Co. v. Bacherig, 9 Tenn. App., 501; Southern Tractor Co. v. Brown Const. Co., 20 Tenn. App., 332, 98 S. W. (2d), 1082. But none of these cases involved a warranty of title. The warranties or representations excluded were as to condition, quality, or fitness of the thing sold, and not as to title. None of these cases is authority for defendant’s proposition that these stipulations in the conditional sale contract exclude a warranty of title by the vendor. So to construe them would bring them into conflict with the other provisions of the contract, both those imported into it by the law and those written into it by the parties themselves. One of the terms imported by the law, under the circumstances here shown, was that defendant warranted the title. Trigg v. Faris, supra; Word v. Cavin, supra. And one of the terms put in by the parties was that the title should remain in the conditional vendor until the vendee paid the balance of the price, but should pass to him as soon as he did this. This was in itself a warranty of title by the vendor. MacDonald et al. v. Mack Motor Truck Co., 127 Me., 133, 142 A., 68; 55 C. J., 782. For these reasons we hold that defendant warranted the title to the car.
*158This warranty was breached by tbe encumbrance on the tires, wbicb were a part, though an essential part, of the thing sold. Code, sec. 7206 (3); Johnson City v. Press, Inc., supra. A breach of warranty of title by the seller entitles the buyer to choose any one of the several remedies, one of which is rescission. Code, sec. 7262; True v. J. B. Deeds & Sons, 151 Tenn., 630, 271 S. W., 41. Defendant’s breach of warranty was complete, though the failure of its title was only partial; and for this breach plaintiff was entitled to rescind. Williston on Sales says (vol. 2, p. 1525) : “The decisions which allow rescission do not generally make the right dependent on the importance of the warranty or the character of the breach of it, nor does the Sales Act.” See also Hart-Parr Co. v. Duncan, 75 Okla., 59, 181 P., 288, 4 A. L. R., 1434.
Counsel refers to another matter disclosed in the evidence. While defendant declined to pay off the encumbrance on the tires which it sold plaintiff, it did offer him some more tires, which he declined to take. There is some controversy as to whether these were new or used tires. But we regard this as immaterial. There was nothing in the sale contract which allowed defendant to substitute other tires or required plaintiff to take them. This offer was merely a new negotiation — an offer by defendant of an accord and satisfaction of its breach of warranty of title to the tires, which plaintiff was not bound to accept; and, since he did decline it, it did not affect his right to rescind the sale on account of defendant’s breach of warranty.
Defendant insists that plaintiff did not return the car or tender it so as to entitle him to rescind. When the tires were taken, plaintiff requested defendant to take back the car and pay his money back, which it declined to do. This is admitted by defendant’s witness Aita. This, we think, was sufficient. An actual tender is excused where the seller refuses the buyer’s offer to return the goods and the tender would be but a useless formality. Code, sec. 7262 (3), (4), (5); 2 Williston on Sales (2 Ed.), pp. 1529, 1530; 55 C. J., 283, 284; Cf. Hawkins v. Byrn, 150 Tenn., 1, 12-14, 261 S. W., 980; Lamborn & Co. v. Green & Green, 150 Tenn., 38, 50, 262 S. W., 467.
It is insisted that plaintiff cannot rescind because his suit is for two inconsistent remedies, damages and rescission. We think the warrant sufficiently stated a cause for rescission. While a warrant of a justice of the peace serves the double purpose of process and pleading (History of a Lawsuit (5 Ed.), p. 84), it need not state a cause of action with the particularity required of a declaration; but it is sufficient if it gives defendant notice of the claim sued on which will enable him to prepare for trial. Nichols v. Turnpike Co., 128 Tenn., 541, 542, 543, 162 S. W., 588. The warrant in the present ease called on defendant “to answer in a civil action brought by S. B. Bundle for breach of contract and breach of warranty in the sale to plaintiff on one Chrysler Sedan automobile, motor No. C17531, and *159tbe return of tbe initial payment of tbe purchase price therefor.” Thus tbe cause averred was a breach of contract or warranty in tbe sale of tbe ear, tbe remedy for which was either damages or recession, depending upon plaintiff’s election. If be bad sought both these remedies, this would have made tbe pleading open to tbe objection of repugnancy (Deaver v. J. C. Mahan Motor Co., 163 Tenn., 429, 431, 43 S. W. (2d), 199); but be did not do this. He did not sue for damages. He sued for “the return of tbe initial payment of tbe purchase price” of the car, which is tbe appropriate remedy upon rescission.
For these reasons we think plaintiff was entitled to rescind tbe sale and recover tbe $50 be bad paid on tbe car. This being so, be was not liable on tbe contract of sale or for tbe deficit which defend-' ant sought to recover of him in its cross-action. (Code, sec. 7262(4) ).
Tbe judgment of tbe circuit court is reversed and judgment will be entered in this court for plaintiff against defendant for $50 and all tbe costs.
Faw, P. J., and Crownover, J., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3036037/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-1701
___________
Johnny Lee Sanders, Jr., *
*
Appellant, * Appeal from the United States
* District Court for the Eastern
v. * District of Arkansas.
*
Cole Jeter, Warden, FCI - Forrest City, * [UNPUBLISHED]
*
Appellee. *
___________
Submitted: October 22, 2004
Filed: October 25, 2004
___________
Before MURPHY, FAGG, and SMITH, Circuit Judges.
___________
PER CURIAM.
Federal inmate Johnny Lee Sanders, Jr., appeals the district court’s* order
dismissing Sanders’s 28 U.S.C. § 2241 petition. Having carefully reviewed the
record, we agree with the district court that Sanders’s due process rights were not
violated. See Moody v. Daggett, 429 U.S. 78, 86-89 (1976). We affirm the judgment
of the district court. See 8th Cir. R. 47B.
______________________________
*
The Honorable Susan Webber Wright, Chief Judge, United States District
Court for the Eastern District of Arkansas, adopting the report and recommendations
of the Honorable John F. Forster, Jr., United States Magistrate Judge for the Eastern
District of Arkansas. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1591842/ | 19 So. 3d 1158 (2009)
JUSTICE ADMINISTRATIVE COMMISSION, a State agency, Petitioner,
v.
Terence M. LENAMON, Respondent.
No. 2D09-1685.
District Court of Appeal of Florida, Second District.
October 16, 2009.
Stephen M. Presnell, General Counsel, and Christian D. Lake, Assistant General Counsel, Tallahassee, for Petitioner.
*1159 Brooke Terpening of Brooke Terpening, P.A., Coral Gables, for Respondent.
WALLACE, Judge.
The Justice Administrative Commission (the JAC) petitions this court for a writ of certiorari to quash a circuit court order awarding interim compensation and costs to Terence M. Lenamon, an attorney appointed to represent the defendant in a prosecution for a capital felony. The JAC challenges the circuit court's order because it awards compensation for Mr. Lenamon's services at the rate of $125 per hour instead of $100 per hour. Because the circuit court departed from the essential requirements of law by approving compensation that exceeds the applicable statutory limit of $100 per hour, we grant the petition.
I. THE FACTS AND PROCEDURAL BACKGROUND
The case against Mr. Lenamon's client arises out of a double homicide that occurred in Lee County. Mr. Lenamon's client was charged with the first-degree murder of the victims. The circumstances of the prosecution were unusual in that nine defendants were charged with being involved in the alleged murders. The State filed notices of intent to seek the death penalty against several of the defendants, including Mr. Lenamon's client. All of the defendants were indigent. Although our limited record does not so reflect, we assume that the Public Defender of the Twentieth Judicial Circuit and the Office of Criminal Conflict and Civil Regional Counsel were each appointed to represent one of the defendants. Thus the circuit court was required to find qualified private counsel to represent the remaining defendants.[1]
Mr. Lenamon's office is located in Miami, and he generally practices in Miami-Dade County. Mr. Lenamon's name is on the registry list for court appointments in the Eleventh Judicial Circuit, but not in the Twentieth Judicial Circuit. However, Mr. Lenamon is qualified to handle cases in which the State seeks the death penalty. Because all of the qualified attorneys within the Twentieth Judicial Circuit had been appointed to represent other defendants, the circuit court found that the appointment of an attorney from outside the circuit to represent Mr. Lenamon's client "is not only necessary, but also required in this case." Thus the circuit court appointed Mr. Lenamon as one of two attorneys to represent the defendant. The circuit court entered the order appointing Mr. Lenamon on July 16, 2007, nunc pro tunc, June 29, 2007.
Because Mr. Lenamon was not on the registry list for court-appointed counsel within the Twentieth Judicial Circuit, he entered into a nonstandard agreement with the JAC for his services in the case.[2] With respect to Mr. Lenamon's compensation, paragraph 1 of Article III provides:
Attorney shall be paid in accordance with the schedule of fees prescribed by the Florida Statutes and the General Appropriations Act in effect at the time of Attorney's date of appointment. For appointments prior to July 1, 2007, the rates established by the local Article V Indigent Services Committee will apply to the extent those rates are or remain *1160 consistent with Florida law. Attorney agrees and acknowledges that the compensation to be paid pursuant to this Agreement shall be the sole, exclusive, and full compensation to which Attorney shall be entitled for cases Attorney is appointed to pursuant to this Agreement.
Thus, in accordance with the agreement, the payment for Mr. Lenamon's services was expressly made subject to the amounts that were either authorized by or consistent with Florida law.
In March 2009, approximately three months before the double-murder case was scheduled to be tried, Mr. Lenamon filed a motion for interim attorney's fees. In his motion, Mr. Lenamon requested an award of $69,225 in fees and an additional $3937.46 in costs and expenses. Mr. Lenamon based his fee request on 553.80 hours to be compensated at the rate of $125 per hour. Mr. Lenamon alleged that the $125 per hour rate was the prevailing rate at the time of his appointment. The JAC promptly objected to the payment of Mr. Lenamon at the $125 rate and requested a hearing. In its objection, the JAC noted that "[t]he correct hourly rate is $100.00."
The circuit court conducted a hearing on Mr. Lenamon's motion. Mr. Lenamon argued in favor of the $125 per hour rate, and the JAC reiterated its objection. Neither Mr. Lenamon nor the JAC presented any testimony at the hearing. After hearing the parties' arguments, the circuit court announced that it would use the rates established by the local Indigent Services Committee (ISC) in effect on the date of Mr. Lenamon's appointment. Based on the rates adopted by the Twentieth Judicial Circuit ISC, the circuit court ruled that the correct rate was $125 per hour.
II. THE CIRCUIT COURT'S ORDER
After the hearing, the circuit court entered an order on Mr. Lenamon's motion. In the order, the circuit court made the following findings:
1. That the fees, costs or related expenses as set forth below are appropriate and reasonable[;] and
2. That the fees, costs or related expenses are incurred as the result of representation in the case which is unusual and extraordinary and therefore merits compensation exceeding the statutory limit in accordance with the Makemson v. Martin County [,] 491 So. 2d 1109 (Fla.1986)[,] line of cases.
Based on these findings, the circuit court approved the requested fees at the $125 per hour rate. The circuit court also approved the costs requested by Mr. Lenamon. Based on these findings, the circuit court ordered the JAC to pay eighty percent of the fees and all of the costs to Mr. Lenamon. Finally, the circuit court directed the JAC to withhold the remaining twenty percent of the fees until the final billing in the case.
The JAC filed a motion for reconsideration of the order and outlined in detail the basis for its objection to payment at the $125 per hour rate. The circuit court denied the JAC's motion without explanation. This petition for certiorari followed.
III. THE PARTIES' ARGUMENTS
The JAC argues that the circuit court's order departs from the essential requirements of law by approving compensation for Mr. Lenamon at an hourly rate that exceeds the maximum hourly rate established by law. The JAC points out that in accordance with section 27.5304(12)(d), Florida Statutes (2007), the hourly rate payable to a court-appointed attorney in a capital case may not exceed $100 per hour.
*1161 In response, Mr. Lenamon makes two points.[3] First, he contends that the applicable rate for his services is the $125 per hour rate previously established by the local ISC. Second, Mr. Lenamon argues that payment of the $125 per hour rate is necessary to ensure adequate representation for the indigent defendant. We will consider the parties' arguments below. However, some understanding of Florida law pertaining to the method of calculating the rates payable to court-appointed counsel is essential to an understanding of the parties' arguments. Thus we will first summarize the pertinent legal background.
IV. THE LEGAL BACKGROUND
A. The Indigent Services Committees
Mr. Lenamon's appointment to this case occurred at a time when the manner of determining the compensation rates for the services of court-appointed attorneys was in transition from one system to another. Before the enactment of chapter 2007-62, Laws of Florida (the Act), each judicial circuit was required to establish a "circuit Article V indigent services committee." § 27.42(1), Fla. Stat. (2006). The ISC's responsibilities included: (1) "manag[ing] the appointment and compensation of court-appointed counsel within [the judicial] circuit," (2) "set[ting] the compensation rates of due process service providers in cases [when] the court has appointed counsel or declared a person indigent for costs," and (3) maintaining a registry of attorneys available for appointment pursuant to section 27.40. § 27.42(2)(a)-(b). Most pertinent to this case, each ISC was required to "develop a schedule of standard fees and expense allowances for the categories of cases specified in s. 27.5304, consistent with the overall compensation rates in that section and within the amount of appropriated funds allocated by the Justice Administrative Commission to the circuit for this purpose." § 27.42(2)(c). Thus, under the ISC system, each judicial circuit within the state had a limited degree of autonomy in setting compensation rates for court-appointed counsel in accordance with local conditions.
B. The Adoption of a Uniform Statewide System
In 2007, the legislature adopted the Act. The Act substantially changed the manner of determining compensation rates for court-appointed counsel. First, the Act repealed section 27.42, relating to the Article V indigent services committees, effective October 1, 2007. Ch. 2007-62, § 30, Laws of Fla. Thus the ISCs were abolished. Second, the Act established a new flat fee system for compensating court-appointed counsel in a variety of matters. Ch. 2007-62, § 11, Laws of Fla. One of the Act's effects is to standardize rates for court-appointed counsel throughout the state. Under the amendments made to section 27.5304 by the Act, the flat fee payable for representing an accused in a capital case at the trial level is $15,000.[4] § 27.5304(5)(a)(4), Fla. Stat. (2007).
The Act added a new subsection (12) to section 27.5304. Ch. 2007-62 § 11, Laws of Fla. Subsection (12) details the circumstances and procedures governing payment *1162 to court-appointed counsel of amounts exceeding the new flat fees. This new subsection begins with an acknowledgment by the legislature "that on rare occasions an attorney may receive a case that requires extraordinary and unusual effort." § 27.5304(12). In such a case, subsection (12)(d) prescribes the analysis required to determine the amount of counsel's fee:
If the chief judge or designee finds that counsel has proved by competent and substantial evidence that the case required extraordinary and unusual efforts, the chief judge or designee shall order the compensation to be paid to the attorney at a percentage above the flat fee rate, depending on the extent of the unusual and extraordinary effort required. The percentage shall be only the rate necessary to ensure that the fees paid are not confiscatory under common law. The percentage may not exceed 200 percent of the established flat fee, absent a specific finding that 200 percent of the flat fee in the case would be confiscatory. If the chief judge or designee determines that 200 percent of the flat fee would be confiscatory, he or she shall order the amount of compensation using an hourly rate not to exceed $75 per hour for a noncapital case and $100 per hour for a capital case. However, the compensation calculated by using the hourly rate shall be only that amount necessary to ensure that the total fees paid are not confiscatory.
§ 27.5304(12)(d) (emphasis added). Thus, when an attorney requests a fee exceeding the applicable flat fee, subsection (12)(d) requires the chief judge or designee to conduct an analysis that may require two steps.
In the first step of the requisite analysis, the chief judge or designee must determine whether the case required "extraordinary and unusual efforts." § 27.5304(12)(d). If the chief judge or designee makes such a finding, then he or she may authorize compensation in an amount up to 200 percent of the applicable flat fee. Upon a finding of extraordinary and unusual efforts in a capital case such as this one, the chief judge or designee may authorize compensation up to 200 percent of $15,000, or $30,000. If payment at the enhanced percentage of the applicable flat fee is not confiscatory, then the analysis stops at the first step. However, if the chief judge or designee finds that payment of 200 percent of the applicable flat fee would be so inadequate as to be confiscatory of counsel's time and talents, then the analysis proceeds to the second step. In the second step of the analysis, the chief judge or designee must order compensation at an hourly rate not to exceed $75 per hour for a noncapital case and $100 per hour for a capital case. However, payment at the applicable hourly rate is not to exceed an amount necessary to ensure that the total fee for counsel's services is not confiscatory. Thus in a capital case, if the chief judge or designee reaches the second step of the analysis by finding that the payment of $30,000 would be confiscatory, the applicable hourly rate payable to ensure that the total fees paid are not confiscatory is $100.
V. DISCUSSION
The JAC's position is relatively straightforward. It relies on section 27.5304(12)(d) as setting the maximum hourly rate payable to court-appointed counsel in a capital case at $100 per hour. In response, Mr. Lenamon contends that section 27.5304(12)(d) is not controlling. Accordingly, we turn now to a consideration of Mr. Lenamon's two separate arguments that the maximum rate fixed by the *1163 statute does not control the amount payable for his services in this matter.
A. The Applicability of the Local ISC Rate
We first consider Mr. Lenamon's argument that the applicable hourly rate for his services on June 29, 2007, the effective date of his appointment, was controlled by the rates established by the Twentieth Judicial Circuit ISC. Mr. Lenamon's appointment was effective at the close of the 2006-2007 fiscal year. During the preceding 2005-2006 fiscal year, the rate established by the Twentieth Judicial Circuit ISC for "capital cases/death penalty" was "$3,500.00 per case up to 20 hours; thereafter, $100 per hour up to the statutory maximum." On August 14, 2006, the Twentieth Judicial Circuit ISC voted to increase the hourly rate applicable to "death penalty/capital cases" to $125 per hour. However, the ISC specifically noted that this amendment was "subject to the JAC's current rate-freeze." The effect of the rate freeze was to require fees for the 2006-2007 fiscal year to be paid at a rate not to exceed the rate established for the 2005-2006 fiscal year.[5] Thus the applicable rate for capital cases in the Twentieth Judicial Circuit for the 2006-2007 fiscal year was $100 per hour.
Mr. Lenamon's appointment was effective on June 29, 2007, during the 2006-2007 fiscal year. Mr. Lenamon argues that the rate freeze expired on June 30, 2007, at which time the ISC rate of $125 per hour went into effect. Mr. Lenamon continues his argument as follows:
The trial court recognized, as did the ISC, that the [rate] increase was applicable to payments after June 30, 2007. Payments after that date would be at [the] adopted rate of $125 per hour. References to the "current" rate freeze and the current economic hardships clearly indicated that the rate was to go into [e]ffect after the rate freeze was lifted.
We disagree. Mr. Lenamon's argument ignores the impact of subsection (12)(d) of section 27.5304.
The new subsection (12) in section 27.5304 became effective on May 24, 2007.[6] Thus the effective date of subsection (12) predates Mr. Lenamon's appointment by approximately five weeks. Accordingly, subsection (12)(d) controls the hourly rate payable for Mr. Lenamon's services. The hourly compensation rate prescribed in the statute is "not to exceed ... $100 per hour for a capital case." § 27.5304(12)(d). It follows that the maximum rate payable to Mr. Lenamon for his services on behalf of the defendant is $100 per hour, not $125 per hour.
Before leaving Mr. Lenamon's first argument, we note that there is a technical deficiency in the circuit court's order. The circuit court omitted to document the second step of the analysis required by subsection (12)(d) before awarding fees to Mr. Lenamon at an hourly rate instead of based on the applicable flat fee. The circuit court properly conducted the first step of the analysis by finding that the case required unusual and extraordinary efforts *1164 by Mr. Lenamon. Based on this finding, the circuit court could exceed the applicable $15,000 flat fee for capital cases by awarding compensation up to 200 percent of the flat fee, or $30,000. Of course, the interim compensation actually approved substantially exceeded this amount. Nevertheless, the circuit court did not make a finding that compensation limited to 200 percent of the flat fee would be confiscatory of Mr. Lenamon's time and talents. Therefore, to the extent that the order awards compensation to Mr. Lenamon exceeding $30,000, it is deficient. However, upon reviewing the transcript of the fee hearing, we have a firm conviction that the experienced circuit judge would have made the necessary finding if either of the parties had brought the matter to his attention. More important, the JAC does not challenge the award to Mr. Lenamon on this basis. The JAC's only objection is to the amount of the hourly rate used to calculate the fee award.
B. Ensuring Adequate Representation for the Defendant
In his second point, Mr. Lenamon argues that it was necessary for the circuit court to exceed the $100 per hour rate to ensure adequate representation for the indigent defendant in this capital murder prosecution. Mr. Lenamon correctly notes that the circuit court had exhausted all avenues to appoint qualified counsel from within the Twentieth Judicial Circuit. Thus the circuit court found it necessary to locate an attorney from outside the circuit in order to obtain "death-qualified" counsel for the defendant. Mr. Lenamon concludes that these unusual factors made it appropriate to pay the $125 per hour rate adopted in both the Eleventh Judicial Circuit and the Twentieth Judicial Circuit, "even if the local ISC rate was subject to administrative restraint."
In support of this argument, Mr. Lenamon relies on the case of Makemson v. Martin County, 491 So. 2d 1109 (Fla.1986), and its progeny.[7] However, the issue before the Supreme Court of Florida in Makemson was substantially different from the issue presented here. The Makemson court held that a trial court could exceed the maximum capped rates established by statute in order to ensure adequate representation for the accused. Id. at 1112. Makemson did not address the issue of exceeding hourly compensation rates established by statute.
Here, the interim fee awarded to Mr. Lenamon substantially exceeds the flat rate established by section 27.5304(5). The JAC's objection to the fee awarded is not that it exceeds the flat rate of $15,000, or even that the fee awarded exceeds 200 percent of the flat rate. Instead, the JAC's objection is that the hourly rate used to calculate the interim fee exceeds the hourly rate prescribed in the statute. Makemson and its progeny do not provide support for using an hourly rate in excess of the authorized hourly rate to calculate counsel's fee.
There are two additional difficulties with Mr. Lenamon's reliance on Makemson and its progeny to support the $125 per hour rate. First, the hearing in the circuit court at which the fee award was made was nonevidentiary. Mr. Lenamon did not present any evidence that it was necessary to pay an attorney an hourly rate in excess of the authorized rate in order to obtain qualified counsel to represent the defendant. Moreover, the circuit court made no such finding in its order. Cf. *1165 Hagopian v. Justice Admin. Comm'n, 18 So. 3d 625 (Fla. 2d DCA 2009) (discussing a trial court order entered after an evidentiary hearing finding section 27.5304 unconstitutional as applied in a complex, multidefendant, racketeering and conspiracy prosecution and authorizing payment for appointed counsel at an hourly rate of $110 per hour instead of $75 per hour). In light of the absence of such evidence and appropriate findings of fact by the circuit court, we need not decide if a trial court could authorize payment to court-appointed counsel at a rate in excess of the authorized hourly rate to ensure adequate representation for the accused.
Second, Mr. Lenamon voluntarily accepted the appointment and signed a contract with the JAC. Mr. Lenamon's contract with the JAC limits his compensation in accordance with the schedule of fees in effect at the time of his appointment. As we have seen, section 27.5304(12)(d) provides that payments to an attorney in a capital case made at an hourly rate are not to exceed $100 per hour. Accordingly, Mr. Lenamon is not entitled to payment at a rate greater than the rate he agreed to accept by contract. See Fla. Dep't of Fin. Servs. v. Freeman, 921 So. 2d 598, 607-08 (Fla.2006) (Cantero, J., concurring); Hillsborough County v. Unterberger, 534 So. 2d 838, 841 (Fla. 2d DCA 1988); Sheppard & White, P.A. v. City of Jacksonville, 751 So. 2d 731, 733-36 (Fla. 1st DCA 2000), approved, 827 So. 2d 925 (Fla.2002).
VI. CONCLUSION
For the reasons stated above, the circuit court departed from the essential requirements of law by awarding compensation to Mr. Lenamon on the basis of an hourly rate that exceeds the maximum hourly rate authorized by section 27.5304(12)(d). The proper method of computing the interim fee to be awarded to Mr. Lenamon is to multiply the number of his compensable hours by the capital felony rate of $100 per hour. See Swartz v. Bd. of County Comm'rs, 842 So. 2d 980, 982 (Fla. 2d DCA 2003); Bd. of County Comm'rs v. Lopez, 518 So. 2d 372, 373 (Fla. 2d DCA 1987). Thus we grant the petition and quash the circuit court's order to the extent that it used an incorrect hourly rate to calculate the interim fee to be awarded to Mr. Lenamon.
Petition granted and order quashed in part.
LaROSE and KHOUZAM, JJ., Concur.
NOTES
[1] Florida Rule of Criminal Procedure 3.112 imposes minimum standards for attorneys in capital cases.
[2] The JAC form contract is titled "Non-Standard Agreement for a Single Court Appointment for Attorney Services in the 20th Judicial Circuit." The contract bears the designation: "Eff. 7-1-05/Rev. 6-20-07, 6-11-08 & 2-19-09."
[3] Mr. Lenamon also argues that the $125 per hour rate was fair and reasonable in light of the exceptional circumstances present in this case. We do not doubt that the $125 per hour rate approved in the circuit court's order is fair and reasonable. However, the question before us is whether payment at a rate exceeding $100 per hour is authorized by law, not whether it is fair and reasonable.
[4] A "capital case" is defined as "any offense for which the potential sentence is death and the state has not waived seeking the death penalty." § 27.5304(5)(a)(4), Fla. Stat. (2007).
[5] The rate freeze appears in the Appropriations Bill. It provides: "The [JAC] shall pay all legal fees and due process costs for the 2006-2007 fiscal year at the rate not to exceed the amount set by the circuit Article V indigent services committee for the 2005-2006 fiscal year." Ch. 2006-25, § 4, line 876, Laws of Fla.
[6] See ch. 2007-62, § 34, Laws of Fla. ("Except as otherwise expressly provided in this act, this act shall take effect upon becoming a law."). Because section 11 contains no internal effective date, section 34 applies. Chapter 2007-62 was signed by the Governor on May 24, 2007, and filed with the Secretary of State on the same day.
[7] See, e.g., Maas v. Olive, 992 So. 2d 196 (Fla. 2008); Fla. Dep't of Fin. Servs. v. Freeman, 921 So. 2d 598 (Fla.2006); Olive v. Maas, 811 So. 2d 644 (Fla.2002); Remeta v. State, 559 So. 2d 1132 (Fla. 1990); White v. Bd. of County Comm'rs, 537 So. 2d 1376 (Fla.1989). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1022067/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4835
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LECHIA LYNN MOODY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:00-cr-00163-ALL)
Submitted: January 31, 2007 Decided: March 13, 2007
Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Deirdre H. Purdy, BAILEY & GLASSER, LLP, Charleston, West Virginia,
for Appellant. Charles T. Miller, United States Attorney, John K.
Webb, Assistant United States Attorney, Charleston, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lechia Lynn Moody appeals the district court’s order
revoking her term of supervised release and imposing a 24-month
term of imprisonment. Moody claims: (1) the court’s statement of
its basis for revoking her supervised release was insufficient;
(2) the evidence was insufficient to support a finding that she
violated a condition of release by possessing a controlled
substance; and (3) the court abused its discretion by admitting and
relying on hearsay evidence. We affirm.
Moody was convicted of distribution of oxycodone in
violation of 21 U.S.C. § 841(a)(2000). On July 7, 2004, she began
serving a three-year term of supervised release. On January 19,
2006, Moody’s probation officer filed a petition for revocation of
Moody’s supervised release. Following a hearing, the conditions of
Moody’s supervised release were modified to require that Moody
complete a 28-day inpatient drug rehabilitation program, and upon
completion, that she participate in a six-month outpatient program.
On April 26, 2006, the probation officer filed a second
petition for revocation, alleging that Moody possessed a controlled
substance as evidenced by a positive drug screen on February 21,
2006; and that according to treatment providers at the drug
rehabilitation facility, Moody told staff upon completion of the
28-day program she did not want to participate in the six-month
program. According to the petition, Moody asked the staff to
- 2 -
falsely report to the court that she was in need of no further
treatment. Based on her resistance to the six-month program, she
was denied admission.
The district court held a hearing on the petition. The
government presented the testimony of the probation officer and the
laboratory report showing Moody’s positive drug screen. Moody did
not testify or present any evidence. The district court concluded
that Moody violated both conditions of release as alleged in the
petition, revoked the supervised release and imposed a 24-month
term of imprisonment.
Moody argues that the district court failed to
sufficiently articulate its basis for revoking supervised release.
A defendant is entitled to a written statement by the factfinder as
to the evidence relied upon and the grounds for revoking supervised
release. Morrissey v. Brewer, 408 U.S. 471, 489 (1972). This
requirement may be satisfied by a transcript of an oral finding
“when the transcript and record compiled before the trial judge
enable the reviewing court to determine the basis of the trial
court’s decision.” United States v. Copely, 978 F.2d 829, 831 (4th
Cir. 1992). In this case, while the trial court’s recitation in
its written and oral findings that it relied upon the information
stated in the petition and the evidence presented at the hearing to
conclude Moody violated both conditions of release as alleged in
the petition “might have been more specific,” it requires “no great
- 3 -
leap of faith” to understand the grounds for revocation. Id. at
832. We conclude the court’s statement satisfies Moody’s right to
due process, and is sufficient.
Moody also challenges the district court’s conclusion
that she violated the terms of release by possessing a controlled
substance. We review the district court’s decision to revoke a
defendant’s supervised release for an abuse of discretion. Id. at
831. The district court need only find a violation of a condition
of supervised release by a preponderance of the evidence. 18
U.S.C. § 3583(e)(3)(2000).
Moody asserts that the evidence did not establish that
her possession was knowing. She claims that because she resided
with a felon, that person could have been responsible for her
unknowingly ingesting drugs. However, there is no evidence in the
record supporting this inference. Instead, the evidence in the
record supports that Moody knowingly possessed a controlled
substance. We conclude the district court did not abuse its
discretion in finding, by a preponderance of the evidence, that
Moody violated a condition of her supervised release by possessing
a controlled substance.
Finally, Moody contends that the district abused its
discretion by admitting hearsay evidence without conducting an
inquiry into the reliability of the evidence. Supervised release
revocation hearings are informal proceedings in which the rules of
- 4 -
evidence need not be strictly observed. Fed. R. Evid. 1101(d)(3)
(excluding probation revocation hearings from proceedings governed
by Federal Rules of Evidence). Hearsay evidence is admissible in
revocation proceedings if it is “demonstrably reliable.” United
States v. McCallum, 677 F.2d 1024, 1026 (4th Cir. 1982).
Even assuming the probation officer’s testimony
recounting Moody’s statements to the treatment provider was not
“demonstrably reliable,” any error was harmless. Moody did not
actually contest that fact that she violated a condition of release
by not participating in a six-month treatment program. She merely
offered an alternative explanation for her noncompliance.
Moreover, under the U. S. Sentencing Guidelines Manual (“USSG”)
§ 7B1.1, violations of supervised release are classified into three
grades--Grades A, B and C. Simple possession is a Grade B
violation. USSG §§ 7B1.1, 4B1.2(b). Once a Grade B violation has
been established, the court must revoke supervised release. See
USSG §§ 7B1.1, 7B1.3; 18 U.S.C. § 3583(e)(3) (2000). Because
revocation of supervised release was mandatory based on the court’s
finding that Moody possessed a controlled substance, any arguable
error in connection with the evidence admitted in support of the
other violation was harmless.
For these reasons, we affirm the district court’s order
revoking supervised release and sentencing Moody to twenty-four
months of imprisonment. We dispense with oral argument because the
- 5 -
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
- 6 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2455691/ | 257 P.3d 351 (2011)
STATE
v.
JOHNSON.
No. 103589.
Court of Appeals of Kansas.
August 12, 2011.
Decision Without Published Opinion
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591967/ | 19 So. 3d 320 (2009)
J.C.
v.
DEPARTMENT OF CHILDREN AND FAMILIES.
No. 3D09-1194.
District Court of Appeal of Florida, Third District.
September 17, 2009.
Decision without published opinion appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592116/ | 19 So.3d 472 (2009)
STATE of Louisiana
v.
Derrick Termaine SUDDS.
No. 2009-KO-0154.
Supreme Court of Louisiana.
October 16, 2009.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1549118/ | 140 B.R. 92 (1992)
In re Christopher & Julie MICHEL, Debtors.
Christopher & Julie MICHEL, Plaintiffs,
v.
BENEFICIAL CONSUMER DISCOUNT CO. and Edward Sparkman, Trustee, Defendants.
Bankruptcy No. 91-12560S, Adv. No. 91-1000S.
United States Bankruptcy Court, E.D. Pennsylvania.
March 18, 1992.
*93 Marian C. Nowell, Community Legal Services, Inc., Philadelphia, Pa., for debtors.
Francis J. Sullivan, Sullivan and Sullivan, Levittown, Pa., for Beneficial Consumer Discount Co.
Edward Sparkman, Philadelphia, Pa., defendant-trustee.
OPINION
DAVID A. SCHOLL, Bankruptcy Judge.
A. INTRODUCTION
The instant proceeding again raises the controversy over the appropriate rescission notice form to be used by a creditor, under the dictates of the federal Truth-in-Lending Act, 15 U.S.C. §§ 1601, et seq. ("the TILA"), when that creditor takes security against a borrower's residential real estate in a transaction which is preceded by an earlier transaction between the parties, the balance of which is paid off in the new loan.
The last decision addressing this controversy, In re Porter, 129 B.R. 397, 400-03 (E.D.Pa.1991) ("Porter II") (a case appealed, argued, and awaiting decision before the Third Circuit Court of Appeals), reversed this court's decision in In re Porter, 122 B.R. 933, 939-41 (Bankr.E.D.Pa.1991) ("Porter I"), and held that a notice appropriate in a "refinancing" must be utilized by the creditor in such a transaction. Porter I followed our earlier decisions in In re Jones, 79 B.R. 233, 235, 239-41 (Bankr. E.D.Pa.1987), rev'd in part on other grounds sub nom. Jones v. Mid-Penn Consumer Discount Co., 93 B.R. 66 (E.D.Pa.1988); In re Melvin, 75 B.R. 952, 954-57 (Bankr.E.D.Pa.1987); and In re Tucker, 74 B.R. 923, 928-31 (Bankr.E.D.Pa. 1987), and held that, when a creditor takes a new security interest in the borrower's residential real estate in a closed-end loan, the transaction must be treated as an entirely new loan rather than as a "refinancing." In the instant factual pattern, where a security interest in real estate was taken for the first time in the second of two open-end loan transactions, we conclude that, even under the holding in Porter II, the transaction cannot be treated as a "refinancing" in which a previous security interest is merely extended rather than made anew.
Therefore, we hold that Defendant BENEFICIAL CONSUMER DISCOUNT CO. *94 ("Beneficial") violated the TILA when it provided a rescission notice to CHRISTOPHER & JULIE MICHEL ("the Debtors") in an open-end transaction which is appropriate only in a transaction similar to a "refinancing" transaction. We also reject Beneficial's arguments that this TILA violation does not merit rescission, and we hold that the adverse consequences normally following a valid rescission which the creditor has refused to honor follow, i.e., elimination of any security interest in the Debtors' residence, elimination of any finance and other charges, and statutory damages of $1,000 both as a recoupment against Beneficial's claim and an affirmative recovery in light of Beneficial's failure to honor their valid rescission. See, e.g., In re [Joyce] Brown, 134 B.R. 134, 145-47 (Bankr.E.D.Pa.1991); In re [Elizabeth Marie] Brown, 106 B.R. 852, 861-63 (Bankr. E.D.Pa.1989); and Tucker, supra, 74 B.R. at 932-34. We also hold that the Debtors are entitled to avoid Beneficial's lien on their household goods under 11 U.S.C. § 522(f)(2). However, finding no evidence of deceit or overreaching on the part of Beneficial, we decline the Debtors' requests that their indebtedness to Beneficial be eliminated entirely and that Beneficial be required to refund all payments made to it on account of this loan. Therefore, Beneficial is left with an unsecured claim of $1,688.65.
B. PROCEDURAL HISTORY
The Debtors filed the underlying instant joint Chapter 13 bankruptcy case on May 7, 1991. A confirmation hearing was scheduled on October 31, 1991, and was continued until December 19, 1991, with a hearing on a Motion filed by Defendant EDWARD SPARKMAN, TRUSTEE, the Standing Chapter 13 Trustee ("the Trustee"), on November 6, 1991, to dismiss this case ("the Trustee's Motion"). The ground for the Trustee's Motion, in his parlance, was that the Debtors' proposed plan was not "feasible," i.e., the secured claims exceeded the payments contemplated in the plan. See In re Fricker, 116 B.R. 431, 436-37 (Bankr.E.D.Pa.1990).
On November 8, 1991, the Debtors filed the adversary proceeding before us ("the Proceeding"). This was followed by their filing a motion to avoid Beneficial's nonpossessory, nonpurchase-money security interest in their household goods ("the Debtors' Motion") on November 12, 1991. The Debtors' Motion was listed for a hearing on December 17, 1991, and the Proceeding was listed for trial on December 19, 1991. The court agreed to continue the confirmation hearing, the hearings on the Trustee's Motion and the Debtors' Motion, and the trial of the Proceeding to January 21, 1992, on the condition that the trial would not be continued further.
On January 21, 1992, the parties appeared and agreed that the Proceeding and the Debtors' Motion would be decided on a Joint Pretrial Statement including a Stipulation of facts, and Briefs filed by the respective parties on or before February 20, 1991 (the Debtors), and March 9, 1992 (Beneficial). The confirmation hearing and the hearing on the Trustee's Motion were continued to March 24, 1992.
C. FACTUAL HISTORY
The Debtors are a young (aged 27 and 25) married couple who own the home in which they reside with their two daughters at 5036 "F" Street, Philadelphia, PA 19124 ("the Home"). The Schedules indicate that the Husband-Debtor owns and operates a hot-dog stand to support the family.
On November 18, 1988, the Debtors and Beneficial entered into a "credit line account agreement" with a limit of $2,500.00. As security for payment on the account, the Debtors granted Beneficial a security interest in a 1989 Yamaha all-terrain vehicle (ATV) ("the Vehicle") apparently purchased with the loan proceeds.
On June 8, 1989, Debtors and Beneficial entered into the transaction in issue, a further "credit line account agreement" with a limit of $4,900.00. In that transaction, Beneficial paid off the November, 1988, loan balance of $2,978.45, collected recording fees and costs of $60.00, charged the Debtors $145.33 for life and personal property insurance, and gave Debtors a check *95 for "new money" in the amount of $1,861.55. Security taken by Beneficial in this transaction included security interests in the Debtors' household goods, including televisions, radios, a stereo, and a VCR; retention of its security interest in the Vehicle; and, for the first time, a mortgage on the Home.
On May 6, 1991, the day before their bankruptcy filing, the Debtors' then-counsel sent a letter to Beneficial purporting to rescind the loan transaction of June 8, 1989, and demanding that Beneficial satisfy its "security interests" in the Debtors' "property;" desist from making claims for finance charges; and return all "money or property" received by Beneficial "in connection with these transactions."
On May 24, 1991, Beneficial's then-counsel cryptically responded by sending a copy of the Notice of Right to Cancel received by the Debtor in the transaction to the Debtors' counsel and stating that "[w]e . . . trust that our mortgage will be provided for under the Plan."
The only violations of the TILA and its pertinent Regulation Z, 12 C.F.R. § 226.1, et seq., alleged by the Debtors in their Complaint arise out of the contents of the notice of the Debtors' right to rescind this transaction. That notice is therefore reproduced in pertinent part as follows:
NOTICE OF RIGHT TO CANCEL
The words you, your and yours refer to all persons signing the Revolving Loan
Agreement as a Borrower whose principal dwelling will be subject to a lien or to any
other person whose principal dwelling is subject to the lien. The words we, our and us
refer to the Lender.
Right to Cancel
You are entering into a transaction which will increase the credit line on your open end
credit Revolving Loan Account. We obtained a lien by means of a:
x Mortgage x Deed of Trust x _______________________
describe
on your home as security for your account and increasing the credit line will increase the
amount of this lien. You have a legal right under federal law to cancel the increase of
the credit line, without cost, within 3 business days from whichever of the following
events occurs last:
(1) the date of the increase of the credit line, which is June 8th , 19 89 ; or
(2) the date you received your Truth in Lending disclosures (Revolving Loan Agreement);
or
(3) the date you received this Notice advising you of your right to cancel the increase
of your credit line.
If you cancel the transaction, your cancellation will apply only to the increase in the credit
line, and to the lien that resulted from that increase. It will not affect the amount that
you presently owe or the lien we already have on your home. Within 20 calendar days
after we receive your Statement of Cancellation of the credit line increase, we must take
the steps necessary to reflect the fact that any increase in the lien on your home has been
cancelled. We must also return to you any money you have given to us or anyone else in
connection with this increase.
You may keep any money or property we have given you with respect to the credit line
increase until we have done the things mentioned above, but you must then offer to
return to us the money or property. If it is impractical or unfair for you to return the
property, you must offer its reasonable value. You may offer to return the property at
your home or at the location of the property. Money must be returned to the address
shown below. If we do not take possession of the money within 20 calendar days of your
offer, you may keep it without further obligation.
*96
How to Cancel
If you decide to cancel this transaction, you may do so by notifying us in writing, at
Beneficial Consumer Discount Co
______________________________________________________________
Lender's Name
4807 Edgmont Ave
______________________________________________________________
Street Address
Brookhaven, Pa, 19015
______________________________________________________________
City State Zip
You may use any written statement that is signed and dated by you and states your
intention to cancel. In place of a written statement, you may use this Notice by dating
and signing it below. You may keep one copy of this Notice because it contains important
information about your rights.
If you cancel by mail or telegram, you must send the notice or statement of cancellation
no later than midnight of June 12th, , 19 89 (which is the 3rd business day following
the latest of the three events listed above). If you send or deliver a written notice to
cancel some other way, you must deliver that notice of cancellation to us at the above
address no later than the time specified.
On June 13, 1989, the Debtors executed a Statement indicating that they did not wish to rescind the transaction.
The Debtors' Chapter 13 Plan, filed on May 28, 1991, provides for payments of $115 for 60 months. Specific reference is made in the plan to the Debtors' intention to cure arrearages and future payments to the first mortgagee on the Home, GMAC Mortgage Corporation of PA., and to pay certain designated allowed tax claims. The failure of the Plan to mention Beneficial appears to reflect an intention to consider its claims as totally unsecured.
On or about August 21, 1991, Beneficial filed a Proof of Claim reciting $4,688.20 as the principal amount of its indebtedness and $1,820.97 as arrearages which, with certain "additional charges," amounted to a total secured claim in the amount of $6,509.17.
The parties admitted into the record Beneficial's Record of Payments of the June 8, 1989, "credit line." This Record reflects remittances of $1,181.00 and an $825 credit for the sale of the Vehicle on June 27, 1991, which total payments of $2,006.00.
D. DISCUSSION
1. IN LIGHT OF THE FACT THAT THE INSTANT TRANSACTION IS AN OPEN-END LOAN IN WHICH SECURITY WAS TAKEN IN THE DEBTORS' HOME FOR THE FIRST TIME, THE USE OF A NOTICE OF THE DEBTORS' RIGHT TO RESCIND INDICATING THAT BENEFICIAL WAS MERELY INCREASING A PRIOR SECURITY INTEREST ON THE HOME WAS IMPROPER.
The Debtors' claims to a right of rescission are based upon 15 U.S.C. §§ 1635(a), (b), which provide as follows:
SECTION 125 Right of Rescission as to Certain Transactions
(a) Except as otherwise provided in this section, in the case of any consumer credit transaction (including opening or increasing the credit limit for an open end credit plan) in which a security interest, including any such interest arising by operation of law, is or will be retained or acquired in any property which is used as the principal dwelling of the person to whom credit is extended, the obligor shall have the right to rescind the transaction until midnight *97 of the third business day following the consummation of the transaction of the delivery of the information and rescission forms required under this section together with a statement containing the material disclosures required under this title, whichever is later, by notifying the creditor, in accordance with regulations of the Board, of his intention to do so. The creditor shall clearly and conspicuously disclose, in accordance with regulations of the Board, to any obligor in a transaction subject to this section the rights of the obligor under this section. The creditor shall also provide, in accordance with regulations of the Board, appropriate forms for the obligor to exercise his right to rescind any transaction subject to this section.
(b) When an obligor exercises his right to rescind under subsection (a), he is not liable for any finance or other charge, and any security interest given by the obligor, including any such interest arising by operation of law, becomes void upon such a rescission. Within 20 days after receipt of a notice of rescission, the creditor shall return to the obligor any money, downpayment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction. If the creditor has delivered any property to the obligor, the obligor may retain possession of it. Upon the performance of the creditor's obligations under this section, the obligor shall tender the property to the creditor, except that if return of the property in kind would be impracticable or inequitable, the obligor shall tender its reasonable value. Tender shall be made at the location of the property or at the residence of the obligor, at the option of the obligor. If the creditor does not take possession of the property within 20 days after tender by the obligor, ownership of the property vests in the obligor without obligation on his part to pay for it. The procedures prescribed by this subjection shall apply except when otherwise ordered by a court (emphasis added).
Regulation Z fleshes out the creditor's obligations regarding the provision of a notice of right to rescind an open-end credit transactions thusly, in 12 C.F.R. § 226.15(b):
(b) Notice of Right to Rescind. In any transaction or occurrence subject to rescission, a creditor shall deliver two copies of the notice of the right to rescind to each consumer entitled to rescind. The notice shall identify the transaction or occurrence and clearly and conspicuously disclose the following:
(1) The retention or acquisition of a security interest in the consumer's principal dwelling.
(2) The consumer's right to rescind, as described in paragraph (a)(1) of this section.
(3) How to exercise the right to rescind, with a form for that purpose, designating the address of the creditor's place of business.
(4) The effects of rescission, as described in paragraph (d) of this section.
(5) The date the rescission period expires.
Appendix G to Regulation Z includes several model forms. Model forms G-5 through G-9 prescribe various forms for notices of right to rescind in open-end credit accounts in various settings, as follows:
G-5 When Opening an Account
G-6 For Each [subsequent] Transaction
G-7 When Increasing the Credit Limit
G-8 When Adding a Security Interest
G-9 When Increasing the Security.
The parties do not dispute that the notice of right to rescind provided to the Debtors in the pertinent transaction tracked Model Form G-6. There is little doubt that it should have tracked G-8 or G-9, because Beneficial was significantly adding to or increasing its security when it added a security interest in the Home to its security package for the first time and was adding to its security interests on June 8, 1989. The only issues would therefore appear to be whether Beneficial's use of the incorrect form is a serious enough error as to trigger a violation of 15 U.S.C. § 1635(a).
*98 Beneficial's first line of defense is to analogize from the result reached in Porter II, which it argues is supported by language appearing in In re Steinbrecher, 110 B.R. 155, 165-66 n. 20 (Bankr.E.D.Pa.1990) (FOX, J.). However, it must be recalled that Porter II and Steinbrecher, as well as the contrary decisions rendered by this court in Porter I, Jones, Melvin, and Tucker, reiterated in In re Wright, 127 B.R. 766, 771-772 (Bankr.E.D.Pa.), aff'd, 133 B.R. 704 (E.D.Pa.1991), all arose in analysis of a series of closed-end loan transactions. In such transactions, only two Model Forms are pertinent, H-8 (General) and H-9 (Refinancing). Also, it is important to note that, while the TILA itself has one section relating to the right of rescission in all consumer transactions, Regulation Z contains different provisions relating to rescission of open-end and of closed-end transactions in 12 C.F.R. § 226.15 and § 226.23, respectively.
The narrow issue presented in Porter is interpretation of 12 C.F.R. § 226.23(f)(2). We note that a 1988 amendment to § 226.23(f)(2) may distinguish the results in Jones, Melvin, and Tucker which preceded this amendment. See Porter I, 122 B.R. at 940. In its present form, § 226.23(f)(2) reads as follows:
(f) Exempt transactions. The right to rescind does not apply to the following:
. . . . .
(2) A refinancing or consolidation by the same creditor of an extension of credit already secured by the consumer's principal dwelling. The right of rescission shall apply, however, to the extent the new amount financed exceeds the unpaid principal balance, any earned unpaid finance charge on the existing debt, and amounts attributed solely to the costs of the refinancing or consolidation.
In Porter I, we held that, when a creditor takes a new security interest in the entire amount of a new loan and satisfies a similar security interest taken in a prior similar transaction, the new transaction is not "already secured" by the mortgage on the consumer's residence from the prior transaction, and that, in such transactions, the use of the H-8 Model Form rather than the H-9 Model Form is appropriate. Id. at 941. We were particularly influenced by the language of Model Form H-9, which states that
We acquired a [mortgage/lien/security interest] [on/in] your home under the original transaction and will retain that [mortgage/lien/security interest] in the new transaction.
In a transaction in which a new mortgage is taken which covers the entire new loan, as in the Porter transaction, the statement that a prior mortgage is being retained as security in the new transaction appears to us to be patently inaccurate and misleading. Therefore, we concluded that the use of a Model Form H-8, by the creditor in Porter, which describes the new loan as an entirely new transaction, was appropriate. Id. at 941. This conclusion is buttressed by the fact that, if a creditor treats the new transaction as a new loan, the consumer's right of rescission, in the new transaction, would apply to the entire balance, not just the "extent the new amount financed exceeds the unpaid principal balance on the existing debt." 12 C.F.R. § 226.23(f)(2).
In Porter II, the district court, admittedly with considerable logic, read § 226.23(f)(2) as defining any subsequent loan in a series of sequential loan transactions, each of which are secured by mortgages, as "refinancings" subject to that section. 129 B.R. at 402-03. We submit that the logic breaks down a bit when the Porter creditor is found liable for a TILA violation, apparently justifying rescission, because it was prepared to enhance the consumer's rights by treating the new loan as a new transaction which could be rescinded in its entirety. Also, the result sanctions the use of Model Form H-9 in a setting to which its above-quoted language appears inaccurate and misleading.
We believe that the issue dividing Porter II and Porter I is a difficult one. However, the instant issue is different, and it is debatable whether Porter II supports or contradicts Beneficial's position. In one sense, the Porter II decision might be said *99 to support Beneficial's argument that any new transaction between parties who have an outstanding loan at the time is a "refinancing," and that the notice utilized by Beneficial is proper in a "refinancing" transaction. However, less comforting to Beneficial is the result in Porter II that use of the "wrong" notice of right of rescission form, even when its effect is to enhance a consumer's rights, may trigger a consumer's right to rescind.
However interesting the Porter issues are, they are not the same issue as are in question here. The instant transactions were open-end credit transactions, which are distinct from closed-end transactions in two important ways: (1) the choice of Model Forms is more diverse; and (2) they are controlled by § 226.15(f), not § 226.23(f), and § 226.15 contains no analogue to § 226.23(f)(2). There is also a significant factual distinction between Porter and this case: Beneficial only took a security interest in the Home in the instant second (and significant) transaction. Porter, Jones, Melvin, and Tucker all involved a series of loans, all of which were secured by residential mortgages.
All of these distinguishing factors weigh heavily against Beneficial. The inapplicability of § 226.23(f)(2), which has no pertinence to an open-end credit transaction which contemplates a series of loans, is crucial. The specific language of § 226.23(f)(2) was the sole basis for the differences of the reasoning by district court and by Judge Fox in Steinbrecher from the reasoning of this court in Porter I and Tucker, respectively.
An open-end credit line contemplates constant "refinancing." It is only when the terms of the credit line are changed that a new set of disclosures to a borrower in such a type of credit-extension is necessary. However, since a change in terms of the credit line is deemed critical in an open-end credit relationship, a larger menu of Model Forms to accurately reflect these changes is deemed necessary.
The changes in the credit line terms effected in the instant transaction were very substantial. For the first time, the Debtors gave the Home as security and were entitled to a right of rescission. The significance of these changes demanded an accurate disclosure.
The Model Form G-6 utilized by Beneficial in the instant transaction was patently inaccurate. It was not true that the Debtors were simply (as that form states) increasing their credit line. It was not true that Beneficial already had a mortgage on their home which it was merely increasing. It was not true that cancellation, under these circumstances, would only apply to the increase in their credit line. This last inaccurate statement is critical, because, unlike the Porter creditor, whose actions enhanced the consumer's rights, Beneficial's disclosure purported to reduce the Debtors' right to rescind the entire transaction. Therefore, under the reasoning of Porter II, as well as that of Porter I, Jones, Melvin, and Tucker, we must conclude that Beneficial violated the TILA in providing the Debtors with an inaccurate and misleading notice of right to rescind this transaction.
2. BENEFICIAL'S FAILURE TO UTILIZE A PROPER NOTICE OF THE DEBTORS' RIGHT TO RESCIND ALLOWS THE DEBTORS TO RESCIND THIS TRANSACTION AT THIS TIME.
Beneficial presents several other arguments in defense of the Debtors' right to rescind and receive the considerable benefits which would normally flow from Beneficial's refusal to acknowledge the validity of the Debtor's rescission within twenty (20) days.
Firstly, Beneficial claims that any violation is not "material," combining this with a contention that none of the Model Forms were quite suited for the instant transaction and therefore use of G-6 Model Form was the best available alternative. We disagree with the latter assertion. The Model Form G-8 appears quite suited to the instant transaction. Assuming arguendo that it is not, it must be recalled that the forms are only models and that, if the creditor structures a transaction differently *100 than any of the models contemplate, then the creditor is obliged to revise the models to fit the transaction. Supplying the "least inaccurate" model form cannot guarantee an exemption from TILA liability.
As we emphasized in Tucker, 74 B.R. at 930, 931; and Melvin, 75 B.R. at 956, the TILA allows rescission if there are either violations in the rescission form or material disclosure violations in the disclosure form which are acted upon by the borrower within three years after the consummation of the transaction. See 15 U.S.C. § 1635(f). The litany of "material disclosures" set forth in 15 U.S.C. § 1602(u) only references disclosures which appear in a disclosure statement, not those which would appear in a notice of right to rescind. Therefore, the prerequisite of "materiality" does not attach to the contents of the notice of the right to rescind. Any deficiency in that notice triggers a right to rescind.
This conclusion is supported by the result in Smith v. Fidelity Consumer Discount Co., 898 F.2d 896, 903-05 (3d Cir.1990). There, the Court held that a violation of 12 C.F.R. § 226.23(c) was not such a violation of the TILA as would trigger rescission, as would a violation of § 226.23(b). Beneficial's instant violations arise under the closed-end analogue of § 226.23(b), § 226.15(b), and not under § 226.15(c), the analogue of § 226.23(c). Therefore, the violations in issue subject the transaction to rescission. This is especially so because the inaccuracies in the notice of the right to rescind are several and substantial. Cf. Brown, supra, 106 B.R. at 857-58 (even a technical violation of the TILA may trigger rescission).
3. THE DEBTORS' BANKRUPTCY FILING DOES NOT SAVE BENEFICIAL FROM THE SUBSTANTIAL CONSEQUENCES OF FAILING TO HONOR THE DEBTORS' VALID RESCISSION.
Beneficial also argues that it should be spared the panoply of adverse consequences for its failure to respect the Debtors' valid rescission because the TILA prohibits multiple penalties arising out of single transaction, citing Zamarippa v. Cy's Car Sales, Inc., 674 F.2d 877, 879 (11th Cir.1982). Also, it contends that it is unfair to allow such remedies to debtors in bankruptcy, who will be incapable of complying with their obligations if their creditor does properly comply with its obligations, citing In re Pitre, 11 B.R. 777, 780 (Bankr. N.D.Ill.1981).
We note that the language referenced in Pitre is dicta, recited after the court held that the transactions in issue were business transactions beyond the scope of the TILA. Id. Moreover, we cannot agree with this dicta because it is contrary to the language of the TILA. It is only "[u]pon the performance of the creditor's obligations under this section" to, inter alia, terminate the security interest taken in the obligor's residence, that the obligor's duty to tender performance arises. See Celona v. Equitable Nat'l Bank, 98 B.R. 705, 707-08 (E.D.Pa.1989); Aquino v. Public Finance Consumer Discount Co., 606 F.Supp. 504, 507-09 (E.D.Pa.1985); Tucker, supra, 74 B.R. at 933; and In re Piercy, 18 B.R. 1004, 1007 (Bankr.W.D.Ky.1982).
Zamarippa is clearly cited out of context. The language cited merely restates the principle, codified at 15 U.S.C. § 1640(g), that multiple disclosure violations in a single TILA disclosure statement give rise to only a single recovery. Zamarippa does not involve a rescission, and in no sense purports to limit the several consequences of a creditor's failure to timely honor a valid rescission, all of which are expressly set forth in 15 U.S.C. § 1635(b). It is also well-established that the refusal to honor the valid rescission is a violation separate from the violation which justified the rescission, thus justifying a separate statutory penalty if suit is initiated within one year from the rescission. See, e.g., Aquino, supra, 606 F.Supp. at 609-11; Bookhart v. Mid-Penn Consumer Discount Co., 559 F.Supp. 208, 212 (E.D.Pa. 1983); Reid v. Liberty Consumer Discount Co., 484 F.Supp. 435, 441 (E.D.Pa. 1980); Tucker, supra, 74 B.R. at 932; and *101 In re Wright, 11 B.R. 590, 595 (Bankr. S.D.Miss.1981).
4. THE DEBTORS ARE ENTITLED TO REDUCE BENEFICIAL'S CLAIM TO AN UNSECURED CLAIM FOR THE BALANCE OF THE UNPAID LOAN PROCEEDS, LESS A $1,000 RECOUPMENT, PLUS RECOVER STATUTORY DAMAGES OF $1,000 AND ATTORNEYS' FEES.
The Debtors are therefore entitled to much of the relief which they seek. Beneficial's security interest in the Home must be satisfied. All finance charges "and other charges," including the $60 in filing fees and costs and $145.35 charged for credit insurance, must be eliminated. Credit for the $2,006 payments made by the Debtors since June 8, 1989, brings the Debtors' unsecured liability down to $2,688.65. This figure is further reduced by a $1,000 TILA statutory damage recoupment, 15 U.S.C. § 1640(a)(2)(A)(i), to $1,688.65. Moreover, the Debtors are entitled to $1,000 in statutory damages from Beneficial in light of its refusal to honor their valid rescission, plus reasonable attorneys' fees. Id; and 15 U.S.C. § 1640(a)(3). See generally Brown, supra, 134 B.R. at 145-47; Brown, supra, 106 B.R. at 861-63; and Tucker, supra, 74 B.R. at 932-34.
However, we stop short of allowing the Debtors to eliminate their indebtedness to Beneficial entirely or requiring Beneficial to repay the payments already made by the Debtors to it. We do agree that such remedies are supportable under the language of § 1635(b) and are appropriate in certain instances. See Gill v. Mid-Penn Consumer Discount Co., 671 F.Supp. 1021, 1026 (E.D.Pa.1987), aff'd, 853 F.2d 917 (3d Cir.1988); In re Gurst, 79 B.R. 969, 979 (Bankr.E.D.Pa.1987), appeals dismissed, C.A. No. 88-2092 (E.D.Pa. August 9, 1988), aff'd, 866 F.2d 1410 (3d Cir.1988); and 88 B.R. 57 (E.D.Pa.1988); and Tucker, supra, 74 B.R. at 933.
However, we also believe that the last sentence of § 1635(b) and 12 C.F.R. § 226.15(d)(4) provide us with statutory authority to confine such harsh remedies to situations where creditors have tried to deceive or cheat the consumer. See Shepeard v. Quality Siding & Window Factory, Inc., 730 F.Supp. 1295, 1307 (D.Del.1990); Mayfield v. Vanguard Federal Savings & Loan Ass'n, 710 F.Supp. 143, 148 (E.D.Pa. 1989); and Gurst, supra, 79 B.R. at 979. We fail to detect any serious overreaching or improper conduct, over and above the commission of substantial TILA violations, by Beneficial in the instant transaction. We also recognize that the reclassification of Beneficial's claim to unsecured is tantamount to finding that it need not be paid any balance in the context of the low-income Debtors' Chapter 13 case, which promises to pay little if anything to unsecured creditors, but nevertheless result in the Debtors' discharge. See Brown, supra, 134 B.R. at 145; Tucker, supra, 74 B.R. at 932; In re Chancy, 33 B.R. 355, 356-57 (Bankr.N.D.Okla.1983); Piercy, supra, 18 B.R. at 1007-08; and Wright, supra, 11 B.R. at 595.
5. THE DEBTORS ARE ENTITLED TO AVOID BENEFICIAL'S LIEN IN THEIR HOUSEHOLD GOODS.
One final issue remains: resolution of the Debtors' Motion to avoid Beneficial's non-possessory, non-purchase-money security interest in their various household furnishings. This relief is plainly justified under 11 U.S.C. § 522(f)(2). Moreover, we believe that this additional Motion is necessary to avoid these security interests, because 12 C.F.R. § 226.15(d)(1) provides that, in the case of a valid rescission, only "the security interest giving rise to the right of rescission becomes void." In the instant transaction, would only effect avoidance of Beneficial's mortgage against the Home. We might note that, because of this language in § 226.15(d)(1) and the well-established principle that motor vehicles are not "household goods," see In re Smith, 29 B.R. 345, 346 (Bankr.M.D.Pa. 1983); and In re Abt, 2 B.R. 323, 325-26 (Bankr.E.D.Pa.1980), the Debtors would have been unable to avoid Beneficial's lien against the Vehicle, if they still possessed *102 it. However, Beneficial's Record of Payments reflects the disposal of the Vehicle and the credit of the Debtors' account with the sale proceeds.
We assume that this decision will render the Debtors' Chapter 13 Plan "feasible" and "confirmable." However, this court's unavailability on March 24, 1992, prompts us to allow the Debtors until March 27, 1992, to file any appropriate Amended Plan before scheduling a final confirmation hearing on April 7, 1992.
E. CONCLUSION
An Order granting substantial relief to the Debtors, in accordance with this Opinion, will be entered.
ORDER
AND NOW, this 1st day of March, 1992, upon consideration of a Joint Pretrial Statement including a Stipulation of facts which the parties agreed would constitute the record upon which we could decide the Debtors' Motion to Avoid the Nonpossessory, Nonpurchase-money Security Interest of Defendant BENEFICIAL CONSUMER DISCOUNT CO. ("Beneficial") in the above-captioned main bankruptcy case, and the above adversary proceeding; and upon careful consideration of the parties' respective Briefs, it is ORDERED AND DECREED as follows:
1. Judgment is entered in favor of the Plaintiff-Debtors, CHRISTOPHER and JULIE MICHEL ("the Debtors"), and against Beneficial in part, as described in the foregoing Opinion.
2. It is DECLARED that the Debtors properly exercised their right to rescind the parties' Credit Line Account Agreement of June 8, 1989, and that therefore this Agreement is deemed properly rescinded by the Debtor.
3. Beneficial is directed to satisfy the mortgage which it has taken against the Debtors' residential real estate at 5036 "F" Street, Philadelphia, Pennsylvania 19124, within fifteen (15) days from the date of this Order.
4. The Claim of Beneficial is REDUCED and RECLASSIFIED as an unsecured claim in the amount of $1,688.65.
5. Beneficial shall pay the sum of $1,000 to Defendant EDWARD SPARKMAN, the Standing Chapter 13 Trustee ("the Trustee"), as damages pursuant to 15 U.S.C. § 1640(a)(2)(A)(i). The said Trustee shall determine whether this sum may be claimed as part of the Debtors' exemptions, and, if it may be, he shall forward this sum to the Debtors forthwith.
6. Beneficial's security interests in the Debtors' television sets, radios, stereo system, VCR, and other household goods and furnishings are AVOIDED.
7. The parties are urged to attempt to agree upon reasonable attorneys' fees and costs which are due to the Debtors' counsel, pursuant to 15 U.S.C. § 1640(a)(3). If this matter is not resolved within fifteen (15) days, the Debtors' counsel may, within thirty (30) days of this Order, file a Motion requesting a court award of such fees, said Motion to be procedurally in conformity with In re Meade Land & Development Co., 527 F.2d 280 (3d Cir.1975); and In re Mayflower Associates, 78 B.R. 41 (Bankr. E.D.Pa.1987). However, if the Debtors' counsel has made a reasonable request for such fees which is refused, said counsel may recover compensation for time spent on the fee application.
8. The Debtors shall file, on or before March 27, 1992, any Amended Plan which they deem necessary and appropriate in light of this Opinion to achieve confirmation of a Chapter 13 Plan of Reorganization.
9. A final hearing on confirmation and the Trustee's Motion to Dismiss the Debtors' main case is rescheduled on
THURSDAY, APRIL 7, 1992, at 9:30 A.M.
and shall be held in Courtroom No. 2 (Room 3718), United States Court House, 601 Market Street, Philadelphia, PA 19106.
10. No further continuances of the confirmation hearing will be favored. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1549129/ | 50 F.2d 852 (1931)
BLEASE et al.
v.
SAFETY TRANSIT CO.
No. 3137.
Circuit Court of Appeals, Fourth Circuit.
June 17, 1931.
*853 Pinckney L. Cain and Cordie Page, both of Columbia, S. C. (John M. Daniel, J. Ivey Humphrey, and Thomas & Lumpkin, all of Columbia, S. C., on the brief), for appellants.
P. F. Henderson, of Aiken, S. C. (Edgar A. Brown and Brown & Bush, all of Barnwell, S. C., and Hendersons & Salley, of Aiken, S. C., on the brief), for appellee.
Before PARKER and NORTHCOTT, Circuit Judges, and McCLINTIC, District Judge.
*854 PARKER, Circuit Judge.
The Safety Transit Company, a North Carolina corporation, is engaged in operating a bus line between Washington, D. C., and Miami, Fla., through the state of South Carolina. On November 26th it applied to the railroad commission of South Carolina for a certificate of public convenience and necessity authorizing it to render motor bus service in interstate and intrastate commerce in and through the state of South Carolina over and along the public highways of that state. The commission denied the application for the certificate; and the transit company, thereupon, abandoned all effort to operate in intrastate commerce but continued to operate in interstate commerce. The members of the commission then instituted this suit in the Supreme Court of South Carolina and secured a temporary restraining order enjoining the transit company from operating any of its buses over the roads of the state. The suit was removed by the transit company into the court below, where the restraining order was modified so as to permit the operation of buses in interstate as distinguished from intrastate commerce. At the final hearing of the cause, upon its appearing that defendant was not attempting to operate its buses in intrastate commerce, the court dissolved the restraining order and dismissed the bill, and complainants have appealed.
No question is raised as to any failure on the part of defendant to comply with the tax laws or police regulations of the state. On the contrary, it appears that it has complied or offered to comply with all of these. The questions presented are: (1) Whether the defendant had the right to remove the case into the federal court; and (2) if so, whether the complainants were entitled to enjoin defendant from operating its buses in interstate commerce because it had been refused a certificate of public convenience and necessity by complainants. We think that the court below correctly answered both of these questions in favor of defendant.
Defendant contends that it had the right to remove the case both on the ground of diversity of citizenship and because the case presented was one arising under the Constitution of the United States. As to the first ground, the suit was instituted by the members of the railroad commission, not as individuals, but in their official capacity. It appears, however, that the relief sought would inure, not to the benefit of the state as an artificial person (Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362, 390, 14 S. Ct. 1047, 38 L. Ed. 1014), but to those interested in operating buses over the roads of the state. It is in effect a suit to enforce the order of the railroad commission with respect to the use of the roads by competing bus lines. The persons interested are complainant and competing bus lines and the public which patronizes them. The state of South Carolina has no interest in the litigation except the governmental interest of compelling obedience to the legal order of its officials and in securing compliance with its laws. "But such general governmental interest is not that which makes the state, as an organized political community, a party in interest in the litigation." Missouri, etc., Ry. Co. v. Missouri Railroad & Warehouse Commissioners, 183 U. S. 53, 60, 22 S. Ct. 18, 21, 46 L. Ed. 78.
But, even if the state be considered the real party in interest, the right of removal would nevertheless exist, because the case is one arising under the Constitution of the United States, the point presented being the right of a state to require a bus line engaged in interstate commerce to obtain, as a condition of carrying on such commerce, a certificate of public convenience and necessity. It is well settled that a suit arising under the Constitution or laws of the United States is removable, even though it be brought by one of the states. Ames v. Kansas, 111 U. S. 449, 4 S. Ct. 437, 28 L. Ed. 482. And we think that there can be no question that the suit here is one so arising.
A case is said to arise under the Constitution and laws of the United States "`whenever its correct decision depends upon the construction of either' * * * or when `the title or right set up by the party may be defeated by one construction of the Constitution or law of the United States, or sustained by the opposite construction.'" Little York Gold Washing & Water Co. v. Keyes, 96 U. S. 199, 201, 24 L. Ed. 656; Cohens v. Virginia, 6 Wheat. 379, 5 L. Ed. 257; Osborn v. Bank, 9 Wheat. 822, 6 L. Ed. 204; Patton v. Brady, 184 U. S. 608, 22 S. Ct. 493, 46 L. Ed. 713; Bellaire, Benwood & Wheeling Ferry Co. v. Interstate Bridge Co. (C. C. A. 4th) 40 F.(2d) 323. And a suit which asserts the right on the part of a state to regulate interstate commerce raises a question under the Constitution of the United States; for the exclusive power to regulate such commerce is vested by the Constitution in Congress. Gibbons v. Ogden, 9 Wheat. 1, 6 L. *855 Ed. 23; Wabash, St. Louis & Pac. Ry. Co. v. Illinois, 118 U. S. 557, 7 S. Ct. 4, 30 L. Ed. 244; Buck v. Kuykendall, 267 U. S. 307, 45 S. Ct. 324, 69 L. Ed. 623, 38 A. L. R. 286.
It is true, as contended by complainants, that to justify the removal of a cause on the ground that it arises under the Constitution, the fact that it so arises must appear upon the face of plaintiff's pleading, and the fact that defendant may rely upon some constitutional provision does not warrant the removal. Great Northern Ry. Co. v. Galbreath Cattle Co., 271 U. S. 99, 46 S. Ct. 439, 70 L. Ed. 854; Great Northern Ry. Co. v. Alexander, 246 U. S. 276, 38 S. Ct. 237, 62 L. Ed. 713; Postal Telegraph Cable Co. v. State of Alabama, 155 U. S. 482, 15 S. Ct. 192, 39 L. Ed. 231. We think, however, that the fact that this case involves the right of the state to regulate interstate commerce, and thus presents a question arising under the constitution, clearly appears from the face of plaintiff's pleading. The bill shows that defendant applied for a certificate of convenience and necessity to operate motor buses not only in but "through" the state of South Carolina. The order denying the application, which was attached to the bill as an exhibit, shows that the application of defendant was for a certificate authorizing it to operate buses between the North Carolina-South Carolina line and the South Carolina-Georgia line along a certain designated route. And the conduct of defendant against which injunction is asked is that it is operating motor vehicles for hire within and "through" the state of South Carolina.
Without invoking the rule that pleadings are to be construed most strongly against the pleader, it is clear from the face of the bill that complainants are seeking to restrain commerce which is interstate in character as well as that which is intrastate. There are no cities on the respective state lines which could serve as termini for a bus line on the routes in question; and, when it is alleged that defendant is operating its vehicles for hire "through" the state of South Carolina, the only fair inference is that it is operating them from a state or states on one side to a state or states on the other, for "through" is defined by Webster as meaning "into at one point and out at the opposite, or at another point." There is no question but that defendant is, as a matter of fact, operating in interstate commerce and, for the reasons stated, we think that this fairly appears from the face of the bill.
It is contended that the judge below had no jurisdiction to pass upon the case without calling to his assistance two other judges so as to constitute a court of three judges as provided by section 266 of the Judicial Code (28 USCA § 380). That section, however has no application to a case such as this. It applies only where an interlocutory injunction is sought to restrain the action of an officer of the state. Ex parte Public Nat. Bank of New York, 278 U. S. 101, 104, 49 S. Ct. 43, 73 L. Ed. 202; Suncrest Lumber Co. v. N. C. Park Com. (C. C. A. 4th) 29 F.(2d) 823, 824; Henrietta Mills Co. v. Rutherford County (D. C.) 26 F.(2d) 799. Here injunction is not sought against officials of the state, but those officials themselves are seeking the injunction against a private corporation. As we said in the Suncrest Lumber Co. Case, supra, section 266 of the Judicial Code was enacted "because it was thought unseemly that one District Judge should stop the officers of the state in the enforcement of its laws." Here it is the officers of the state who are invoking the jurisdiction of the court to stop the action of a private person.
On the merits, the case requires little discussion. As heretofore stated, no question is raised as to any failure of defendant to comply with the tax laws or police regulations of the state. It has complied with all of these. Nor is there any question as to the power of the state to regulate the intrastate business of defendant. It has been granted a certificate to operate buses in intrastate commerce on one of its lines and is not seeking to operate in intrastate commerce on the other. The sole question is whether the state can require defendant to obtain a certificate of public convenience and necessity as a condition of operating its buses in interstate commerce through the state; and this question has been so repeatedly answered in the negative as not to justify further discussion of the principles involved. Interstate Transit Co. v. Lindsey, 51 S. Ct. 380, 75 L. Ed. ___; Sprout v. South Bend, 277 U. S. 163, 48 S. Ct. 502, 72 L. Ed. 833, 62 A. L. R. 45; Hammond v. Schappi Bus Line, 275 U. S. 164, 48 S. Ct. 66, 72 L. Ed. 218; Interstate Busses Corporation v. Holyoke Street Ry. Co., 273 U. S. 45, 47 S. Ct. 298, 71 L. Ed. 530; Buck v. Kuykendall, 267 U. S. 307, 45 S. Ct. 324, 326, 69 L. Ed. 623, 38 A. L. R. 286; George W. Bush & Sons Co. v. Maloy, 267 U. S. 317, 45 S. Ct. 326, 327, 69 L. Ed. 627. What was said by the Supreme Court in Buck v. Kuykendall, supra, as to the attempted regulation by the state of Oregon of *856 the operation of buses in interstate commerce, is applicable here: "Its primary purpose is not regulation with a view to safety or to conservation of the highways, but the prohibition of competition. It determines, not the manner of use, but the persons by whom the highways may be used. It prohibits such use to some persons, while permitting it to others for the same purpose and in the same manner. Moreover, it determines whether the prohibition shall be applied by resort, through state officials, to a test which is peculiarly within the province of the federal action the existence of adequate facilities for conducting interstate commerce. * * * Thus, the provision of the Washington statute is a regulation, not of the use of its own highways, but of interstate commerce. Its effect upon such commerce is not merely to burden, but to obstruct, it. Such state action is forbidden by the commerce clause."
It is insisted that the injunction should have been granted to restrain defendant from operating its buses in intrastate business; but there is no evidence that it was attempting to operate in intrastate business except on the route as to which the certificate of public necessity and convenience had been granted, and, so far as the record shows, no ground to apprehend that it would attempt to operate in intrastate business elsewhere. Under such circumstances, the injunction was properly denied; for it is elementary that a court of equity will not grant an injunction to restrain one from doing what he is not attempting and does not intend to do.
There was no error, and the decree denying the injunction and dismissing the bill will be affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2543364/ | 51 So.3d 1135 (2009)
EX PARTE RASHAD LEE (IN RE: RASHAD LEE v. L. BERNARD SMITHART, BULLOCK COUNTY CIR. JUDGE).
No. 2080609.
Court of Civil Appeals of Alabama.
April 14, 2009.
DECISION WITHOUT PUBLISHED OPINION
Transferred to Sup. Ct. for lack of subject-matter jurisdiction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304555/ | CROWNOVER, J.
This is a suit by the heir at law and administrator to set aside or cancel a contract and conveyance on the grounds of insanity, fraud, duress, and undue influence.
The original bill in this cause was filed in the Chancery Court of Cannon County by J. F. Pinkerton, a resident of Cannon County, who had been appointed in Rutherford County as administrator of the estate of his son, James F. Pinkerton, deceased, in his own right and as such administrator, against J. H. Jernigan, executor of the will of A. J. Jernigan (of Cannon County), deceased, a resident and citizen of Childress, Texas, and Mrs. Rosa Fox, a citizen and resident of Rutherford County, Tennessee, defendants, to have set aside and *161rescinded a contract and a deed executed by James F. Pinkerton, deceased, conveying bis property to Mrs. Fox, on tbe grounds of insanity, fraud, duress, and undue influence, and to enjoin tbe executor, Jernigan, from paying tbe legacies to Mrs. Fox.
It was alleged in tbe bill that James F. Pinkerton, son of tbe complainant, J. F. Pinkerton, bad recently died in Rutherford County and that J. F. Pinkerton bad been appointed and qualified as bis administrator; that James F. Pinkerton was of unsound mind; that a short time before bis death, on November 17, 1933, be bad executed two instruments, one conveying and transferring about $5,000 in bonds and notes, and conveying a one-sixtb interest in a bouse and lot in Cannon County, to bis axurt, Mrs. Rosa Fox, one of tbe defendants, in consideration that she should take care of him for the rest of bis life; that James F. Pinkerton was entitled, under tbe will of bis grandfather, A. J. Jernigan, deceased, to tbe sum of about $1450, and Mrs. Rosa Fox was entitled to about $250 under said will, which sums were still in the bands of tbe executor; and that J. PI. Jernigan, a resident of Childress, Texas, and a son of A. J. Jernigan, deceased, bad been appointed and qualified in Cannon County, Tennessee, as executor of the will of A. J. Jernigan. Tbe complainant asked for an injunction to restrain Mrs. Fox from disposing of any of her property and tbe property she bad received from James F. Pinkerton; for an injunction restraining tbe executor, ’ J. H. Jernigan, from paying over to Mrs. Fox tbe funds in his bands conveyed by tbe will of A. J. Jernigan to James F. Pinkerton and to Mrs. Fox; that the conveyances to Mrs. Fox be declared fraudulent and void; and for a judgment against Mrs. Fox for $4,352.67; and that tbe executor be required to pay over to tbe Clerk & Master tbe amount in bis hands belonging to Mrs. Fox, to be applied on said decree ; and that the injunction against the executor be made perpetual.
No attachment was prayed for or levied on said property, and no non-resident publication was bad.
Subpoena to answer was issued for tbe defendants and delivered to tbe Sheriff who made return that tbe defendants were not to be found in Cannon County and that he had served notice of tbe suit upon tbe Clerk of the County Court in accordance with Code, sec. 8148. Thereupon counterpart subpoena to answer was issued to Rutherford County for Mrs. Rosa Fox and served upon her.
Mrs. Fox filed a plea in abatement on tbe grounds that J. II. Jerni-gan, executor, was a non-resident of tbe State of Tennessee and service on tbe Clerk of the County Court would not authorize tbe issuance of counterpart summons to Rutherford County for her; and that said executor was not a material defendant in the cause; therefore tbe process was void and the court bad no jurisdiction; that she was a resident of Rutherford County and tbe subject-matter in controversy was in Rutherford County, and that tbe courts of that *162County bad jurisdiction, and Cannon County bad no jurisdiction of tbe cause.
J. IT. Jernigan, executor, filed a plea in abatement on the grounds that be was a -non-resident of tbe State of Tennessee and bad not been served with process, bad not entered bis appearance, and therefore tbe court bad no jurisdiction of tbe case.
Tbe two pleas in abatement were overruled by tbe Chancellor.
"Whereupon tbe defendants filed demurrers on tbe grounds that tbe Chancery Court of Cannon County bad no jurisdiction for tbe reasons above stated, which demurrers were overruled.
Mrs. Fox filed her answer denying that James F. Pinkerton was of unsound mind, and alleging that the conveyances to her from him, on November 17, 1933, bad been made for a valuable consideration: that she should take care of him in his illness, pay nurses’, medical, and doctors’ bills, and pay bis funeral expenses — all of which she bad done.
Tbe cause was tried to a jury. Two issues of fact were submitted, as follows:
(1) Was James F. Pinkerton, on November 17, 1933, mentally competent to make a valid transfer of bis property?
(2) Did James F. Pinkerton make or execute tbe deed, contract or agreement, in question, to bis property, same being tbe instrument dated November 17, 1933, filed in tbe record as exhibit No. 2 to tbe original bill, to Mrs. Rosa Fox, by bis own free will?
Tbe jury answered “No” to tbe first issue, and, under tbe instructions of the court, did not answer tbe second issue.
Tbe Chancellor found and decreed that in accordance with tbe verdict of tbe jury on the issue of fact James F. Pinkerton was a person of unsound mind and was not possessed of sufficient mental capacity on the night of November 17, 1933, to execute said deed and contract, and both instruments were null and void, and decree was entered in favor of J. F. Pinkerton and against Mrs. Rosa Fox in tbe sum of $4,352.67, with interest from February 24, 1934, less tbe sum of $500, tbe amount paid by Mrs. Fox in discharge of a note to tbe bank executed by James F. Pinkerton.
It was further decreed that tbe complainant, J. F. Pinkerton, administrator, recover of tbe defendant, Dr. J. H. Jernigan, executor, tbe net amount that remained in bis bands belonging to tbe estate of James F. Pinkerton, deceased; that said executor pay into tbe bands of tbe Clerk & Master tbe balance in bis bands belonging to Mrs. Fox, to be held in payment of said decree against her; and that tbe injunctions be made perpetual.
Mrs. Fox filed motions for a new trial and in arrest of judgment, which were overruled, to which she excepted, and appealed to this court, and has assigned errors, which raise tbe following propositions :
*163(1) Tbe court had no jurisdiction of the defendants by service of process on the County Court Clerk for the defendant executor, and then by service of counterpart subpoena to answer on Mrs. Fox in Rutherford County.
(2) There is no evidence to support the verdict, in that James F. Pinkerton had sufficient mental capacity to execute the conveyances.
The defendant executor, Jernigan, did not appeal. '
James F. Pinkerton died on January 26, 1935, at the age of about forty-five years.
He was the son of the complainant, J. F. Pinkerton, of Cannon County. A. J. Jernigan, of Cannon County, now deceased, was his grandfather.
His mother had died when he was about three weeks old, and he was reared at the home of his grandfather.
At the age of three years he developed epilepsy, and had epileptic convulsions or fits at intervals all his life.
On account of these attacks he was not sent to school, and as a result was almost totally uneducated.
As he grew up, he and his grandfather bought and sold cattle in partnership, he relying on the judgment of his grandfather.
It appears that he made some money and saved it, and was given $2,000 by his grandfather.
In May, 1928, his grandfather, A. J. Jernigan, died, leaving a will in which Dr. J. H. Jernigan was named as executor. He left a legacy of $2,000 to each of his six children, the heirs of those deceased to take the parent’s share. He made his wife residuary legatee in a clause which is as follows:
“I give and bequeath to my beloved wife, Jane Jernigan, all of the remainder of my estate to hold in trust so long as she may live, to have and to use the proceeds thereof if she desires which includes a house and lot in Bradyville, bank stock, bonds, notes, cash, and accounts of every kind and character she may use the income from all of this if she needs it or so much as she may need and desire and at her death, I desire that the corpus or body of said estate shall go into the hands of my executor to be equally divided my six children or the heirs of any that might be dead the said child or children to take the deceased parents share only but before this division is made, all of the expenses of sickness and burial of my said wife shall first be paid out of said estate, either its income or corpus.”
After the death of his grandfather, James F. Pinkerton exercised judgment about his financial affairs — he made good investments; when he made loans he required the best security; he carefully kept his check stubs and cancelled checks.
It appears that he had a violent temper and some idiosyneraeies, which will be discussed under section 2 hereof.
In the summer of 1934 he underwent a medical examination and it was discovered that he was afflicted with cancer of the bladder.
*164His miele, J. H. Jernigan, of Childress, Texas, was a physician. When Dr. Jernigan, heard of his illness, he wrote him a. letter advising him that the cancer would cause his death; that he might have a long illness, that he would have to be nursed and taken care of, and incur medical and doctors’ bills; that he could not take his money with him; that, in his opinion, he should arrange with somebody to look after him in his illness and pay his funeral expenses in return for his transferring all of his property to him or her.
He was operated on in August, 1934, and afterwards carried to the home of his aunt, Mrs. Rosa Fox.
He decided on the course advised by Dr. Jernigan, and procured lawyers to draw up a contract between himself and Mrs. Fox, transferring to her his bonds and notes, and a deed conveying to her his interest in a house and lot in Cannon County, formerly owned by his grandfather, in consideration for her nursing him and earing for and looking after him in his illness and paying his funeral expenses.
Mrs. Fox took possession of the bonds and notes, cashed the bonds and collected the notes — the whole sum totalling $4,352.67.
He remained at Mrs. Fox’s home until his death, in January, 1935.
His father, J. F. Pinkerton, instituted this suit to recover the property from Mrs. Fox, alleging that his son had been of unsound mind all his life.
1. We are of the opinion that the first assignment of error is well made and should be sustained.
It was attempted to give the Chancery Court of Cannon County jurisdiction by the service of process on the County Court Clerk for the non-resident executor, in accordance with Code, see. 8148. We do not think that that section applies to the service of process for the collection of a distributive share or a legacy, but applies only to suits for a debt or demand due or owing from the testator or intestate. We think it was the clear intention of the legislature to make it apply only to suits by creditors and others who had claims or demands against the decedent, as the statute states: “in case it is desired by any citizen or resident of this state to sue said administrator or executor in his official capacity for any debt or demand, due or owing to. any citizen or resident of this state, from his testator or intestate, ’ ’ then service may be had on the County Court Clerk, in the event personal service cannot be had on the administrator or executor.
This statute is in derogation of the common law and must be strictly construed and strictly complied with. 50 C. J., 490, 491,. sec. 94.
Personal service of process was required by the common law and in equity. Grace and Anderson v. Hunt, 3 Tenn. (Cook), 341; Grewar v. Henderson, 1 Tenn. Ch., 76.
It is stated in the Restatement of the Law that, with one exception, “all creditors regardless of where they, are domiciled, can prove, their *165claims in any state in which administration proceedings have been instituted,” but, “if the claim arises out of transactions occurring after the decedent’s death and is therefore against the administrator in his personal capacity, it cannot be proved in the administration proceedings in another state.” Restatement of Law on Conflicts of Laws, see. 495.
A suit for a distributive share or legacy may be instituted in the county, probate, or chancery court of the county in which the administration was taken out, and is governed by section 8347 of the Code (Gibson’s Suits in Chancery (4 Ed.), sec. 177, subsec. 21), but in order for the court to have jurisdiction there must be personal service of process, or attachment and publication. Gibson’s Suits in Chancery (4 Ed.), sec. 60. This is a suit against the executor. Code, sec. 9396.
As previously stated, the jurisdiction of the court was sought through service on the County Court Clerk for the non-resident executor and by counterpart subpoena issued to Rutherford County and served on Mrs. Fox. Of course, if the executor was not a material defendant, and the court had no jurisdiction by service of process on the County Court Clerk, then it did not acquire jurisdiction by the service of the counterpart on Mrs. Fox. Code, sec. 8653; Yancey v. Marriott, Frisby & Co., 33 Tenn. (1 Sneed), 28; Gibson’s Suits in Chancery (4 Ed.), sec. 188.
However, it will be observed that the bill alleges that James F. Pinkerton conveyed a one-sixth interest in a house and lot in Cannon County of the value of about $1200 to Mrs. Fox as a part of the consideration for her caring for him, and this conveyance, as well as the contract conveying the bonds and personal property, was attacked in this bill. If he had owned any interest in the house and lot in Cannon County, then the filing of the bill in Cannon County would have been proper, and that court would have acquired jurisdiction.
“All bills filed in any court seeking to divest or clear the title to land, or to enforce the specific execution of contracts relating to realty, or to foreclose a mortgage or deed of trust by a sale of personal property or realty, shall be filed in the county in which the land, or a material part of it, lies, or in which the deed or mortgage is registered.” Code, see. 10388, subsee. (2); Gibson’s Suits in Chancery (4 Ed.), sec. 177.
And, of course, if the court had acquired jurisdiction of the suit to set aside a deed conveying an interest in land, it would have gone further and has acquired jurisdiction for all other purposes, such as setting aside the conveyance or transfer of the bonds and notes. Gibson’s Suits in Chancery (4 Ed.), secs. 36 and 38.
But, after an examination of the whole will of A. J. Jernigan, especially the paragraph above set out, we are of the opinion that this house and lot was devised to the executor and he was to take it *166at tbe death of tbe testator’s wife and sell it and distribute tbe proceeds among’ tbe six beirs. "We tbink it fairly inferable from tbe will that tbe testator intended that tbe widow, Mrs. Jernigan, should have tbe use of tbe income of tbis bouse and other property so long as sbe lived and at ber death tbe executor should take tbe property, including tbe bouse and lot, sell it, and divide tbe proceeds. Tbe bouse and lot in tbe village of Bradyville was worth only about $1200, and, of course, it was not susceptible of partition in kind among six beirs, so tbe only rational conclusion to be arrived at is that tbe testator intended that tbe executor sell tbe propery and distribute tbe proceeds.
Tbe authority of tbe executor to sell and convey land must come from tbe will, but it may, however, be given by necessary implication as well as by express language. So, where tbe testator requires such disposition of tbe property as manifestly cannot be made without a sale, tbe power of sale necessarily results and devolves upon the executor charged with tbe execution of tbe will. Sizer’s Pritchard on Wills and Executors, sec. 715.
‘ ‘ Tbe intention of tbe testator need not be declared in express terms in tbe will, but it is sufficient if tbe intention can be clearly inferred from particular provisions of tbe will, and from its general scope and import. Tbe courts will seize upon tbe slightest indications of that intention which can be found in tbe will to determine tbe real objects and subjects of tbe testator’s bounty.. Tbe inference as to tbe intent need not be irresistible or such as to exclude all doubts possible to be raised, but must, nevertheless, be such as to leave no hesitation in tbe mind of the court, and must not rest on mere conjecture. In discovering the intention of tbe testator by judicial construction, tbe courts should apply natural methods of finding and weighing evidence.” 28 R. C. L., 217, 218, sec. 176; McClure v. Keeling, 163 Tenn., 251, 255, 43 S. W. (2d), 383.
We do not tbink that tbis case is governed by tbe case of Alexander v. Wallace, 76 Tenn. (8 Lea), 569, as in that case tbe testator owned several hundred acres of land and be directed that bis executor divide tbis land among bis beirs, and there was no reason for tbe executor to sell tbe land to distribute tbe proceeds.
Now, having held that tbe executor was empowered to sell tbis bouse and lot, it results that, under tbe doctrine of equitable conversion, tbe legatees’ interest in tbe bouse and lot was personal property, and must be treated as such. Sizer’s Pritchard on Wills and Executors, sec. 457.
It results that both tbe contract and deed conveyed James F. Pinkerton’s personal property, and Code, sec. 10388, subsec. (2), does not apply, and tbe Chancery Court of Cannon County bad no jurisdiction.
' It was strenuously insisted that tbe executor Jernigan was not a *167material defendant, therefore the Chancery Court acquired no juris--diction of Mrs. Fox. "We think there is no doubt about his being a material defendant. Helm & Pickle v. Barnes, 69 Tenn. (1 Lea), 388; Gibson’s Suits in Chancery (4 Ed.), secs. 90, 91. But this question becomes immaterial.
This disposes of the case, and the suit will be dismissed, but as the case may be carried to the Supreme Court we will pass upon the assignment as to his sanity.
It results that all the assignments of errors are sustained, the decree of the Chancellor is reversed and the suit is dismissed on the first assignment of error.
The costs of the cause, including the costs of the appeal, are decreed against the complainant, J. F. Pinkerton.
Faw, P. J., and Felts, J., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1592120/ | 19 So.3d 922 (2007)
R.D.C.
v.
M.S.
No. 2060573.
Court of Civil Appeals of Alabama.
October 1, 2007.
Decision of the Alabama Court of Civil Appeal Without Published Opinion Dismissed as untimely filed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592123/ | 453 So.2d 742 (1983)
Perry L. UNDERWOOD
v.
FIRST ALABAMA BANK OF HUNTSVILLE, et al.
Civ. 3449.
Court of Civil Appeals of Alabama.
January 26, 1983.
Rehearing Denied March 2, 1983.
Trey Riley, Huntsville, for appellant.
James T. Baxter, III of Berry, Ables, Tatum, Little & Baxter, Huntsville, for appellees.
HOLMES, Judge.
This is a Truth-in-Lending Act case.
*743 The debtor, Mr. Perry L. Underwood, purchased an automobile from Huntsville Dodge, Inc., on January 5, 1981 and financed the purchase through First Alabama Bank of Huntsville (Bank). The debtor defaulted on the payment agreement in March. The Bank then repossessed the vehicle and sold it at a private sale. The debtor then filed suit in July, 1981, contending that the Bank had violated the disclosure requirements in the Truth-in-Lending Act, 15 U.S.C. § 1631-1638 (1976) and Regulation Z, 12 C.F.R. § 226.8 (1979). The debtor also contended that the Bank had violated § 7-9-504 of the 1975 Alabama Code in that the Bank failed to provide adequate notice of the resale of the automobile. The Bank filed a counterclaim to recover the deficiency due on the contract price after the resale of the automobile.
The trial court entered judgment against the debtor on his complaint and in favor of the Bank on its counterclaim. The debtor appeals from the trial court's actions regarding his claims against the Bank. The debtor took no appeal on the counterclaim. We affirm.
A review of the record reveals the following pertinent facts:
The debtor purchased an automobile from Huntsville Dodge, Inc., and financed it through the Bank. When the debtor failed to make the first two payments, the Bank repossessed the car on March 4, 1981.
The debtor testified that he called the Bank to find out how to get his automobile back. The substance of that conversation was in dispute, the debtor testifying that the Bank told him that he would have to pay two payments and the Bank claiming that they told the debtor he would have to pay the whole purchase price to get his car back.
According to the debtor's testimony, he attempted to raise the money to retrieve his vehicle and heard nothing further from the Bank until March 17, 1981. On that date, the debtor called the Bank and was informed that his automobile had been resold the day before, March 16.
After his telephone conversation with the Bank on March 17, the debtor met personally with Bank employees who again informed him that the automobile had been resold the day before. The debtor was then presented with a copy of the notice of resale which had been mailed to the debtor. The notice was post-marked March 4, 1981 and had been returned to the Bank stamped, "Attempted. Not Known, Return to Sender." It is not in dispute that the debtor did not receive the letter.
The notice explained that the debtor had until the end of the business day, March 16, 1981, to redeem the automobile or it would be resold the next day, March 17. The Bank, however, admittedly sold the vehicle on March 16.
After reading the notice letter, the debtor was sent to another Bank employee in order to collect personal belongings he had left in the car. This Bank employee returned debtor's belongings to him and then the debtor signed a document that consisted of a single page divided into three parts. The top part was labeled, "Repossession Report," a check list of the condition of the car and its contents. The bottom half of the document was divided into two parts, each labeled in bold type. The part that the debtor signed was entitled, "Release Agreement." This release purported, among other things, to waive debtor's right to redeem the collateral and right to notice of resale. After reading and signing the release agreement, the debtor left the Bank.
On appeal, the debtor contends that the Bank did not supply adequate notice of the resale according to the provisions of Ala. Code § 7-9-504(3) (1975). Additionally, the debtor contends that a certain clause contained in the sale contract is an undisclosed security interest in violation of the federal Truth-in-Lending Act.
I
We first address the debtor's contention regarding the alleged "Undisclosed security interest." The Truth-in-Lending Act requires *744 a creditor to disclose a "description of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit." 15 U.S.C. § 1639(a)(8). Regulation Z, promulgated by the Federal Reserve Board pursuant to authority granted in the Act, defines "security interests" and "security" to "mean any interest in property which secures payment or performance of an obligation." 12 C.F.R. § 226.2(gg). Regulation Z provides that the definition of security interests includes, but is not limited to, security interests under the Uniform Commercial Code. 12 C.F.R. § 226.2(gg).
It is a requirement of the Act and Regulation Z that the debtor receive from the creditor a disclosure statement containing certain information. This information must be on the same side of one page. If the statute is not followed, a penalty of twice the amount of the finance charge plus a reasonable attorney fee is assessed against the creditor.
In the instant case a document entitled, "Sales Contract and Security Agreement," was introduced into evidence. This contract was for the purchase of an automobile and was signed by the debtor. On the back of the contract there is a clause numbered 16 which reads as follows: "Buyer waives all rights of exemption of property under the Constitution & Laws of Alabama, except Alabama statutory exemptions from garnishment, or any other jurisdiction, as to all obligations of Buyer arising under this contract."
The debtor, through able counsel, contends that the waiver of exemption rights found in the contract constitutes a security interest for the purposes of the Truth-in-Lending Act & Regulations and that the Bank failed to make the proper disclosure as required.
The debtor supports his position for the most part by relying on Elzea v. National Bank of Georgia, 570 F.2d 1248 (5th Cir. 1978).
In that case, the debtor assigned a homestead exemption to the creditor as part of an extension of consumer credit. The court held that the assignment was a security interest for the purposes of the Truth-in-Lending Act & Regulations because it was an interest in property which secures payment of an obligation.
The Fifth Circuit Court of Appeals analyzed the question of whether a security interest exists by examining the rights of the creditor. They determined that an assignment of homestead exemptions under Georgia law gave the creditor enforceable rights in the exempted property.
The Elzea case can be distinguished from the present case in one important aspect. The Elzea case concerned an assignment of property exemptions. The instant case concerns a waiver of property exemptions. This distinction to this court is fatal to the debtor's argument.
Any person, by an instrument in writing, may waive his right to an exemption in any property. Ala.Code § 6-10-120 (1975). Regarding personalty, this waiver may be included in any promissory note or other written contract executed by the person making the waiver. Ala.Code § 6-10-121 (1975). Without making a determination one way or the other, we will assume for the sake of argument that the debtor in the instant case effectively waived his right to an exemption for his personal property. In light of Elzea, the question then arises, what effect does this waiver have on the creditor's rights in the exempted property? Put another way, does the waiver give the creditor an interest in debtor's property that secures payment on an existing obligation? We answer, as indicated, in the negative.
It has long been the law of this state that a mere waiver of exemptions does not of itself confer any title, estate, interest, or equity in the property of the debtor. "It is in no sense a lien or pledge." In re Tune, 115 F. 906 (D.C.N.D.Ala.1902); In re Moore, 112 F. 289 (D.C.M.D.Ala. 1901); Craft v. Stoutz, 95 Ala. 245, 10 So. 647 (1892); 35 C.J.S., Exemptions § 111(b). Applying that theory to the instant case, it appears that a waiver of exemptions under *745 Alabama law fails to meet Regulation Z's definition of a security interest. If the waiver confers no interest to the creditor, there can be no interest in property which secures payment.
In view of the above, we affirm the trial court's actions regarding debtor's claim on the Truth-in-Lending Act & Regulations.
II
The debtor next contends that there was no "reasonable notice" of the resale provided to the debtor in accordance with the governing statutory provisions. The debtor contends notice was insufficient for two reasons: one, that though mailed, the notice was never received by the debtor, and secondly, that the Bank failed to abide by the terms of its own written notice by selling the collateral one day too soon.
The relevant statute in pertinent part reads:
"Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, ...."
Ala.Code § 7-9-504(3) (1975).[1]
The comments to § 7-9-504(3) state in pertinent part that:
"`Reasonable notification' is not defined in this Article; at a minimum it must be sent in such time that persons entitled to receive it will have sufficient time to take appropriate steps to protect their interests by taking part in the sale or other disposition if they so desire."
In the instant case, the Bank mailed the written letter of notice to the address provided in the sales contract between the parties. The contract stated that the parties agreed that any notices to which the debtor was entitled would be mailed to the address as listed on the contract. The address as provided on the contract did not contain the debtor's apartment number. The Bank mailed the notice to the debtor at the address provided on the contract. But the document was returned undelivered.
We note there is a split of authority among the states on the question of what constitutes "reasonable" notice in situations where the notice is mailed but not received. Regardless of decisions in other states, our supreme court addressed this matter in Low Cost Cars, Inc. v. Munn, 399 So.2d 277 (Ala.1981), holding that where written notice was properly addressed and mailed with postage affixed the notice requirements of the statute were met. "The notice requirement that reasonable notification be sent to the debtor, however, clearly does not require that the debtor receive it." Low Cost Cars, Inc. v. Munn, supra, at 280.
In this instance, in view of the language in Low Cost Cars, Inc., we cannot say that reasonable notice was not sent since the Bank mailed the notice to the address stated in the contract as the proper address of the debtor for such purposes.
The debtor next contends notice was insufficient because the automobile was not sold in accordance with the time specified in the notice. According to the terms of notice, the debtor had until the end of the business day, March 17. By the Bank's own admission, the automobile was sold March 16, 1981. The debtor contends this premature sale of the automobile renders the notice insufficient because the proper time element is essential in meeting the requirements of reasonable notice, and the time element was not properly stated in the notice.
The statutory language itself requires that a statement of the correct time element of resale is an essential element of reasonable notice. Ala.Code § 7-9-504(3) (1975). Our cases have also recognized *746 that the proper time element is essential. Notice given after the time of the sale or when there is no time to redeem the collateral prior to the sale is clearly insufficient. Wells v. Central Bank of Alabama, N.A., 347 So.2d 114 (Ala.Civ.App.1977). A letter which did not identify the timing of the resale was held insufficient notice in Simmons Machine Co. v. M & M Brokerage, Inc., 409 So.2d 743 (Ala.1981). Cf. First Alabama Bank of Montgomery, N.A. v. Parsons, 390 So.2d 640 (Ala.Civ.App.1980). It therefore appears the premature sale of the automobile rendered the notice insufficient for lack of a correct statement of the time element.
However, in this case, the debtor signed a waiver on March 17 which waived his right to notice. Although not all courts are in agreement as to whether a debtor may waive his right to notice under § 7-9-504(3), our supreme court has held:
"Although our present § 7-9-504(3) does not specifically allow a post-default waiver of notice by a debtor, we are of the opinion that the better position on this issue is to allow such a waiver. We are mindful that a default debtor's right to notice of the intended disposition of the secured collateral is one of the most important rights affording a debtor protection of his interest in the secured collateral under the U.C.C. Accordingly, we hold that a post-default waiver by a debtor of his right to notice under § 7-5-504(3) can be made where the debtor knowingly and specifically agrees to waive his right to such notice."
Simmons Machine Co. v. M & M Brokerage, Inc., supra, at 748.
There was evidence presented at trial which supports the trial court's implied finding that the debtor "knowingly" waived his right to notice. The debtor himself testified that he read the waiver, and signed it. The paragraph containing the waiver is clearly labeled in large, bold print, "Release Agreement." The pertinent part stated the debtor "waives all rights to redeem said collateral and waives all right to receive notice of method of disposition of said collateral...."
The fact that the waiver was signed after the car was already sold does not appear to affect its validity. Although apparently there are no Alabama cases directly on point, a Florida court held that where the debtor wrote a letter disclaiming any interest in the collateral after the collateral was already sold that the debtor had waived his right to notice of the sale. Applestein v. National Bank of Tulsa, 358 So.2d 106 (Fla.Dist.Ct.App.1978).
The debtor's waiver then was effective to waive his right to notice regardless of the fact that the Bank's premature sale of the automobile rendered the notice ineffective.
In view of the above, the trial court is due to be affirmed.
AFFIRMED.
WRIGHT, P.J., and BRADLEY, J., concur.
NOTES
[1] We note that § 7-9-504 has been revised effective February 1, 1982. However, the above quoted section is the law applicable in this case, and at any rate, no changes were made to the quoted section of § 7-9-504(3) in the revision. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592112/ | 453 So.2d 1272 (1984)
Gerard H. WATTIGNY, Plaintiff-Respondent,
v.
William H. LAMBERT, Defendant-Relator.
No. 84-301.
Court of Appeal of Louisiana, Third Circuit.
July 25, 1984.
*1273 Armentor & Waggigny, Gerard H. Wattigny, New Iberia, for plaintiff-respondent.
*1274 Allen, Gooch & Bourgeois, Clay Allen, Lafayette, for defendant-relator.
Before GUIDRY, CUTRER and STOKER, JJ.
GUIDRY, Judge.
In New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the United States Supreme Court held that the First Amendment to the U.S. Constitution limits the right of a public official to recover damages for defamatory falsehoods relating to his official conduct. In order to recover such damages, a public official must prove that the statement was made with "actual malice", that is, with knowledge that the statement was false or with reckless disregard of whether it was false or not.
At issue in the instant case is whether the foregoing rule is applicable when a public official is defamed by a nonmedia defendant.
The plaintiff, Gerard H. Wattigny, is the former sheriff of Iberia Parish, an office he held when the alleged defamation occurred. He filed the instant suit against the defendant seeking damages for defamation, or in the alternative, malicious prosecution. The defendant filed two separate motions for summary judgment together with accompanying documents in support thereof seeking dismissal of plaintiff's defamation action. The defendant asserts that the supporting documents establish that the alleged defamatory statements were made without actual malice, and that consequently the plaintiff, a public official, is precluded from recovery.
The trial court denied the defendant's motions for summary judgment. We granted the defendant's writ application to consider the following issues:
(1) Is the defendant, Lambert, entitled to the protection of the New York Times v. Sullivan standard?
(2) Does the record reflect an issue of material fact with regard to the determination of the existence of "actual malice"?
FACTS
The alleged defamatory material appears in a petition prepared by the defendant, an attorney, on behalf of one of his clients, William Jamall Jacob, Jr. Jacob retained the defendant on February 26, 1976, to pursue civil proceedings on his behalf seeking damages for false arrest and wrongful imprisonment. Jacob and his wife had been arrested on February 28, 1975 for criminal trespass, and thereafter placed in the Iberia Parish jail. On March 3, 1975, bond on each was set at $5,000.00. They were thereafter released on their own recognizance.
Lambert filed suit on behalf of Jacob, seeking damages for false arrest and wrongful imprisonment. Made defendants were the plaintiff herein, Gerard H. Wattigny, Jacob's father, William (Willie) Jacob, Sr., Jacob's brother, Tommy Jacob, and the plaintiff's son, Gerard B. Wattigny, an attorney practicing in New Iberia. On November 8, 1977, that suit was terminated in favor of Gerard H. Wattigny by the granting of summary judgment.
The plaintiff's son, Gerard B. Wattigny, filed a separate defamation suit against Lambert. That suit culminated in our opinion in Wattigny v. Lambert, 408 So.2d 1126 (La.App.3rd Cir.1981), writ denied, 410 So.2d 760 (La.1981); cert. denied, 457 U.S. 1132, 102 S.Ct. 2957, 73 L.Ed.2d 1349 (1982).
In the instant case, the plaintiff contends that two statements contained in the petition filed in the aforementioned suit prepared by Lambert are defamatory of his character and reputation. The first is the caption of the petition, which reads "Petition for Damages for Illegal Arrest and Wrongful Imprisonment". The second statement alleged to be defamatory is contained in Paragraph 4 of the petition. It states:
"Petitioner was wrongfully imprisoned and detained in said jail at an exorbitant bail figure, set and obtained at the instance of defendants, until Monday, March 3, 1975."
*1275 The record establishes that the arrest of William Jamall Jacob was in fact lawful. Prior to his arrest, a complaint was lodged with the Iberia Parish Sheriff's Office concerning Jacob. In particular, the Sheriff's Office learned that Jacob had been operating an establishment known as the "Golden Wheel Night Club" in violation of a court sequestration order. A warrant for Jacob's arrest was thereafter properly issued and executed, resulting in Jacob's arrest on February 28, 1975. The record also establishes that the plaintiff herein, Gerard H. Wattigny, in no way influenced the district court judge in setting bail for Jacob. Thus, the record makes clear that both of the statements appearing in the petition prepared by Lambert which are complained of by the plaintiff are false.
Although the record clearly shows that the complained of statements are false, we entertain serious doubt that they are defamatory of the plaintiff. The caption makes no factual allegation concerning the plaintiff. Apparently, the plaintiff considers the caption defamatory because it identifies the action as one claiming damages for illegal arrest and wrongful imprisonment, and that because the plaintiff herein is named as a defendant in the petition, the caption accuses the plaintiff of participating in the alleged wrongful conduct. We do not agree. The petition in question names other persons as defendants, and makes specific factual allegations in the body of the petition accusing them by name of causing the false arrest and imprisonment of him and his wife. The plaintiff points to no allegations of the petition which accuse him of such conduct. Of the alleged defamatory material, Paragraph 4 contains the only statement which can be construed as referring to the plaintiff herein. It states that bail for Jacob was fixed at an exhorbitant figure "set and obtained at the instance of defendants." Since Gerard H. Wattigny was a defendant, this statement may be read as meaning that he, along with the other defendants, in some way caused bail to be set at an exorbitant figure.
We question whether the foregoing statement is defamatory.[1] However, the record before us does not contain the entirety of the petition prepared by the defendant. Rather, it only contains the caption of the petition and two of the paragraphs appearing therein. Because we do not know the full context in which the statements were made, we hesitate to reach a firm conclusion as to whether the statements were defamatory or not. In any event, we need not decide the question, as we find, for reasons set out in particular below, that the plaintiff is not entitled to recover damages for defamation.
THE NEW YORK TIMES STANDARD
The first issue we address is whether the standard established in New York Times Company v. Sullivan, supra, is applicable when a public figure is defamed by a non-media defendant. The defendant's motion for summary judgment is based on the plaintiff's alleged inability to prove "actual malice" as defined by New York Times and its progeny. The plaintiff strongly urges that the New York Times standard is not available to non-media defendants, and that no showing of actual malice is necessary.
For the reasons which follow, we conclude that the New York Times standard has equal application whether the defendant is a member of the media or not, and that the plaintiff, a public official, must prove actual malice in order to prevail.
*1276 The text of the Supreme Court's decision in New York Times makes no distinction between the First Amendment guarantees of freedom of speech and of the press. The first paragraph of the opinion reads:
"We are required in this case to determine for the first time the extent to which the constitutional protections for speech and press limit a State's power to award damages in a libel action brought by a public official against critics of his official conduct."
Further, the court specifically pointed out that the decision was grounded on the First Amendment freedoms of speech and press.[2] See footnote 4, 84 S.Ct. at 717.
In requiring a higher standard of proof by public officials in defamation actions, the Supreme Court decision in New York Times clearly places the First Amendment guarantees of freedom of speech and of the press on an equal footing. Absent some subsequent modification by the court limiting the privilege to media defendants, New York Times dictates that the standard therein created applies to non-media defendants based on the First Amendment guarantee of freedom of speech.
We find that the standard established in the New York Times case has never been limited to media defendants. The plaintiff urges that such a limitation was established in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). There is no merit to this contention.
The court in Gertz held that the New York Times standard does not apply to a "publisher or broadcaster" of defamatory falsehoods about a person who is neither a public official nor a public figure. In reaching this conclusion, the court balanced the state interest in compensating private individuals for injury to reputation with the interest in an uninhibited media. Throughout the opinion, the court refers to the New York Times standard as a recognition of the constitutional protection in favor of the news media.
While the court in Gertz refers only to freedom of the press without referring to freedom of speech, the opinion does not hold that the New York Times standard is inapplicable to nonmedia defendants. That question was not before the court because the court concluded that the plaintiff therein was neither a public official nor a public figure. Hence, the New York Times standard was not applicable. Even had the court addressed the issue directly, any statements made in reference thereto would have been dicta. We find that neither Gertz nor any other subsequent case decided by the United States Supreme Court has limited the scope of New York Times, and that the constitutional privilege defined therein applies equally to non-media defendants.
We agree with the reasoning of the court in Davis v. Schuchat, 510 F.2d 731 (D.C.Cir.1975), where it stated:
"Our understanding of New York Times and its offspring is that private persons and the press are equally protected by the requirement that false comment about public figures must be knowing or in reckless disregard of the truth in order to be actionable. It seems to us a necessary corollary that comment about public figures should be equally protected whether made in mass media or in private. This is required both by the First Amendment, which speaks equally of freedom of speech and of the press, and by common sense, for if the "press" *1277 were given more protection than "private speech," persons would be encouraged to rush allegations into wide publication rather than to carefully present them to informed parties for verification or refutation in a more private setting."
In accord, Avins v. White, 627 F.2d 637 (3rd Cir.1980); Bussie v. Larson, 501 F.Supp. 1107 (1980).
In Avins v. White, supra, the court stated:
"Nor does the narrow audience in which the alleged defamatory statement was published persuade us that the New York Times privilege should not be extended to a person in White's position. Indeed with a narrow audience, the possibility of injury from an untruthful statement may be significantly less. More fundamentally, however, we believe that non-extension of the New York Times privilege to provide individuals like White creates a dangerous disequilibrium between the first amendment's guarantees of freedom of speech and the press."
We find the foregoing authorities persuasive. In our view, they reflect a proper interpretation of New York Times and its progeny. Therefore, we conclude that the plaintiff herein, who was admittedly a public official at the time the alleged defamation occurred, must prove "actual malice" in order to prevail.
SUMMARY JUDGMENT
Having determined that the plaintiff must prove "actual malice", we next consider the merits of the defendant's motion for summary judgment. A motion for summary judgment should be granted if the pleadings, answers to interrogatories, depositions, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. Art. 966; Thornhill v. Black, Sivalls & Bryson, Inc., 394 So.2d 1189 (La.1981). Oral testimony should neither be received nor considered, even with the consent of counsel, to decide a motion for summary judgment. Urban Management Corp. v. Burns, 427 So.2d 1310 (La.App. 2d Cir.1983); Hemphill v. Strain, 341 So.2d 1186 (La.App. 1st Cir. 1976), writ denied, 343 So.2d 1072 (La. 1977).
In the instant case, the defendant filed two motions for summary judgment. The first motion was filed on November 2,1983, along with the deposition of the defendant, William H. Lambert, and the minutes of the Sixteenth Judicial District Court from March 3, 1975, the date on which bond was set for William Jamall Jacob, Jr. The second motion for summary judgment was filed by the defendant on November 23, 1983. In support of the second motion, the defendant filed a copy of the transcript of testimony taken in the case of Gerard B. Wattigny v. William H. Lambert, supra, Docket No. 40440 of the Sixteenth Judicial District Court.
The record reflects that the trial judge did not consider the transcript of evidence taken in the suit above referred to in formulating his decision on the motion for summary judgment, as he determined that such evidence was inadmissible. We discern no error in this ruling, it being well established that in order for testimony taken at an earlier judicial proceeding to be admissible as evidence in a subsequent proceeding, there must exist an identity of parties, an identity of issues, and an opportunity for full cross-examination. Bulk Transport, Inc. v. Louisiana Public Service Commission, 252 La. 9, 209 So.2d 4 (1968). In the instant case, the parties are not the same and the plaintiff in this proceeding had no opportunity for cross-examination in the earlier suit. Therefore, we, like the trial court, consider the defendant's motion without reference to the transcript of evidence taken in the earlier suit between defendant and Gerard B. Wattigny.
The basis of the defendant's motion for summary judgment is that the pleadings, answers to interrogatories, depositions, and affidavits filed in the record show that there is no genuine issue of fact concerning "actual malice". In particular, the defendant urges that the record clearly shows his *1278 freedom of "actual malice" as defined by New York Times Company v. Sullivan, supra, and its progeny.
Actual malice is defined as knowledge that the statement is false or with reckless disregard for whether it is false or not. New York Times Company v. Sullivan, supra; St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). The following excerpt from the Supreme Court's opinion in St. Amant v. Thompson, supra, sheds light on the proof required to establish actual malice.
"For purposes of this case we accept the determinations of the Louisiana courts that the material published by St. Amant charged Thompson with criminal conduct, that the charge was false, and that Thompson was a public official2 and so had the burden of proving that the false statements about Thompson were made with actual malice as defined in New York Times Co. v. Sullivan and later cases. We cannot, however, agree with either the Supreme Court of Louisiana or the trial court that Thompson sustained this burden.
Purporting to apply the New York Times malice standard, the Louisiana Supreme Court ruled that St. Amant had broadcast false information about Thompson recklessly, though not knowingly. Several reasons were given for this conclusion. St. Amant had no personal knowledge of Thompson's activities; he relied solely on Albin's affidavit although the record was silent as to Albin's reputation for veracity; he failed to verify the information with those in the union office who might have known the facts; he gave no consideration to whether or not the statements defamed Thompson and went ahead heedless of the consequences; and he mistakenly believed he had no responsibility for the broadcast because he was merely quoting Albin's words.
These considerations fall short of proving St. Amant's reckless disregard for the accuracy of his statements about Thompson....
... reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the trust of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice."
In Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), the court stated that in order to show actual malice, a public official must show that the false statements were made with a "high degree of awareness of their probable falsity"; in accord, Gertz v. Robert Welch, Inc., supra.
When the New York Times v. Sullivan standard is applicable to a case, the trial court must apply it in assessing the evidence on a motion for summary judgment. In order to defeat the defendant's motion for summary judgment, the plaintiff must show that a judge or jury could reasonably conclude by clear and convincing evidence that the false statements were made with knowing or reckless falsity. Mashburn v. Collin, 355 So.2d 879 (La. 1977). See also Rochon v. Wolter et al, 427 So.2d 495 (La.App. 4th Cir.1983), writ denied, 430 So.2d 70 (La.1983).
Summarizing the foregoing jurisprudence, the plaintiff in the instant case (admittedly a public official), in order to defeat the defendant's motion for summary judgment, must show that a judge or jury could reasonably conclude, by clear and convincing evidence, that when Lambert prepared the petition in question, he either entertained serious doubt as to the truth of the statements made therein, or had a high degree of awareness of their probable falsity.
In support of the motion for summary judgment, the defendant filed his own deposition, taken on October 3, 1978, and the minutes of the March 3, 1975 bond hearing *1279 for William Jamall Jacob, Jr.[3] In opposition to the motion for summary judgment, the plaintiff filed several affidavits.
The defendant's deposition establishes the following uncontradicted facts. On February 26, 1976, William Jamall Jacob, Jr. retained the defendant to pursue a civil suit against several parties. As Jacob related the story to Lambert, his father and brother conspired with Gerard B. Wattigny to have him arrested by Iberia Parish Sheriff's deputies. Following this initial consultation, Lambert went to New Iberia in order to verify information given to him by Jacob. Lambert examined the Criminal Minute Book and found that on March 3, 1975, Jacob and his wife appeared in court, where bond on each was set at $5,000.00. Lambert also learned that Jacob and his father were involved in two civil suits. Jacob brought one of the suits against his father to dissolve a partnership. The father brought the other suit against Jacob for past due rent and for cancellation of a lease.
In addition to checking the public records, Lambert contacted Jacob's former attorney, Henry Bernard, Jr., to discuss Jacob's claim. According to Lambert, Bernard told him that the potential suit had merit. Lambert thereafter prepared the petition for illegal arrest and wrongful imprisonment. Lambert stated that every factual allegation contained in the petition was related to him by Jacob.
In opposition to the motion for summary judgment, the plaintiff introduced affidavits from the plaintiff, Gerard H. Wattigny, the plaintiff's son, Gerard B. Wattigny, William (Willie) Jacob, Sr., Tommy Jacob, and several employees of the Iberia Parish Sheriff's Department. These affidavits establish that a writ of sequestration had been properly issued on the building housing the "Golden Wheel Night Club" and the movables contained therein. The building was padlocked by Sheriff's deputies and notice of sequestration was served on William Jamall Jacob, Jr. The affidavits further establish that William Jamall Jacob, Jr. thereafter entered and began operating the night club in violation of the court order. A warrant for Jacob's arrest was properly issued and executed on February 28, 1975. Finally, the affidavits establish that the plaintiff herein did not in any way influence the district judge in the setting of Jacob's bond.
The affidavits filed by plaintiff clearly establish that the statements complained of are false. However, they shed no light on the crucial issue herein, i.e., the state of mind of the defendant Lambert at the time he drafted the petition in question, and more specifically, whether Lambert in fact entertained serious doubt as to the truth of the statements contained in the petition. The affidavits also establish that had Lambert contacted the proper authorities within the Sheriff's Department, he would have discovered that the arrest of Jacob and his wife was in fact legal. A reasonably prudent man may have conducted such an investigation. However, it is clear that "reckless disregard" for truth or falsity is not measured by a negligence standard, and is not established merely by showing a failure to conduct a reasonable investigation. St. Amant v. Thompson, supra.
We conclude that the pleadings, answers to interrogatories, depositions, and affidavits on file fail to establish an issue of material fact with regard to the question of "actual malice". The plaintiff has failed to establish that the defendant was aware of the probable falsity of the statements. Further, the statements are not "so inherently improbable that only a reckless man would have put them into circulation". St. Amant v. Thompson, supra. We therefore conclude that the trial court erred in denying *1280 the defendant's motion for summary judgment.
For the above and foregoing reasons, the writ heretofore granted is made peremptory, and the judgment of the trial court denying the defendant's motion for summary judgment is reversed. Accordingly, this matter is remanded to the trial judge for entry of summary judgment in favor of defendant dismissing plaintiff's suit for defamation, reserving to plaintiff his right to proceed after remand on his alternative claim for malicious prosecution.
REVERSED AND REMANDED.
NOTES
[1] We observe that in Wattigny v. Lambert, 408 So.2d at 1132, this court found that the statement in Paragraph 4 was defamatory of the plaintiff in that case, Gerard B. Wattigny. It should be noted that Gerard B. Wattigny was also accused in the petition of participating in the alleged illegal arrest and wrongful imprisonment. Under those circumstances, a statement falsely accusing him of causing an exhorbitant bail figure to be set (while knowing that the arrest was illegal) is certainly defamatory. However, the record before us fails to show that the petition accused Gerard H. Wattigny of any participation in, or knowledge of, the alleged illegal arrest. Hence, the statement that Gerard H. Wattigny caused an exhorbitant bail figure to be set, standing alone, may not be defamatory.
[2] The references to freedom of speech were necessary because the Supreme Court's ultimate holding operated not only in favor of the New York Times, but equally in favor of four individual defendants who were not members of the news media. The only apparent distinction between the stance of the individual defendants in New York Times and the defendant herein is that, in the instant case, the defendant did not publish the defamatory statements in the media. We regard this distinction as unimportant. Our reading of New York Times leads us to conclude that, insofar as the individual defendants were concerned, the holding was based on freedom of speech grounds. To be entitled to assert the privilege, a defendant need not have published the offending statements in the news media, as an infringement of free speech concerning public officials is sufficient to trigger the operation of the privilege.
[3] As was explained, supra, the trial transcript of the case of Gerard B. Wattigny v. William H. Lambert, supra, Docket No. 40440 of the Sixteenth Judicial District Court, filed in support of the defendant's second motion for summary judgment, is inadmissible and not considered. We therefore treat the two motions as a single motion, supported by the admissible documents noted above. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592115/ | 470 N.W.2d 224 (1991)
Charles BUTZ, Jr., Plaintiff,
v.
Jack A. WERNER, Defendant and Appellee,
World Wide, Inc., a Minnesota Corporation, and Cass Oil Co., a North Dakota Corporation, Defendants and Appellants.
Civ. No. 900258.
Supreme Court of North Dakota.
May 21, 1991.
*225 LaRoy Baird III (argued), Bismarck, for defendant and appellee.
Cahill, Maring & Marquart, Moorhead, Minn., for defendants and appellants, argued by Steven J. Cahill.
GIERKE, Justice.
World Wide, Inc. [World] and Cass Oil Co. [Cass] appeal from a district court judgment and order denying their motion for an order entering judgment against Jack Werner for contribution towards damages awarded to Charles Butz, Jr. We affirm.
Butz was severely injured in 1984 while riding a "Super Tube" which was sold and distributed by World and Cass. Werner was driving the boat when Butz slammed into a boat which was sitting partially in the water and partially on the shore. As a result, Butz sustained serious injuries.
Butz sued Werner, World and Cass on theories of negligence, strict products liability, and breach of warranty. The jury found for Butz on the strict liability theory, found that all four parties were negligent under the negligence theory and found no breach of warranty. On the strict liability theory, the jury assessed fault as follows: World 37½%, Cass 37½%, Werner 0%, Butz 25%. On the negligence theory, fault was assessed as follows: World 25%, Cass 25%, Werner 15%, Butz 35%.
The trial court entered judgment on the strict liability claim and dismissed the negligence and breach of warranty claims. World and Cass appealed and we affirmed. Butz v. Werner, 438 N.W.2d 509 (N.D. 1989) [Butz I].
After the decision in Butz I, World and Cass moved the district court for its order directing entry of judgment for contribution against defendant Jack Werner in the sum of $100,000 plus taxable costs and disbursements based upon their cross-claims against Werner which were grounded in negligence.
World and Cass argue that Butz's election to recover under his strict liability claim does not bind World or Cass with regard to their pursuit of their cross-claims against Werner. World and Cass argue that they have paid more than their fair share to Butz and have discharged a debt which is in part that of Werner's.
Many of the states which have adopted a version of Uniform Contribution Among Tort-feasors Act, of which North Dakota is one, have held that a common theory of recovery, (all defendants liable to plaintiff for negligence or all defendants strictly liable) is not a prerequisite to contribution. Svetz for Svetz v. Land Tool Co., 355 Pa. Super. 230, 513 A.2d 403, 409 (1986); White v. McKenzie Electric Cooperative, Inc., 225 F.Supp. 940 (D.N.D.1964) (applying North Dakota law).
Contribution is available whenever two or more persons become jointly or severally liable in tort. Section 32-38-01, N.D.C.C. However, in determining the right of a tort-feasor to contribution in a comparative negligence action, the pro rata shares of the common liability are to be determined in proportion to the percentage of negligence attributable to each tort-feasor under Section 9-10-07, N.D.C.C. Bartels v. City of Williston, 276 N.W.2d 113 (N.D.1979).
A claim for contribution is a separate and distinct action from the underlying *226 tort. The rights and obligations of the tort-feasors flow, not from the tort, but from the judgment or settlement itself. Coniaris v. Vail Associates, Inc., 196 Colo. 392, 586 P.2d 224 (1978). The very essence of the action of contribution is common liability. It is the joint liability that determines the right of contribution. Horton by Horton v. Orbeth, Inc., 342 N.W.2d 112 (Minn.1984).
Any right which World and Cass might have to recover contribution from Werner must be based on a common liability on the part of Werner, World and Cass to the injured Butz.
"The essence of the action for contribution is common liability to the injured person, not liability for common negligence, or similar negligence, or like negligence.
Simply stated, common liability means that each party, by reason of his wrongful act, is made legally liable to respond in damages to the injured party."
White v. McKenzie Electric Cooperative, Inc., supra, citing Chicago, Rock Island & Pacific Railroad Co. v. Chicago & Northwestern Railway Co., 280 F.2d 110, 115 (8 Cir., 1960).
Although contribution is an equitable doctrine, the doctrine requires only that persons under a common burden share that burden equitably. Spitzack v. Schumacher, 308 Minn. 143, 241 N.W.2d 641 (1976).
In the present case Werner, World and Cass are not under a common burden of liability. Even though the jury found Werner to be somewhat negligent, it was not sufficient to impose liability to Butz. Further, the negligence claim was ultimately dismissed. Finally, the jury found 0% fault against Werner on the strict liability claim.
Since there is no common liability existing on the part of Werner, World and Cass in favor of the injured Butz, World and Cass are not entitled to contribution from Werner.
We affirm.
ERICKSTAD, C.J., and MESCHKE and VANDE WALLE, JJ., concur.
LEVINE, Justice, concurring specially.
In Butz v. Werner, 438 N.W.2d 509 (N.D. 1989), I expressed my dissenting view that only one failure-to-warn theory should be submitted to the jury. Had that been done and had Werner been deemed blameworthy, the appellants may have been entitled to contribution. However, the majority view prevailed and so we are faced with the issue at hand.
The appellants, while acknowledging that Chapter 32-03.2, NDCC, is not controlling, urge that we nonetheless apply it because it reflects the public policy that each defendant at fault pay its pro rata share whether that fault is greater than plaintiff's or not. NDCC §§ 32-03.2-02 and 32-03.2-03. The problem I have with this argument is my uncertainty that, if the case had been submitted to the jury under the new legislation's theory of pure comparative fault, the jury may not have assessed any fault to Werner, or may have allocated to him a different quantum of fault. It is simply too hypothetical a factual proposition to conclude that the fifteen percent negligence attributed to Werner under the law of the case would have remained the same under different law. Accordingly, I agree that, under the law of the case, there is no common liability and thus, there can be no contribution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592096/ | 936 So. 2d 544 (2005)
Anthony Lynn KNIGHT
v.
STATE of Alabama.
CR-04-0199.
Court of Criminal Appeals of Alabama.
March 18, 2005.
*545 Joe M. Reed, Montgomery, for appellant.
Troy King, atty. gen., and Bettie J. Carmack, asst. atty. gen., for appellee.
SHAW, Judge.
Anthony Lynn Knight pleaded guilty to unlawful possession of a controlled substance, cocaine, a violation of § 13A-12-212, Ala.Code 1975, and to harassment, a violation of § 13A-11-8(a)(1), Ala.Code 1975. He was sentenced to two years' imprisonment for the possession conviction and to six months' imprisonment in the city jail for the harassment conviction, the sentences to run concurrently. Both sentences were suspended, and Knight was placed on one year's probation for both convictions; for the harassment conviction, he was also ordered to spend four consecutive weekends in the city jail beginning October 8, 2004.
Before entering his guilty pleas, Knight "reserve[d] the suppression [issue] that [he] previously had a hearing on." (R. 38.) On appeal, Knight argues that this Court should reverse the trial court's denial of his motion to suppress.
The record reflects that Knight filed a motion to suppress, in which he contended that all the evidence in this case should be suppressed as fruit of the poisonous tree because, he said, all the evidence was discovered as a result of an illegal stop and search. Specifically, he contended that the anonymous tips received by the Montgomery Police Department on August 10, 2002, did not have the requisite indicia of reliability to justify a Terry[1] stop of the vehicle in which Knight was a passenger.
On July 14, 2003, the trial court conducted a hearing on Knight's suppression motion. At the suppression hearing, Terrence James, an officer with the Montgomery Police Department, testified that on the evening of August 10, 2002, a BOLO (be on the lookout) was issued for a full-size red pickup truck. The BOLO was issued pursuant to a call dispatch had received indicating that people in a full-size red pickup truck were exchanging gunfire with people in a bluish-gray compact-size vehicle near Highland Avenue and Ann Street in Montgomery. Dispatch received a second call 15 to 30 minutes after the first regarding the "same thing, same description, shooting in the area of . . . Highland Avenue" (R. 11), and a second BOLO was issued. Officer James testified that within 30 minutes of the issuance of the second BOLO, he and his partner were sitting at the corner of Hall and Highlandfour to five blocks from Highland Avenue and Ann Street, the area where the shots had reportedly been firedwhen they observed a full-size red pickup truck pass through the intersection. The officers initiated a traffic stop of the truck because it matched the description of the vehicle in the BOLO.
*546 At the conclusion of the suppression hearing, the trial court did not issue a ruling on the motion to suppress; instead, the trial court indicated that it did not know the answer to the question "if you get a call of someone shooting something or doing something, when can you stop them" (R. 32), but that it hoped to get the answer to the question by reading the caselaw provided by the parties.
At the guilty-plea proceedings held on January 29, 2004, the following exchange occurred:
"[Knight's attorney]: . . . My only question would be, Judge, does [Knight] need to preserve his appeal of the suppression [issue] now or before he plead orbecause I was listening to what you said, unless he preserves anything before he pleads
"THE COURT: If I were you, just to be safe, I would go ahead and reserve the right to appeal the suppression issue. I haven't ruled on it yet, have I?
"[Knight's attorney]: Yes, sir.
"THE COURT: I did?
"[Prosecutor]: I don't think there was an order put out.
"THE COURT: Well, anyway, do you want to reserve the suppression [issue] that you previously had a hearing on?
"[Knight's attorney]: Yes, sir.
"THE COURT: All right."
(R. 37-38.) At the conclusion of the sentencing hearing, Knight's attorney stated: "[W]e want[] to preserve his right to appeal the suppression issue." (R. 52.) The trial court replied: "He is reserving the issue of the suppression that he previously argued with me for appeal." (R. 52.)
"This court will not review the merits of a motion presented by the appellant at trial unless the court below has issued a ruling adverse to the appellant on the motion. Knight v. State, 623 So. 2d 376, 379 (Ala.Cr.App.1993). It is the appellant's duty to preserve the record for appeal by invoking a ruling from the trial court. White [v. State], 589 So.2d [765,] 766 [(Ala.Crim.App.1991)]."
Berryhill v. State, 726 So. 2d 297, 302 (Ala. Crim.App.1998).
"If counsel makes objections and secures rulings `off the record,' this court cannot consider those rulings. . . . Our review is limited to matters of record."
Jefferson v. State, 449 So. 2d 1280, 1282 (Ala.Crim.App.1984). Our review of the record does not reveal an adverse ruling by the trial court on Knight's motion to suppress.
In Mitchell v. State, 913 So. 2d 501 (Ala. Crim.App.2005), this Court stated:
"Reserving the right to appeal an issue is not the equivalent of preserving an issue for appellate review. To preserve an issue for appellate review, the issue must be timely raised and specifically presented to the trial court and an adverse ruling obtained. The purpose of requiring an issue to be preserved for review is to allow the trial court the first opportunity to correct any error. See, e.g., Ex parte Coulliette, 857 So. 2d 793 (Ala.2003). To reserve an issue for review, a defendant must express his or her intention, before the guilty plea is entered, to appeal the issue in question. Because a guilty plea waives all nonjurisdictional defects occurring before the entry of the plea, by entering a guilty plea a defendant is presumed to have abandoned all nonjurisdictional defects that occurred before the plea unless he or she expressly conditions the plea on the right to appeal the issue in question by expressly reserving it before entry of the plea. See, e.g., Prim v. State, 616 So. 2d 381 (Ala.Crim.App.1993). Reserving an issue for appeal avoids the waiver *547 effect of the guilty plea, but it does not preserve the issue for appellate review.4 Thus, in the guilty-plea context, an issue relating to a defect occurring before the entry of the plea must be both preserved by a timely and specific motion and/or objection and an adverse ruling from the trial court and reserved for appeal before the entry of the plea.
"In this case, Mitchell reserved issue (1) for appeal; however, he failed to preserve it by filing a timely motion and/or objection with the trial court and obtaining an adverse ruling on the motion or objection. Therefore, it is not properly before this Court for review.
4 "Reserving an issue before a guilty plea is entered is also one of two methods by which a defendant may invoke the limited right to appeal a guilty-plea conviction. See Rule 14.4(a)(1) (viii), Ala.R.Crim.P. The other method is by filing a motion to withdraw the guilty plea. See Rule 26.9(b), Ala.R.Crim.P."
913 So.2d at 505. While Knight reserved the suppression issue for appeal before he entered his guilty pleas, there is no indication in the record that Knight obtained an adverse ruling from the trial court on his suppression motion. Thus, he did not preserve the suppression issue for appellate review.
Because the issue presented on appeal is not properly before this Court for appellate review, the trial court's judgment is due to be affirmed.
However, although we are affirming Knight's convictions for unlawful possession of a controlled substance and harassment, we must remand this case for resentencing on the harassment conviction because the trial court has imposed a sentence that exceeds the maximum allowed by statute. "Matters concerning unauthorized sentences are jurisdictional," Hunt v. State, 659 So. 2d 998, 999 (Ala.Crim.App. 1994), and we may take notice of an illegal sentence at any time. See, e.g., Pender v. State, 740 So. 2d 482 (Ala.Crim.App.1999).
Harassment is a Class C misdemeanor. See § 13A-11-8(a)(3), Ala.Code 1975. The sentence that may be imposed for a Class C misdemeanor is imprisonment in the county jail for "not more than three months." § 13A-5-7(a)(3), Ala.Code 1975. As previously noted, Knight was sentenced to six months' imprisonment for the harassment conviction. Thus, Knight's sentence for the harassment conviction exceeds the maximum allowed by statute.
Therefore, based on the foregoing, we remand this case for the trial court to resentence Knight pursuant to § 13A-5-7(a)(3). Due return shall be filed with this Court no later than 35 days from the date of this opinion.
AFFIRMED AS TO CONVICTIONS; REMANDED WITH DIRECTIONS AS TO SENTENCING.[*]
McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.
NOTES
[1] Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
[*] Note from the reporter of decisions: On April 15, 2005, on return to remand, the Court of Criminal Appeals affirmed, without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592107/ | 453 So. 2d 1216 (1984)
STATE of Louisiana, Plaintiff-Appellee,
v.
Danny CARRIER, Defendant-Appellant.
No. CR 83-1102.
Court of Appeal of Louisiana, Third Circuit.
May 16, 1984.
*1217 Jerry P. Harmon, Crowley, for defendant-appellant.
Glenn Foreman, Asst. Dist. Atty., Crowley, for plaintiff-appellee.
Before CUTRER, STOKER and KNOLL, JJ.
STOKER, Judge.
After waiving his right to trial by jury, defendant, Danny Carrier, was convicted of attempted manslaughter and sentenced to a term of six years in the custody of the Department of Corrections. The maximum available penalty is ten and one-half years. He appeals his sentence claiming that it is excessive, that the trial judge did not comply with LSA-C.Cr.P. art. 894.1, and that the presentence investigation should have been made a part of the record. We affirm.
The incident from which this conviction resulted occurred on the night of December 17, 1982. Defendant and the victim, Dirk Olivier, were in a bar in Church Point, Louisiana. The victim objected to defendant dancing with his girl friend, Linda Satler, and when the victim punched the defendant, Ms. Satler fell and cut her head. The victim and a friend, Michael Tillman, then left the bar with Ms. Satler to take her to the hospital. Defendant followed the party out of the bar and tried to prevent them from taking Ms. Satler away. A fistfight ensued between the victim and the defendant which was broken up by Mr. Tillman. Apparently both victim and defendant wished to continue fighting, so Mr. Tillman released the victim from his grasp. During the course of this third altercation, the victim received critical stab wounds. The defendant fled the scene.
We will consider defendant's assignments of error regarding excessiveness and compliance with Article 894.1 together.
It is well settled that the trial court need not articulate every aggravating and mitigating circumstance under LSA-C.Cr.P. art. 894.1 if the court indicates that it has considered those guidelines in particularizing the sentence to the offender. State v. Howard, 414 So. 2d 1210 (La.1982). In this case the trial judge noted that he had studied the presentence report very carefully. The trial judge then stated, "The Court feels that now is the time to call your attention to the way to live, that you cannot go around and escape the consequences of your acts.... You must understand that the way you are going now is a dead end." He noted further that the injuries incurred by the victim in this case were very severe and the defendant was fortunate the victim lived. Although the trial judge was brief, we find that he adequately complied with the requirements of Article 894.1.
In addition, we note that the trial judge was the trier of fact in this case, and in his reasons for finding defendant guilty, it is apparent that he was fully aware of the mitigating circumstances urged by defendant in this appeal. Although the victim struck the first blow, that altercation had ended. The defendant followed the victim out of the bar and fought with him again after Mr. Tillman had separated the two. In his reasons for judgment, the trial court stated, "But under these circumstances, there is no justification for the use of the knife and to use it so competently." (The victim was stabbed seven or eight times.)
In any event, we do not find that the sentence imposed in this case is "apparently severe" to the extent that it would require a remand. See State v. Jones, 381 So. 2d 416 (La.1980). The defendant in this case used unreasonable force, inflicting critical injuries on the victim, and he failed to take advantage of two clear opportunities to walk away from the conflict. A six-year sentence in this case where the maximum available sentence is ten and one-half years is not apparently severe and is not an abuse of the wide discretion accorded a trial judge in sentencing.
In regard to the presentence investigation, defendant makes only the following argument on appeal:
*1218 "It must also be noted that it is impossible to review the mitigating circumstances in this matter because the presentence investigation has not been made part of the record."
LSA-C.Cr.P. art. 877 protects the confidentiality of presentence investigation reports; however, it provides that "the court may advise the defendant or his counsel of the factual contents and conclusions of any pre-sentence investigation report." There is no requirement that the report be entered into the record for review on appeal, nor does the record show that defense counsel made any such request. In fact, there is no allegation that defendant requested that the report be made part of the record or that he be allowed access to it. Absent such a request, there is no error in not making the report a part of the record. State v. Boone, 364 So. 2d 978 (La.1978), cert. den. 444 U.S. 825, 100 S. Ct. 46, 62 L. Ed. 2d 31 (1979). Defendant also makes no claim that the report contained false information prejudicial to him which would entitle him to access. See State v. Bindom, 410 So. 2d 749 (La.1982).
Finding no reversible error, we affirm defendant's sentence.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592131/ | 135 S.W.3d 757 (2004)
RIDGECREST RETIREMENT & HEALTHCARE d/b/a Ridgecrest Retirement Center, Ltd., Appellants
v.
Darlyn Jill URBAN, Individually, and as Representative of the Estate of Donald G. Maker, and Richard J. Maker, Individually, Appellees.
No. 01-02-00663-CV.
Court of Appeals of Texas, Houston (1st Dist.).
January 8, 2004.
Rehearing Overruled February 6, 2004.
*758 Charlotte A. Fields, Ronald E. Tigner, Preis, Kraft & Roy, Houston, TX, Kevin L. Wentz, Wentz & Zavarelli, Irving, TX, David Criss, Dallas, TX, for Appellant.
Steven G. Ohrvall, Richard L. Howell, Demarest, Smith, Giunta & Howell, P.L.L.C., Dallas, TX, Steve Stewart, Levin & Kasner, Houston, TX, for Appellee.
Panel consists of Justices ALCALA, HIGLEY, and ADELE HEDGES[*].
OPINION
ADELE HEDGES, Justice (Assigned).
Plaintiffs/appellees, Darlyn Jill Urban, individually, and as representative of the estate of Donald G. Maker, and Richard J. Maker, individually, sued defendant/appellant, Ridgecrest Retirement & Healthcare d/b/a Ridgecrest Retirement Center, Ltd. ("Ridgecrest"), for negligence in its care of Donald G. Maker ("Maker"). A jury returned a verdict awarding $999,999.99 to Maker's estate, but found that his children sustained no damages. The trial court entered judgment against Ridgecrest and in favor of Maker's estate in the amount of $999,999.99, plus prejudgment interest of $169,191.71. We reverse and remand.
Background
Maker was a resident of Ridgecrest, an assisted living facility, since 1995. Before his admission to Ridgecrest, Maker had a multitude of health problems, including three prior strokes, diabetes, atrial fibrillation, and hypertension. He was in a wheel *759 chair because of paralysis in his right arm and leg.
Because of the atrial fibrillation, Maker was at risk for blood clots. His doctor, Dr. Jensen, prescribed Coumadin, a bloodthinner medication, to reduce the risk of another stroke. Coumadin is an anticoagulant that helps prevent clots from forming and leading to strokes. A test known as Protime monitors the level of Coumadin. A low Coumadin level indicates a risk of stroke; a high level indicates a risk of bleeding problems.
In early July 1998, Maker developed a urinary tract infection. Dr. Jensen prescribed the antibiotic Bactrim, which did not cure the infection. On July 27, 1998, Maker continued to have problems with bowel incontinence. Dr. Jensen changed the antibiotic prescription to Cipro, which had the side effect of thinning blood. Dr. Jensen was aware that Cipro had an "enhancement" effect on the Coumadin to thin Maker's blood even further. On July 27, Dr. Jensen ordered a Protime test to be run by Thursday, July 30.
The procedures for ordering lab work were as follows: Maker (or whoever took him to the doctor) would bring the doctor's order to Ridgecrest. Ridgecrest would then write that order into a lab book supplied by Physicians' Reference Laboratories ("PRL"). As a courtesy to residents, so that they would not have to go to the lab, Ridgecrest made arrangements for PRL to come to Ridgecrest and take blood and urine samples from the residents. PRL would come to Ridgecrest, review the order in the lab book, obtain the specimens needed to run the ordered tests, and fax a copy of the lab result to Ridgecrest.
Prior to this lawsuit being filed, PRL's lab book disappeared. PRL admitted that one of its former employees took the lab book. It is unknown why Maker's Protime test, which Dr. Jensen ordered to be run on July 30, was not run until July 31. PRL performed Maker's Protime test on Friday, July 31, at 5:00 a.m.
A normal blood clotting time is 13-15 seconds. Maker's Protime test indicated that his time was 36.4 seconds, which is abnormal. Maker's results were faxed to Ridgecrest on Friday, July 31, at 11:58 p.m., two minutes before midnight. The room where Ridgecrest kept the fax machine was closed at 5 p.m. on Friday for the remainder of the weekend. Ridgecrest contends that PRL should have faxed the lab result to Maker's physician because Ridgecrest did not, and was not required to, have individuals on staff who were trained to interpret lab results.
After the weekend, on Monday, August 3, a Ridgecrest medication aide, Edith Dukes, saw Maker's abnormal lab report. She faxed the results to Dr. Jensen at 8:29 a.m. that morning. Upon receipt of the abnormal result, Dr. Jensen instructed Ridgecrest to stop administering the Coumadin to Maker and inject vitamin K, which is designed to thicken the blood. Dr. Jensen did not request that Ridgecrest bring Maker to the hospital. He expected that Maker's Protime result would return to normal within one or two days.
Pursuant to Dr. Jensen's orders, Maker did not receive any more Coumadin and instead received the vitamin K injection. Ms. Owenby, the director of assisted living at Ridgecrest, testified that Maker was fine on August 3. He did not appear to be bleeding, dizzy, confused, or disoriented.
In the early morning of Tuesday, August 4, Maker was found on the floor. He was incontinent of urine and bowel. Later that morning, Maker began to experience difficulty breathing. Ridgecrest called Maker's son and Dr. Jensen, who ordered him transferred to the hospital. The emergency room assessed Maker's condition as non-urgent. The emergency room records indicate that Maker denied being in any *760 pain. At the time of his admission, Maker's blood pressure was adequate. At 3:30 p.m., he was given a blood transfusion. That evening on Tuesday, August 4, at approximately 7:55 p.m., Maker died.
The cause of death listed on Maker's death certificate was "CVA," or cerebrovascular accident or stroke. Dr. Jensen agreed with the cause of death, opining that Maker did not begin bleeding until the morning of Tuesday, August 4. Dr. Krouse, one of Maker's experts, disagreed, and instead opined that Maker bled to death. Dr. Krouse testified that Maker had an overdose of Coumadin from July 31 to August 4, which resulted in Maker bleeding internally for a few days before his admission to the hospital.
Procedural History
Maker's children, individually and as representatives of Maker's estate, sued Ridgecrest and PRL for negligence. Ridgecrest filed a cross action against PRL for contribution. The allegations of negligence were that Ridgecrest did not have lab work performed in a timely fashion, did not forward an abnormal test result to Maker's physician, and violated multiple provisions of the Texas Administrative Code pertaining to assisted living facilities. Ridgecrest's claim against PRL for contribution was based on an agreement and PRL's course of performance to forward lab results directly to the residents' physicians.
Before the introduction of any evidence, plaintiffs announced that they had settled with PRL and dropped all claims against PRL. The trial court proceeded with plaintiffs' claims against Ridgecrest, and Ridgecrest continued to maintain its cross action against PRL. The jury returned a verdict awarding $999,999.99 to Maker's estate and no damages to Maker's children. The jury allocated 100% of the fault against Ridgecrest and none against PRL. The trial court entered judgment against Ridgecrest and in favor of Maker's estate in the amount of $999,999.99, plus prejudgment interest of $169,191.71. The court denied recovery to Maker's children in their individual capacities and denied Ridgecrest's claim for contribution from PRL.
In nine issues, Ridgecrest contends as follows: (1) the trial court erred in excluding Defense Exhibit 2 because it established that PRL had a policy to fax lab results directly to residents' physicians; (2) the trial court erred in excluding the testimony of Ms. Huntsman, a Ridgecrest administrator, and in granting a limiting instruction regarding her testimony; (3) Dr. Jay Luxenberg was not qualified to render an expert opinion; (4) Barbara Acello was not qualified to render an expert opinion; (5) Cheryl Staats was not qualified to render an expert opinion; (6) the evidence was legally and factually insufficient to support the jury's finding of negligence; (7) the evidence was legally and factually insufficient to support the jury's award of $999,999.99 for pain and mental anguish and funeral and burial expenses; (8) the trial court erred in submitting a negligence per-se instruction; and (9) the trial court erred in submitting a spoliation instruction.
Negligence Per-Se Instruction
In its eighth issue, Ridgecrest contends that the trial court erred in submitting a negligence per-se instruction.
Question 1 of the jury charge asked whether Ridgecrest was negligent. The charge included the following Texas Administrative Code sections:
Section 92.2(3)(B):
(B) The personal care facility shall meet other basic and primary needs of the residents. Residents may require at least one or more of the following needs, *761 while some residents may require all of the following needs:
(i) assistance with meals, dressing, movement, bathing, or other personal needs or maintenance;
(ii) the administration of medication by a person licensed to administer medication or the assistance with or supervision of medication; or
(iii) general supervision or oversight of the physical and mental well-being of a person who needs assistance to maintain a private and independent residence in the facility or who needs assistance to manage his personal life, regardless of whether a guardian has been appointed for the person.
Section 92.2(3)(c):
(c) Residents whose needs cannot be met by the personal care facility, or the necessary services secured by the resident, shall not be admitted or retained in the facility. When services beyond assistance are needed, the decision that such services can be provided or secured shall be the responsibility of facility management with written concurrence of the resident, resident's attending physician, and/or responsible party. This concurrence shall be placed in the facility file. Refer to the accident, injury, or acute illness provisions in § 92.41(f) of this title (relating to Standards for Personal Care Facilities).
Section 92.2(5)(A):
(5) Personal care has at least two basic elements.
(A) The delivery of services requires the presence of a facility staff member.
(B) The services performed are of a protective or safeguard nature in efforts to maintain or restore basic health, safety, and well-being of the residents.
Section 92.41(a)(2)(A):
(2) Attendants.
(A) There shall be an attendant in the facility at all times when residents are in the facility. Additionally, there shall be other attendant personnel as needed to:
(i) maintain order, safety, and cleanliness;
(ii) assist with medication regimens;
(iii) prepare and service meals;
(iv) assist with laundry; and
(v) assure that each resident receives the kind and amount of supervision and care required to meet his basic needs.
Section 92.41(e):
(e) Medications.
(1) Administration.
(A) Residents who choose not to or cannot self-administer their medications must have their medications administered by a person who:
(i) holds a current license under state law which authorizes the licensee to administer medication; or
(ii) holds a current medication aide permit and acts under the authority of a person who holds a current license under state law which authorizes the licensee to administer medication.
(B) All resident's prescribed medication shall be dispensed through a pharmacy or by the residents's treating physician or dentist.
(C) Physician sample medications may be given to a resident by the facility provided the medication has specific dosage instructions for the individual resident.
(D) Each resident's medications shall be listed on an individual resident's medication profile record. The recorded information obtained from the prescription label shall include, but is not limited to, the medication name, strength, dosage, amount received, directions for use, route of administration, prescription number, pharmacy *762 name, and the date each mediation was issued by the pharmacy.
(2) Supervision. Supervision of a resident's medication regimen by facility staff may be provided to residents who are incapable of self-administering to include and limited to:
(A) reminders to take their medications at the prescribed time;
(B) opening containers or packages and replacing lids;
(C) pouring prescribed dosage according to mediation profile record;
(D) returning medications to the proper locked areas;
(E) obtaining medications from a pharmacy; and
(F) listing on a individual resident's medication profile record the medication name, strength dosage, amount received, directions for use, route of administration, prescription number, pharmacy name, and the date each mediation was issued by the pharmacy.
Section 92.41(f):
(f) Accident, injury, or acute illness.
(1) In the event of accident or injury requiring emergency medical, dental, or nursing care, or in the event of apparent death, the personal care facility will:
(A) make arrangements for emergency care and/or transfer to an appropriate place for treatment (i.e., physician's office, clinic, hospital, etc.);
(B) immediately notify the resident's physician and next of kin, responsible party, or agency who placed the resident in the facility; and
(C) describe and document the injury, accident, or illness on a separate report. The report shall contain a statement of final disposition and be maintained on file.
After these code provisions, the jury charge included a negligence per-se instruction, which stated, "A failure to comply with these regulations may be negligence in itself."[1] Ridgecrest objected to the instruction before the trial court submitted the charge to the jury.
Negligence per se is a commonlaw doctrine in which a duty is imposed based on a standard of conduct created by a penal statute rather than on the reasonably prudent person test used in pure negligence claims. Smith v. Merritt, 940 S.W.2d 602, 607 (Tex.1997). The threshold questions in every negligence per-se case are whether the plaintiff belongs to the class that the statute was intended to protect and whether the plaintiff's injury is of a type that the statute was designed to prevent. Perry v. S.N., 973 S.W.2d 301, 305 (Tex.1998).
A violation of a non-penal administrative code statute does not establish a negligence per-se claim. For example, in Pack v. Crossroads, Inc., 53 S.W.3d 492 (Tex.App.-Fort Worth 2001, pet. denied), the negligence per-se claim involved alleged breaches of title 40, chapter 19 of the Texas Administrative Code, which applies to a nursing home's licensure and participation in the Medicaid program.[2]Id. at *763 509. The penalties for enforcement of title 40, chapter 19 are civil remedies, ranging from a warning letter of noncompliance to license revocation to administrative penalties. Id. at 509-10. The Pack court held that the administrative code provisions were not penal in nature; thus, the trial court properly struck the negligence perse claim. Id. at 510.
In response, Maker contends that the negligence per-se instruction "was redundant because it merely restated the standard of ordinary care and did not alter the common law duty which was included in the broad form submission of the negligence question." Maker relies on Smith v. Central Freight Lines, Inc., 774 S.W.2d 411 (Tex.App.-Houston [14th Dist.] 1989, writ denied), which involved a suit for personal injuries arising out of a rear-end collision. Smith addressed the violation of a Texas Transportation Code section involving the driver of a motor vehicle maintaining an assured clear distance when following another vehicle. Id. at 412 (citing TEX.REV.CIV. STAT. ANN. art. 6701d, § 61(a) (Vernon 1977)). The Smith court referred to a commentary to section 5.01 of the Texas Pattern Jury Charge, which states that "[a] few negligence per se standards found in statutes or regulations have been held simply to restate the standard of `ordinary care' and not to alter the duty that already exists at common law." Id. at 415 (citing 1 STATE BAR OF TEXAS, TEXAS PATTERN JURY CHARGES PJC 5.01 (1987)). The court held that it is "redundant to submit a question on the statutory standard or to instruct the jury regarding it, and the negligence per se standard is subsumed under the broad-form negligence question." Id.
We conclude that Smith is distinguishable, however, because it dealt with a Transportation Code section. The Administrative Code chapter 92, the provision at issue in this case, is instead similar to the Administrative Code chapter 19 in Pack. Likewise, the penalties for enforcement of chapter 92 are civil remedies, such as revoking a license or referring a facility to the attorney general for the assessment of civil penalties. 40 TEX. ADMIN. CODE § 92.153, 92.156. We conclude that these Administrative Code provisions are not penal in nature; therefore, the negligence per-se instruction was improper. See Pack, 53 S.W.3d at 510. Accordingly, we hold that the trial court erred in submitting the negligence per-se instruction.
We now turn to whether the error was harmful. In Crown Life Ins. Co. v. Casteel, the supreme court held, "When a trial court submits a single broad-form liability question incorporating multiple theories of liability, the error is harmful and a new trial is required when the appellate court cannot determine whether the jury based its verdict on an improperly submitted invalid theory." 22 S.W.3d 378, 388 (Tex.2000). In this case, the negligence per-se instruction, an invalid theory, was improperly submitted in the broad form question along with negligence, a valid theory. As in Casteel, we cannot determine whether the jury based its verdict on the improperly submitted theory. See id. Thus, we hold that the error was harmful and a new trial is required. See id.
We sustain the eighth issue.
Because of our disposition of the eighth issue, we need not address the remaining issues and decline to do so.
*764 Conclusion
We reverse the judgment of the trial court and remand the cause for a new trial.
NOTES
[*] The Honorable Adele Hedges, who became Chief Justice of the Fourteenth Court of Appeals on December 8, 2003, continues to participate by assignment for the disposition of this case, which was submitted on December 15, 2003.
[1] Maker contends that the charge was not a negligence per-se instruction because of the word "may." We disagree. The charge erroneously instructed the jury that it could find Ridgecrest negligent for any of the failures to abide by the Texas Administrative Code.
[2] The Pack case involved section 19.1(b), which states:
Scope. The Nursing Facility Requirements for Licensure and Medicaid Certification contain the requirements that an institution must meet in order to be licensed as a nursing facility and also to qualify to participate in the Medicaid program. The requirements serve as a basis for survey activities for licensure and certification. 40 TEX. ADMIN. CODE § 19.1(b) (1997). This case involves section 92.2(b), which states:
Scope. The licensing standards for assisted living facilities contain the minimum standards that a facility must meet in order to be licensed as an assisted living facility. The standard serves as a basis for survey activities for licensure. 40 TEX. ADMIN. CODE § 92.2(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592136/ | 453 So. 2d 689 (1984)
William G. BURGIN
v.
MISSISSIPPI STATE BAR.
Conf. Misc. No. 109-A.
Supreme Court of Mississippi.
July 18, 1984.
*690 Joe O. Sams, Jr., Thomas L. Kesler, Sams & Kesler, Columbus, for appellant.
Andrew J. Kilpatrick, Jr., Jackson, for appellee.
En Banc.
SULLIVAN, Justice, for the Court:
Petitioner Burgin was admitted to the practice of law in the State of Mississippi on June 2, 1947, and practiced in the Courts of this state until being disbarred by this Court by Consent Order dated January 22, 1981, which order related back to September 12, 1979, the date upon which petitioner was originally suspended.
Petitioner was convicted in Cause No. J78-00021(N) in the United States District Court for the Southern District of Mississippi. The conviction was for violation of Section 371 of Title 18 of the United States Code, being the felony of conspiracy to defraud the United States of America. On July 24, 1980, the United States Court of Appeals for the Fifth Circuit affirmed the conviction, as recorded in United States v. Burgin, 621 F.2d 1352 (1980).
Petitioner filed his first Petition for Reinstatement on September 13, 1982. The Bar opposed the Petition, and on December 15, 1982, this Court denied the Petition for Reinstatement. This present Petition for Reinstatement was filed on February 24, 1984, more than one year after the date of the last adverse determination and in accordance with Rule 12 of the Rules of Discipline for the Mississippi State Bar as adopted by this Court on September 7, 1983.
The reinstatement of suspended or disbarred attorneys is governed by Rule 12 of the Rules of Discipline. This is true, even though the Rules may not have been in effect at the time of the suspension or disbarment. Rule 12.6 of the Rules of Discipline provides what jurisdictional matters must be contained in, or proven by a Petition *691 for Reinstatement. This Rule provides as follows:
Contents of Reinstatement Petitions-jurisdictional matters. All reinstatement petitions shall be addressed to the Court, shall state the cause or causes for suspension or disbarment, give the name and current addresses of all persons, parties, firms, or legal entities who suffered pecuniary loss due to the improper conduct, the making of full amends and restitution, the reasons justifying reinstatement, and requisite moral character and legal learning to be reinstated to the privilege of practicing law . .. The matters set out in this paragraph shall be jurisdictional.
Petitioner Burgin takes the position that when he filed his second Petition for Reinstatement the State of Mississippi had taken a voluntary non-suit in its action against him and that he only had information and belief that a new suit had been filed, and that the filing of a new action by the State of Mississippi had been stayed by the trial judge. Based upon these facts, the Petitioner asserts that for the purposes of this Petition he is not indebted to any person or entity, private or governmental, in any manner inconsistent with the requirements for reinstatement to the practice of law.
We find this position to be without merit. First, Petitioner refused process in the second suit filed by the State of Mississippi on the same day this Petition was filed. Further, the voluntary non-suit was granted to the State in the first action against the Petitioner for the purpose of refiling to include new named defendants. It follows that Petitioner knew at the time of the dismissal that the new suit would be filed. Further, the pendency or non-pendency of a suit by the State against the Petitioner is not the sole determining factor on the restitution issue. We need look no further than the opinion in United States v. Burgin, supra, where the Court found that Burgin knew, and had a duty to inform the Department of Public Welfare that the contract could have been entered for much less. He did not. This clearly indicates a direct pecuniary loss to the State of Mississippi. Furthermore, as a direct result of Petitioner's conviction an audit of the State Department of Public Welfare was done by the office of Health and Human Services and as a result of the audit based upon the conviction, and the negotiations between the Department of Public Welfare and the Office of Health and Human Services, the amount of disallowances in Title XX contracts now stands at approximately $400,000.00. If this disallowance stands, the State of Mississippi will suffer a direct pecuniary loss of that amount as a direct result of the conduct of the Petitioner for which he was convicted.
Rule 12.6 requires that the Petition contain reasons justifying reinstatement. The Rule also requires that the Petitioner maintain the requisite moral character and legal learning to qualify for reinstatement. This Petition is silent as to these requirements. Failure to comply with the requirements of Rule 12 is jurisdictional.
We find that the Petitioner has failed to list all persons, parties, firms or legal entities who suffered pecuniary loss due to his improper conduct. Further, he has made no showing of full amends and restitution to those persons so injured. Petitioner has stated no reason justifying reinstatement and has failed to reference the requisite moral character or to provide information regarding the requisite legal learning to qualify for reinstatement to the privilege of practicing law. This is jurisdictional. The burden of proving that he has rehabilitated himself and re-established the requisite moral character sufficient to entitle him to reinstatement is upon the Petitioner. Ex Parte Marshall, 165 Miss. 523, 147 So. 791 (1933). The fundamental question to be addressed before reinstatement is the attorney's rehabilitation in conduct and character since the disbarment. Mississippi State Bar Association v. Wade, 250 Miss. 625, 167 So. 2d 648 (1964). These issues were not addressed in this Petition and we, therefore, cannot address them.
*692 The Petition for Reinstatement is dismissed.
DISMISSED WITHOUT PREJUDICE.
PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS and ROBERTSON, JJ., concur.
DAN M. LEE and PRATHER, JJ., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592135/ | 389 F. Supp. 733 (1974)
Claire SCHLUSSELBERG, Trustee Under Agreement Dated October 1, 1959 f/b/o Carol Sands, et al.
v.
COLONIAL MANAGEMENT ASSOCIATES, INC., et al.
Civ. A. No. 71-1052-F.
United States District Court, D. Massachusetts.
October 17, 1974.
*734 Harvey A. Silverglate, Boston, Mass., for plaintiffs.
George T. Finnegan, Ropes & Gray, Laurence M. Johnson, Nutter, McClennen & Fish, Christian M. Hoffman, Foley, Hoag & Eliot, Boston, Mass., for defendants.
OPINION
FREEDMAN, District Judge.
A proposed settlement of a consolidated shareholders' derivative suit, originally brought on behalf of nominal defendant Colonial Equities, Inc. by plaintiff Schlusselberg, came before the Court on August 26, 1974 for its approval pursuant to Federal Rule of Civil Procedure 23.1. After extensive discovery, the Colonial Fund, Inc., Colonial Growth Shares, Inc., and Colonial Ventures, Inc.,[1] (hereinafter referred to as "the Funds"), all of which are managed by defendant Colonial Management Associates, Inc., (hereinafter referred to as "the Adviser"), have joined with the original derivative plaintiff as parties plaintiff. Accordingly, the terms of the proposed settlement bestow benefits upon all of these Adviser-managed Funds.
In addition to the Adviser and the nominal defendant, Colonial Equities, Inc., various other parties are currently listed as defendants. These parties include State Mutual Life Assurance Company of America (hereinafter referred to as "State Mutual"); S. M. A. Management Corp., (hereinafter referred to as "S. M. A."), a wholly-owned subsidiary of State Mutual; the thirteen individual selling shareholders of the Adviser; and other individuals who either are or were officers of State Mutual while holding positions with either the Adviser and/or one or more of the Funds.
*735 Stockholder derivative suits invariably involve large sums of money.[2] Furthermore, when the Court is called upon to give its blessings to a settlement of this type of action, the factual and mathematical criteria upon which the Court bases its decision can rarely be reduced to precise and certain terms. This case is not an exception to either of the above statements. Nevertheless, "[a]pproval should be given if the settlement offered is fair, reasonable, and adequate . . . The most important factor is the strength of the case for the plaintiffs on the merits, balanced against the amount offered in settlement. This factor is sometimes referred to as the likelihood of success." West Virginia v. Chas. Pfizer & Co., 314 F. Supp. 710, 740 (S.D.N.Y., 1970). Thus the Court, cognizant of the legal standards, the high stakes, and the imprecision of its endeavor, proceeds to evaluate the settlement.
The Proposed Settlement
The proposed settlement can be summarized as follows:
1. The Adviser's 13 individual selling shareholders will deposit $1,000-000 with an escrow agent to be paid to the Funds subject to escrow agent fees and court allowed attorney fees.
2. The Adviser will, subject to the approval of the shareholders of each of the Funds, enter into new advisory agreements with the Funds.
3. The Funds are to receive, over a period of ten years, a total credit of $1,700,000 against their advisory fees payable to the Adviser. The credits are to be effective in increments of $42,500 per fiscal quarter. If the quarterly credit reduction to the advisory fee payable by a Fund to the Adviser for any fiscal quarter causes the net advisory fee to fall below a stated minimum amount, a formula is provided whereby State Mutual will share with the Adviser a portion of the cost of effectuating the fee reduction. State Mutual will also guarantee payment to any Fund whose advisory contract with the Adviser is terminated or whose stockholders fail to approve the essentials of the new agreements made pursuant to the Stipulation of Settlement.
4. The Adviser, as long as it is the investment adviser to any of the Funds during the ten-year period in which the Funds are to receive advisory fee credit reductions, will use its best efforts to continue to maintain its status as a preferred rate non-member of both the Boston and Pacific Stock Exchanges.
5. The settlement, if approved, will dismiss with prejudice all claims asserted or which could have been asserted in this action. The defendants will also be released from any further liability in connection with the claims.
. . . . . .
The original complaint filed in this case alleged numerous claims against the defendants. Yet the third amended and consolidated complaint contains but two counts. Although the claims that were ultimately withdrawn by the plaintiffs may have had a bearing on the negotiations leading to the proposed settlement, the Court assumes that discovery led to a realization that these claims had no basis in fact. Therefore, in evaluating this settlement, the Court will consider only the merits of the two counts in the third amended and consolidated complaint.
Count I
Count I, based upon this Circuit's decision in Moses v. Burgin, 445 F.2d 369 (1st Cir., 1971), aff'ing in part and rev'ing in part, 316 F. Supp. 31 (D.Mass., 1970), cert. den. 404 U.S. 994, 92 S. Ct. 532, 30 L. Ed. 2d 547 (1971), alleges that *736 the Adviser was, or should have been, aware of various opportunities to "recapture" portions of brokerage commissions known as "give-ups"[3] and that the Adviser failed to inform the Funds' unaffiliated directors of these opportunities, thereby violating the Adviser's fiduciary obligation to the Funds. This failure to inform allegedly deprived the Funds of opportunities to reduce either their brokerage or management costs.
In Moses, the Court of Appeals recognized, for discussion purposes, two methods calculated to "recapture" assets for the benefit of a mutual fund. Applied to the facts of this case, the first method, known as "NASD recapture," involves the proposed paying of a give-up by the executing broker of a portfolio transaction to the Adviser's wholly owned subsidiary, Colonial Distributors, Inc.,[4] (hereinafter referred to as "the Distributor") which was a member of the National Association of Securities Dealers, Inc. The give-up to the Adviser-owned Distributor would be credited against the advisory fee paid by a Fund to the Adviser. This practice was condoned on the Pacific and the Philadelphia-Baltimore-Washington stock exchanges despite their anti-rebate rules until December 5, 1968, at which time it was universally abolished.
The second method of recapture discussed in Moses v. Burgin, supra, known as "broker affiliation," would have the Adviser, or its subsidiary Distributor, becoming a broker-dealer on a stock exchange. As a broker-dealer, the Adviser would be able to execute portfolio transactions, thereby eliminating the need for an independent broker-dealer. The commissions paid by the Funds on these transactions would be refunneled back to the Funds directly or set off against the advisory fee.
In Marcus v. Putnam, supra, 60 F. R.D. at 446, this Court, referring to the decision in Moses, stated that "the investment adviser and underwriter have a duty to disclose to the directors of the fund the possibility of recapturing portions of these brokerage commissions for the direct benefit of the fund." Yet this duty to disclose has meaning only in light of the applicable legal standard used in evaluating this duty. That standard can be found in the pre-1970 wording of Section 36 of the Investment Company Act of 1940 (15 U.S.C. § 80a-35) which holds a fiduciary liable if he is guilty of ". . . gross misconduct or gross abuse of trust . . ."[5] Thus the issue that would have confronted the Court absent the settlement is whether the defendants' failure to disclose to the Funds' unaffiliated directors the possibility of recapturing assets amounted to "gross misconduct or gross abuse of trust."
It is difficult for the Court to perceive how the plaintiffs could have carried the day on this issue. The directors of the Funds were advised early *737 in 1968 of the existence of "NASD recapture" as soon as the Adviser became aware of a publication by the SEC entitled Release No. 8239 (Jan. 26, 1968), which discussed a proposed SEC rule relating to this practice.[6] Furthermore, the only evidence brought to the Court's attention to show that the Adviser had knowledge of the existence of "NASD recapture" before 1968 was that the Adviser's house counsel had read a 1966 SEC report of 346 pages entitled, "Public Policy Implications of Investment Company Growth," which contained a single sentence relating to what later became known as "NASD recapture." While this evidence could have been the seed to an eventual finding of negligence, it is most unlikely that "gross misconduct" could have been shown.
"A change from independent brokerage to an affiliated broker is not a matter to be lightly undertaken." Moses v. Burgin, supra, 445 F.2d at 374. Indeed, there are many possible hazards[7] that a Fund may encounter if it attempts to switch from an independent to an affiliated broker. For the purposes of this case, it is enough to say that this matter, unlike "NASD recapture," is purely a discretionary decision for the directors.[8]
Nevertheless, discretion can never be exercised well in the dark. There is some evidence that before 1970 (i. e., the date of the filing of the complaint) an unaffiliated director of the Funds was aware of, yet opposed to, broker affiliation. On the other hand, other directors may not have been fully informed. If, in fact, some of the directors were ignorant of this practice before the instigation of this suit in 1970, the plaintiffs would have had to prove that this was the result of intentional misconduct on the part of the defendants. The Court would characterize the probability of the plaintiffs accomplishing this goal as fair at best.
In order to evaluate the reasonableness of the proposed settlement, the Court, in addition to commenting on the legal merits of the plaintiffs' claim, must compare the damages that could have been obtained had the plaintiffs proven their case against both the amount claimed and the value of the settlement. The Court, in Moses, limited recovery on a similar claim relating to "NASD recapture" to the value of ". . . all transactions, making allowances for best execution, and all resulting give-ups that could have been recaptured . . ." Moses v. Burgin, supra, at 385. Without going into the exact numbers involved, the Court notes that any possible recovery would not be large and, in fact, would be miniscule when compared to the possible recovery under Count II of the complaint. It is also small when compared to the value of the settlement. As plaintiff Schlusselberg admits, the possible recovery in this part of the case boils down to nothing more than "a tempest in a teapot." Plaintiff Schlusselberg's Memorandum in Support of Proposed Settlement, p. 27. Furthermore, the fact that the unaffiliated directors would probably have rejected "broker affiliation" would tend to reduce whatever damages that could have been recovered on that part of Count I. Consequently, any possible recovery under Count I would play a small role in determining the reasonableness of the proposed settlement.
*738 Count II
In Count II the plaintiffs allege that the price of shares paid by subsidiaries of State Mutual to the selling shareholders of the Adviser were grossly in excess of the net book value of those shares at the time of the sale. The differential between the sale price and net book value is alleged to be an unlawful premium paid to the selling shareholders for their recommendation to the Funds to renew their advisory contracts with the Adviser as newly acquired by State Mutual. The claim, based primarily upon the case of Rosenfeld v. Black, 445 F.2d 1337 (2nd Cir., 1971), cert. dismissed under Rule 60, 409 U.S. 802, 93 S. Ct. 24, 34 L. Ed. 2d 62 (1972), states in essence that the selling shareholders sold their fiduciary office for personal gain.
In 1969, there were doubts whether the Adviser, a successful investment management company, could continue to grow as it had in the past. This was due to a number of factors. First, to remain competitive in the industry, greater capital support was needed to expand the services it offered to the Funds it managed. Second, Mr. Orr, the president, majority stockholder, and founder of the company was 70 years of age at that time. There was great concern among the unaffiliated directors of the Funds as to the continuity and future of the Adviser and its personnel should Mr. Orr die. It must be remembered that the investment management business is highly dependent upon its "human assets." Thus, the officers of the Adviser became interested in the possible sale of the company to another who would provide the needed capital, yet continue the staff and present mode of operations intact.
Mr. Orr was contacted by State Mutual, a large insurance company based in Worcester, Massachusetts, with diversified investment interests. State Mutual had long sought a competent investment adviser. After a series of meetings between officers of the Adviser and State Mutual, a letter of intention was signed on May 1, 1969 which formed the basis of the final sale agreement dated July 18, 1969. The final selling price, which was arrived at through some bargaining, was $29,999,536. This figure was derived by placing a value of $155.68 on the 192,700 shares[9] outstanding of the Adviser owned by the selling shareholders. The book value of these shares at the end of 1968 was slightly more than $6.00 per share. It is the difference between the $30 million selling price and the value of the shares at book value (i. e., the net assets) that is claimed to be the premium paid to the selling shareholders, all of whom are or were employed by the company, for the sale of their fiduciary offices.
The history of the negotiations leading to the sale agreement does not seem to support a finding of misconduct by the Adviser. Mr. Fedeli, an officer of State Mutual, had analyzed the Adviser and had estimated its value to State Mutual to be between $25-30 million dollars. Given the selling shareholder's asking price of $35,000,000, the $30,000,000 sale price does not seem to be out of line. Furthermore, although the parties were cognizant that the sale of the adviser would automatically terminate the existing advisory agreement with the Funds,[10] no mention was made of their renewal during the crucial negotiations leading to the sale. Indeed, Mr. Fedeli has testified that he assumed that the agreements would be renewed after the sale, given the Adviser's long record of success in managing the Funds. While the evidence is not clear, it seems probable that the section in the final contract making the sale conditional upon the renewal of the advisory contracts with the Funds was an afterthought *739 of the attorneys responsible for drawing up the final agreement.
The unaffiliated directors were at all times informed of the existence of these negotiations. Upon the tentative agreement by the parties as to the essential terms of the sale, the unaffiliated directors of the Funds were fully informed of the details and ramifications pertaining thereto. Soon thereafter, the directors unanimously approved proxy material sent to the Funds' shareholders relating to, among other things, the sale being conditioned upon shareholder approval of the existing advisory contracts. Such approval was procured by a large majority.
Section 15(a) (4) of the Act is, in this Court's opinion, the sole embodiment of Congressional regulatory desire with respect to the assignment[11] of advisory contracts. It states two simple relevant propositions and implies no others. First, it is unlawful for a person to serve as an investment adviser to a fund if the relevant advisory contract fails to provide for the contract's automatic termination upon the assignment of the contract. Second, the terminated contract can only be renewed upon the approval of a majority of the outstanding voting securities of the fund. 15 U.S.C. § 80a-15(a) (4). The section makes no reference to any prohibition as to the selling price of an investment management company. As the Ninth Circuit stated in SEC v. Insurance Securities, Inc., 254 F.2d 642, 649 (9th Cir., 1958), cert. den. 358 U.S. 823, 79 S. Ct. 38, 3 L. Ed. 2d 64 (1958):
". . . the sanction runs against any assignment, whatever the price paid and received therefor. An assignment at net asset value is just as fruitless under this section as one for a substantial price in excess of such value. In either case, the contract is automatically terminated. In no respect is the amount paid or received for stock control made a factor to be considered."
The evil that Congress sought to eradicate in its regulatory scheme was the assignment of advisory contracts without the informed consent of the shareholders of the funds involved. It appears that an informed approval was given by the shareholders in this case. Accordingly, there is little likelihood that the actions complained of in this case would violate prohibitions of § 15 of the Act.
Nevertheless, the thrust of the plaintiffs' claim is not based upon violations of the Act itself. It is predicated on the common law theory "that a . . . person standing in a fiduciary relationship with another, may not sell or transfer such office for personal gain." Rosenfeld v. Black, supra, 445 F.2d at 1342, citing SEC v. Investment Securities, supra, 254 F.2d at 650. In rejecting the contention that the terms of the Act are the exclusive protection to mutual funds when the control of the management company has changed, the Court in Rosenfeld held that the Act ". . . did not withdraw safeguards equity had previously provided but impliedly incorporated them." Id. 445 F. 2d at 1345. The application of this "implied theory of incorporation" to the facts of this case would have the Adviser and its selling shareholders liable for any profit above net asset value realized upon the transfer of control of the Adviser to State Mutual.
The problem with the plaintiffs' "implied incorporation" theory is twofold. First, there is no indication in the legislative history of the amendments to the Act that Congress meant to incorporate common law principles into Section 15. The Court will not delineate the reasons underlying the above statement. Instead, it chooses to refer to the well reasoned opinion of Judge Bauer in Kukman *740 v. Baum, 346 F. Supp. 55, 61-65 (N.D.Ill., 1972).
Second, language in the Moses case strongly indicates that this Circuit would not concur with the holding in Rosenfeld. Chief Judge Aldrich, albeit speaking in a factually distinguishable context, referred to the common law rules prohibiting fiduciaries from indulging in self dealing as follows:
"We do not denigrate these principles, though we need hold relevant only their expression through the federally imposed standard under section 36, which may vary from the state common law." Moses v. Burgin, supra, 445 F.2d at 376.
Thus it is highly unlikely that this Circuit would apply common law prophylactic rules to the facts in this case. On the contrary, it would probably resort to Section 36 of the Act to ascertain whether a fiduciary obligation exists between a fund and its investment adviser when the advisory company is sold. That section states:
". . . the investment adviser of a registered investment company shall be deemed to have a fiduciary duty with respect to the receipt of compensation for services, or of payments of a material nature, paid by such registered investment company, or by the security holders thereof, to such investment adviser or any affiliated person of such investment adviser." 15 U.S.C. § 80a-35(b).
It can readily be seen that no fiduciary obligation with respect to a sale or change of control of an advisory company is contemplated by this or any other section of the Act.
"Unlike an ordinary trust . . . [an investment adviser's] . . . normal activities are frequently touched with self-interest . . ." Moses v. Burgin, supra, at 376. This is precisely why Congress enacted the Investment Company Act of 1940. Congress has given a long look at the practices of this industry, yet has failed to either curb the realization of profits upon the sale of the advisory company itself or to establish a fiduciary obligation with respect to such sale.
The Court tends to agree with Congress' judgment. Unlike the fiduciary obligations set out in Section 36 where the advisory company is acting directly for the benefit of the Funds, the sale or change of control of the advisory company itself involves transactions wholly apart from the Funds. The price received by the selling shareholders does not come from the treasury of the Funds. Nor can the price be considered an asset of the Funds. See SEC v. Insurance Securities, Inc., supra, 254 F.2d at 651.
The Court realizes that laissez-faire economics is a notion long since discarded in this age of regulation. Yet if Congress has seen fit not to prohibit the selling shareholders of an investment advisory company from realizing the benefit of years of toil in building up their business into an entity of substantial worth, the courts should also refrain from doing so. Accord, Krieger v. Anderson, 40 Del. Ch. 363, 182 A.2d 907, 910 (Del., 1962); Kukman v. Baum, supra, 346 F.Supp. at 65.
Despite the real doubts the Court has as to the continuing validity of the holding in Rosenfeld, that decision stands today as the law in the Second Circuit. The rationale of that decision conflicts directly with the reasoning of cases decided in other Circuits. See: SEC v. Insurance Securities, supra; Equity Fund Inc. v. VWR Corp., CCH Federal Securities Law Reporter ¶ 93,698 (W. D.Wash., Oct. 11, 1972) ; Kukman v. Baum, supra. Furthermore, a Rosenfeld claim has never been decided by either this Circuit or the United States Supreme Court. These conflicts and ambiguities must be given some weight in determining whether the settlement is reasonable. "As such, it would appear that the Rosenfeld claim is the strongest of all those asserted by the plaintiffs." Marcus v. Putnam, supra, 60 F.R.D. at 445. Therefore, for the remainder of this opinion it will be assumed that the *741 Rosenfeld claim has validity both in law and in fact.
The Court will not try to calculate with mathematical certainty the value of a recovery under the Rosenfeld claim. All of the methods suggested to calculate the "premium" paid to the selling shareholders for their recommendation to the Funds to renew their advisory contracts with the Adviser are highly subjective and imprecise. Suffice it to say that the $24,500,000 figure[12] claimed by the plaintiffs is unrealistic in light of several factors[13] which would tend to reduce it substantially.
Although it appears that the likelihood of success on either count would not be great, the uncertainties surrounding the Rosenfeld holding must be given some consideration. None of the parties could have predicted with certainty how this Court or the Court of Appeals would have decided such a claim. Despite the fact that this Court with hindsight believes those uncertainties to be slight, it is not especially surprised that the defendants, when confronted with a multi-million dollar claim, chose to settle for the compromise figure of $2.7 million dollars. Another consideration, not yet mentioned, is the enormous expense that further discovery and prolonged trial would have entailed. This is a consideration that should never be taken lightly.
The underlying purpose of requiring judicial approval of settlements of shareholder derivative actions is to protect the shareholders and the investment companies from unjust or collusive settlements. Fielding v. Allen, 99 F. Supp. 137 (S.D.N.Y., 1951). The Court does not find the settlement either unjust or collusively impinged. Instead, it finds it fair, just, reasonable and in the best interests of both the shareholders and the investment company involved. Accordingly, the proposed stipulation of settlement is approved.
NOTES
[1] All of the Funds are open-end management investment companies ("mutual funds") registered pursuant to the Investment Company Act of 1940, 15 U.S.C. § 80a-1 et seq. (hereinafter referred to at times as "the Act").
[2] The amount claimed in damages in this case is approximately $24.5 million dollars.
[3] "`Give-ups' are those portions of a stockbroker's commission resulting from the funds' own portfolio transaction which are paid over to brokers [not partaking in the portfolio transaction itself] who have sold shares of the funds to the public. The give-ups are awarded to brokers in proportion to their success in selling and help to stimulate sales. Through the use of give-ups, the funds and the existing shareholders assume part of the cost of the sales process; and, as a result, the net income from selling new shares is less than asset value. Whereas, if the fund can . . . [recapture] the give-ups for its own benefit, the fund will receive the full asset value from the sale of its shares." Marcus v. Putnam, 60 F.R.D. 441, 446, n. 2 (D.Mass., 1973). See Moses v. Burgin, supra, 445 F.2d at 372, 374.
[4] The Distributor functioned as underwriter and distributor of the shares of the Funds. It was merged into the Adviser on October 30, 1973. Since that date, the Adviser has assumed the Distributor's previous operations.
[5] Although Section 36 was amended on December 14, 1970 to find liability based upon ". . . any act or practice constituting a breach of fiduciary duty involving personal misconduct . . .." the complaint in this case was filed before the date of that amendment. Consequently, the pre-amendment standard must be used.
[6] Rule 10b-10, which was never enacted, is laid out in substance in the text of Moses v. Burgin, supra, 445 F.2d at 380.
[7] The District Court's opinion in Moses v. Burgin, 316 F. Supp. 31, 42 (D.Mass., 1970), discusses these hazards at length.
[8] On May 28, 1971, the unaffiliated directors of all the Funds rejected "broker affiliation" by means of formal resolution. Thus, it is probable that had they been confronted with the same decision during the time period in question, they would likewise have voted against it. Nevertheless, this probability is not relevant to the question of whether the unaffiliated directors were ignorant of "broker affiliation" before 1970. It would nonetheless have some bearing on the question of damages flowing from any misconduct.
[9] It was agreed that only 160,537 shares would be sold immediately to State Mutual but that the remaining shares could be bought by State Mutual in the future at the original price per share.
[10] See § 15(a) (4) and (b) (2) of the Act, 15 U.S.C. § 80a-15(a) (4) and (b) (2).
[11] Sections 2(a) (4) and (9) of the Act, 15 U.S.C. § 80a-2(a) (4) and (9), include a transfer of more than 25% of the voting securities of a company to be an "assignment." Thus the transaction herein falls within the terms of the definition.
[12] Selling Price $29,999,536
192,700 (shares) × $155.68
(price per share)
Book Value at 12/31/68 828,803
___________
Difference $29,170,733
Percentage of Advisor's Income 84%
attributable to the Funds
___________
___________
PROFIT $24,503,000
[13] These factors include a reduction:
(1) for the percentage of total income derived from sources other than the Funds. White v. Auerbach, CCH Federal Securities Law Reporter 92,824, 92,829 (S.D.N.Y., Sept. 1972). Marcus v. Putnam, supra, 60 F.R.D. at 446. Note there is a large discrepancy between the 16% figure used by the plaintiffs and the 50% figure supplied by the defendants. The reduction spoken of here refers only to that portion, if any, of the percentage of total income derived from non-Funds sources greater than 16%.
(2) the portion of the selling price relating to the subsidiary-Distributor which acted as principal underwriter to the Funds and does not come within the purview of the common law prophylactic rule stated in Rosenfeld. See Newman v. Stein, 464 F.2d 689 (2nd Cir., 1972); Marcus v. Putnam, supra, 60 F.R.D. at 446.
(3) the value of the Adviser as a "going concern" or its ability to function successfully in the future. See Newman v. Stein, supra, 464 F.2d at 697-698. This figure necessarily includes the value of the expertise of the management team built up over many years ("human assets"). White v. Auerbach, supra, at 92,830. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592134/ | 135 S.W.3d 522 (2004)
Peter LaROCCA, Respondent,
v.
Trina LaROCCA, Appellant.
No. ED 81764.
Missouri Court of Appeals, Eastern District, Division Three.
May 11, 2004.
*523 Lawrence G. Gillespie, Clayton, MO, for appellant.
Michele Hammond, St. Louis, MO, for respondent.
LAWRENCE E. MOONEY, Judge.
The wife, Trina LaRocca, appeals from the trial court's judgment and decree dissolving her marriage to the husband, Peter LaRocca. She raises four points on appeal. We summarily deny three of these claims and find that no jurisprudential purpose would be served by an exposition of the detailed facts and law.[1] Rule *524 84.16(b). The wife's remaining claim of error, however, requires our consideration in a published opinion. The wife argues that the trial court erred in denominating the physical custody award as primary physical custody to the husband rather than joint physical custody. We agree, and affirm the judgment as modified.
BACKGROUND
Husband and wife were married in March of 1992 and have two minor children, both born in February of 1998. The parties separated in July of 1999, and the husband filed a petition for dissolution of marriage a year and a half later, in January of 2001. The second amended judgment of dissolution from which the wife appeals was entered on February 11, 2003.
The court's judgment, in pertinent part, awarded "primary" legal and physical custody of the minor children to the husband, divided the marital property and ordered the sale of the marital home, and ordered the wife to be responsible for $5,000 of the husband's attorney fees and litigation expenses.
DISCUSSION
Our review of a judgment of dissolution is the same as for any court-tried action. Shelton v. Shelton, 29 S.W.3d 400, 402 (Mo.App. E.D.2000). We must affirm the judgment unless there is no substantial evidence to support the decision, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Reis v. Reis, 105 S.W.3d 514, 515 (Mo.App. E.D.2003).
In her second point on appeal, the wife challenges the trial court's physical custody award. The court named the husband as "primary physical and legal custodian," rather than denominating the physical custody award as joint physical custody. The wife argues that, because she was awarded significant periods of time with the children, the court's order was actually one of joint physical custody, rather than primary physical custody to the husband, and should be denominated as such. The court adopted the wife's parenting plan, and accordingly the wife was awarded "custody, visitation or residential time" with the children every other weekend, two weekdays each week, alternating weeks during the summer, and alternating holidays. This schedule results in the wife having care of the children for six days of every two-week period and more often during the summer. The court's findings also referred to the wife's "custody time" with the children when it specifically found that such time should not be decreased.
We begin by noting that the statute does not use the phrase "primary physical custody." Section 452.375.1(1) defines "custody" as "joint legal custody, sole legal custody, joint physical custody or sole physical custody or any combination thereof." Because the parties understand the award here to be one of sole physical custody to the husband, and the wife has appealed on this basis, we also shall view the trial court's denomination of "primary physical custody" as one of sole physical custody.
We also note that in order to obtain relief on appeal, a party must not only demonstrate error, but also prejudice. We shall not disturb a trial court's judgment in dissolution of marriage action if *525 there is no showing of prejudice as result of that judgment. See Rule 84.13(b); L.J.B. v. L.W.B., 921 S.W.2d 23, 27 (Mo. App. E.D.1996). Because the wife was awarded significant periods with the children, the question arises whether she is actually prejudiced by the court's custody designation. See Stewart v. Stewart, 988 S.W.2d 622, 625 (Mo.App. W.D.1999). The designation of physical custody as joint physical custody, as opposed to sole or primary physical custody with visitation rights for the other parent, is significant in that it determines the standard for future modification of the physical custody arrangement. Baker v. Welborn, 77 S.W.3d 711, 717 (Mo.App. S.D.2002); Babbitt v. Babbitt, 15 S.W.3d 787, 791 (Mo.App. S.D. 2000). The court can modify a visitation award whenever modification would serve the child's best interests. Section 452.400.2; Lipic v. Lipic, 103 S.W.3d 144, 147 (Mo.App. E.D.2003); Baker, 77 S.W.3d at 717, Babbitt, 15 S.W.3d at 791. Modification of a custody decree, however, requires the court to find that a change has occurred in the circumstances of the child or the custodian and that the modification is necessary to serve the child's best interests. Section 452.410; Searcy v. Seedorff, 8 S.W.3d 113, 117 (Mo. banc 1999); Leazer, 119 S.W.3d at 600; A.J.K. by R.K. v. J.L., 980 S.W.2d 81, 84 (Mo.App. E.D.1998). The change in circumstances must be substantial. Searcy, 8 S.W.3d at 117; Leazer, 119 S.W.3d at 600. It might be argued that the standard to be applied in a future modification proceeding is such a remote consequence that there is no prejudice. Even if that is the case, however, there is a stigma that can attach to a parent when the other is named the primary or sole custodian and there is intrinsic value that designation as a joint physical custodian can have for a parent. Loumiet v. Loumiet, 103 S.W.3d 332, 337-38 (Mo.App. W.D. 2003). We conclude that the wife may claim prejudice and thus we proceed with consideration of her allegation of error.
Section 452.375.1(3) defines "joint physical custody" as "an order awarding each of the parents significant, but not necessarily equal, periods of time during which a child resides with or is under the care and supervision of each of the parents." The statute does not define sole physical custody. Given the definition of "joint physical custody," the lack of definition of "sole physical custody," and the plain language of the statute, our Western and Southern Districts take the view that when the court orders significant periods where the child is in the care of each parent, the award is actually one of joint physical custody, regardless of how the court characterizes it. See, e.g., Loumiet, 103 S.W.3d at 336-38; In re Marriage of Parmenter, 81 S.W.3d 234, 238 (Mo.App. S.D.2002); Babbitt, 15 S.W.3d at 790; Baker, 77 S.W.3d at 716-18; Love v. Love, 75 S.W.3d 747, 765 (Mo. App. W.D.2002); Stewart, 988 S.W.2d at 623-5; Tilley v. Tilley, 968 S.W.2d 208, 213 (Mo.App. S.D.1998); Tracy v. Tracy, 961 S.W.2d 855, 859 (Mo.App. S.D.1998); Nichols v. Ralston, 929 S.W.2d 302, 304-05 (Mo.App. S.D.1996); In re Marriage of Johnson, 865 S.W.2d 412, 415 (Mo.App. S.D.1993); Nix v. Nix, 862 S.W.2d 948, 951 (Mo.App. S.D.1993).
Joint physical custody does not require an equal amount of time with each parent. Section 452.375.1(3); Love, 75 S.W.3d at 765; Stewart, 988 S.W.2d at 624. "[T]he determining factor in classifying physical custody arrangements as either joint or sole is whether the periods of physical custodial time awarded to the parents is deemed `significant.'" Loumiet, 103 S.W.3d at 337. The amount of time each parent has with the child is the key issue for the court in carrying out Missouri's public policy, not what the arrangement is called. Id. The periods for which *526 each parent has the care and supervision of the child should determine the designation of custody as joint or sole. Id. We concur with the reasoning of our colleagues in the Western and Southern Districts and conclude that, although the trial court named the husband primary physical custodian, the award is actually one of joint physical custody because the wife was awarded care of the children for significant periods totaling approximately 43 percent of the time and a higher percentage of time in the summer.
Missouri Supreme Court Rule 84.14 allows the appellate court to "give such judgment as the court ought to give. Unless justice otherwise requires, the court shall dispose finally of the case." On review, we may dispense with a remand and "render the judgment that should have been rendered by the trial court." Meiners v. Meiners, 858 S.W.2d 788, 791 (Mo.App. E.D.1993) quoting Van Pelt v. Van Pelt, 824 S.W.2d 135, 137 (Mo.App. W.D.1992). An appropriate case for such judgment is one where there is no dispute as to the facts but only a dispute as to their legal significance. Laiderman v. Irwin, 701 S.W.2d 468, 469 (Mo.App. E.D. 1985). We can render the judgment that the trial court should have rendered when the record and evidence give us confidence in the reasonableness, fairness, and accuracy of the conclusion reached. Babbitt, 15 S.W.3d at 791; Moritz v. Moritz, 844 S.W.2d 109, 113 (Mo.App. W.D.1992). This is such a case.
We affirm the trial court's judgment as to the periods that the children are under the care and supervision of each parent. Because the court awarded significant periods when each parent has the care and supervision of the children, we modify the judgment, however, so that it is designated an award of joint physical custody.
CONCLUSION
The judgment is affirmed as to the award of sole legal custody of the children to the husband, the valuation and distribution of the marital property, and the award of attorney fees. As to physical custody, the judgment is modified so that it is denominated as an award for joint physical custody and, as so modified, is affirmed.
CLIFFORD H. AHRENS, P.J., and WILLIAM H. CRANDALL, JR., J., concur.
NOTES
[1] The parties have been furnished with a memorandum, for their information only, setting forth the reasons for our decision pursuant to Rule 84.16(b). These allegations of error involve: (1) granting sole legal custody of the minor children to the husband; (2) determining the value of the tangible personal property; and (3) ordering wife to be responsible for a portion of the husband's attorney fees. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592178/ | 389 F. Supp. 1168 (1974)
Marshall W. CLARK, Jr.
v.
Caspar WEINBERGER, Secretary of the United States Department of Health, Education and Welfare.
Civ. A. No. 73-235.
United States District Court, D. Vermont.
July 26, 1974.
*1169 Kissane & Heald Assoc., Daniel J. Lynch, St. Albans, Vt., Douglas L. Molde, and Vermont Legal Aid, Inc., St. Albans, Vt., for plaintiff.
George F. W. Cook, U. S. Attorney, for defendant.
MEMORANDUM AND ORDER
HOLDEN, Chief Judge.
The plaintiff, an unemployed 38 year old male, seeks review in this court, pursuant to 42 U.S.C. § 405(g), of a final decision of the Secretary denying him disability insurance benefits under the Social Security Act. A prior application for disability benefits was denied after hearing in 1969. The present application was made on September 8, 1970. After denial of the present application, a hearing was requested and granted. The hearing was conducted by an administrative law judge in Burlington, Vermont on October 17, 1971. Counsel was present to represent the plaintiff. The administrative law judge found "that the medical evidence of record fails to establish that up to June 30, 1971 the claimant's epileptic impairment was so severe that he was prevented thereby from engaging in any substantial gainful activity." June 30, 1971 was the last date the special earnings requirement was met. This decision was affirmed by the Appeals Council on June 25, 1973, after consideration of additional evidence submitted by the plaintiff.
In order to qualify for the claimed benefits the plaintiff must show a disability as defined by the Social Security Act. Section 216 (42 U.S.C. § 416(i) (1) of the act defines disability as "[The] inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can to be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months."
The findings of an administrative agency are conclusive if supported by substantial evidence. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L. Ed. 126 (1938). To determine whether the findings are supported by substantial evidence the reviewing court is required, under § 706 of the Administrative Procedure Act, to examine the whole record; evidence detracting from the weight of the findings must be taken into account as well. Universal Camera Corp. v. NLRB, 340 U.S. 474, 487, 71 S. Ct. 456, 95 L. Ed. 456 (1951); Gold v. Secretary of Health, Education and Welfare, 463 F.2d 38 (2d Cir. 1972); Dolan v. Celebreeze, 381 F.2d 231 (2d Cir. 1967).
The principal impairment, which the plaintiff contends rendered him disabled prior to the date when he last met the special earnings requirement, was a recurrent seizure disorder, diagnosed as grand mal epilepsy. The medical evidence introduced at the hearing included reports and statements from various hospitals and physicians, as well as the plaintiff's own descriptions and those of *1170 his wife. The administrative law judge also considered exhibits from the prior hearing conducted in 1969.
According to the medical evidence, the plaintiff was admitted to the neurology clinic of the U. V. M. Medical Center with complaints about headaches and nausea in November 1968. An electrocardiogram and an electroencephalogram were normal. Radiograms of the skull showed no abnormality. Repeat brain scans were within normal limits. The plaintiff again visited the Medical Center on June 23, 1970, after being transferred there from the Kerbs Memorial Hospital emergency room for evaluation. He had passed out that morning and was taken by ambulance to Kerbs. An electroencephalogram report was normal. All neurological examinations were again within normal limits.
The plaintiff had also been consulting Dr. Robert Engisch since the mid-sixties. Dr. Engisch indicated in reports to the administrative law judge that the plaintiff had been having grand mal seizures since 1966 and that one such seizure had been witnessed at the Kerbs Hospital in August of 1972. Dr. Engisch indicated that the plaintiff was "disabled to a certain extent only" that he could perform any non-dangerous occupation which would not require operation of a motor vehicle or dangerous machinery; otherwise, he was employable. Dr. W. Dale Hooper of St. Albans, Vermont, who had also treated the plaintiff, indicated in a letter to the plaintiff's attorney on June 14, 1971, that the plaintiff had grand mal epilepsy which precluded him from engaging in gainful employment.
Other testimony introduced at the hearing included descriptions by the plaintiff's wife of his seizures and she testified that at that time he was having three or four a month. Also a letter of the plaintiff's aunt was considered, which described the seizures she had witnessed. The decision of the administrative law judge considered the fact that the plaintiff was receiving disability benefits from the Veterans Administration and the State of Vermont and that his driver's license had been suspended due to his physical condition. The plaintiff's last employment was with Vermont Industrial Homeworks in 1970. There was also medical evidence that if the claimant took prescribed medication as directed, his epileptic condition would be better controlled.
An individual claiming a disability within the meaning of 42 U.S.C. § 416(i) (1) has the burden of proving such a disability. It is within the province of the Secretary to weigh all the evidence and to resolve any conflicts in the evidence and on the record. Ragan v. Finch, 435 F.2d 239 (6th Cir. 1970); Miller v. Finch, 430 F.2d 321 (8th Cir. 1970). The plaintiff was also called upon to establish that he was disabled prior to June 30, 1971, the date he last met the special earnings requirement. The disability must be total and to the extent that the claimant is precluded from engaging in any substantial gainful activity. Floyd v. Finch, 441 F.2d 73 (6th Cir. 1971). The fact that the plaintiff is receiving disability benefits from the V. A. and the state is not controlling on the Secretary; it is only one factor to be considered along with other evidence presented. Martin v. Ribicoff, 196 F. Supp. 547 (D.C.Mont.1961).
It was the duty of the hearing judge to evaluate the medical evidence on the central issue of the claimant's ability to engage in any gainful employment. In weighing the medical evidence on the effect of the claimant's epilepsy, it was within his province to attach greater significance to the opinion of the neurologist than the differing view of a doctor who had not specialized in this field.
Review of the full record makes it clear that the decision of the hearing judge is founded on substantial evidence. Accordingly, the order of the Secretary is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592192/ | 453 So. 2d 993 (1984)
STATE of Louisiana
v.
Lionel BENTON.
No. 84 KA 0016.
Court of Appeal of Louisiana, First Circuit.
June 26, 1984.
Writ Denied September 28, 1984.
*994 Ossie Brown, Dist. Atty. by Ralph Roy, Asst. Dist. Atty., Joseph N. Lotwick, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
Kathleen S. Richey, Asst. Public Defender, Baton Rouge, for defendant-appellant.
Before COVINGTON, COLE and SAVOIE, JJ.
SAVOIE, Judge.
Defendant, Lionel Benton, appeals his conviction for attempted aggravated rape and his sentence of 15 years at hard labor.
On November 8, 1981, defendant had sexual intercourse with the victim. This fact is not in dispute. However, there is a dispute concerning the factual circumstances surrounding the commission of the offense and whether the victim consented thereto.
Defendant was charged with violating L.S.A.-R.S. 14:42, Louisiana's aggravated rape statute. After a trial thereon, the jury convicted defendant of attempted aggravated rape. The trial court sentenced defendant to 15 years at hard labor and ordered him to pay court costs. Defendant appeals his conviction and sentence, alleging seven assignments of error.
The second and third assignments of error were not briefed and, therefore, are considered abandoned. Uniform Rules of the Courts of Appeal, Rule 2-12.4; State v. Kent, 434 So. 2d 1258 (La.App. 1st Cir. 1983), writ denied, 440 So. 2d 727 (La.1983). The first and fourth assignments of error concern the issue of admitting prior consistent statements into evidence and will be addressed together. The remaining assignments of error allege that the trial court erred in denying defendant's motion for mistrial, accepting a verdict contrary to the law and evidence, and imposing an excessive sentence.
ASSIGNMENTS OF ERROR NOS. 1 AND 4
Defendant contends that the trial court erred in failing to admit his prior consistent *995 statements into evidence. Defense counsel attempted to introduce the statements on two different occasions during trial.
L.S.A.-R.S. 15:496 details the requisite foundation for allowing the introduction of prior consistent statements, the fact of which is offered as corroboration. State v. Marcal, 388 So. 2d 656 (La.1980). It provides:
"When the testimony of a witness has been assailed as to a particular fact stated by him, similar prior statements, made at an unsuspicious time, may be received to corroborate his testimony."
The first time defense counsel attempted to introduce the statements was during his cross-examination of Officer Starkey, a prosecution witness. At that time, defendant had not yet testified. Accordingly, there was no testimony by the defendant which had been assailed as to a particular fact and, thus, no basis for allowing the statements to be received as corroborative evidence.
The second attempt to introduce defendant's prior consistent statements occurred during defense counsel's direct examination of Officer Starkey. Although defendant had testified at that time, the record indicates that his testimony was not assailed as to a particular fact but rather as to its general credibility. Therefore, the statements were inadmissible under L.S. A.-R.S. 15:496 since it requires an assault on a particular fact of a witness' testimony, rather than an assault on the witness' general credibility. State v. Marcal, supra.[1]
Furthermore, the trial judge ruled that defendant's statements were not made at an unsuspicious time as required by the statute. We agree. Defendant made these statements after the police confronted him, informed him that a rape complaint had been made against him, and advised him of his rights. There is nothing in the record to indicate that the defendant did not understand his rights, the seriousness of the crime, or that he was the suspect in a pending rape investigation. Albeit that the defendant had not been arrested at the time he gave the statements, the knowledge that he was suspected of committing the rape could produce a motive for making an exculpatory statement.
Defendant also argues that this evidence is relevant and, therefore, its exclusion violated his right to a fair trial. Although the statements may be relevant, they are, at best, corroborative evidence which was inadmissible under the rules of evidence. See L.S.A.-R.S. 15:496. Accordingly, the exclusion of the statements from evidence did not violate defendant's right to a fair trial.
ASSIGNMENT OF ERROR NO. 5
Defendant asserts that the trial court erred in failing to grant a mistrial because of prejudicial remarks made by the prosecutor during rebuttal closing argument.
Argument of counsel is governed by L.S.A.-C.Cr.P. art. 774. It provides:
"The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
"The argument shall not appeal to prejudice.
"The state's rebuttal shall be confined to answering the argument of defendant."
If the argument goes beyond the scope of this article, it falls within the ambit of L.S.A.-C.Cr.P. arts. 770 and 771.[2] See L.S. A.-C.Cr.P. art. 774, comment (c); State v. Morris, 404 So. 2d 1186 (La.1981), rehearing *996 denied, Oct. 9, 1981. In order for argument outside the scope of L.S.A.-C.Cr.P. art. 770 to be reversible, the court must be thoroughly convinced that these remarks influenced the jury and contributed to the verdict. State v. Morris, supra.
In his rebuttal closing argument, the prosecutor commented that the defense had under its control and could have produced certain evidence. Defense counsel moved for a mistrial and, alternatively, for an admonition to the jury to ignore the references to her ability or inability to produce certain witnesses. The basis of her objection was that the statements infringed on defendant's right to the presumption of innocence. The trial court denied the motion for mistrial but agreed to, and did, admonish the jury not to misunderstand the earlier instruction giventhat the defendant is not required to produce any evidence.[3]
The prosecutor's remarks that the defense objected to are not included among the prohibitions of L.S.A.-C.Cr.P. art. 770, which mandates the ordering of a mistrial. Therefore, L.S.A.-C.Cr.P. art. 771 is the appropriate article to apply in this instance. Under that article, it is within the trial court's discretion to determine whether an admonition is sufficient or whether a mistrial is necessary to assure the defendant a fair trial.
The trial judge believed an admonition was sufficient to cure any prejudice which may have resulted from the prosecutor's irrelevant remarks. We agree that this was the correct sanction.
In this instance, the jury accepted the victim's testimony over that of the defendant. This was a credibility determination by the jury. It was capable of being made regardless of the other evidence presented at trial. Therefore, we cannot say that the prosecutor's comments, by themselves, necessarily influenced the jury and contributed to the verdict. In the absence of such, the granting of a mistrial was not warranted.
ASSIGNMENT OF ERROR NO. 6
Defendant contends that there was insufficient evidence to support the verdict of guilty of attempted aggravated rape. He argues that, since he did not deny he had sexual intercourse with the victim, consent was the only issue before the jury. Therefore, defendant maintains that the jury could only return a verdict of guilty or not guilty of the charged offense.
L.S.A.-C.Cr.P. art. 814, § A(8) lists attempted aggravated rape as a responsive verdict to the offense of aggravated rape. Upon motion of the State or the defense, the court, in its discretion, may exclude a listed responsive verdict, if, after all the evidence has been submitted, there is no evidence to establish that responsive verdict. L.S.A.-C.Cr.P. art. 814, § C. If the defendant fails to object at a time when the trial court can correct the error, then the reviewing court may affirm the conviction if the evidence would have supported a conviction of the greater offense. This is so, whether or not the evidence supports the conviction of the legislatively responsive offense returned by the jury. State ex rel. Elaire v. Blackburn, 424 So. 2d 246 (La.1982), cert. denied, ___ U.S. ___, 103 S. Ct. 2432, 77 L. Ed. 2d 1318 (1983).
At trial, the jury instructions included a charge regarding the responsive verdict of attempted aggravated rape. No objection was made by defense counsel to this jury instruction. It is being raised for the first time on appeal. Therefore, if the evidence supports conviction of the greater offense, aggravated rape, this court may affirm the conviction.
The victim testified she had sexual intercourse with the defendant and defendant admitted this fact. Further, the victim testified that defendant armed himself with a knife and forced her, against her will, to have sexual intercourse with him. Further, *997 the victim testified that defendant threatened her several times and, at one point, put the knife to her throat and said he would kill her if she did not do what he wanted.
The testimony of the victim is sufficient to prove the offense charged. State v. Norman, 448 So. 2d 246 (La.App. 1st Cir.1984). Therefore, there is evidence in the record to support a conviction of the greater offense, aggravated rape. Accordingly, the conviction is affirmed.[4]
ASSIGNMENT OF ERROR NO. 7
Defendant contends that his 15 year sentence is excessive. He argues that the trial court overestimated the significance of his prior offenses and failed to apply any of the mitigating factors. In addition, he asserts that the sentence imposed is out of proportion to the severity of the crime.
L.S.A.-C.Cr.P. art. 894.1 requires the trial court to state for the record the considerations and factual basis for imposing the given sentence. However, it need not articulate every aggravating and mitigating circumstance. The record need only reflect that the trial judge adequately considered the guidelines given in the article. State v. Parish, 429 So. 2d 442 (La.1983). Even when the trial court has not complied with C.Cr.P. art. 894.1, this court need not remand the case for resentencing, unless the sentence imposed is apparently severe in relation to the particular offender or the offense committed. State v. Davis, 448 So. 2d 645 (La.1984).
At the sentencing hearing, defense counsel asked the trial court to consider as mitigating factors defendant's fairly steady employment history, his family and his support thereof. The court stated it had taken those factors into account in arriving at the sentence. The court then sentenced the defendant. Thereafter, the trial court enunciated the following reasons for the sentence imposed. It stated that confinement was appropriate because there was undue risk that defendant would commit another crime. The court noted that defendant's criminal record dated back to 1976. The court pointed out that defendant's criminal record included convictions for possession of marijuana, criminal damage to property, reckless operation, fleeing to elude and no driver's license. Furthermore, the court opined that defendant was in need of correctional treatment, explaining that defendant previously had had the benefit of unsupervised probation without any apparent beneficial effect. Lastly, the trial court concluded that a lesser sentence would deprecate the seriousness of the crime. In support thereof, the court cited the overpowering physical nature of the offense following defendant's gaining the victim's confidence and then turning on her and inflicting this offense. Defense counsel complains that the trial court did not enunciate the effect of the factors she requested the court to consider nor did it mention any other personal consideration.
According to the pre-sentence investigation report, defendant was 30 years old at the time of the offense. The report reveals that, although defendant was married and had three children, he was residing with his sister. It states: "The marriage is considered stable in that they would reunite if the subject is released from jail." (Emphasis added). There is no mention of defendant contributing to the support of his estranged wife and/or children either in the report or at the sentencing hearing. Further, the "fairly steady employment" disclosed in the report consists of one and one-half years in the frozen food business.
*998 Notwithstanding the fact that the trial court failed to articulate the effect of these factors, this court need not remand the case for resentencing if we conclude that the sentence imposed is not apparently severe.
We do not consider that the above-noted factors exemplified defendant's character in such a manner as to have a favorable effect toward mitigating his sentence. Contrarily, the fact that a defendant is a first-time felony offender and his previous crimes were not serious or offenses against the person are mitigating factors favorable to him. Nevertheless, these mitigating factors must be considered in light of the other circumstances surrounding the commission of the crime and, in particular, the nature and manner in which the offense was committed. State v. Smith, 430 So. 2d 31 (La.1983), rehearing denied, May 13, 1983.
Attempted aggravated rape is a violent offense against the victim's person. As recognized by the trial court, defendant gained the victim's confidence and then turned on her, inflicting this offense. The victim testified defendant placed her in fear of her life.
The maximum penalty which may be imposed for the crime of aggravated rape is fifty years at hard labor. L.S.A.-R.S. 14:27(D)(1); L.S.A.-R.S. 14:42. Defendant was sentenced to serve fifteen years at hard labor, less than 1/3 the maximum sentence.
In light of the circumstances surrounding this offense, this sentence is neither grossly disproportionate to the crime nor a needless imposition of pain and suffering. Therefore, it is not excessive and is well within the discretion of the trial court. See State v. Willis, 420 So. 2d 962 (La. 1982).
For the foregoing reasons, the conviction and sentence are affirmed.
AFFIRMED.
NOTES
[1] In State v. Marcal, 388 So. 2d 656, 660 (La. 1980), the Louisiana Supreme Court stated:
"La.R.S. 15:496 requires that the testimony of a witness has been assailed as to a particular before a prior inconsistent statement can be introduced."
Since L.S.A.-R.S. 15:496 clearly concerns prior consistent statements, the use of the word inconsistents is obviously an error. The word should be consistent.
[2] L.S.A.-C.Cr.P. art. 770 sets forth the instances in which the trial court shall order a mistrial. Contrarily, L.S.A.-C.Cr.P. art. 771 is the discretionary mistrial article.
[3] The trial court gave the following admonishment to the jury:
"All right, ladies and gentlemen, you will recall my preliminary instructions to you, and I will just simply mention them to you as an admonishment that the defendant is not required to produce any evidence whatever."
[4] We note that there is conflicting testimony about factual matters, the resolution of which depends on a determination of the credibility of the witnesses. However, this is a matter of weight of the evidence, not its sufficiency. State v. Norman, supra, and cases cited therein. A determination of the weight of the evidence is a question of fact. Id. This court has no appellate jurisdiction to review questions of fact in criminal cases. La. Const. of 1974, art. V, § 10(B). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592176/ | 135 S.W.3d 452 (2004)
Donna BOWAN, By and Through Her Next Friend, Audrey BOWAN, Respondent/Cross-Appellant,
v.
EXPRESS MEDICAL TRANSPORTERS, INC. and Amy Jo Demery, Appellants/Cross-Respondents.
Nos. ED 82950, ED 82944.
Missouri Court of Appeals, Eastern District, Division One.
March 23, 2004.
Motion for Rehearing and/or Transfer Denied May 13, 2004.
*454 Peter J. Dunne, Susan L. Thurmer, St. Louis, MO, for appellant.
James P. Leonard, Michael D. Stokes, St. Louis, MO, for respondent.
Larry Smith, Clayton, MO, for Amy Jo Demery.
Motion for Rehearing and/or Transfer to Supreme Court Denied May 13, 2004.
MARY R. RUSSELL, Judge.
Express Medical Transporters, Inc. ("EMT") appeals from the judgment entered on a jury verdict in favor of Donna Bowan ("Passenger") on her negligence action against EMT.[1] It raises three points on appeal. EMT first asserts that the trial court erred in denying its motion for judgment notwithstanding the verdict and motion for new trial in that Passenger failed to prove that it had a common law duty to "make certain" she wore a seat belt while riding in its van. It further argues that if it did have a duty to "make certain" she was seat belted, the duty was satisfied after Passenger admitted she was aware she was not seat belted and chose not to wear a seat belt. EMT's second allegation of error concerns the trial court's overruling its objections to the testimony of Passenger's non-expert witness, who was allowed to testify regarding the alleged custom and practice in the transportation industry relating to the transport of handicapped passengers. EMT's final point argues that the trial court erred *455 in giving the jury Instruction 6, Passenger's verdict director, and its corresponding verdict form, in that they presented an incorrect statement of the law as to the existence of a duty to "make certain" Passenger was seat belted.
Passenger cross-appeals, arguing that the trial court erred in granting EMT's post-trial motion to amend the judgment pursuant to section 537.065 RSMo 2000[2] because the trial court improperly reduced the judgment by the amount of a pretrial settlement rather than: (1) entering a judgment in accordance with the verdict; (2) adding prejudgment interest pursuant to section 408.040(2); and (3) thereafter granting EMT a partial satisfaction for the amount of the pretrial settlement.
We affirm as to EMT's appeal, but we reverse as to Passenger's cross-appeal and remand for calculation of prejudgment interest.
Passenger was born in 1960, and was a healthy, normal child until she developed encephalitis, a swelling of the brain, when she was 8 years old. As result, she developed physical disabilities, including the limited use of her left arm, no use of her left hand, and a limp. She also developed short-term memory problems. Passenger had an IQ of 74, and was described as having the mental abilities of a 12-year old. She did not live independently until 1993, first with a roommate, and then by herself, in an apartment. She was able to care for her personal hygiene and cooking needs, but received assistance for grocery shopping and managing her finances. She received assisted transportation from her residence to her job at Lafayette Industries, a sheltered workshopa work environment for physically and mentally handicapped adults.
Passenger was transported to her job by EMT, a non-emergency transportation company, who contracted with the Missouri Department of Mental Health to provide transportation for employees of the sheltered workshop. EMT's duties included picking up Passenger and other employees from their homes and taking them to work. The driver for Passenger's route was Larry Briggs ("Driver").
Driver was transporting Passenger and others home from work when the 14-passenger EMT van he was driving was involved in a motor vehicle accident at the intersection of Olive and Ladue Streets in St. Louis. At the time of this accident, Passenger was seated in the row of seats immediately behind Driver.[3] She was not seat belted and was thrown into the area between Driver's seat and the front passenger seat. As a result of this accident, her spinal column was severed and she became a paraplegic, requiring her to move to a nursing home.
Passenger brought a negligence action against EMT[4] and the driver of the other *456 motor vehicle involved in the accident. After a three-day trial, the jury found EMT and the other driver jointly and severally liable in the amount of $3.5 million. EMT was assessed 30 percent fault for violation of a traffic signal and 20 percent fault for failing to "make certain" that Passenger was wearing her seat belt. Passenger was assessed 20 percent fault for failing to wear her seat belt, and the other driver was assessed 30 percent fault for failure to keep a careful lookout or failure to yield the right-of-way. After accounting for the fault assessed to her, the court entered a judgment in Passenger's favor for $2.8 million, plus costs. EMT filed motions for judgment notwithstanding the verdict and for new trial, which were denied. EMT also filed a motion to amend the judgment pursuant to section 537.065, and Passenger filed a motion to amend the judgment pursuant to section 408.040(2). After post-trial motions were heard, the trial court entered an order amending the judgment to the amount of $1.84 million. EMT's appeal and Passenger's cross-appeal followed.
Was There a Duty to Make Certain Passenger Was Seat Belted?
EMT's first point argues that the trial court erred in denying its motions for judgment notwithstanding the verdict and for new trial because Passenger failed to prove that it had a common law duty to "make certain" she wore a seat belt while riding as a passenger in EMT's van. It argues that even if it did have a duty to "make certain" she was seat belted, that duty was satisfied because she admitted that she was aware she was not seat belted and chose not to wear her seat belt.
Our standard of review for an order denying a motion for new trial is abuse of discretion, which we will find only where the trial court's ruling was so arbitrary and unreasonable that it shocks our senses of justice and indicates a lack of careful consideration. State v. Ginn, 31 S.W.3d 454, 457 (Mo.App.2000). For example, the denial of a new trial would be an abuse of discretion where it was based on findings not substantially supported by the record. Id.
The standard of review for reviewing a trial court's denial of a motion for judgment notwithstanding the verdict is whether the plaintiff made a submissible case. Coggins v. Laclede Gas Co., 37 S.W.3d 335, 338 (Mo.App.2000). A case is not submissible unless each and every fact essential for liability is predicated upon legal and substantial evidence. Giddens v. Kansas City S. Ry. Co., 29 S.W.3d 813, 818 (Mo. banc 2000). To determine whether Passenger made a submissible case, we consider the evidence, and all reasonable inferences therefrom, in the light most favorable to the plaintiff, and we disregard all evidence contrary to plaintiff's claim. Stalcup v. Orthotic & Prosthetic Lab, Inc., 989 S.W.2d 654, 657 (Mo.App.1999) (citing Cline v. Friedman & Assocs., Inc., 882 S.W.2d 754, 758 (Mo.App.1994)).
To make a claim based on negligence, a plaintiff must establish that: (1) the defendant had a duty to protect her from injury; (2) the defendant failed to perform that duty; and (3) the defendant's failure proximately caused injury to the plaintiff. Sill v. Burlington N. R.R., 87 S.W.3d 386, 391 (Mo.App.2002) (citing Lopez v. Three Rivers Elec. Coop., Inc., 26 S.W.3d 151, 155 (Mo. banc 2000)).
In a negligence action, we will find the evidence was sufficient to present a submissible case if it can be fairly inferred that the defendant was negligent. Stalcup, 989 S.W.2d at 657. Where the jury is only able to determine negligence via conjecture and surmise, we will find that plaintiff failed to make a submissible case.
*457 Id. (citing Mills v. Redington, 736 S.W.2d 522, 524 (Mo.App.1987)).
Passenger alleged two distinct counts of negligence against EMT: (1) negligence in the operation of the motor vehicle and (2) negligence in the loading of her into the van. She argues that at trial she elicited sufficient evidence supporting both of these counts, thereby making them submissible to a jury.
EMT argues it cannot be negligent for failure to "make certain" that Passenger was seat belted because it had no duty to do so. It asserts that no statutory or common law duty to seat belt adult passengers exists, and so it could not be negligent for failing to ensure that she was seat belted. It points out that Missouri law only creates a statutory duty for drivers to seat belt passengers in their vehicles who are between the ages of four and 16.[5] It argues that this statutory duty cannot be extended to create a common law duty for it to ensure that its handicapped adult passengers are seat belted.
The only element of negligence that is determined as a matter of law is the duty element. Sill, 87 S.W.3d at 391 (citing Deuschle v. Jobe, 30 S.W.3d 215, 218 (Mo.App.2000)). A duty to exercise care can be imposed by a controlling statute or ordinance, assumed by contract, or imposed by common law under the circumstances of a given case. Scheibel v. Hillis, 531 S.W.2d 285, 288 (Mo.1976).
When considering if a duty exists in a particular case, we look at several policy factors, including the following: (1) whether society finds the interest is worthy of protection; (2) the foreseeability of harm and degree of certainty that the protected person suffered injury; (3) the moral blame society places on the conduct; (4) the prevention of future harm; (5) the costs and the ability to spread the risk of loss; and (6) the economic burden on the actor and community. Strickland v. Taco Bell Corp., 849 S.W.2d 127, 132 (Mo.App. 1993) (citing Hoover's Dairy, Inc. v. Mid-Am. Dairymen, 700 S.W.2d 426, 432 (Mo. banc 1985)). When considering if a duty is owed, we look for a relationship between the plaintiff and the defendant that the law recognizes as the basis of the duty of care. Parra v. Bldg. Erection Servs., 982 S.W.2d 278, 283 (Mo.App.1998) (citing Bunker v. Ass'n of Mo. Elec. Coops., 839 S.W.2d 608, 611 (Mo.App.1992)). We look "`to the body of statutes, rules, principles and precedents which make up the law'" when determining whether this relationship exists. Id. (quoting Kopoian v. George W. Miller & Co., 901 S.W.2d 63, 68 (Mo.App. 1995)).
Missouri courts recognize that a defendant can assume a duty. Martin v. Mo. Highway and Transp. Dept., 981 S.W.2d 577, 580 (Mo.App.1998) (citing Bowman v. McDonald's Corp., 916 S.W.2d 270, 287 (Mo.App.1995) and Kilventon v. United Mo. Bank, 865 S.W.2d 741, 745 (Mo.App.1993)). If a defendant assumes a duty, by contract or by conduct, he can be held liable for injuries caused by the unsafe performance of that assumed duty. See Kilventon, 865 S.W.2d at 745. For example, our Supreme Court has adopted section 323 from the Restatement (Second) of Torts, which imposes a duty on those who voluntarily render services to another.[6]Strickland, 849 S.W.2d at 132 (citing *458 Stanturf v. Sipes, 447 S.W.2d 558, 561-62 (Mo.1969)). Our case law further supports the concept that one who acts voluntarily or otherwise to perform an act, even when there was no duty to act originally, can be held liable for the negligent performance of that act. See id.
EMT argues that Passenger merely asserted that Driver should have made certain that she was seat belted, which was insufficient for a jury to reasonably infer Driver or EMT owed her a legal duty to do so. We disagree. Though EMT is correct in asserting that it owed Passenger no statutory duty under section 307.178, we find that she presented substantial evidence to establish that EMT owed her a common law duty to "make certain" she was seat belted. This common law duty was evidenced by the numerous references in the record suggesting that Driver voluntarily assumed a duty to make certain Passenger was seat belted.
At trial, Driver testified that he had worked for EMT for about two years and understood that he would be transporting mentally handicapped persons. He was trained by an employee of EMT who had explained to him that all the passengers should wear seat belts and "you have to make sure they do." Driver explained that all his passengers knew how to put on their seat belts, but that he made sure they did by first telling them to put them on and then checking that they did so. He said that he would watch the passengers while he was loading them into the van to make sure they were putting on their seat belts. He also said he would check in the van's rear view mirror to see if all the passengers were seat belted, especially because the passengers were all mentally handicapped to some extent.
Driver agreed that it was his "responsibility to check and make sure" that the passengers were seat belted, but that on the day of the accident he was unsure whether Passenger was wearing her seat belt because he could not see her seat belt by looking in his rear view mirror. He recalled that on that day he had "hollered back" to ask if everybody was wearing their seat belts, and all the passengers had responded that they were. He stated that he would have made Passenger put on her seat belt if he had known she did not have it on. He agreed that it was not his job to physically seat belt the passengers because most of them could do that themselves, but he further acknowledged that his job "was to tell them to put [on their seat belts] because, like children, they need[ed] to be told [to do so]" and that he "was to check and make sure they put it on."
Distinguishing the facts of Passenger's case from a case in which the defendant was found not to have assumed a duty is helpful in understanding Driver's assumption of a duty in this case. In Winn ex rel. Winn v. Pollard, a tractor driver who was injured in a rear-end collision brought a negligence action against the tractor's owner. 62 S.W.3d 611, 612-14 (Mo.App. 2001). The tractor driver alleged that when the owner had begun to follow behind the tractor in order to prevent such a collision he had assumed the duty to continue to follow the tractor until it safely reached its destination. Id. at 614. The court, however, found that the tractor owner had not assumed that duty because: (1) he only sometimes followed the tractor to prevent such collisions, but did not every time; (2) he and the driver had not discussed the subject of him following the *459 tractor; (3) there was no evidence presented that he had followed the tractor on any public roadway on the day of the collision, but rather that he had done so only in the driveway; and (4) there was no evidence that the driver knew the owner was following him or that he relied on him for his safety. Id. at 615.
The facts from Winn are readily distinguishable from the facts elicited in this case. Driver thought it was his job to make sure the passengers were seat belted. He stated that he would tell them to put on their seat belts while loading the van and then check in the mirror to see that they were seat belted. He did not state that he believed his job only required that he did this sometimes, but rather his testimony suggested this was his routine for making sure the passengers were seat belted. He further testified that if he knew a passenger was not seat belted he would make them put it on before he drove, and if a passenger would remove the seat belt en route he would have to tell them to put on the seat belt. Further, there was testimony suggesting Driver believed that the passengers relied on him to remind them to wear their seat belts because, like children, they needed to be told. He admitted multiple times that he believed it was his job to "make sure" the passengers were seat belted, and he admitted he was unsure if Passenger was seat belted on the day of the accident.
Based on Driver's testimony and in light of our standard of review, we find Passenger presented substantial evidence to establish that EMT assumed a duty to Passenger to "make certain" she was seat belted.
EMT argues, however, that even if it had a duty to ensure Passenger was seat belted, that duty was satisfied because she knowingly chose to remain unbelted on the day she was injured. It points to Worley v. Tucker Nevils, Inc. for the proposition that a passenger in a motor vehicle owes a duty of care to himself in that if he knows of a danger, and has an opportunity to control or influence the situation for safety, he is negligent if he fails to warn the driver of the situation. 503 S.W.2d 417, 421 (Mo. banc 1973). In this case, we are aware of Passenger's low I.Q. The issue of Passenger's responsibility to care for herself, however, was dealt with through EMT's submission of a comparative fault theory to the jury, and the jury subsequently assessing 20 percent of fault to Passenger for her injuries. Her duty as a passenger did not negate the duty EMT assumed to "make sure" she was seat belted.
The trial court did not err in denying EMT's motions for judgment notwithstanding the verdict and for new trial because Passenger presented a submissible case for negligence on the theory that EMT failed to make certain she was seat belted. EMT's first point is denied.
Was Custom and Practice Testimony Inadmissible?
EMT next argues that the trial court erred in overruling its objection to the testimony of Diane Dilks ("Witness") in that she was allowed to testify regarding the custom and practice in the transportation industry, and her personal custom and practice, regarding seat belting mentally handicapped passengers. EMT asserts that Witness, as a non-expert witness, should not have been permitted to give such testimony because it was based on the practice of a single company and such testimony would normally be admissible only if given by an expert witness. We disagree.
The standard of review for whether Witness was qualified to testify regarding the industry custom and practice related to *460 transporting handicapped persons is abuse of discretion. Davis v. Gatewood, 299 S.W.2d 504, 511 (Mo.1957). Under this standard, we will reverse the trial court's decision only in extreme cases where it improperly exercised its discretion. Id. We will find an abuse of discretion when the trial court's ruling suggests a lack of careful consideration because it is against the logic of the circumstances or is so unreasonable or arbitrary as to shock our sense of justice. Burns v. Elk River Ambulance, Inc., 55 S.W.3d 466, 480 (Mo.App. 2001).
A custom is an ordinary or usual manner of doing something. Davis, 299 S.W.2d at 509. What is claimed to be a custom must be shown to amount to a definite, uniform, and known practice under certain definite and uniform circumstances in order to be sufficient to submit that issue to the jury. Id. To testify regarding the existence of a custom it should appear that a witness possesses knowledge of the custom and can be examined to show how that knowledge was acquired. Id. at 510 (internal citations omitted). A witness, however, is not qualified to testify to the existence of the custom if her knowledge of the custom is based only on the practice of certain individuals. Id. (internal citations omitted). If a witness admits she has no knowledge of the subject matter, she should be disqualified from testifying on that subject. Id.
Even when the evidence will not show a uniform general custom, however, it may be "admissible as a generally followed practice tending to show the standard of care exercised by ordinarily prudent persons" in performing the task at issue. Id. at 511. Although a custom cannot be said to be definitive of a standard of reasonable care, it can be a reasonable basis for the contention that what is ordinarily done by persons generally engaged in a similar activity is relevant to show what an ordinarily careful person would do under the same circumstances. Wright v. Chicago, Burlington & Quincy R.R. Co., 392 S.W.2d 401, 405 (Mo.1965).
At trial, EMT objected to Witness testifying about the practice and custom in the transportation industry related to seat belting handicapped passengers. Passenger argued that Witness's testimony would help illustrate the industry's custom by mirroring the testimony given by Driver and the testimony of other witnesses regarding directing passengers to put on their seat belts. The court warned, however, that it would not allow Witness to give such testimony based only on her individual standards or experience.[7] Witness was thereafter excused, but was later called back to the stand to testify. During that testimony, Passenger laid the foundation the court required to overcome the objection of EMT that Witness's testimony merely reviewed her own usage and practice, not the custom of the industry. Passenger also presented the testimony of EMT's president to support Witness's testimony. EMT's president testified that drivers were trained to tell passengers to put on their seat belts, but were not trained to make sure the seat belts were fastened.
EMT points to Swindell v. J.A. Tobin Construction Co. to support its contention that Witness's testimony should not have been admitted as proof of the custom and *461 practice in EMT's industry. 629 S.W.2d 536 (Mo.App.1981). In Swindell, the plaintiff was injured by a rock propelled through her windshield after she went through a construction zone where signs were weighted by rocks. Id. at 540. Plaintiff wished to show that the construction company should have weighted the signs with sandbags, and attempted to present the testimony of two former employees of the company. Id. at 541, 544. The trial court, however, excluded the employees' testimony that was offered for the purpose of establishing custom and practice in their industry. Id. at 544. The appellate court found no error in the exclusion of the testimony because the employees did not have personal knowledge of the particular construction zone at issue and there was no evidence it was similar to the job sites with which the employees were familiar. Id. at 544-45.
The facts in Swindell, however, are readily distinguishable from this case. Witness testified that she had personal experience transporting Passenger and other handicapped persons because she had transported them to Lafayette Industries when she was a driver for Bi-State. She testified that she worked for Bi-State for four or five years. When she was driving handicapped passengers she made sure they were seat belted before driving them. She also recalled that Passenger had to be told to put on her seat belt. Witness agreed that she was aware of the custom and practice in the transportation industry for transporting handicapped persons, both through her own job and by observing other drivers transporting Lafayette Industries employees during the four to five years she worked for Bi-State. Over EMT's objection, the trial court allowed Witness to testify that the custom and practice in the industry was to help handicapped passengers board the van, tell them to put on their seat belts, and check to be sure they were secure.
Considering our standard of review, we find no error in the trial court overruling EMT's objection to Witness's testimony regarding the industry custom and practice of transporting handicapped passengers. Her testimony was based on her experience and observations in transporting Passenger and other employees of Lafayette Industries. Her testimony was based also on her observations of other drivers of handicapped passengers during her four to five years working in the industry. She professed knowledge regarding the industry's custom and was able to be cross-examined about that knowledge. We do not find that the trial court's allowing Witness's testimony was so unreasonable or arbitrary as to warrant a finding of error on this point. EMT's second point is denied.
Was Instruction 6 Improper?
EMT's third argument on appeal asserts that the trial court erred in giving Instruction 6, Passenger's verdict director, to the jury because it incorrectly stated the law as to the existence of a duty to "make certain" that Passenger was seat belted. It also alleges the trial court committed error on these same grounds by presenting the corresponding verdict form to the jury.
EMT's challenge in this point mirrors its assertions in its first point that Passenger failed to show that it owed her a duty to "make certain" she was seat belted. Where the sufficiency of the evidence to support the giving of an instruction is questioned, we view the evidence in the light most favorable to the submission of the instruction. Hudson v. Whiteside, 34 S.W.3d 420, 427 (Mo.App.2000). So long as an instruction is supportable on any theory, it is not improper, but each element of a verdict director must be supported *462 by substantial evidence. Oldaker v. Peters, 817 S.W.2d 245, 251 (Mo. banc 1991). Reversal of a jury verdict on grounds of an instructional error is only available if the appellant shows that the instruction misdirected, misled or confused the jury and thereby prejudiced the appellant. Mast v. Surgical Servs. of Sedalia, L.L.C., 107 S.W.3d 360, 372 (Mo.App.2003). Additionally, the prejudice caused must be overwhelming to a degree of confusing or misleading the jury. Id. at 374.
Appellants rely on M.C. v. Yeargin & Marriott International Corp. for their proposition that Instruction 6 should not have been given to the jury because EMT had no duty to "make certain" Passenger was seat belted. 11 S.W.3d 604 (Mo.App. 1999). In Yeargin, the court found the instruction was defective because it found the defendants did not owe the duty the instruction submitted. Id. at 616. In contrast, as discussed in our resolution of EMT's first point, EMT assumed a duty to Passenger to "make certain" she was seat belted. The trial court did not err in presenting an instruction based on that duty to the jury. Instruction 6 and its corresponding verdict form did not mislead or confuse the jury regarding EMT's duty and did not prejudice EMT. EMT's third point is denied.
Was Passenger Entitled To Prejudgment Interest?
Passenger cross-appeals, arguing that she should have been awarded prejudgment interest on the entire amount of the verdict in her favor.
After reducing the verdict for the fault assessed to Passenger, the court entered a judgment in her favor for $2.8 million. EMT and Passenger both filed post-trial motions to amend the judgment.
Passenger filed a motion to amend the judgment pursuant to section 408.040(2).[8] Section 408.040 allows the recovery of prejudgment interest where the amount of a judgment exceeds a pre-trial settlement demand made in compliance with the statute. Passenger's motion to amend the judgment asserted that she was entitled to prejudgment interest on the $2.8 million verdict because that verdict was greater than the $2.5 million settlement demand she had submitted to EMT.
EMT's motion to amend the judgment, however, asserted that the judgment should be reduced by $960,000, the amount of money Passenger received pursuant to an agreement made under section 537.065,[9]*463 in which she agreed to limit her recovery to the specific insurance proceeds provided in the agreement. In consideration for her promise to limit execution, she was to be paid $960,000.[10] The section 537.065 agreement, which was dated May 2002, stated that Passenger acknowledged that the payment of the $960,000 would "be applied to any future judgment or settlement made or entered in this case." EMT asserts that this language shows that the $2.8 million verdict should be reduced by the $960,000 paid to Passenger prior to trial, thereby resulting in a verdict in her favor of $1.84 million. Because Passenger's settlement demand was $2.5 million, EMT contends her claim for prejudgment interest under section 408.040(2) would be defeated.
After post-trial motions were heard, the trial court entered an order granting EMT's motion to amend the judgment to $1.84 million, and denied Passenger's motion to amend because the amended judgment amount was now less than her settlement demand and no prejudgment interest should be added. The trial court issued a memorandum opinion explaining its decision to grant EMT's motion to amend the verdict, citing Amador v. Lea's Auto Sales & Leasing, Inc. for the proposition that "advance payments made to the plaintiff must be deducted from the jury's award prior to calculating prejudgment interest." 916 S.W.2d 845, 855 (Mo.App.1996).
Passenger argues in her cross-appeal that the trial court erred in granting EMT's post-trial motion to amend the judgment because the trial court improperly reduced the judgment by the amount of a pretrial settlement made under section 537.065. Passenger asserts that the trial court should have instead: (1) entered a judgment in accordance with the verdict in her favor for $2.8 million; (2) added prejudgment interest on that amount pursuant to section 408.040(2); and (3) then granted EMT a partial satisfaction for the amount of the pretrial settlement.
We agree with Passenger's assertions that this case presents an issue of first impression on the relationship between sections 537.065 and 408.040. Neither the parties, nor we, found any case law directly on point to the issues presented in this cross-appeal. Amador, on which the trial court relied in granting EMT's motion to amend the judgment, can be easily distinguished from this case. In Amador the plaintiffs conceded that the trial court erred in not deducting the payment received prior to trial from the verdict before prejudgment interest was calculated. 916 S.W.2d at 855. Passenger has made no such concession in this case. Further, our reading of Amador gives us no indication of the type of payments the plaintiff in that case received prior to trial, and certainly there is no indication that the prior payments were made pursuant to section 537.065. For these reasons, we do not find that Amador required the trial court in this case to deduct the $960,000 Passenger received under the section 537.065 agreement from the verdict in her favor before calculating whether she was entitled to prejudgment interest under 408.040(2).
Although there is no clear precedent to follow in reaching our decision in this cross-appeal, we have carefully reviewed the statutory language at issue and have weighed the public policies and precedent related to sections 408.040 and 537.065. Although the section 537.065 agreement that Passenger signed acknowledged *464 that the payment of the $960,000 would "be applied to any future judgment or settlement made or entered in this case," it is not clear if this sum was to be deducted before or after the court considered Passenger's claim for prejudgment interest under section 408.040(2).[11] EMT asserts that this language shows that the $2.8 million verdict should have been reduced by the $960,000 paid to Passenger prior to trial, thereby resulting in a verdict in her favor for $1.84 million, which would defeat her claim for prejudgment interest.
Section 537.065, however, is silent as to how pre-trial settlements entered pursuant to that section might effect eventual judgments subject to prejudgment interest under section 408.040(2). Passenger correctly asserts that nothing in section 537.065, or in the agreement she entered into under that section, limits her ability to recover prejudgment interest under section 408.040(2). We agree with Passenger that the issue of whether she is entitled to prejudgment interest under section 408.040(2) should be decided without regard to any payments she received prior to trial under the section 537.065 agreement.
An award of prejudgment interest serves two public policies: (1) to compensate for the true cost of money damages incurred, and (2) to promote settlement and to deter unfair benefit from the delay of litigation where liability and damages are fairly certain. Larabee v. Washington, 793 S.W.2d 357, 360 (Mo.App.1990), overruled on other grounds by, Emery v. Wal-Mart Stores, 976 S.W.2d 439 (Mo.1998).
Given the policy concerns associated with awarding prejudgment interest under section 408.040(2) we find that it is most appropriate to separate the application of sections 408.040(2) and 537.065 into a two-step process. First, we determine whether the plaintiff was entitled to prejudgment interest under section 408.040(2). If the jury's verdict exceeded the settlement demand made pursuant to section 408.040(2), we next determine what amount of prejudgment interest is required under the statute. Although prejudgment interest is normally calculated on the entire amount of the judgment, public policy suggests that we should credit defendants for payments made to plaintiffs prior to trial so that plaintiffs do not, in effect, collect interest twice on the prior settlement.
In this case, Passenger was clearly entitled to prejudgment interest under section 408.040(2) because the verdict in her favor exceeded her settlement demand. Passenger, however, received $960,000 in 2002 that she agreed would be applied to any future judgment or settlement. Because Passenger could have been earning interest on the money paid to her pursuant to the section 537.065 agreement as soon as it was in her possession, she suffers no harm if we apply the $960,000 payment to reduce the $2.8 million verdict before determining the amount of prejudgment interest that should be calculated in this case. Additionally, applying the payment in this manner does not defeat the policies of section 408.020.
Thus, our disposition of the motions to amend the judgment in this case is as follows:
*465 (1) Passenger is entitled to prejudgment interest under section 408.040(2) because the verdict in her favor exceeded the settlement demand she made pursuant to this section;
(2) Before calculating the amount of prejudgment interest owed, the settlement money paid to Passenger prior to trial, $960,000, should be applied to reduce the verdict in her favor so that she does not receive a windfall of interest on that amount;
(3) The verdict in Passenger's favor was for $2.8 million. We subtract from that verdict the $960,000 settlement she received prior to trial. The remaining amount is $1.84 million and this is the figure on which prejudgment interest under section 408.040 should be calculated.
We find the trial court erred in denying Passenger's motion to amend the judgment and in granting EMT's motion to amend the judgment. We reverse the court's order related to these motions and remand the case for calculation of prejudgment interest in accord with our decision. The judgment entered on the jury's verdict in favor of Passenger is affirmed in all other respects.
GARY M. GAERTNER, SR., P.J., and ROBERT G. DOWD, JR., J., concur.
NOTES
[1] EMT's co-defendant in this case, Amy Jo Demery, did not appeal.
[2] All further statutory references are to RSMo 2000 unless otherwise indicated.
[3] Driver and Passenger presented conflicting testimony regarding where Passenger was seated on the day of the accident. Driver maintained that Passenger was seated in the middle seat of the row of seats immediately behind him. Passenger asserted that she was seated in the seat directly behind the front passenger's seat, the seat nearest the loading door.
[4] Passenger's claims against EMT arose under the doctrine of respondeat superior, which imposes upon EMT vicarious liability for negligent acts or omissions of its employees that are committed within the course and scope of their employment. Jones v. Brashears, 107 S.W.3d 441, 445 (Mo.App.2003) (citing Wilson v. St. Louis Area Council, Boy Scouts of Am., 845 S.W.2d 568, 570 (Mo.App. 1992)). EMT did not contest its liability under this doctrine and Driver's liability is imputed to EMT in this case.
[5] Section 307.178.3 states: "Each driver of a motor vehicle transporting a child four years of age or more, but less than sixteen years of age, shall secure the child in a properly adjusted and fastened safety belt."
[6] Under this section, one who volunteers to render a service to another, which he should recognize as necessary for the other's protection, is liable to that other person for physical harm caused to him by failure to use reasonable care in rendering the voluntary service if: (1) his failure increased the other's risk of harm or (2) the other's harm was suffered because he relied on the voluntary service undertaken.
[7] The trial court relied on a medical malpractice case, Hurlock v. Park Lane Medical Center, Inc., in giving this warning, but its admonition followed more closely the decision in Davis, which held that the witness's testimony should have been excluded because it was based only on the practice of certain individuals. Hurlock, 709 S.W.2d 872 (Mo.App. 1985); Davis, 299 S.W.2d at 510-11.
[8] Section 408.040(2) states:
In tort actions, if a claimant has made a demand for payment of a claim or an offer of settlement of a claim, to the party, parties or their representatives and the amount of the judgment or order exceeds the demand for payment or offer of settlement, prejudgment interest, at the rate specified in subsection 1 of this section, shall be calculated from a date sixty days after the demand or offer was made, or from the date the demand or offer was rejected without counter offer, whichever is earlier. Any such demand or offer shall be made in writing and sent by certified mail and shall be left open for sixty days unless rejected earlier. Nothing contained herein shall limit the right of a claimant, in actions other than tort actions, to recover prejudgment interest as otherwise provided by law or contract.
[9] In relevant part section 537.065 states:
Any person having an unliquidated claim for damages against a tort-feasor, on account of bodily injuries or death, may enter into a contract with such tort-feasor or any insurer in his behalf or both, whereby, in consideration of the payment of a specified amount, the person asserting the claim agrees that in the event of a judgment against the tort-feasor, neither he nor any person, firm or corporation claiming by or through him will levy execution, by garnishment or as otherwise provided by law, except against the specific assets listed in the contract and except against any insurer which insures the legal liability of the tort-feasor for such damage....
[10] She was paid $930,000 by EMT's insurer in June 2002, and $30,000 by EMT's co-defendant's insurer in September 2002.
[11] While we see nothing in section 537.065 that would prohibit parties from contracting regarding the effect any payments made prior to trial under this section might have on the availability of prejudgment interest under section 408.040(2), nothing in the agreement between Passenger and EMT addresses this issue. Further, this case is complicated in that the parties made no record of their discussions relating to their section 537.065 agreement or their motions to amend the judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/838923/ | Order Michigan Supreme Court
Lansing, Michigan
August 21, 2008 Clifford W. Taylor,
Chief Justice
Michael F. Cavanagh
Elizabeth A. Weaver
134665(78) Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman,
FRANK J. TOMECEK, JR., and Justices
JANIS H. TOMECEK,
Plaintiffs-Appellees,
SC: 134665
v COA: 258907
Berrien CC: 02-003707-CH
ANDREW LUCIAN BAVAS, JOYCE BAVAS, INEZ
HILDEGARD BAVAS, STANLEY FRANCIS STASCH,
JULIA STASCH, MARTHA STASCH, PATRICIA M.
CURTNER, TIMOTHY V.McGREE, PETER A. STRATIGOS,
ALICE M. STRATIGOS, PAMELA KRUEGER, DEVEREAUX
BOWLY, JR., DAVID N. DERBYSHIRE, ELLEN R. LA FOUNTAIN,
JONATHAN RODGERS, ROYAL KENNEDY RODGERS,
LEE STAHL, III, and SUSAN STAHL,
Defendants-Appellants,
and
INDIANA MICHIGAN POWER COMPANY, d/b/a
AMERICAN ELECTRIC POWER COMPANY, INC.,
MICHIGAN DEPARTMENT OF LABOR AND
ECONOMIC GROWTH, and BERRIEN COUNTY
DRAIN COMMISSIONER,
Defendants-Appellees,
and
DANIEL JOHNSON, et al,
Defendants.
_________________________________________
On order of the Chief Justice, the motion by plaintiffs-appellees for extension to August 15, 2008
of the time for filing their brief and appendix is considered and it is GRANTED.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
August 21, 2008 _________________________________________
Clerk | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592201/ | 453 So. 2d 941 (1984)
Sally S. BRINKLEY, a/K/a Sally Benson, Appellant,
v.
W. Michael BRINKLEY, Appellee.
No. 84-444.
District Court of Appeal of Florida, Fourth District.
August 15, 1984.
*942 Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for appellant.
Lyons & Sanders Chartered, and Harry C. Carratt of Morgan, Carratt & O'Connor, P.A., Fort Lauderdale, for appellee.
HERSEY, Judge.
The trial court sustained the husband's exceptions to a general master's report pertaining to temporary alimony and child support. The wife appeals. At issue is the measure of a trial court's discretion in refusing to follow the recommendations of a general (or special) master.
A hearing was held before the general master on November 1, 1983, on the wife's motion for temporary relief. The wife testified that she planned to vacate the marital home and that she intended to purchase another house for $140,000; however, she had not yet signed a purchase and sale agreement. She estimated the expenses she expected to have after acquisition of the new home. On December 6, 1983, the general master entered extensive findings of fact and recommended, in part, as follows:
C. Until such time as the Wife vacates the marital home, the Husband will continue to pay the utility and miscellaneous expenses referred to hereinabove in Paragraph 1-Q and pay the Wife the sum of Two Thousand ($2,000.00) Dollars per month beginning November 1, 1983; all amounts to be characterized as undifferentiated temporary alimony and child support.
D. When the Wife vacates the marital home, the Husband will continue to maintain the medical and automobile insurance for the Wife and will pay the Wife the sum of Four Thousand ($4,000.00) Dollars per month on the first of each month until further Order of the Court. All reasonable and necessary medical, dental, prescription drug and hospitalization expenses for both the Wife and the parties' minor child not covered by insurance shall be the obligation of the Husband. Except in emergency situations, the Husband will be consulted before any extraordinary expenses are incurred and the Husband will not unreasonably withhold his consent. All amounts set forth *943 under this paragraph shall be characterized as undifferentiated temporary alimony and child support.
E. The Wife will be responsible for her own car payment.
Utility bills and miscellaneous expenses in connection with the marital home were approximately $700 per month.
The husband filed exceptions to the master's report, complaining that the master in effect awarded the wife $1,300 a month more for living in the new home than the cost of remaining in the marital home. The award, argued the husband, "was speculative and not based upon any testimony as to what, in fact, her expenses would be."
The trial court sustained the objections and ordered that the husband pay to the wife $2,000 per month as unallocated family support, and that he pay for her medical and automobile insurance premiums. The wife contests this order.
A trial court is bound by a master's findings of fact when they are supported by competent substantial evidence. Dent v. Dent, 438 So. 2d 903 (Fla. 4th DCA 1983). In Reece v. Reece, 449 So. 2d 1295 (Fla.4th DCA 1984), this court stated:
The findings of fact and conclusions drawn therefrom may not be rejected by the trial court in the absence of clear error. To put it another way, the role of the trial court in reviewing the findings and determinations of the master are similar to those of the appellate court in reviewing a trial court's findings and determinations. Harmon v. Harmon, 40 So. 2d 209 (Fla. 1949); Matos v. Matos, 421 So. 2d 180 (Fla.2d DCA 1982). This rule is subject to the observation that it is the trial judge "who under the law is charged with the duty and responsibility of making findings of facts and entering the final decree." U.S. Casualty Co. v. Md. Casualty Co., 55 So. 2d 741, 744 (Fla. 1951). It is also recognized that the trial court may come to different legal conclusions than the master, based upon the master's findings of fact, without committing reversible error. Bergh v. Bergh, 127 So. 2d 481 (Fla. 1st DCA), cert. denied, 133 So. 2d 323 (Fla. 1961).
Before determining whether the trial court properly disregarded the general master's findings and recommendations on the ground that they were "contrary to the facts and to the evidence and are not in accordance with the prevailing law," we revisit Florida Rate Conference v. Florida Railroad and Public Utilities Commission, 108 So. 2d 601 (Fla. 1959). In that case the supreme court discussed the meaning of "competent substantial evidence":
Although the terms "substantial evidence" or "competent substantial evidence" have been variously defined, past judicial interpretation indicates that an order which bases an essential finding or conclusion solely on unreliable evidence should be held insufficient.
In the case of N.L.R.B. v. A.S. Abell Co., 4 Cir., 1938, 97 F.2d 951, 958, a federal court said that the substantial evidence rule is not satisfied by evidence which merely creates a suspicion or which gives equal support to inconsistent inferences. And in Milford Copper Co. of Utah v. Industrial Commission, 1922, 61 Utah 37, 210 P. 993, 994, the court said that evidence to be substantial must possess something of substantial and relevant consequence and must not consist of vague, uncertain, or irrelevant matter not carrying the quality of proof or having fitness to induce conviction. Surmise, conjecture or speculation have been held not to be substantial evidence. White v. Valley Land Company, 1958, 64 N.M. 9, 322 P.2d 707, 709.
108 So.2d at 607. Conclusions or opinions based on pure speculation are worthless to the trier of fact. Husky Industries, Inc. v. Black, 434 So. 2d 988 (Fla.4th DCA 1983) (trial court erred in denying directed verdict where plaintiff's case rested on speculative testimony of expert witness); Vecta Contract, Inc. v. Lynch, 444 So. 2d 1093 (Fla.4th DCA 1983) (directed verdict should have been entered where evidence amounted to rank speculation); Gains v. State, 417 So. 2d 719 (Fla. 1st DCA 1982) (conviction could not rest upon mere suspicion that defendant was "wheelman" in a robbery), pet. for review denied, 426 So. 2d 26 *944 (Fla. 1983). In divorce proceedings, where the record is devoid of competent substantial evidence, an order awarding temporary alimony must be vacated. See Wilson v. Wilson, 351 So. 2d 1029 (Fla. 4th DCA 1976). We therefore hold that the trial court did not abuse its discretion in implicitly holding that the wife was not entitled to an additional $2,000 per month upon moving from the marital home. While she may be entitled to an additional sum when she vacates the home, the amount to which she testified was totally speculative. The correct course for the wife to follow was to move for modification once the anticipated event occurred and her expenses became more certain. 26 Fla.Jur.2d Family Law § 632.
Accordingly, we affirm.
Affirmed.
ANSTEAD, C.J., and HURLEY, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597938/ | 818 So. 2d 554 (2002)
C.M., a child, Appellant,
v.
STATE of Florida, Appellee.
No. 2D00-3265.
District Court of Appeal of Florida, Second District.
January 25, 2002.
James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
STRINGER, Judge.
C.M. challenges a delinquency adjudication for possession of marijuana. We reverse because the State failed to produce sufficient evidence of constructive possession.
On December 6, 1999, Officer William Jordan of the Tampa Police Department was on patrol, traveling southbound on North Armenia Avenue. He was behind an Oldsmobile sedan, and when the driver of the Oldsmobile failed to stop at a stop sign, Officer Jordan activated his lights in order to initiate a traffic stop. Before the Oldsmobile came to a complete stop, Officer Jordan saw something "fly" from a *555 passenger-side window. Officer Jordan could not tell whether the object came from the front or rear passenger-side window. Another officer subsequently retrieved a marijuana cigar[1] believed to be the object thrown from the window, but none of the occupants of the car were charged with possession of the marijuana cigar because, in Officer Jordan's words, they "weren't able to decide who it belonged to."
When he approached the vehicle, Officer Jordan noted a smokey haze inside the car, accompanied by the strong scent of marijuana. C.M. was a passenger in the front seat, and there was another passenger seated in the rear. All three occupants were ordered out of the car and each smelled of marijuana. Upon searching the car, Officer Jordan found a baggie which contained what he believed to be marijuana concealed beneath the floor mat where C.M. had been sitting. Officer Jordan performed a field test on the contents, and the results confirmed his suspicion. C.M. denied knowing that the baggie was beneath the floor mat but admitted smoking a tobacco cigarette while the other two occupants passed marijuana back and forth. C.M.'s motions to dismiss the delinquency petition were denied by the trial court, and he was adjudicated delinquent for possession of marijuana and ordered to complete a level 4 program.
In order to carry its burden of proof in this constructive possession case, the State must have produced evidence to establish that C.M. knew of the presence of the marijuana, knew of its illicit nature, and had the ability to exercise control over it. K.L. v. State, 787 So. 2d 236 (Fla. 2d DCA 2001). The State maintains that C.M.'s knowledge of the contraband can be inferred from circumstantial evidence which established that Officer Jordan observed a marijuana cigar being thrown from a passenger window, that the car was filled with marijuana smoke, and that all three boys smelled of burnt marijuana when they stepped out of the car. We conclude that this circumstantial evidence was insufficient to establish that C.M. knew of the marijuana beneath the floor mat.
In Skelton v. State, 609 So. 2d 716, 717 (Fla. 2d DCA 1992), this court held that when contraband is found in a space occupied by two or more persons, the State must "prove either that the accused had actual knowledge of the presence of the contraband or present incriminating statements and circumstances from which a trier of fact lawfully might infer knowledge by the accused of the presence of the contraband." In Skelton, law enforcement officers stopped the vehicle in which Skelton was a passenger. After Skelton was ordered out of the car, officers found a plastic baggie containing cocaine residue partially hidden under the passenger seat where Skelton had been seated. Skelton was tried for possession of cocaine and moved for a judgment of acquittal at the close of the State's case, arguing that it had failed to produce sufficient evidence of constructive possession. Id. The State presented no evidence of constructive possession, other than Skelton's proximity to the contraband, and this court reversed the conviction.
We maintain the position that in some cases a defendant's knowledge of contraband may be inferred from circumstantial evidence. However, we have consistently required more circumstantial proof of knowledge than was presented in the present case. See, e.g., Downard v. State, 793 So. 2d 83 (Fla. 2d DCA 2001) *556 (reversing conviction for cocaine possession where State failed to present evidence linking the defendant to cocaine found "only four inches" from the driver's seat in jointly-occupied vehicle driven by the defendant); Cruz v. State, 744 So. 2d 568 (Fla. 2d DCA 1999) (reversing conviction for possession of cocainepipe residue where crack pipe was found four or five inches from the gas pedal of the car the defendant was driving because it was also occupied by a passenger). These cases make clear that the element of knowledge may not be circumstantially established by the defendant's proximity to the contraband. The presence of marijuana smoke has likewise been deemed insufficient proof of the knowledge element of constructive possession in a group setting. See, e.g., Zandate v. State, 779 So. 2d 476 (Fla. 2d DCA 2000) (finding insufficient probable cause to arrest defendant for possession of marijuana found in the ashtray of a jointly occupied vehicle which smelled of burnt marijuana). The final circumstance which might potentially establish C.M.'s knowledge of the contraband in this case is the marijuana cigar which was thrown from the vehicle prior to the traffic stop. However, the car was occupied by three boys, and while Officer Jordan identified C.M. as the front-seat passenger, he could not confirm that the marijuana cigar came from C.M. or from C.M.'s window. Under these facts, affirming C.M.'s delinquency adjudication would be inconsistent with this court's prior rulings in similar cases. We must, therefore, reverse.
Reversed.
PARKER and CASANUEVA, JJ., Concur.
NOTES
[1] The object was a cigar that had been hollowed out and filled with marijuana. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597935/ | 818 So. 2d 1207 (2002)
Greg WATTS and Carla L. McLemore a/k/a Carla Lehmann McLemore, Appellants,
v.
STATE of Mississippi, Appellee.
No. 2000-KA-00847-COA.
Court of Appeals of Mississippi.
April 30, 2002.
*1208 Tim David Blalock, Natchez, L.H. Rosenthal, attorney for appellants.
Office of the Attorney General by Dewitt T. Allred III, attorney for appellee.
EN BANC.
MODIFIED OPINION ON MOTION FOR REHEARING[1]
SOUTHWICK, P.J., for the court.
¶ 1. Carla McLemore and Greg Watts were convicted of aggravated assault upon Tim Buckley. On appeal, both allege that the indictments should have been quashed. McLemore also claims that the evidence does not support her conviction. We disagree with their arguments and affirm.
*1209 FACTS
¶ 2. Tim Buckley and Carla McLemore were neighbors in Meadville who had been involved in a boundary dispute. Their litigation was settled, but perhaps animosities remained. On the afternoon of May 28, 1999, Buckley was trimming hedges along the property line when McLemore came up to him and eventually pushed him several times. Buckley grabbed her arms and they fell to the ground with Buckley on top of McLemore. Greg Watts, who testified that he had been inside McLemore's house when this confrontation began, then entered the fray by striking Buckley on the back of the head. Buckley stopped resisting, remained conscious, and was severely beaten.
¶ 3. His injuries included three lacerations that required stitches. His retinas were detached from his eyes and several surgeries were required; his vision remains impaired. Buckley's wife only saw the end of the beating of her husband. She immediately called the sheriff.
¶ 4. Watts and McLemore testified that Buckley started the incident. Both defendants alleged that Watts hit Buckley only in order to rescue McLemore, that only a few blows were struck, and that Buckley was the guilty party. Buckley filed aggravated assault charges against Watts and McLemore. Watts and McLemore filed simple assault charges against Buckley. McLemore also filed aggravated assault charges against Buckley. Each party was subpoenaed to appear before a Franklin County grand jury. All three appeared without counsel and testified. All were given the required warnings about their relevant constitutional rights before their testimony.
¶ 5. Only Watts and McLemore were indicted. After a jury trial, both were convicted of aggravated assault. Each was sentenced to five years imprisonment. The entirety of McLemore's sentence was suspended, with five years probation. Watts had to serve six months, and the remainder was to be followed by probation.
DISCUSSION
I. Denial of Motions to Quash Indictments
¶ 6. McLemore and Watts assign as error the circuit court's failure to grant their motions to quash the indictments. The motions stated that their rights under the Fifth and Fourteenth Amendments of the United States Constitution and related rights under the Mississippi Constitution were violated by requiring them to appear before a grand jury. Also submitted was an agreed set of facts signed both by the district attorney and the attorney for the defendants. The motions sought an evidentiary hearing. That apparently was never held, and an order was entered denying the motion.
¶ 7. An elaboration of the factual background for the motion would be useful. Following the altercation, Buckley filed affidavits charging both McLemore and Watts with aggravated assault while Watts and McLemore filed affidavits charging Buckley with simple assault. McLemore later filed an affidavit charging Buckley with aggravated assault.
¶ 8. McLemore, Watts, and Buckley were subpoenaed to appear before the grand jury. All three appeared separately before the jurors and testified. Each was read this warning:
Before we ask you any questions, you must understand your rights.
(1) You have a right to remain silent, say nothing at all or refuse to answer any questions.
(2) Anything you say can and will be used against you in a court of law.
*1210 (3) You have a right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning.
(4) If you cannot afford a lawyer, one will be appointed for you before any questioning, if you wish.
(5) If you decide to answer questions now, without a lawyer present you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.
(6) Do you understand these rights?
All three testified, and no attorney accompanied any of them. We have no transcript. The defendants allege that they had been led to believe that they were subpoenaed to explain their charges against Buckley, not Buckley's charges against them.
¶ 9. The defendants argue that their testimony was involuntary since they were required to appear before the grand jury and did not know they were targets. It is true that their appearances before the grand jury were as a result of the coercive power of subpoenas. Miss.Code Ann. § 99-9-17 (Rev.2000). Yet it is admitted that their right to refuse to testify was explained to each of them in advance of questioning. We examine the state and federal constitutions on the right against self-incrimination to determine whether anything improper occurred here.
A. Mississippi Constitution: Compelled Testimony
¶ 10. The state and federal constitutions each provide that a person cannot be forced to incriminate himself in a criminal proceeding. MISS. CONST. Art. 3, § 26 (1890); U.S. CONST. amend. V. In Mississippi it is presumed that "similar sections of the United States Constitution and the Mississippi Constitution ought to be construed similarly." McCrory v. State, 342 So. 2d 897, 900 (Miss.1977).
¶ 11. One precedent cited by the defendants required the quashing of an indictment because the testimony given by those defendants before a grand jury was involuntary. State v. Milam, 210 Miss. 13, 26, 48 So. 2d 594, 597 (1950). As here, there was a dispute in Milam as to who should be considered the perpetrators and who the victims in an incident. The two defendants, H.E. and S.L. Milam, attempted a citizen's arrest upon Chism and Tiner because the Milams suspected them of burglarizing their store. Id. at 21, 48 So. 2d 594. In response to the burglary charge by the Milams, Chism charged the Milams with assault and battery; Tiner charged the Milams with kidnaping. Id. As the Supreme Court noted, both sides were "urging the district attorney to permit them to submit their charges to the grand jury...." Milam, 210 Miss. at 21, 48 So. 2d 594.
¶ 12. Both Chism and Tiner signed a waiver of immunity in the presence of their attorney before appearing at the grand jury. Id. at 22, 48 So. 2d 594. The Milams were not informed that they would need to execute a waiver until they were seated in the grand jury room. Id. at 22, 48 So.2d at 595. At the same time the Milams were informed of the waiver, they were also shown the waiver executed by Chism and Tiner. Id. at 22, 48 So.2d at 595. The Milams were told that unless the waiver were signed, they could not give any testimony concerning the assault and battery or kidnaping charges against them but could only testify as to the burglary charges they filed against Chism and Tiner. Id. at 22, 48 So.2d at 595. The Supreme Court found that it would be difficult for the Milams to testify as to one set of charges and not the other because "the only evidence of the burglary was [an] *1211 alleged confession ... claimed to have been obtained from Tiner as a result of the alleged assault and battery." Milam, 210 Miss. at 22, 48 So.2d at 595.
¶ 13. The Court based its decision on the "entire context of the situation." Id. at 24, 48 So.2d at 595. It would appear that involuntariness was created from knowledge by the witnesses that their adversaries had already given their stories about the events. Unless the other viewpoint was explained, the grand jurors would likely indict the individuals who refused to testify and therefore might appear guilty. Id. at 23, 48 So.2d at 595. The Court referred to the "inquisitorial function" of the grand jury and the "considerable mystery and power" the grand jury represents to the "average citizen" as potentially influencing the Milams. Id. at 24, 48 So.2d at 595. All of these factors combined to create a "coercive effect." Id. at 25, 48 So.2d at 596.
¶ 14. We find that Milam is largely consistent with but has also been largely replaced by the analysis that arises from Miranda v. Arizona, 384 U.S. 436, 474, 86 S. Ct. 1602, 16 L. Ed. 2d 694, (1966). Whatever the setting, be it custodial interrogation by law enforcement officers, or sworn testimony before a grand jury or at a criminal trial, the starting point is that statements be made after a knowing and voluntary waiver of the right against self-incrimination. Today, that means that an adequate explanation of the operation of the right against self-incrimination be given, and that coercion or improper inducements not occur. Chase v. State, 645 So. 2d 829, 838-39 (Miss.1994). Whether Milam would have resulted in a reversal had Miranda warnings already been required and been given to those witnesses is uncertain. We do not find that the appearance of multiple witnesses at a grand jury, who have divergent views as to the villains and the victims in an incident, by itself creates coercion that overrides the warnings about self-incrimination.
¶ 15. In our case, Watts, McLemore and Buckley were subpoenaed, read their Miranda rights, and testified. They were told that they did not have to answer any questions, could end the questioning at any time, and could get an attorney. From the "entire context of the situation" as stated in Milam, or from the totality of the circumstances, we conclude that the testimony of neither defendant was involuntary under state law.
B. Mississippi Right to Counsel
¶ 16. Both defendants were told in the warnings that they were given before testifying that they could consult with an attorney and could even have an attorney present during questioning. If the witness could not afford an attorney, one would be provided. There is no claim that either sought to have counsel present and was refused. We are cited to no authority, and do not find any, that anything under state law requires more protection than this.
C. United States Constitution: Fifth Amendment
¶ 17. The United State Supreme Court has considered the extent of Fifth Amendment protection in a grand jury setting when the individual providing testimony might be a possible "target" for indictment. United States. v. Washington, 431 U.S. 181, 182, 97 S. Ct. 1814, 52 L. Ed. 2d 238 (1977). Washington was suspected of participating in the theft of a motorcycle. He was subpoenaed to appear before a grand jury but was not told that he might be indicted for theft if the grand jury did not believe his explanation for the motorcycle's presence in his van. Id. Washington was given oral Miranda warnings, a card with a copy of the Miranda warning, and also signed a waiver against self-incrimination. *1212 Id. at 183, n. 2, 97 S. Ct. 1814. Washington was indicted after testifying. Id. at 184, 97 S. Ct. 1814.
¶ 18. The Supreme Court stated that the Fifth Amendment applies to grand jury proceedings but "proscribes only self-incrimination obtained by a `genuine compulsion of testimony.'" Id. at 187, 97 S. Ct. 1814. The record must contain evidence of "some compulsion" in order to protect an individual from testimony that the individual has provided that also tends to incriminate that individual. Id. The Court stated that while the atmosphere of the grand jury room might subtly influence one to tell the truth such a subtle influence did not violate the Fifth Amendment Id. at 187-88, 97 S. Ct. 1814. The "test is whether, considering the totality of the circumstances, the free will of the witness was overborne." Washington, 431 U.S. at 188, 97 S. Ct. 1814. It was "inconceivable" that the explicit warnings given Washington would have failed to alert him "to his right to refuse to answer any question which might incriminate him" and that the warnings "also eliminated any possible compulsion to self-incrimination which might otherwise exist." Id. Further, the Court stated that "[b]ecause target witness status neither enlarges nor diminishes the constitutional protection against compelled self-incrimination, potential-defendant warnings add nothing of value to protection of Fifth Amendment rights." Id. at 189, 97 S. Ct. 1814.
¶ 19. The Supreme Court addressed one other issue applicable to our appeal. An argument was made that individuals would be reluctant to invoke their right against self-incrimination as the "grand jury w[ould] infer guilt from invocation of the privilege." Id. at 191, 97 S. Ct. 1814. The Court noted that the grand jury does not decide guilt or innocence and that invocation of the right is not admissible before a criminal jury. Id. Thus no compulsion arose.
¶ 20. Similarly, McLemore's mere appearance before the grand jury did not violate any federal right. The "obligation to appear [before a grand jury] is no different for a person who may himself be the subject of the grand jury inquiry" than for a person merely called as a witness. United States v. Mandujano, 425 U.S. 564, 574, 96 S. Ct. 1768, 48 L. Ed. 2d 212 (1976). Furthermore, a witness appearing before a grand jury "can be required to answer ... so long as there is no compulsion to answer questions that are self-incriminating." Id.
¶ 21. The Mississippi Supreme Court has held that an individual may be held in contempt for refusing to provide testimony to a grand jury that incriminates that individual, only if that individual has been granted immunity from prosecution and that "immunity is co-extensive with the individual's privilege against self-incrimination." Wright v. McAdory, 536 So. 2d 897, 899 (Miss.1988). It follows that an individual may not be held in contempt for refusing to testify if the testimony sought would incriminate the witness.
¶ 22. There is nothing in the record to suggest that either defendant was coerced into testifying or was compelled to answer any question.
D. United States Constitution: Sixth Amendment Right to Counsel
¶ 23. A witness "before a grand jury cannot insist, as a matter of constitutional right, on being represented by his counsel...." United States v. Mandujano, 425 U.S. 564, 568, 96 S. Ct. 1768, 48 L. Ed. 2d 212 (1976). The Supreme Court reasoned that this is because the grand jury witness has not yet become an accused, so there would be no Sixth Amendment *1213 implications. Id. A grand jury witness may consult counsel but counsel may not be allowed in the grand jury room. Id. Also, the Supreme Court has never held that an individual has a constitutional right to have counsel outside the grand jury room. Connecticut v. Gabbert, 526 U.S. 286, 292, 119 S. Ct. 1292, 143 L. Ed. 2d 399 (1999).
¶ 24. Therefore, the warnings read to McLemore, Watts and Buckley provided a more expansive right to counsel than required under the federal constitution. There is no evidence that the offer of counsel was accepted but then not honored. There is no error.
¶ 25. The trial court was correct in denying the motions to quash the indictments.
II. Denial of Motion for New Trial
¶ 26. A motion for a new trial challenges the weight of the evidence. McClain v. State, 625 So. 2d 774, 781 (Miss. 1993). The trial judge has considerable discretion because that judge has seen and heard the evidence. The motion should be granted only to prevent "an unconscionable injustice. [An appellate court should] reverse only for abuse of discretion, and on review we accept as true all evidence favorable to the State." Id. A new trial will only be ordered if the verdict conflicts with the overwhelming weight of the evidence.
¶ 27. Both defendants alleged that Buckley was the aggressor. Other testimony was to the contrary and suggested that Buckley was savagely beaten. The jury is the finder of fact and the "credibility of the witnesses is one to be resolved by the jury." White v. State, 732 So. 2d 961, 966 (¶ 22) (Miss.1999). The jury did not accept McLemore's or Watts' version. We find no injustice.
¶ 28. THE JUDGMENT OF THE CIRCUIT COURT OF FRANKLIN COUNTY OF CONVICTION OF GREG WATTS FOR AGGRAVATED ASSAULT AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFTER SERVING SIX MONTHS OF SAID SENTENCE IN THE FRANKLIN COUNTY JAIL, THE BALANCE OF FOUR AND ONE HALF YEARS SUSPENDED, WITH FOUR AND ONE-HALF YEARS POST-RELEASE SUPERVISION IS HEREBY AFFIRMED.
¶ 29. THE JUDGMENT OF THE CIRCUIT COURT OF FRANKLIN COUNTY OF CONVICTION OF CARLA L. MCLEMORE FOR AGGRAVATED ASSAULT AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS SUSPENDED AND FIVE YEARS PROBATION IS HEREBY AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR.
NOTES
[1] This opinion is substituted for the one originally released. The motion for rehearing is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3073163/ | 11TH COURT OF APPEALS
EASTLAND, TEXAS
JUDGMENT
Melton Ray Kennedy, * From the 90th District
Court of Stephens County,
Trial Court No. F33649.
Vs. No. 11-13-00164-CR * August 14, 2014
The State of Texas, * Memorandum Opinion by Willson, J.
(Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.)
This court has inspected the record in this cause and concludes that there is
no error in the judgment below. Therefore, in accordance with this court’s
opinion, the judgment of the trial court is in all things affirmed. | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/8304556/ | PORTRUM, J.
Mrs. Campbell, the plaintiff below, was a passenger upon a bus of the defendant Motor Company on Friday, April 22, 1938, traveling from Elk Park, North Carolina, to Johnson City, Tennessee, which route was a mountainous one; the Motor Company operated buses from Johnson City to Hickory, North Carolina, a distance of 114 miles, both ways daily, and a bus leaving Johnson City for Hickory, North Carolina, met the bus upon which the plaintiff was riding upon the mountain about 30 miles from Johnson City, and these two buses meeting, it was decided by the drivers, the bus from Johnson City having had engine trouble, that they would exchange buses in order that the bus might be returned to Johnson City and the engine trouble corrected, the driver not thinking it safe to travel on to Hickory and make a return trip since the motor indicated trouble.
The buses were driven to the side of the road and parked for the. purpose of transferring the passengers. Mrs. Campbell was a heavy woman, weighing 250 pounds, and she had a weak left knee, having suffered an injury some twenty years before to this knee, and she told the bus driver that she would have to have assistance in getting off of the bus, or a portable box or footstool to step upon because of the distance from the step to the ground. The driver agreed to assist her and took hold of her left arm and directed her to step off on her right or sound leg. She took hold of a handbar on the side of the door with her right hand and when she was in the act of stepping down, she lost her grip on the handbar and she fell to the ground. The full details will be shown by her testimony to be quoted. She suffered an injury to her right ankle and other bodily bruises which incapacitated *334ber for a long time, and sbe at tbe time of tbe trial required crutches in order to walk.
Tbe plaintiff filed suit against the company to recover damages for ber injury; in tbe declaration sbe states tbe facts as above indicated, but in greater detail, and then alleges tbe following specific acts of negligence on tbe part of tbe defendant:
“(1) That tbe defendant was negligent in stopping tbe bus in which plaintiff was riding at tbe time, place and under the circumstances hereinbefore shown, and in ordering ber without any reaosnable cause to leave tbe bus and get on another bus belonging to tbe defendant.
“(2) That tbe defendant was negligent in not bringing the bus to a standstill for the purpose of exchanging passengers at a position on tbe right side of tbe highway where tbe distance from tbe lowest step of tbe bus to tbe ground would have been very short, but to tbe contrary the driver stopped tbe bus on the left side of the highway where tbe lowest step of tbe bus was from two and a half to three feet from tbe ground and which step was immediately over a portion of tbe road which was covered by loose gravel.
“(3) Because tbe driver of defendant’s bus with full knowledge of tbe unusual size and weight of plaintiff, and after having been warned by ber that she had a weak left knee and could not safely descend the steps of tbe bus to the ground at tbe point where it was brought to a standstill without the aid of a stool or other object for her to step on, ‘wilfully, wantonly and negligently refused to provide such object or stool as requested and otherwise negligently failed to render plaintiff the necessary assistance in her efforts to step from the bus to the ground as he had ordered her to do.’
“(4) Because the driver of defendant’s bus on which plaintiff was riding stopped the bus at the time, place and under the circumstances hereinabove shown, and ordered the plaintiff and other passengers to leave the bus on which they were riding and go aboard another bus in the manner and under the circumstances shown in the declaration, ‘ all of which was done by said employee and agent of the defendant in a careless, heedless, reckless and negligent manner, in wilfull and wanton disregard for the rights or safety of the defendant’s ■bus as aforesaid, and especially in wilfull or wanton disregard of the rights or safety of the plaintiff. ’ ’ ’
The trial judge submitted the issues to a jury and it returned a verdict in favor of the plaintiff for $5,000, when the defendant filed its motion for a new trial, complaining because the judge had declined to sustain its motion for a directed verdict on the ground that there was no evidence to support a verdict. The motion was taken under advisement, and the trial judge -on a later date sustained the motion, granted a new trial and directed a verdict in favor of the defendant, dismissing the suit. He filed a memorandum opinion in support of his *335action, which, is made a part of the record. The plaintiff then filed her motion for a new trial, and it being overruled she appealed in error here. The trial judge’s opinion reads as follows:
“When the plaintiff was called upon to alight and observe the step she decided she could not take it in safety. She informed the driver she could not step down without something to step on or some assistance.
‘ ‘ Thereupon the driver offered to assist and got off upon the ground to do so.
“Thinking that with the help of the driver she could get down safely, the plaintiff took hold of a rod provided for that purpose with her right hand, the driver took hold of her left arm.
“The driver told the plaintiff to step with her good foot, which she did.
“Then, as she says, ‘the step was so high and my weight so great it pulled my hand loose from the rod and my ankle turned and knee crumpled under me and I fell. ’
“The plaintiff could see and says she did see the condition under which she would have to alight, and had declined to alight without assistance. She knew best the character and extent of her infirmities and the strength of the arm to which she would entrust her weight.
“The immediate cause of the fall was that the distance of the step and the weight of the plaintiff caused her hand to pull loose.
“The ease of Louisville & N. Railroad Co. v. Stacker, 86 Tenn., 343, 348, 6 S. W., 737, 6 Am. St. Rep., 840, involved facts in which the superior knowledge of the carrier raised a presumption of assurance to the passenger of the safety of the course of conduct.
“Here the passenger determined, with superior knowledge, with experience in stepping up and down, even from buses, that she might proceed with safety.
“The Court cannot logically find that the driver should have anticipated peril in a course of conduct which the passenger considered safe.
“Let the motion for new trial be sustained, also the motion for peremptory instructions.”
The plaintiff testifies as follows:
‘ ‘ Q. Did you start to get off ?
“A. The lady in front of me got off first and I stepped down the first step on the inside of the bus and I seen the step was so much higher than it was when I got on the bus that I didn’t think I could make it unless I could have something to step on or had help.
“Q. Just state when you got up to get off what you said to the driver ?
“A. I told the driver I could not step down the high step unless I had something to step on or had help.
“Q. What was his reply?
*336“A. He said be would get down and belp me.
“Q. You said something about tbe step being high, I want you to explain that to tbe jury.
“A. Because I bad a crippled limb, have bad it for twenty years, and when I made a high step I never could step on this side. This step the way tbe bus was sitting — tbe bus seemed to me was sitting kind of slanting on tbe side of tbe highway on tbe shoulder, I believe they call it, of tbe highway — naturally that made tbe step higher than it would have been if it bad been sitting level, and when I looked at it I was afraid to undertake it.
“Q. Just tell tbe court and jury what you told tbe driver.
“A. I told tbe driver I couldn’t step off unless I bad something to step on or somebody to help me, and be said be would help me.
‘ ‘ Q. "What did be say about putting anything there to belp you ?
“A. When I told him I couldn’t step off without something to step on be said he didn’t have anything for me to step on, But that he would help me.
‘ ‘ Q. Did he get out or what ?
“A. Got down.
“Q. Tell exactly what happened. Did you undertake it after he helped you ?
"A. I undertook to go because he was a man and I took hold of the rod on the side of the door and I thought with his help on the other side I could get off all right because I had got off buses without any accident and when I made the step, he said, ‘step with your good foot,’ I did that and my weight was so great it pulled my hand loose from the rod and I fell. My ankle turned and my feet just crumbled under me.
‘ ‘ Q. When you started to get out, did the driver take hold of your arm?
“A. Yes sir, he was on the ground.
“Q. What was the condition of the ground with reference to having lots of gravel on it?
“A. I didn’t notice it at the time, but when I hit it there was loose gravel on the side of the highway.
“Q. When you finally stepped our or fell out, was that on the gravel at the shoulder of the road?
“A. On the gravel at the shoulder of the road.
“Q. Did he hold on to that arm or did he turn loose or what happened ?
“A. When he took hold of my arm here, of course, he was helping me on this side, and I had hold of the rod on this side. When I stepped down, the step was so high it pulled my arm loose and naturally I gave down when I pulled loose and I fell. After I fell I was in so much pain I don’t know what I did. . . .
“Q. How near was this other driver when you called for the stool?
*337“A. I don’t know.
“Q. Was be in sight!
“A. Yes, he was doing something to the bus he was on, I reckon.
‘ ‘ Q. He was not called to help you ?
“A. No.
The witness was later recalled and repeated her version as follows:
“As the gentleman said a while ago, this rod was on the inside of the doorway as you go down and I took hold of that rod. If this other man had hold of my arm, I am not conscious of it because he was behind me. The driver took hold of my left arm when I made the step and my hand slipped off the rod and pulled me sideways and I fell sideways. I fell at the side of the bus. If you will hand me that picture, I will show you exactly how I fell.
“Q. I believe you said you started out face first!
“A. Certainly. I came down right this way. The driver was standing right there and I had hold of this rod. I can’t see very well, and when I made that step it was so high my hand pulled off that rod and I went down, all my weight on this knee. It threw me this way. If I had come down backwards, you know I would have busted my chin. I wouldn’t have wheeled plumb around and turned this way.”
From this testimony, the court is of the opinion that the prime and proximate cause of the fall was the fact that the plaintiff lost her hold upon the rod, and as she stated, “pulled me sideways and I fell sideways.” The company’s servants could not reasonably anticipate such an occurrence, and for this reason, in the court’s opinion, cannot be charged with negligence in not so anticipating it. This being true the company was not accountable for the prime and proximate cause of the injury and it violated no duty owed to the plaintiff by contract or tort which could be connected with the prime and proximate cause of the accident. The plaintiff’s suit is not dismissed because of her contributory negligence, for her hand slipping and the loss of her hold upon the handle bar was a misadventure and not a negligent act upon her part. She was not responsible for this misadventure, but neither is the company, and it being the cause of the accident she has failed to show a breach of duty on the part of the carrier. These facts render inapplicable authorities cited by the plaintiff-in-error for the purpose of acquitting her of contributory negligence. The court holds she was not guilty of contributory negligence. The photographs in the record show the position of the parked bus, and the height of the step from the ground. Its distance is estimated by the plaintiff’s proof as two feet and is shown by actual measurement by the defendant’s proof as nineteen and one-half inches; and that the usual distance from the street to the step is eighteen inches.
The plaintiff took in the situation, knew her capacity, for she said *338sbe bad gotten, in and ont of buses, and tben undertook to step down witb tbe assistance of tbe driver and lost ber balance because ber band slipped wbicb, as sbe said, “pulled me sideways,” and these facts convinced tbe court tbat tbe acquiescence and assistance in ber conduct by tbe bus driver was not a contributing cause to tbe injury.
It is assigned as error and argued tbat since tbe plaintiff purchased a through ticket it was a breach of tbe contract of carriage for the defendant .to stop and change buses, requiring ber to get out and on another, while in transit, and if sbe bad not been required to do this tbe accident would not have happened, thus making tbe change of buses tbe prime and proximate cause of ber injury. In support of this tbe recent case of McClellan v. Tennessee Electric Power Co. (Tenn. Sup.), 123 S. W. (2d), 822, 823, 120 A. L. R., 928, is cited. In tbat case tbe driver lost consciousness and ran tbe bus into a pole; tbe company was responsible for this misadventure under its contract to carry, and since tbe plaintiff was injured without fault on his part, tben tbe duty to safely transport him was violated. But in this case tbe company is not responsible for the misadventure since it happened to a passenger, and it is not covered by its contract of carriage. Tbe company has a right to guard against negligent operation of the bus by exchanging buses in transit and requiring tbe passengers to transfer; tbe company is tbe judge of tbe reasonable operation of tbe buses, and in tbe absence of negligence this right cannot be questioned. Tbe undisputed evidence shows tbat tbe motor was missing coming up tbe mountain, and the conclusion necessarily follows tbat it was an act of caution to return tbe bus to Johnson City, a distance of 30 miles, than to take it on to Hickory and back to Johnson City, over tbe mountainous route, tbe distance from tbe two points being 114 miles. Tbe fact tbat tbe motor did not miss on its return to Johnson City does not discredit tbe testimony of tbe driver, especially in view of the fact tbat it is not reasonable to suppose the transfer would have been made in tbe absence of an apprehension on tbe part of tbe driver.
We find no breach of tbe contract of carriage, nor any actionable negligence on tbe part of tbe defendant, and tbe judgment below is affirmed witb costs.
Ailor and McAmis, JJ., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2440947/ | 964 N.E.2d 314 (2012)
IN RE J.C.
No. 82A01-1107-JT-325.
Court of Appeals of Indiana.
February 29, 2012.
BRADFORD, J.
Disposition of Case by Unpublished Memorandum Decision Affirmed.
KIRSCH, J. and BARNES, J., Concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592212/ | 19 So.3d 752 (2008)
Ashante NEWBERRY, Appellant
v.
STATE of Mississippi, Appellee.
No. 2007-KA-00875-COA.
Court of Appeals of Mississippi.
December 9, 2008.
Rehearing Denied May 26, 2009.
Certiorari Denied October 22, 2009.
*753 John M. Colette, Jackson, attorney for appellant.
Office of the Attorney General by Billy L. Gore, attorney for appellee.
Before KING, C.J., LEE, P.J., and CARLTON, J.
LEE, P.J., for the Court.
PROCEDURAL HISTORY
¶ 1. On April 26, 2007, a jury in the DeSoto County Circuit Court found Ashante Newberry guilty of one count of sale of a controlled substance, cocaine. Newberry was sentenced as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007) and his sentence was doubled pursuant to the sentence enhancement provisions in Mississippi Code Annotated section 41-29-147 (Rev.2005). Newberry was ordered to serve a term of sixty years in the custody of the Mississippi Department of Corrections without eligibility for probation or parole and to pay a $1,000 fine.
¶ 2. Newberry then filed a motion for a new trial and a motion for a judgment notwithstanding the verdict. The trial judge denied both motions. Newberry now appeals, asserting the following issues: (1) Batson violations by the State denied him a fair trial; (2) the State violated his rights by introducing other bad acts not charged in the indictment; (3) the prosecutor made improper remarks during closing argument; and (4) the trial court abused its discretion in allowing hearsay into evidence.
FACTS
¶ 3. The facts of this case concern a drug buy. On December 10, 2005, an undercover agent for the DeSoto County Metropolitan Narcotics Unit, Danny Wilkey, entered a residence on Labauve Street in Hernando, Mississippi. Agent Wilkey was with a confidential informant. Both men entered the kitchen and saw three white males and one black male. Agent Wilkey followed the black male into the living room and conducted a buy. The black male and two of the white males were never identified. Another black male, identified as Newberry, entered the room and sold Agent Wilkey a bag of cocaine powder for $100.
DISCUSSION
I. DID THE STATE'S EXCLUSION OF MINORITY JURORS VIOLATE BATSON AND DENY NEWBERRY A FAIR TRIAL?
*754 ¶ 4. In his first issue on appeal, Newberry argues that the State struck two minority jurors in violation of Batson, thus denying him a fair trial. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), provides procedural directives for the trial court to follow in detecting and disallowing the practice of using peremptory challenges to remove members of an identified racial group from jury service based upon nothing more than their racial identification. To successfully assert a Batson claim, the following procedure must occur:
First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.
Berry v. State, 728 So.2d 568, 572(¶ 11) (Miss.1999) (quoting Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)). "The focus of the Batson inquiry is on the purposeful discrimination in a party's use of peremptory challenges, not on the ultimate racial composition of the jury." Id.
¶ 5. Our standard of review requires a reversal only if the factual findings of the trial judge are "clearly erroneous or against the overwhelming weight of the evidence." Tanner v. State, 764 So.2d 385, 393(¶ 14) (Miss.2000). Any determination made by a trial judge under Batson is accorded great deference because it is "based, in a large part, on credibility." Coleman v. State, 697 So.2d 777, 785 (Miss. 1997). The term "great deference" has been defined in the Batson context as meaning an insulation from appellate reversal of any trial findings which are not clearly erroneous. Lockett v. State, 517 So.2d 1346, 1349-50 (Miss.1987).
¶ 6. Newberry challenged two of the State's peremptory strikes. The first strike was made against juror number 60, an Asian male, and the second strike was made against juror number 69, an African American female. Newberry raised a Batson challenge, to which the trial court responded as follows: "[A]s to the issue of a prima facie case of racially motivated strikes, I will find that the burden has not been met by the Defendant, but as is my requirement for the record, I will ... require the State to state their race neutral reasons for the strike." In response, the State first listed its concerns with juror 60, the Asian male:
Your honor, I noticed that he was an IT specialist. We don't have any audio or video in this case, and I thought he might look at that negatively against the State. Also, it was my understanding from talking to Ms. Brewershe had previously voir dire'd [sic] this same panel for a different casethat he had asked a lot of questions, ... and I just thought that there may be a possibility with a lot of questions being asked, coupled with the fact that he was an IT specialist, that that might weigh heavily against the State on impartiality.
Newberry responded that juror number 60 made no responses during voir dire. The trial court found the State's race-neutral reasons to be acceptable, and we cannot find error in this determination. A juror's employment and demeanor have been deemed valid race-neutral reasons. Harris v. State, 901 So.2d 1277, 1281(¶ 14) (Miss.Ct.App.2004).
¶ 7. Regarding juror number 69, the African American female, the State's reasons were that she had only lived in DeSoto County for twenty-two months and *755 that she had made no eye contact with the prosecutor. Newberry responded that he did not think that was a valid reason. The trial court did not offer a specific explanation for finding the State's race-neutral reasons acceptable. The trial court stated that "we have listed [the State's] stated race-neutral reasons for the strikes, and [Newberry] has been given an opportunity to state his rebuttal.... I find there's not been a prima facie case of a systematic exclusion of jurors based upon their race." Newberry contends that this Court should reverse and remand the case to the trial court to make specific findings as to the merits of the race-neutral reasons given for excluding juror number 69. However, the supreme court has found the following:
[W]here a trial judge fails to elucidate such a specific explanation for each race neutral reason given, we will not remand the case for that Batson-related purpose alone. This Court is fully capable of balancing the Batson factors in cases such as this one. Continued remand of such cases only wastes the trial court's limited resources and acts to further delay justice.
Gary v. State, 760 So.2d 743, 748(¶ 12) (Miss.2000). The trial court in the present case clearly found no purposeful discrimination by the State in striking two minority jurors. One of the reasons submitted by the State, lack of eye contact, has been deemed an appropriate race-neutral reason. Harper v. State, 635 So.2d 864, 868 (Miss.1994).
¶ 8. We cannot find any abuse of discretion on the part of the trial court in determining that the State's two strikes on minority jurors were not the result of any purposeful discrimination. This issue is without merit.
II. DID THE STATE VIOLATE NEWBERRY'S RIGHTS BY INTRODUCING OTHER BAD ACTS NOT CHARGED IN THE INDICTMENT?
¶ 9. In his second issue on appeal, Newberry argues that the State violated his rights by introducing other bad acts not charged in the indictment. Specifically, Newberry contends that the jury was allowed to hear evidence suggesting that Agent Wilkey made subsequent undercover drug purchases from Newberry on December 14 and December 20. We note that Newberry filed a motion in limine prior to trial asking the trial court to prohibit testimony regarding his prior drug convictions. The trial court granted Newberry's motion. However, Newberry's argument regarding other bad acts concerns subsequent purported drug sales, not any prior convictions.
¶ 10. On cross-examination, Agent Wilkey was asked by Newberry if that was the only day he dealt with Newberry. Agent Wilkey responded, "I dealt with him that one day, yes, sir." Newberry then produced a copy of a report by another agent, Max Herring, and handed it to Agent Wilkey. Newberry then stated, "Correct me if I'm wrong. Doesn't that say on December 14th, 2005, Agent Danny Wilkey called Ashante Newberry? Does it say that?" Agent Wilkey responded, "Yes, sir, it does, but this is the wrong case file number."
¶ 11. Immediately after this exchange the State objected, and the trial court asked the jury to exit the courtroom. The State then noted its objection to the line of questioning by Newberry. The State told the trial court that it had instructed Agent Wilkey not to mention his contact with Newberry during two other drug buys. The State then asked the trial court to allow Agent Wilkey to explain why there was a later date on the report. The trial court agreed with the State that Newberry had opened the door, but the questioning *756 would be limited to any further investigation of Newberry by Agent Wilkey and not any other transaction involving drugs.
¶ 12. Upon resuming the cross-examination of Agent Wilkey, Newberry questioned Agent Wilkey on the amount of time Agent Wilkey spent with Newberry during the transaction. Agent Wilkey testified that he was in the house for approximately five minutes, of which two or three were spent with Newberry. On redirect, the State asked Agent Wilkey if he was able to "get a good look at" Newberry. Agent Wilkey responded in the affirmative. The State then asked Agent Wilkey if December 10th was the only time he had seen Newberry. Agent Wilkey responded that he saw Newberry on December 14th and December 20th and had a few phone conversations with him. At no time did the State reference these other two dates as times when drug buys occurred. Agent Wilkey testified that on a "buy walk," you buy the narcotics, let the perpetrator walk, and conduct further investigation before making an arrest.
¶ 13. "It is a fundamental principle of law that a defendant cannot complain about evidence that he himself produced at trial." Wright v. State, 797 So.2d 1028, 1032(¶ 17) (Miss.Ct.App.2001). As the contact between Newberry and Agent Wilkey subsequent to December 10th was elicited by Newberry, we find no error by the trial court in allowing the State to elaborate on the matter. The trial court set out certain limitations for Newberry and the State to follow, and we find that decision appropriate. This issue is without merit.
III. DID THE PROSECUTOR MAKE IMPROPER REMARKS DURING CLOSING ARGUMENT?
¶ 14. In his third issue on appeal, Newberry argues that the prosecutor made improper remarks during closing argument, thus denying him a fair trial. However, Newberry failed to make a contemporaneous objection to any allegedly prejudicial statements made by the prosecutor during closing argument. Thus, Newberry has waived this issue for purposes of appeal. Swindle v. State, 755 So.2d 1158, 1169(¶ 34) (Miss.Ct.App.1999).
IV. DID THE TRIAL COURT ABUSE ITS DISCRETION BY ALLOWING HEARSAY INTO EVIDENCE?
¶ 15. In his final issue on appeal, Newberry argues that the trial court abused its discretion by allowing hearsay into evidence, thus denying him a fair trial. At issue is the testimony of Lieutenant Jeremy Degan. Lt. Degan's role in the drug buy was to monitor the situation via audio surveillance. Lt. Degan testified that when Agent Wilkey entered the residence, the wire worn by Agent Wilkey malfunctioned. Lt. Degan then called Agent Wilkey and instructed him to keep his cell phone on so he could monitor the situation. Lt. Degan testified that the purpose of this was to listen for any distress from Agent Wilkey. Lt. Degan testified that he heard Agent Wilkey and a male discuss "something about footballs" and then "hard." This referred to the first buy of crack cocaine between Agent Wilkey and the unidentified black male. Agent Wilkey had previously testified that he told this man he did not want any "footballs" or Xanax, but that he wanted "a hundred on the hard" or $100 worth of crack cocaine.
¶ 16. At that point in Lt. Degan's testimony, Newberry made a hearsay objection. The prosecutor responded, "I think he can tell what he listened to. It's nothing Agent Wilkey hasn't already testified to." After a bench meeting, the trial court overruled Newberry's hearsay objection.
*757 ¶ 17. Lt. Degan continued describing what he heard over the cell phone. Lt. Degan heard a second male voice, but he could not hear what he said. Before Lt. Degan could continue with what he heard Agent Wilkey say, Newberry again made an objection, which the trial court overruled. Lt. Degan then stated that he heard Agent Wilkey say, "You want a hundred on that." However, Lt. Degan did not identify, nor did the State ask him to identify, any voice he heard other than that of Agent Wilkey and the confidential informant.
¶ 18. Mississippi Rule of Evidence 801(c) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." The standard of review regarding the admission or exclusion of evidence is abuse of discretion. Yoste v. Wal-Mart Stores, Inc., 822 So.2d 935, 936(¶ 7) (Miss.2002). Any error in the admission or exclusion of evidence is not grounds for reversal unless the error adversely affected a substantial right of a party. Lynch v. State, 877 So.2d 1254, 1281(¶ 86) (Miss.2004). We do not find that Lt. Degan's testimony was hearsay. Lt. Degan's testimony was not offered to prove that Newberry sold drugs to Agent Wilkey. Rather, Lt. Degan's testimony was offered to corroborate Agent Wilkey's testimony that Agent Wilkey entered this particular house in order to conduct a drug buy. See Brown v. State, 969 So.2d 855, 861(¶ 17) (Miss.2007). This issue is without merit.
¶ 19. THE JUDGMENT OF THE DESOTO COUNTY CIRCUIT COURT OF CONVICTION OF THE SALE OF COCAINE AND SENTENCE AS A HABITUAL OFFENDER OF SIXTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PROBATION OR PAROLE AND TO PAY A $1,000 FINE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.
KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592236/ | 470 N.W.2d 621 (1991)
Julie KEEGAN, Appellee,
v.
FIRST BANK OF SIOUX FALLS, Individually and as Executor of the Estate of C.L. Anderson, Deceased, and Robert J. McDowell, Respondents and Appellees,
v.
Gunnar MERTZ, Petitioner and Appellant,
v.
BOYCE, MURPHY, McDOWELL & GREENFIELD, Respondents and Appellees.
No. 17111.
Supreme Court of South Dakota.
Argued January 7, 1991.
Decided May 29, 1991.
*622 David R. Gienapp of Arneson, Issenhuth and Gienapp, Madison, for appellees.
Michael D. Klampe of Klampe & Nordstrom, Rochester, Minn., Richard A. Johnson of Pruitt, Matthews & Muilenburg, Sioux Falls, for petitioner and appellant.
STEELE, Circuit Judge.
Gunnar Mertz (Mertz) takes this intermediate appeal from a trial court order suppressing certain evidence pertaining to damages in his claim against lawyer Robert J. McDowell (McDowell) and the law firm of Boyce, Murphy, McDowell and Greenfield (the law firm). We conclude that the trial court's ruling was premature and reverse its order.
PROCEDURAL HISTORY
Julie Keegan (Keegan) brought suit in 1984 against Mertz, McDowell and the estate of C.L. Anderson (Anderson). The claim arose from transactions surrounding a bank in Wibaux, Montana. Mertz cross-claimed against McDowell and brought in the law firm in which McDowell was a member (Boyce, Murphy, McDowell and Greenfield) by third party complaint. Mertz's claims against McDowell and the law firm alleged legal malpractice in connection with Wibaux bank transactions, and also in connection with transactions surrounding another bank in Lovell, Wyoming.
Keegan's claims involving the Wibaux bank have been settled and she is no longer a party to the suit. The remaining claims pertinent to this appeal are those of Mertz against McDowell and the law firm.
The claimed malpractice relevant to this appeal is that McDowell, representing Mertz, failed to assist him in preparing the necessary documents required by the Comptroller of the Currency (Comptroller) under the federal Change in Bank Control Act, See 12 U.S.C. § 1817 (1984), resulting in the assessment of a $595,000 civil penalty for willful failure to comply with the act in regard to the Lovell bank.
On April 11, 1990, a pretrial motion hearing was held. McDowell and the law firm moved to prohibit the introduction of evidence of the assessment as claimed damages. The trial court granted the motion.
FACTS
Prior to 1980, McDowell, Anderson and Keegan held ownership interests in banks in Wisconsin and in Wibaux, Montana. McDowell and Anderson also had interest in a Lovell, Wyoming, bank. McDowell and Mertz, a businessman, had been acquainted since 1979. In 1981, at McDowell's suggestion, Mertz purchased Keegan's interest in the Wibaux bank. Mertz also purchased an interest in the Lovell bank; after the purchase, Mertz, McDowell and Anderson were the sole owners, with Mertz owning a 28% share.
Under the Change in Bank Control Act a national bank must obtain prior approval of a change of ownership from the office of the Comptroller and if one individual acquires more than 25% of the stock, an application must be filed. Although Mertz tried to file the required application concerning *623 the Lovell bank himself, he never obtained approval of the acquisition of his ownership interest from the Comptroller. The Lovell bank was declared insolvent by the Comptroller in June 1983 and that agency conducted an investigation into Mertz's involvement in the Wibaux and Lovell banks. As a result, the Comptroller issued a notice of assessment in the sum of $595,000 against Mertz on April 2, 1984.
In July 1984 the Comptroller and Mertz entered into a settlement agreement concerning both the Wibaux and Lovell banks. Mertz was allowed to keep his ownership interest in the Wibaux bank, but was not allowed to serve as an officer, director or employee. He was also prohibited from acting in any capacity in any other bank. In return, the Comptroller agreed to forego the assessment of any civil penalties in connection with the Wibaux bank, but specifically reserved the right to take action concerning the assessment in connection with the Lovell bank "[i]f at any time, he deems it appropriate to do so...."
The Comptroller has taken no action to collect the assessment by demand, negotiation, action or otherwise. Neither party has contacted the Comptroller to ascertain his intentions regarding collection of the assessment, apparently because neither wants to "wake the sleeping giant."
At the time of hearing on the motion, the only evidence on the record regarding the assessment was the affidavit of Mary Curtin (Curtin), an attorney from Minneapolis, who Mertz retained as an expert. Curtin specializes in bank acquisitions and in litigation involving the Comptroller. She was formerly employed by the Federal Reserve System.
In her affidavit Curtin stated:
1. That the Comptroller has the power to assess civil penalties under the Change in Bank Control Act.
2. That there is no statute of limitations concerning the collection of assessments, and the defense of laches does not apply.
3. That the Comptroller may bring an action in federal court to collect the assessment at any time.
4. That the assessment is a final assessment and is not dischargeable in bankruptcy.
5. That the Change in Bank Control Act was amended in 1989 and, among other things, eliminated the right to a trial de novo in federal court and substituted an administrative hearing subject only to limited court review.
6. That from her experience in other cases, the Comptroller's position is that the change in the law applies to conduct occurring prior to 1989.
7. That if the Comptroller should bring action to collect the assessment, Mertz would have no credible defense.
8. That if or when the Comptroller takes legal action to collect the assessment, Mertz will incur substantial attorney fees.
There is reference in the briefs to Curtin's deposition; that deposition is not a part of the record transmitted to this court.
The trial court concluded that the claim regarding the assessment as an element of damages was too speculative to be considered by a jury, and ordered that no evidence about the assessment be offered at trial.
ISSUE
Did the trial court err in entering a pretrial order prohibiting the offer of evidence of the Comptroller's assessment as an element of damages?
DISCUSSION
For purposes of this appeal, we must assume that the averments of the complaint are true, and that the notice of assessment was issued by the Comptroller as the result of McDowell's negligence. Hoverstad v. First National Bank and Trust Co., 76 S.D. 119, 74 N.W.2d 48 (1956).
The question in this case is whether the state of the current record establishes any possibility that a jury might reasonably conclude that the loss claimed actually exists. Mertz argues that the only evidence *624 of record at this point, Curtin's affidavit, establishes such a possibility, and that he should therefore be allowed to present his claim to the jury.
McDowell's position is that because no action has ever been taken by the Comptroller to collect the assessment since the notice of assessment in 1984, and because a jury would have to speculate as to (1) whether the Comptroller will ever take action to collect; and, (2) whether a judge or administrative hearing officer would sustain the assessment, the trial court properly precluded the claim before trial as a matter of law.
SDCL 21-1-10 allows damages for detriment "[c]ertain to result in the future." The word "certain" is not used in its absolute sense; its purpose is to ensure that facts exist which afford a basis for measuring the loss with reasonable certainty. Peters v. Hoisington, 72 S.D. 542, 37 N.W.2d 410 (1949); Thomas v. St. Mary's Roman Catholic Church, 283 N.W.2d 254 (S.D.1979).
The law distinguishes between those cases in which there is a question about the fact of whether damages have been incurred and those in which only the measure or amount of damages is uncertain. Schmidt v. Wildcat Cave, Inc., 261 N.W.2d 114 (S.D.1977); Wang v. Bekken, 310 N.W.2d 166 (S.D.1981). In the former case, reasonable certainty is required in proving the fact and cause of the loss; once those elements have been proven, the amount of damages need not be shown with the same degree of certainty. 22 Am.Jur.2d, Damages § 486, 487. In this case, the first question is not the amount of damages claimed, but whether a loss has in fact been suffered.
Whether the fact of a loss has been proven to a reasonable certainty is ordinarily a question for the trier of fact. Hoisington, supra. Only when the foundational evidence fails to remove the claim of loss from the realm of speculation should the matter be taken from a jury. Karlen v. Butler Mfg. Co., 526 F.2d 1373 (8th Cir.1975).
At this point in the proceedings, Curtin's affidavit presents a basis upon which a jury might reasonably conclude that a loss has in fact been incurred. Therefore, it should not be concluded at this time as a matter of law that the claim is too speculative for presentation to a jury. At trial, Curtin's assertions may be subjected to cross-examination and rebuttal testimony may be presented. Further, the testimony of a representative of the Comptroller's office may put the issue to rest completely. At the close of Mertz's case and again at the close of all the evidence the court may consider a motion for directed verdict. SDCL 15-6-50(a). If the evidence at either of those points has failed to remove the claim of loss or any part thereof from the realm of speculation, the judge may preclude the claim from the jury's consideration. Kressly v. Theberge, 79 S.D. 386, 112 N.W.2d 232 (1961).
Mertz requested that this court consider allowing his claim to be split so that he may present evidence of damage at a future time in the event the assessment is pursued and collected. That issue was not presented to or ruled upon by the trial court and is not properly before this court on appeal. We therefore decline to consider the requested remedy.
The ruling of the trial court is reversed and the case is remanded for further proceedings.
MILLER, C.J., HENDERSON, J., HERTZ, Acting J., and McKEEVER, Circuit Judge, concur.
AMUNDSON, J., not having been a member of the Court at the time this action was submitted did not participate.
STEELE, Circuit Judge for WUEST, J., disqualified.
McKEEVER, Circuit Judge, for SABERS, J., disqualified. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592241/ | 453 So.2d 1023 (1984)
A MISSISSIPPI ATTORNEY, Respondent/Appellant,
v.
MISSISSIPPI STATE BAR, Complainant/Appellee.
Conf. Misc. No. 63.
Supreme Court of Mississippi.
July 18, 1984.
*1024 Fred L. Banks, Banks & Nichols, John L. Walker, Walker & Walker, Jackson, for respondent/appellant.
Andrew J. Kilpatrick, Jr., Jackson, for complainant/appellee.
EN BANC.
SULLIVAN, Justice, for the Court:
This is an appeal from a decision of a Mississippi State Bar Complaint Tribunal suspending a Mississippi attorney from the practice of law for 45 days. A complaint was lodged with the Mississippi State Bar against the Mississippi attorney alleging misconduct inside and outside the courtroom of a justice court judge. After investigation, investigatory hearing and further investigation, complaint counsel submitted his finding to the complaints committee. The complaints committee determined that there was a reasonable cause to believe that the Mississippi attorney was guilty of the alleged conduct and that if proven such conduct would warrant disbarment or suspension. The committee authorized complaint counsel to file a formal complaint which the Mississippi attorney answered by denying. A duly designated Complaint Tribunal held a formal hearing after which the Complaint Tribunal declared that the allegations against the Mississippi attorney were supported by clear and convincing evidence and the Mississippi attorney was suspended from the practice for 45 days. He perfects this appeal and assigns as error the following:
(1) The findings of the Complaint Tribunal were not supported by clear and convincing evidence;
(2) Sufficient weight was not given to the fact that the justice court judge did not find the Mississippi attorney in contempt of court;
(3) That it was error not to dismiss the complaint because of violations of his procedural rights; and
(4) That the 45 days suspension was excessive.
I.
WAS THE EVIDENCE OF MISCONDUCT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE?
The attorney is charged with violations of rules 1-102(A)(5), 1-102(A)(6), 7-106(C)(6), and 9-101(C).
DR 1-102(A)(5) and 1-102(A)(6) read as follows:
(A) A lawyer shall not:
* * * * * *
(5) Engage in conduct that is prejudicial to the administration of justice.
(6) Engage in any other conduct that adversely reflects on his fitness to practice law.
DR 7-106(C)(6) states that:
*1025 (C) In appearing in his professional capacity before a tribunal, a lawyer shall not:
* * * * * *
(6) Engage in undignified or discourteous conduct which is degrading to a tribunal.
DR 9-101(C) provides that:
(C) A lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official.
The evidence indicates that the Mississippi attorney both outside and inside the courtroom of the justice court judge engaged in a verbal confrontation with the complainant in this cause, who was the opposing party in the litigation before the justice court. That verbal confrontation involved the use of profane language both by the complainant and the Mississippi attorney. When his conduct was repeated inside the courtroom the record reflects that the trial judge threatened the Mississippi attorney with contempt of court, though he was never held in contempt. Outside the courtroom, but in the presence of opposing counsel and the justice court judge, the Mississippi attorney stated that the judge would not have held him in contempt since he helped to get him elected. The record reflects that the justice court judge involved testified on behalf of the Mississippi attorney and that the judge is retired and elderly and could not remember anything about the incident due to extensive cancer treatments.
Based on this record, we find that the Complaints Tribunal properly applied in its opinion the "clear and convincing" standard as directed by this Court. Netterville v. Mississippi State Bar, 397 So.2d 878 (Miss. 1981). Further, we are of the opinion that the conduct, clearly and convincingly shown by the evidence, is a violation of the Disciplinary Rules cited above.
The argument presented by the appellant is that the evidence presented by the Bar does not rise to the level of clear and convincing because the testimony of the witnesses against him was both confusing and inconsistent. There are differences in the testimony of the witnesses but they are slight, particularly when viewed through the spectrum of the three years that have passed from the time of this incident. We find no merit to appellant's first assignment of error.
II.
WAS SUFFICIENT WEIGHT GIVEN TO THE FACT THAT THE TRIAL JUDGE DID NOT FIND THE MISSISSIPPI ATTORNEY IN CONTEMPT OF COURT?
This Court has never held that a trial judge's testimony concerning his actions in the presence of misconduct is to be given greater weight than the testimony of other witnesses.
In Re Dore, 165 Wash. 225, 4 P.2d 1107 (1931) is cited by the appellant for the proposition that the judge's refusal to cite the lawyer for contempt is conclusive evidence that no misconduct occurred. That appears to be the position taken by the state of Washington and it is contrasted with the position of the state of Kentucky as set forth in Kentucky State Bar Ass'n v. Smith, 503 S.W.2d 482 (Appeals Court of Ky. 1973), which holds that although unethical conduct may be condoned by the judge of the police court of condemnation it can be no defense to a disciplinary proceeding.
We adopt as the rule in this state that the action of a trial judge in the presence of misconduct shall be considered along with all other evidence by this Court, but shall not of itself be conclusive upon this Court.
There is no merit to the appellant's second assignment of error.
III.
WERE THE PROCEDURAL DUE PROCESS RIGHTS OF THE MISSISSIPPI ATTORNEY VIOLATED WHEN THE COMPLAINTS COUNSEL CONTINUED HIS INVESTIGATION AFTER THE INVESTIGATORY HEARING *1026 HAD PURSUANT TO MISSISSIPPI CODE ANNOTATED § 73-3-317 (1972) (Supp. 1983) AND USED EVIDENCE AGAINST THE MISSISSIPPI ATTORNEY DISCOVERED SUBSEQUENT TO THE HEARING TO WHICH THE MISSISSIPPI ATTORNEY HAD NO KNOWLEDGE IN COUNSEL'S REPORT TO COMPLAINTS COMMITTEE?
Investigative hearings and complaints counsel reports are governed by Mississippi Code Annotated § 73-3-317 and Mississippi Code Annotated § 73-3-319 (Supp. 1983).
Section 73-3-317 states:
§ 73-3-317. Complaint counsel investigatory hearings report of testimony and findings response by accused attorney.
Complaint counsel will cause the testimony of any witnesses at an investigatory hearing to be taken and transcribed and shall certify the same to the committee on complaints, along with his written findings, within thirty (30) days from and after the date on which the complaint was received by him, except that, for good cause shown, upon application to the chairman of said committee, complaint counsel may be granted a total of not more than thirty (30) additional days in which to make said certification. A copy of complaint counsel's report shall be sent to the accused attorney by certified mail, and the accused attorney shall have ten (10) days after the receipt by him of complaint counsel's report to file a written response thereto with the committee on complaints. Upon application to the chairman of the said committee, the accused attorney may be granted such additional time as circumstances warrant.
Further, section 73-3-319 provides that:
§ 73-3-319. Committee on complaints; action to be taken upon receipt of complaint counsel's report.
Within thirty (30) days of its receipt of complaint counsel's report, the committee on complaints shall take the following action:
(a) If upon review of the record, complaint counsel's report and any written response by the accused attorney, the committee determines that there is not reasonable ground to believe that the accused attorney has been guilty of unprofessional conduct or conduct evincing unfitness for the practice of law, the committee may either re-refer the matter to complaint counsel for further investigation or may dismiss the complaint and retire the file. In the latter event, the person filing the complaint, the accused attorney and the executive director of the Mississippi State Bar shall be given written notice of the committee's determination.
(b) If upon review of the record, complaint counsel's report and any written response by the accused attorney, the committee determines that there is reasonable ground to believe that the accused attorney has been guilty of unprofessional conduct or conduct evincing unfitness for the practice of law, and is of the further opinion that a reprimand of the accused attorney is all that justice requires and will adequately afford the disciplinary sanctions required by the particular circumstances, the committee may administer a private reprimand, or it may, in its discretion, make public the fact of the reprimand by having the same delivered in open court by the chancery or circuit court of the county of the accused attorney. However, such action shall not be taken except upon proper notice and hearing, such notice and hearing to be upon the same formal requirements and assuring to the accused attorney the same rights and privileges as provided in section 73-3-321 et seq. for hearings upon complaints which, if proven, would warrant suspension or disbarment. Further, any decision of the complaint tribunal to issue a reprimand shall be appealable in the same manner and to the same extent as provided in section 73-3-329. The committee, in its discretion, may require the accused attorney to appear before it for delivery of the reprimand *1027 or may forward it to him by registered mail. In any event, written notice of the delivery of such reprimand shall be given to the person filing the complaint, the clerk of the court, the executive director of the Mississippi State Bar, and to the judges of the circuit and chancery court districts of the accused attorney.
(c) If the committee determines there is reasonable cause to believe the accused attorney is guilty of such conduct, which, if proven, would warrant suspension for a definite or an indefinite period or permanent disbarment, the committee shall direct complaint counsel in writing to prepare and file a formal complaint against the accused attorney. Complaint counsel shall prosecute the case to conclusion, unless the president of the Mississippi State Bar, in his sole discretion, shall appoint one or more active members of the state bar to either assist complaint counsel or to serve independently as trial attorney or attorneys in the prosecution of the proceeding to conclusion.
A motion hearing was had to dismiss the complaint on the basis that complaints counsel used evidence discovered after the investigatory hearing without giving the Mississippi attorney an opportunity to respond to the evidence in his report to the complaints committee. There was also a motion to strike. These motions were never ruled upon.
It is stipulated that at the investigatory hearing neither the complainant nor any of her witnesses appeared. Affidavits of the Mississippi attorney and his witnesses and the trial judge had been submitted prior to the hearing. No evidence was offered on behalf of the complainant at the hearing. Given an opportunity to make a statement at the investigatory hearing, the Mississippi attorney refused, reserving the right to do so in the event the complainant responded.
After the investigatory hearing, complaints counsel sought affidavits and they were submitted to him against the Mississippi attorney. The Mississippi attorney was not notified of the phone call of complaints counsel nor was he notified of the affidavits.
Thereafter, complaints counsel submitted his report to the complaints committee pursuant to § 73-3-317 and § 73-3-319 in order that they may consider (1) whether to reprimand the Mississippi Attorney publicly or privately or (2) whether to suggest to complaints counsel that sufficient evidence existed for a formal complaint asking for suspension or disbarment.
The gist of appellant's argument is that the formal charges brought against him were brought on the basis of evidence to which he was not given an opportunity to respond violating his due process notice rights. He argued at the motion hearing that the procedure used against him violated the rules established by Netterville v. Mississippi State Bar, 397 So.2d 878 (Miss. 1981).
The Complaints Tribunal ruled on the motion that there was no violation of the statutes by continuing investigation after the investigatory hearing. They further ruled that even though the attorney was not notified of the subsequent investigation when it occurred, he received sufficient notice upon receipt of complaint counsel's report that further investigation had been conducted. They further found that the attorney had sufficient time to respond to the complaint counsel report between the time he received his copy and the time formal complaint was filed against him by the Bar, and that the attorney chose not to respond although he had every right to do so.
The Tribunal distinguished Netterville, saying that here no final action was taken by the complaints committee on the basis of evidence cited in complaint counsel's report. Instead the committee merely recommended further action. They also found Netterville not to be applicable in any way since it applied only to future disciplinary proceedings and was not retroactive in nature.
*1028 While the statute, § 73-3-317 does not preclude continued investigation after the investigatory hearing, the Court in Netterville held:
Where suspension or disbarment is not involved, on the basis of the report made up by complaints counsel as stated above, the complaints committee, if it has "cause to believe" that the accused attorney is guilty, shall find him guilty, and order his punishment, in this case, a private reprimand. We think that the requirements of due process, as well as traditional Anglo-American notions of fair play and substantial justice, are violated by this one-sided procedure. Fairness demands that an accused attorney be given the names and addresses of any witnesses whose testimony complaints counsel intends to take, together with a statement of the time and place where such testimony is to be taken, and be given the right to attend and cross-examine. The accused attorney must also have the right to take the testimony of witnesses of his own, in the same manner, their transcribed testimony also to become a part of the report.
Id. at 884.
However, the attorney was given notice of the subsequently obtained affidavits and was afforded a full opportunity to respond. He chose not to do so. Under these circumstances there is no violation of the attorney's procedural due process rights.
We therefore find there is no merit to the third assignment of error.
IV.
WAS THE 45-DAY SUSPENSION EXCESSIVE PUNISHMENT FOR THE MISSISSIPPI ATTORNEY'S MISCONDUCT?
It is conceded by the Bar that it has no standard as to what punishment for particular misconduct ought to be and that cases are considered on a case-by-case basis. That is as it should be and we seek to impose no standard here.
We held in Mississippi State Bar v. Phillips, 385 So.2d 943 (Miss. 1980), that on appeal this Court reviews the evidence, the law, the findings and conclusions of the Complaint Tribunal, and then renders such order as the Court may find to be appropriate, based upon the entire record.
We find that the 45-day suspension is not appropriate based upon the entire record for the misconduct of which this Mississippi attorney is guilty. The punishment is totally disproportionate to the violation. We, therefore, vacate the 45-day suspension and order that the Mississippi attorney receive a private reprimand.
PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, and ROBERTSON, JJ., concur.
PRATHER, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592246/ | 453 So.2d 835 (1984)
William D. HUGGINS, Appellant,
v.
STATE of Florida, Appellee.
No. 83-321.
District Court of Appeal of Florida, Fifth District.
June 7, 1984.
Rehearing Denied July 11, 1984.
Lawrence L. Lidfeldt, Maitland, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
DAUKSCH, Judge.
This is an appeal from a conviction of sexual battery. Because our disposition of the first point is decisive of the entire matter we do not treat the other two points on appeal.
Appellant was convicted of a sexual battery upon a seven year old girl. The offense occurred in a state park during daylight hours after the child and her mother became separated during a picnic and swimming outing.
While the child was walking across a boardwalk she encountered a man whom she followed a short way into the woods. *836 After asking her name the man grabbed her, covered her mouth with his hand and took her further into the woods. He told her to lie down on her towel, performed sex acts on her, then allowed her to take her towel and leave. She found her mother and immediately reported the assault and the rangers and sheriff deputies were summoned.
Upon arrival at the park Deputy Kelley, the road patrol deputy assigned to the area, talked with the child and her mother and had the child lead him to the scene of the attack. At the scene a Marlboro cigarette pack was found and taken by the deputy. A latent fingerprint testing procedure conducted later on the pack proved negative. The child gave Deputy Kelley a description of the rapist and said he was a white male, approximately 145 pounds, 5'10", blond hair, blue eyes, possibly the beginning of a beard which the deputy interpreted as meaning he had not shaved for a couple of days, and a moustache. He was wearing a gray bathing suit, possibly had red stripes going down the side of the trunks or around the legs, either lateral or vertical. No shirt, no shoes. He had a round, dark spot, birthmark or mole underneath his lower lip with hair growing out of it but no other scars or tattoos. The victim did not speak of any speech impediments regarding the attacker.
The police converged on the area and approximately 20 of them and their bloodhound dogs tried to track down the assailant. No one could be found, so a systematic investigation over a period of months ensued. During this time a deputy met the appellant at the park and because he was an habitue of the park, and thus a suspect, a Field Interrogation Report Card was filled out. This card is filled out from information obtained from the interviewee and observations of the interviewer. This deputy testified at trial that the appellant was cooperative, seemed to be anxious to help out in any way he could and did not seem to be hiding anything from him. The description of the appellant was stocky, not thin, 175 pounds, not 145 pounds, dark brown almost black hair, not blond, brown eyes, not blue. No dark spot or mole under the lip. It was established at trial that appellant had burn scars on his arms and legs and prominent tattoos on his hands.
A detective later interviewed appellant and he was again cooperative and non-evasive. The detective had also interviewed the child and obtained a similar description of the perpetrator, including the brown spot under the lip, and medium blond hair.
The detective obtained a picture of appellant from the state division of driver licenses and sent it along with seven others to a detective in Cobb County, Georgia who took them to the child who now lived in Marietta, Georgia. She selected appellant from the array of photos. With that information and the fact that appellant smoked Marlboro cigarettes, the same as what was found at the scene, an indictment was obtained.
Although scientific tests were used to help build a case against appellant, the results were negative. The child testified that although she hadn't seen it there before there was some "pure white and sick" substance on the towel when she took it from the scene. No semen was examined from the towel, but hair was. It was blond hair. It did not match either the child or appellant. The state crime lab technician testified the hair did not "originate from (appellant)." No fingerprints were gotten from the cigarette pack. There was no evidence regarding footprints in the record and although appellant had been previously convicted of crimes they involved marijuana and larceny, not sex or violence related crimes. Appellant was married for six or seven years at the time of trial and had two children with whom he and his wife lived. In summary, based upon the identification of appellant from the photograph and the fact that he smoked Marlboro cigarettes and a Marlboro pack was found at the scene, the jury found him guilty; this notwithstanding the fact that no identification of appellant was made at trial, no inculpatory scientific evidence of any kind was obtained, no one placed the accused at or *837 near the scene at the time of the attack, no inculpatory statements, no past history. The jury found the appellant guilty also notwithstanding the fact that a much different description of the attacker was consistently given the police by the only eyewitness, who did not identify appellant at trial and said her attacker was not in the courtroom. One other problem, not mentioned earlier, the accused has a pronounced lisp, the record says, and the child did not remember her attacker having any speech problem.
The question for us to decide is whether there was evidence legally sufficient to sustain the judgment; or, did the trial judge err in failing to grant a judgment of acquittal. The evidence was legally insufficient and the trial judge erred.
The eyewitness testimony was the only evidence against the accused, it was not an in court identification, was not corroborated by any other substantial evidence and flew directly in the face of hard evidence to the contrary combined with a lack of investigative findings. Should a man be convicted of a crime which carries a mandatory 25 years minimum sentence without parole based only upon the selection of his photograph from amongst seven others? Perhaps, but should such a conviction stand where there is other evidence, such as the victim's earlier, repeated and consistent descriptions contrary to a true one of the accused? Coupled with contrary scientific evidence the non-matching, exclusionary blond hairs? And coupled with a lack of any other inculpatory evidence, circumstantially or inferentially? We think not and conclude that the law is clear that identity of the accused is not only an essential element of proof in a criminal proceeding but above all others the most crucial. That, above all others, is the fatal blow to an accused and the law should require substantial, competent, beyond all reasonable doubt proof.
Evidentiary sufficiency as distinguished from evidentiary weight is the standard to be applied by appellate courts reviewing evidence. Tibbs v. State, 397 So.2d 1120 (Fla. 1981) is the most recent substantial treatment of the difference between weight and sufficiency. That opinion is not entirely dispositive and directive, perhaps because the subject does not permit it. When is a trial judge or an appellate court reweighing rather than testing legal sufficiency of evidence? In some cases it can be easily seen. In others, not so. It is simple, indeed simplistic, to say if there is any evidence, no matter how little, no matter how well contradicted or disproved or impeached then it is sufficient. The simple formula, then, would be to say if the jury finds guilt then that's it. That formula would prevent judicial intervention where a jury clearly has disregarded its duty and convicted by evidence not proved beyond a reasonable doubt. In Tibbs our supreme court said:
The weight and the sufficiency of evidence are, in theory, two distinct concepts most often relevant at the trial court level. Sufficiency is a test of adequacy. Sufficient evidence is "such evidence, in character, weight, or amount, as will legally justify the judicial or official action demanded." Black's Law Dictionary 1285 (5th ed. 1979). In the criminal law, a finding that the evidence is legally insufficient means that the prosecution has failed to prove the defendant's guilt beyond a reasonable doubt. Burks v. United States, 437 U.S. 1, 16 n. 10, 98 S.Ct. 2141, 2150 n. 10, 57 L.Ed.2d 1 (1978). Weight, at least in theory, is a somewhat more subjective concept. The "weight of the evidence" is the "balance or preponderance of evidence." Black's Law Dictionary 1429 (5th ed. 1979). It is a determination of the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other. See In re Estate of Brackett, 109 So.2d 375 (Fla. 2d DCA 1959).
As a general proposition, an appellate court should not retry a case or reweigh conflicting evidence submitted to a jury or other trier of fact. Rather, the concern on appeal must be whether, after all conflicts in the evidence and all reasonable *838 inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment. Legal sufficiency alone, as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal. [footnotes omitted].
Tibbs, 397 So.2d at 1123.
The duty of the appellate court is to determine, when asked to do so, whether there is substantial, competent evidence to support the verdict and judgment. Tibbs. Here there is some evidence regarding the identity of the attacker; the child identified a photograph of the accused. But in face of the lack of any supporting evidence, the lack of courtroom identification and the unresolved conflict in the evidence, we are bound to say there was a lack of substantial, competent evidence to support the verdict and judgment.
REVERSED.
SHARP, J., concurs.
COWART, J., dissents with opinion.
COWART, Judge, dissenting:
Because the eye-witness identification testimony of the victim of the sex crime in this case is uncorroborated and there is other, apparently conflicting, evidence, the majority finds the victim's testimony is not sufficient to convince them beyond a reasonable doubt of the guilt of the accused, reverses the defendant's conviction and sets him free.
Cases are legion holding that the eye-witness testimony of a sex victim is substantial competent identification evidence and, although contradicted, is legally sufficient to sustain a jury verdict and conviction. It is the province of the jury and not the trial or appellate court to weigh the total convincing force and effect (that is, to determine the strength of the probative value) of the entire evidence in the case and to determine if it meets the legal standard as to evidentiary weight (that is, whether it is adequate in quality to convince the jury beyond a reasonable doubt of the guilt of the accused). Accordingly, the majority opinion is consistent with the majority opinion in the classic case of Smith v. State, 239 So.2d 284 (Fla. 2d DCA 1970), and with the opinion in Tibbs v. State, 337 So.2d 788 (Fla. 1976). However, it is in direct conflict with State v. Smith, 249 So.2d 16 (Fla. 1971), and violates the dictates of Tibbs v. State, 397 So.2d 1120 (Fla. 1981). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598291/ | 287 So.2d 307 (1973)
HOUSING AUTHORITY OF the CITY OF ST. PETERSBURG, Appellant,
v.
CITY OF ST. PETERSBURG, Appellee.
No. 43046.
Supreme Court of Florida.
November 21, 1973.
Rehearing Denied January 23, 1974.
*308 Richard T. Earle, Jr., of Earle, Earle & Bryson, St. Petersburg, for appellant.
Michael S. Davis, Asst. City Atty., for appellee.
BOYD, Justice.
This cause is before us on appeal from the Circuit Court, Pinellas County. The trial court, in its final judgment, passed upon the validity of Chapters 63-557 and 72-270, Laws of Florida, giving this Court jurisdiction of the direct appeal under § 3 of Article V of the Constitution of the State of Florida, F.S.A.
The facts of the case are as follows:
In 1937, the Legislature enacted Chapter 421 of the Florida Statutes, F.S.A.,[1] creating housing authorities in all municipalities having a population in excess of five thousand people. In 1941, this statute was amended[2] by reducing the population requirement to 2,500. Also, in 1941, similar housing authorities were created[3] in all counties in the state. These housing authorities were given the power to "prepare, carry out, acquire, lease and operate housing projects to provide for the construction or re-construction, improvement, alteration, or repair of any housing project or part thereof." The 1937 Act, as amended, provided that the housing authority could not transact any business or exercise any of its powers until or unless the governing body of the respective city, by proper resolution, declared that there was a need for such an authority to function in said city. In November of 1937, the St. Petersburg City Council issued such a resolution.[4]
The Florida Legislature enacted Chapter 63-557[5] and 72-270[6] Laws of Florida, both of which acts, by their language, were applicable only to Pinellas County, and restricted the operation of the 1937 law, as amended, by providing that the housing authority within Pinellas County could construct or contract to construct housing projects only upon the approval of a majority vote in a referendum election to be held in the area for which the housing authority *309 is created. It was stipulated that notice of intention to enact Chapter 63-557 was not published, and that notice of intention to enact Chapter 72-270 was also not published.[7]
Appellant contends that if this Court finds, as it urges, that these two laws were special laws, such notice of intention to enact and subsequent publication was required by Article III, Section 21, of the Constitution of 1885,[8] and Article III, Section 10, of the Constitution of 1968,[9] respectively.
Appellant alleges that it desired to construct public housing in St. Petersburg, pursuant to powers granted to it by the 1937 Law, but was unable to secure the necessary financing to acquire land, and the financing necessary to construct such public housing, until such time as the referendum concerning the same had been successfully held. The Appellee has failed to hold a referendum on any proposed construction of public housing in the City of St. Petersburg, and Appellant contends that if the Appellee had called such a referendum, it would be incumbent upon the Appellant to bring an action to enjoin the same; or, in the event a referendum was held and the proposed housing defeated, to bring an action to have the referendum declared null and void.
As a result of the foregoing, Appellant alleges that it has been, and will be, completely frustrated in carrying out and performing the duties and responsibilities imposed upon it by the 1937 Law until there is an adjudication as to the constitutionality of Chapter 63-557 and 72-270.[10]
*310 The position of the Appellee, succinctly stated, is that Chapter 63-557 and 72-270 are general laws which were properly enacted by the Legislature. While the Appellee admits that notice of intention to enact was not published for either statute, the Appellee contends that since these were general laws, such was not required, and that, therefore, the laws are constitutional.
The instant case arose below when Appellant filed its Complaint for declaratory relief determining the validity of Chapters 63-557 and 72-270, Laws of Florida, and for other relief, and the Appellee filed its Answer. The Attorney General filed a Motion to Intervene and intervention was allowed. Appellant filed its Motion for Summary Judgment attaching thereto various exhibits. At the hearing on Appellant's Motion for Summary Judgment, the Appellee orally moved for Summary Judgment. At the conclusion of the Hearing, the Trial Court entered its Judgment denying Appellant's Motion for Summary Judgment and granting the Appellee's Motion for Summary Final Judgment.
This is an appeal from that Final Judgment, which held that Chapters 63-557 and 72-270, General Acts of Florida, were enacted in accordance with Article III, Section 21 of the Constitution of 1885, and Article III, Section 10 of the Constitution of 1968, respectively.
We hereby reverse the judgment of the trial court, for reasons which will be set out below.
There is no factual question as to the publication of the notice of intent to enact either Chapter 63-557, Laws of Florida, or Chapter 72-270, Laws of Florida. Appellant alleged and Appellee admitted that such notice was not published. Further, attached to the Motion for Summary Judgment was the certification of the Secretary of State reflecting that no proof of publication or affidavits are attached to said original laws on file in his office.
The sole question on this appeal is whether these two Acts are special acts falling within the purview of the constitutional restrictions requiring publication of notice of intent to seek enactment.
Neither the Constitution nor general law defines the term "special laws" as used in the Constitution and general law. This Court has, in the past, stated the basic reasons for the constitutional restriction, and has defined the type of law subject thereto. In Milner v. Hatton,[11] we set out the purpose of the constitutional restriction as follows:
"... . It therefore fails to comply with the requirements of either the Constitution or the statute, one of the purposes of both of which was to draw certain safeguards around the passage of local and special legislation by which the people of the locality to be affected would be given fair notice of the intention to get such legislation adopted, and of the substance thereof, and that the legislative journals should affirmatively show that such fair notice had been given as to the particular bill. In order to make this amendment to the constitution effective for the beneficent purpose for which it was evidently adopted by the people of this state, the constitutional requirements must be carefully complied with by the legislative body and fairly and thoroughly enforced by the courts."[12]
In Carter v. Norman,[13] we defined local and special laws as:
"... . A statute relating to particular subdivisions or portions of the state, or to particular places of classified locality is a local law. A statute relating to particular persons or things or other particular subjects of a class is a special law."[14]
*311 There are numerous other cases holding specific acts subject to the constitutional restrictions on passage of special laws. The great bulk of these cases involved so-called population acts applicable to a single county which was not described by name, but instead by population bracket into which it alone fell. This Court has uniformly held these acts invalid where there obviously is no reasonable basis for the classification.
When Chapters 63-557 and 72-270 are considered in the light of the purpose of the constitutional restriction and the definitions of special or local laws as determined by this Court, it is apparent that they are special laws falling within the constitutional restrictions and requiring publication of notice of intent to enact. They restrict, in Pinellas County only, the powers granted housing authorities throughout the entire state, thereby creating in Pinellas County housing authorities with powers different from all others. The people of Pinellas County were afforded no notice of the intent to enact these restrictions on housing authorities located within their county only.
It makes no difference that said laws were purportedly enacted under the guise of being general laws. This was not a novel procedure by the legislature, but had been attempted on numerous other occasions, all of which ultimately failed when subjected to judicial scrutiny. In State ex rel. Baldwin v. Coleman,[15] we admonished:
"But even though a bill is introduced and treated by the Legislature as a general law, if the bill in truth and in fact is clearly operative as a local or special act and the court can so determine from its obvious purpose or legal effect as gathered from its language or its context, this court will so regard it and deal with it as a local or special act in passing on its validity, regardless of the guise in which it may have been framed and regardless of whether the particular county or locality intended to be affected by it is in terms named or identified in the act or not."[16]
It is apparent that if Chapters 63-557 and 72-270 are special laws and were purportedly enacted in a manner prohibited by the Constitution of Florida, they are a nullity. We have summarily so held in numerous cases.[17]
Therefore, Chapters 63-557 and 72-270, without any notice of intention to apply therefor having been published as required by the Constitution, and not containing a referendum, these Acts are nullities.
Accordingly, the final judgment of the trial court is reversed, and the cause remanded to the trial court with instructions to enter a Summary Final Judgment on behalf of the Appellant as to the issue of the constitutionality of Chapters 63-557 and 72-270, Laws of Florida.
It is so ordered.
CARLTON, C.J., and ERVIN, ADKINS and DEKLE, JJ., concur.
McCAIN, J., dissents with opinion.
McCAIN, Justice (dissenting):
I must respectfully dissent.
While the majority presents a logical argument on the discourse between general and special laws, as it pertains to the housing authority in Pinellas County, nevertheless several compelling reasons lead me to believe that a "straight" reversal is in error.
First, obviously a crowded population and modern business conditions have come *312 to stay with us in large units. Such is the subject under review. Nevertheless, this should not preclude a cool but steadfast determination in such a case to regulate this condition by compliance with safeguards protecting the interests of the people as a whole. Such also is this case.
I am and have advocated to be a believer in constitutionalism, however I have no theory or desire to thwart securing the rights of the people to rule themselves, under law, and for them to provide for their social, industrial and economic well being.
My dissent is not necessarily a difference of principle, but only the expression that every person must be free to be left to logical combat. At any call, every man should stand by the standard of law and resist any invasion of public order as a matter of his committed personal concern over our country and state.
In the spirit of this gift, I accept it and will now proceed with an otherwise nonprevailing opinion.
Ability, honesty, integrity, character and enterprise, or the lack of it, is discovered under its mantle.
The majority speaks in terms of "general law" or "special law" or "act". However, this is not necessarily dispositive of the issue ... even though I may ultimately agree. Cases are cited by the majority with which I don't take issue. Nevertheless, the full facts are not disclosed.
The trial judge when entering summary judgment upholding the validity of the act in question cited State ex rel. Gray v. Stoutamire, 1938, 131 Fla. 698, 179 So. 730, holding in effect the following:
"The terms `special or local laws' as used in the Constitution refer ordinarily to law relating to entities, interests, rights, and functions other than those of the State, since the organic law does not contemplate or require previous publication of notice of proposed laws for the exercise of State powers and functions though they may be more or less local or special in their operation or objects...." (Emphasis added.)
See also State ex rel. Cohen v. O'Neal, 1930, 100 Fla. 1277, 131 So. 165, and State ex rel. Oglesby v. Hand, 1928, 96 Fla. 799, 119 So. 376, where certain regulations were brought within the rule of Stoutamire, thus permitting a review by the trial judge to determine the nature and purpose of the bill, i.e., general or special.
Such should be done here through an evidentiary hearing, as evidenced by the Stoutamire cite. Otherwise previous decisions will be buried beneath the sole of a heretofore solid kindred of opinions won on many battlefields.
One final comment. In every case there are certain facts "apparently" distinct by themselves never confounded by gifts or thefts. Nevertheless, they are open to analysis, observation, induction and deduction, and subject to the enduring test of "principle". This case obviously should be put to the test. Thereby the advantage of experience and the results and reasons of human actions can be weighed and balanced on the scales of justice.
Accordingly, I would remand for rehearing in keeping with the foregoing conclusion.
NOTES
[1] Chapter 17981, Laws of Florida, 1937.
[2] Chapter 20219, Laws of Florida, 1941.
[3] Chapter 20220, Laws of Florida, 1941.
[4] City of St. Peterburg Res. 155/33 (1937).
[5] Now Section 421.53, Florida Statutes, 1971, F.S.A.: "Housing authority, Pinellas County; limitation. Any housing authority created within Pinellas County by § 421.04 shall construct or contract to construct any housing project only upon the approval by a majority of the freeholders voting in a referendum election to be held in the area for which the housing authority is created. Such election shall be called by the governing body of such area."
[6] Now Section 421.53, Florida Statutes, 1971, F.S.A. (1972 Supp.): "Housing authority, Pinellas County; limitation. Any housing authority created within Pinellas County by § 421.04 shall construct or contract to construct any housing project only upon the approval by a majority of the electors voting in a referendum election to be held in the area for which the housing authority is created. Such election shall be called by the governing body of such area."
[7] In addition, the following certification by the Secretary of State appears in the Record:
"I, RICHARD (DICK) STONE, Secretary of State of the State of Florida, do hereby certify that there are no Proofs of Publication or Affidavits attached to the following original laws on file in this office:
"Chapter 63-557 (Senate Bill No. 1401), Acts of 1963, and Chapter 72-270 (Senate Bill No. 1099), Acts of 1972."
[8] "... . [N]o local or special bill shall be passed, nor shall any local or special law establishing or abolishing municipalities, or providing for their government, jurisdiction and powers, or altering or amending the same, be passed, unless notice of intention to apply therefor shall have been published in the manner provided by law where the matter or thing to be affected may be situated, which notice shall be published in the manner provided by law at least thirty days prior to introduction into the Legislature of any such bill. The evidence that such notice has been published shall be established in the Legislature before such bill shall be passed, and such evidence shall be filed or preserved with the bill in the office of the Secretary of State in such manner as the Legislature shall provide, and the fact that such notice was established in the Legislature shall in every case be recited upon the Journals of the Senate and of the House of Representatives: Provided, however, no publication of any such law shall be required hereunder when such law contains a provision to the effect that the same shall not become operative or effective until ratified or approved at a referendum election to be called and held in the territory affected in accordance with a provision therefor contained in such bill, or provided by general law."
[9] "No special law shall be passed unless notice of intention to seek enactment thereof has been published in the manner provided by general law. Such notice shall not be necessary when the law, except the provision for referendum, is conditioned to become effective only upon approval by vote of the electors of the area affected."
[10] The following affidavit appears in the Record:
"I, EDWARD M. ROGALL, am the Board Chairman of the Housing Authority of the City of St. Petersburg, Florida. The Housing Authority of the City of St. Petersburg, desires to construct public housing in the City of St. Petersburg. This public housing will provide needed living quarters for some of the residents of the City who will be displaced from their homes as a result of the construction of Interstate-75 in the City of St. Petersburg, Florida.
"The Housing Authority has received a reservation for 100 units of public housing from the United States Department of Housing and Urban Development. The funds will not be forthcoming until a referendum of the electors is held or until Section 421.54, Florida Statutes [F.S.A.], is declared unconstitutional. To date the City of St. Petersburg has not held a public referendum on this proposed construction of public housing in the city."
[11] 100 Fla. 210, 129 So. 593 (1930).
[12] 129 So. at 596.
[13] 38 So.2d 30 (Fla. 1948).
[14] Id. at 32.
[15] 148 Fla. 155, 3 So.2d 802 (1941).
[16] 3 So.2d at 803. See also Carter v. Norman, supra, note 13.
[17] See, e.g., City of Hialeah v. Pfaffendorf, 90 So.2d 596 (Fla. 1956); Williams v. Dormany, 99 Fla. 496, 126 So. 117 (1930). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/302812/ | 458 F.2d 431
72-1 USTC P 9342
Martin H. MOYER, Plaintiff-Appellant,v.Jess MATHAS, Clerk of the Circuit Court of Volusia County,Florida, Defendants-Appellees.Martin H. MOYER, Plaintiff-Appellant,v.A. J. O'DONNELL, Jr., District Director of Internal Revenuefor the District of Florida and United States ofAmerica, Defendants-Appellees.
Nos. 71-2587, 71-2588.
United States Court of Appeals,Fifth Circuit.
April 6, 1972.
William R. Frazier, Jacksonville, Fla., for plaintiff-appellant.
John R. Godbee, Jr., Deland, Fla., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Atty., Tax Div., Dept. of Justice, Washington, D. C., John D. Roberts, Asst. U. S. Atty., Jacksonville, Fla., Gilbert E. Andrews, Richard Farber, Attys., Fred B. Ugast, Acting Asst. Atty. Gen., Crombie J. D. Garrett, Atty., Tax Div., Dept. of Justice, Washington, D. C., for defendants-appellees; John L. Briggs, U. S. Atty., of counsel.
Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.
GOLDBERG, Circuit Judge:
1
In October of 1949 the United States made assessments of federal income tax, penalties, and interest against Maggie P. Tookes, and filed notices of federal tax lien with the Clerk of the Circuit Court of Volusia County, Florida. The taxpayer, Maggie Tookes, paid only a portion of the assessments, and in October of 1955, almost six years after the assessments were made, the government filed suit against the taxpayer in the United States District Court for the Southern District of New York to reduce the assessments to judgment. While this litigation was pending, the taxpayer in 1958 conveyed various parcels of real estate, owned by her in 1949 and located in Volusia County, Florida, to plaintiff, Martin H. Moyer. The government finally secured a default judgment against the taxpayer in 1962 in the amount of $106,000, which represented the assessed tax liability and interest to the date of judgment. During the several years in which Moyer owned the Volusia County realty obtained from Maggie Tookes, he became delinquent in the payment of the local property taxes. This delinquency was eventually rectified in 1969, when the Clerk of the Circuit Court of Volusia County, Florida, conducted two tax deed sales in connection with Moyer's real property. On July 7, 1969, the Volusia County Clerk, Jess Mathas, sold a portion of the land that the plaintiff had acquired from Maggie Tookes. The base bid for this acreage was fixed at approximately $4,600, and the sale produced a surplus in the amount of $16,400. The day after this sale the federal government caused notices of levy to be issued to Mathas, and the clerk thereupon paid over the surplusage to the government. Then, on December 1, 1969, Jess Mathas held another tax deed sale involving additional portions of land which the plaintiff had procured from Maggie Tookes. The base bid for this realty amounted to some $6,900, and the sale produced an overage of almost $29,000. Again the government sought these monies by serving a notice of levy on the Volusia County Clerk. Several days subsequent to this second tax deed sale, and while Jess Mathas still possessed the $29,000 surplus, Moyer instituted in a federal district court a suit against Mathas and the United States, seeking an injunction requiring the defendant Mathas to pay over the surplus funds to Moyer. Several months later the plaintiff instituted another suit against the United States, seeking recovery of the surplus which the government had received from the first tax deed sale. Pursuant to 26 U.S.C.A. Sec. 7403,1 the government counterclaimed in both actions, seeking foreclosure of its 1949 tax lien. The district court consolidated the two cases, and on the basis of the above stipulated facts the trial court held that the government was entitled to the surplus funds arising out of the tax deed sales of the Volusia County realty, D.C., 332 F.Supp. 357. On appeal, the plaintiff asserts that the district court erred in two respects. First, Moyer contends that the trial judge erroneously concluded that the 1949 tax lien had not expired, and second, the plaintiff asserts that the lower court incorrectly held that Moyer could not collaterally attack the validity of the 1949 tax assessments made against Maggie Tookes. We affirm the judgment of the district court.
2
The Internal Revenue Code of 1954 provides that if a taxpayer neglects or refuses to pay a tax that has been demanded of him, the amount of the tax becomes a lien in favor of the government upon all of the taxpayer's property. 26 U.S.C.A. Sec. 6321. In the case of income taxes, the lien created by section 6321 arises at the time the tax assessment is made and continues "until the liability for the amount so assessed (or a judgment against the taxpayer arising out of such liability) is satisfied or becomes unenforceable by reason of lapse of time." 26 U.S.C.A. Sec. 6322. The plaintiff in the instant case contends that the government's 1949 tax lien expired because Maggie Tookes' tax liability became "unenforceable by reason of lapse of time." The only statutory analogue we have found which gives substance to the phrase "lapse of time" is embodied in section 6502(a) of the Code. That section provides:
3
"Where the assessment of any tax imposed by this title has been made within the period of limitation properly applicable thereto, such tax may be collected by levy or by a proceeding in court, but only if the levy is made or the proceeding begun-
4
(1) within 6 years after the assessment of the tax, or
5
(2) prior to the expiration of any period for collection agreed upon in writing by the Secretary or his delegate and the taxpayer before the expiration of such 6-year period (or, if there is a release of levy under section 6343 after such 6-year period, then before such release).
6
The period so agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon. The period provided by this subsection during which a tax may be collected by levy shall not be extended or curtailed by reason of a judgment against the taxpayer."2
7
26 U.S.C.A. Sec. 6502(a). In the instant case there is no question that the assessments against Maggie Tookes were timely made under 26 U.S.C.A. Sec. 6501. However, the plaintiff asserts that section 6502(a) barred the government's foreclosure suits in this case because such suits were not brought within six years after the assessment of the tax. To pursue his argument it is necessary that the plaintiff assert that the phrase "proceeding in court" in section 6502(a) refers only to a foreclosure proceeding. However, this court has held that the limitation provisions of section 6502(a) are satisfied if the government institutes, within six years after the assessment of the tax, a suit for an in personam judgment against the taxpayer. See Hector v. United States, 5 Cir. 1958, 255 F.2d 84. Of course, since our decision in Hector, the statutory mold of the tax lien provisions has been recast by congressional action. Each of the adversaries in this case argue with fervor and considerable passion that the Federal Tax Lien Act of 1966, Pub.L. No. 89-719, 80 Stat. 1125, gives him support and solace. We have read the Act and scrutinized its legislative history. And having followed every stitch in its Mother Hubbard hem, we unraveled no thread that binds either litigant's theory. While we are neither endowed with necromantic talents nor are we soothsayers of many congressional minds, we are nonetheless convinced that the 1966 Act left unaltered the six-year limitation provision of section 6502(a). Since the government in this case instituted a personal judgment action, or, in statutory terminology, "a proceeding in court," against the taxpayer within six years of the assessment of the tax, we conclude that the district court was correct in holding that the provisions of section 6502(a) were satisfied and that the government was not prohibited by that section from enforcing its 1949 lien.3
8
We next turn our attention to the plaintiff's second contention, that he should be permitted to attack the validity of the tax assessments made against the taxpayer, Maggie Tookes. Without discussing the general inability of a non-taxpayer to attack the merits of tax assessments made against a taxpayer,4 we think that Moyer is foreclosed from asserting the underlying invalidity of the assessments against Maggie Tookes by the principles of res judicata. It is clear that the 1962 judgment procured by the government against the taxpayer was an adjudication of the validity of Maggie Tookes' tax liability. That 1962 judgment is no less res judicata because it was obtained by default, absent any proof of fraud, collusion, or lack of jurisdiction. Morris v. Jones, 1946, 329 U.S. 545, 67 S.Ct. 451, 91 L.Ed. 488. And plaintiff, as transferee of the Volusia County realty, is in privity with the taxpayer. See generally 10 J. Mertens, Law of Federal Income Taxation Sec. 60.24. We conclude that under general principles of res judicata the existence of these elements operates to bar the plaintiff from relitigating the validity of the tax assessments made against the taxpayer.
9
While tax results often seem harsh, the schematics of our income tax law and the attendant regulations require as much finality as is consonant with fairness and justice. The magnitude of our tax exactions, the multifariousness of the structure's configurations, and its almost universal impact demand rigidity, lest the system breed litigation with concomitant, incessant, and ceaseless babble. Once the tax has been assessed and liens attach, much as we would like to relax these stentorian and perduring concepts in the name of equity, the entire tax tower would topple unless we apply with little remorse the rules of limitations, time fixation, res judicata, and similar jurisprudential tools having terminality as their goal. Of course, we must be certain that a third party does not become prey to the traps and tricks in the tax collector's bag. But at the same time we must assure the tax gatherer that his gatherings be both speedy and unevadable, with a just and honorable finis for the tax and the taxer. We conclude that such an assurance in this case can be achieved only by the affirmance of the district court's judgment.
10
Affirmed.
1
26 U.S.C.A. Sec. 7403(a) provides:
"In any case where there has been a refusal or neglect to pay any tax, or to discharge any liability in respect thereof, whether or not levy has been made, the Attorney General or his delegate, at the request of the Secretary or his delegate, may direct a civil action to be filed in a district court of the United States to enforce the lien of the United States under this title with respect to such tax or liability or to subject any property, of whatever nature, of the delinquent, or in which he has any right, title, or interest, to the payment of such tax or liability."
2
The last sentence of this section rendered the government's notices of levy upon the defendant Mathas in this case invalid, and indeed the government conceded the untimeliness of its administrative action. Since the government was prohibited by statute from proceeding by non-judicial foreclosure it was necessary to file counterclaims against the plaintiff in order to foreclose on its 1949 lien
3
Of course, our upholding the validity of the tax lien in and of itself does not grant to the government a perpetual preference vis-a-vis the rights of bona fide purchasers of a taxpayer's property. In addition to showing that it has a valid lien, the government must also demonstrate that it has protected its lien's statutory priority. In this case there can be no question that the government timely refiled its 1949 tax lien in order to retain its priority vis-a-vis the rights of Moyer. The Federal Tax Lien Act of 1966 requires the government, as a general rule, to refile notices of its tax liens within the one-year period ending thirty days after the expiration of the six-year period beginning with the date of the assessment of the tax. See 26 U.S.C.A. Sec. 6323(g). However, with respect to those liens in existence on the date the Act became effective, section 6323(g) (4) provides that such liens were to be refiled during the calendar year 1967. In the instant case the government complied with this transitional rule, for it refiled its 1949 tax lien on December 27, 1967
4
See, e. g., 26 U.S.C.A. Sec. 7426(c); Falik v. United States, 2 Cir. 1965, 343 F.2d 38; Graham v. United States, 9 Cir. 1957, 243 F.2d 919; United States v. Pearson, S.D.N.Y.1966, 258 F.Supp. 686; Cooper Agency, Inc. v. McLeod, E.D.S.C 1964, 235 F.Supp. 276, aff'd per curiam, 4 Cir. 1965, 348 F.2d 919; Quinn v. Hook, E.D.Pa.1964, 231 F.Supp. 718, aff'd per curiam, 3 Cir. 1965, 341 F.2d 920; Commercial Credit Corp. v. Schwartz, E.D.Ark.1954, 126 F.Supp. 728 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/401022/ | 673 F.2d 628
Terri Lee HALDERMAN, a retarded citizen, by her mother andguardian, Winifred Halderman; et al., Plaintiffs-Intervenors,v.PENNHURST STATE SCHOOL & HOSPITAL, et al.Appeal of Helen O'BANNON and the Department of Public Welfare.
No. 81-2381.
United States Court of Appeals,Third Circuit.
Argued Nov. 23, 1981.Decided Feb. 26, 1982.Rehearing Denied March 23, 1982.
LeRoy S. Zimmerman, Atty. Gen., Allen C. Warshaw, Deputy Atty. Gen., Chief, Special Litigation (argued), Robert B. Hoffman, Deputy Atty. Gen., Harrisburg, Pa., for appellants.
David Ferleger, Philadelphia, Pa., Penelope A. Boyd (argued), Philadelphia, Pa., for Terri Lee Halderman, et al.
Thomas K. Gilhool (argued), Frank J. Laski, Public Interest Law Center of Philadelphia, Philadelphia, Pa., for Pennsylvania Ass'n for Retarded Citizens, et al.
Alexander Ewing, Jr., Asst. U. S. Atty., Philadelphia, Pa., Louise A. Lerner, Asst. Atty. Gen., U. S. Dept. of Justice, Washington, D. C., for United States.
Before SEITZ, Chief Judge, and ALDISERT, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM and SLOVITER, Circuit Judges.
OPINION OF THE COURT
1
GIBBONS, Circuit Judge, with whom ALDISERT, WEIS, A. LEON HIGGINBOTHAM, Jr., and SLOVITER, Circuit Judges join:
2
The Honorable Helen O'Bannon, Secretary of the Department of Public Welfare of the Commonwealth of Pennsylvania, and that Department, appeal from an August 25, 1981, order of the District Court, 533 F.Supp. 631, holding them in civil contempt, after a hearing, for failure to comply with the terms of the court's orders of June 4, 1981, and July 14, 1981. Those orders directed that the Commonwealth of Pennsylvania pay into the Registry of the District Court estimated costs for the operation of the Office of Special Master created under the terms of prior orders in this protracted lawsuit. The plaintiffs have moved to dismiss the appeal from the contempt order for want of an appealable order. We conclude that we have appellate jurisdiction, and we affirm.
3
* This civil contempt proceeding arises out of a class action granting injunctive relief against the fact or conditions of confinement in Pennhurst State School and Hospital (Pennhurst) of persons suffering mental retardation. The action was commenced in May of 1974 by Terri Lee Halderman, a minor resident of Pennhurst. A motion by the United States to intervene as a plaintiff was granted in January, 1975, and the Pennsylvania Association for Retarded Citizens (PARC) successfully moved to intervene thereafter. The Commonwealth defendants are the Department of Public Welfare, the Secretary of the Department, and a number of state officials having responsibility for the habilitation of the mentally retarded in Pennsylvania and for the operation of Pennhurst. Additional defendants, not involved in the contempt proceedings, are five counties of southeastern Pennsylvania which, under Pennsylvania law, share responsibility with the Commonwealth for the habilitation of the mentally retarded. After extensive pretrial discovery and a lengthy trial, the District Court in December 1977 made findings of fact and conclusions of law holding that the rights of class members secured to them by the Pennsylvania Mental Health and Mental Retardation Act of 1966, Pa.Stat.Ann. tit. 50, §§ 4101-4704 (Purdon 1969) (MH/MR Act of 1966), by several federal statutes, and by the federal constitution were being violated.1 When the parties were unable to agree on an order which would remedy the continuing violations of law which the district court found, on March 17, 1978 the Court issued a permanent injunction ordering that Pennhurst eventually be closed and that suitable community living arrangements and necessary support services be provided for its residents. Particularly relevant to the contempt proceedings is the provision in the March 17, 1978 order for the appointment of a Special Master to supervise the planning and implementation of arrangements for placing Pennhurst residents elsewhere, and for the operation of Pennhurst until such placements were accomplished. Paragraph 8 of the District Court's March 17, 1978 order provided that
4
(t)he Master shall engage such staff of his or her own as he or she finds necessary, subject to the approval of the Court. The Master and his or her staff shall be compensated by the commonwealth defendants at a rate to be set by the court; the expenses of the mastership to be borne by the commonwealth defendants.2
5
All defendants appealed from the March 17, 1978 Order. An application to stay that order was denied by the District Court,3 and a panel of this Court denied a stay pending appeal. Before this Court the Commonwealth defendants opposed the March 17, 1978 order in all respects, but in particular because (1) the prospective relief which was ordered required the expenditure of Commonwealth funds, and (2) the appointment of a Special Master was improper. This Court expressly rejected both of those objections.4 For the most part we affirmed the District Court's order. We did, however, conclude that in ordering that Pennhurst be closed and in prohibiting all future admissions to that institution, the judgment went beyond what the law required. Instead, we held individual determinations of need were required for each present resident or future admittee.
6
(I)nstitutionalization is a disfavored approach to habilitation. Only where the court or the Master finds that an improved Pennhurst is the only appropriate place for individual patients should it be used. For all other patients, CLAs must be provided. We caution both the trial court and the Master that before ordering transfers to CLAs they must have assurances that the sanitary, staffing, and program deficiencies which were found at Pennhurst are not duplicated on a smaller scale in the CLAs.5
7
Thus both the March 17, 1978 judgment and our opinion and judgment affirming and modifying it, contemplated a significant ongoing role for the Special Master both with respect to the internal conditions at Pennhurst and with respect to returning Pennhurst inmates to a more normal environment. Even those judges who dissented from the provisions of the judgment requiring steps toward normalization of inmates rather than perpetual confinement made no objection to the use of a Special Master to bring about an internal improvement of the intolerable conditions at Pennhurst. The judgment on appeal therefore made no change in the provision in paragraph 8 of the District Court's March 17, 1978 judgment ordering the Commonwealth to pay the expenses of the Master. In that respect this Court was unanimous.
8
The March 17, 1978 order in relevant respects has been in place and unstayed at all times since. It was the clear understanding of the Court and all parties that the costs of the Special Master's office be borne by the Commonwealth. This clear understanding is confirmed by the fact that beginning in 1978, each of the District Court's periodic orders for payment of the cost of the Master was directed to the Commonwealth as such. In compliance with the mandate of this Court, the scope of the Master's duties was modified by a District Court order of April 24, 1980, which established an impartial hearing procedure and appointed a Hearing Master to provide an individual hearing for Pennhurst residents who desired to live in the community. No appeal was taken from the April 24, 1980 order, which modified the March 17, 1978 injunction. After the April 24, 1980 modification, the Court continued the prior practice of issuing periodic payment orders to the Commonwealth. No appeal was ever taken by the Commonwealth from any of these periodic payment orders. They all were honored by payment until the order of June 4, 1981.
9
On June 10, 1980 the Supreme Court granted certiorari from the prior judgment of this Court.6 Prior thereto no stay of our mandate had been sought. Thus the modification of the March 17, 1978 judgment by the April 24, 1980 District Court order establishing a Hearing Master was plainly within the District Court's jurisdiction and complied with our mandate. On June 30, 1980 the Supreme Court entered a partial stay of the judgment of the Court of Appeals "to the extent that the judgment mandates the movement of residents of the Pennhurst facility to 'appropriate community living arrangements' " but denied a stay in all other respects.7 Among the requests to the Supreme Court for a stay which were considered and denied were several addressed to the operation of the Office of Special Master.8 When advised of the Supreme Court's action on the application for a stay, the District Court on July 14, 1980 further modified the injunction only to the extent of directing the Hearing Master, provided for in the April 24, 1980 order, to determine whether transfers out of Pennhurst were voluntary. All involuntary transfers to community living arrangements were terminated pending a further ruling by the Supreme Court.9 No appeal was taken from this order, which enlarged the role of the Masters slightly.10 After entry of the July 14, 1980 order, the Commonwealth continued to make payments in compliance with the Court's periodic payment orders, until June of 1981.
10
On April 20, 1981 the Supreme Court reversed the judgment of this Court and remanded with a direction for further proceedings in conformity with the opinion of the Court.11 The Supreme Court's judgment did not affect the District Court's March 17, 1978 judgment as modified by the April 24, 1980 and July 14, 1980 orders. Insofar as those orders deal with the expense of the Special Master's office, those orders have been in effect at all relevant times. Moreover, the Court's periodic payment orders of June 4, 1981 directing the Commonwealth to pay $67,746.08 have not been appealed by anyone, and the Commonwealth as such has not appealed the July 14, 1981 periodic payment orders. In the opinion on remand from the Supreme Court, filed simultaneously herewith, we again substantially affirm the March 17, 1978 judgment, including its provisions for use of a Special Master. The civil contempt, therefore, is of the orders of June 4, 1981 and July 14, 1981 which do no more than fix the amount and time of payment of the unreversed provision in paragraph 8 of the March 17, 1978 order that the expenses of the Masters' offices shall be borne by the Commonwealth.
II
11
The Commonwealth of Pennsylvania appropriates funds annually for the Department of Public Welfare, of which Pennhurst is a part. For the fiscal years 1978-79, 1979-80 and 1980-81 general appropriations were made for State Centers for the Mentally Retarded, and from those appropriations payments were routinely made for the support of the Masters' offices. Sometime in late 1980 or early 1981 someone in the Department of Public Welfare conceived the idea of separating out from the general appropriation for State Centers for the Mentally Retarded a distinct appropriation for the operation of the Masters' offices. Secretary O'Bannon decided to depart from the prior practice, and was successful in having a separate item for the Masters' offices included in the Governor's budget requests. In testimony before the legislature O'Bannon voiced strong objections to the use of the Masters.12 She explained that the anticipated cost was $900,000, and this colloquy took place:
12
REPRESENTATIVE COHEN: I'm just curious as to what power we have here, if any. Suppose we cut it to $450,000? What would happen? We would be ordered to increase it to $900,000.00?
13
SECRETARY O'BANNON: No. Because you're not defendants on the suit.
14
REPRESENTATIVE COHEN: You as the Department?
15
SECRETARY O'BANNON: I have no authority to increase it. I do not appropriate money.
16
REPRESENTATIVE COHEN: So therefore, you are saying we do have authority to cut or increase?
17
SECRETARY O'BANNON: Yes. And you always have that authority. Judge Broderick cannot take that away from you.
18
REPRESENTATIVE COHEN: And Judge Broderick has no reasonable means of recourse?
19
SECRETARY O'BANNON: Judge Broderick is a very clever jurist. I would not like to guess his means of recourse.
20
REPRESENTATIVE COHEN: I am curious who would go to jail.
21
REPRESENTATIVE ARTY: I will take you in to protective custody.
22
REPRESENTATIVE COHEN: And we have to pay the salaries?
23
SECRETARY O'BANNON: I have been ordered to send a check every month.
24
REPRESENTATIVE COHEN: We have no recourse other than to slash the budget from $900,000.00? If we don't want you to go to jail?
25
SECRETARY O'BANNON: You have all the recourse and power at your command and we will see what we will see. I am a risk taker. I wouldn't be in this job if I weren't.
26
16a-19a.
27
At the time of this colloquy the Supreme Court had not yet decided the case pending before it on certiorari. On March 2, 1981, the day before O'Bannon's testimony, the district judge, dissatisfied with the slow pace of implementation of the order that community living arrangements be found for qualified and interested Pennhurst residents, had entered a supplemental order calling for the provision of additional services to class members within a specified time frame.13 No notice of appeal was filed with respect to the March 2, 1981 order,14 but in the testimony before the legislature Secretary O'Bannon expressed her dissatisfaction with it. Indeed, she testified that if the Court's order went into effect and there were not appropriate support facilities "(w)e will not comply and we will be in contempt. I will not dump patients out of Pennhurst for any court order." 23a. At a later point in the legislative hearing the focus of the inquiry returned to the Office of Special Master, and this colloquy occurred:
28
REPRESENTATIVE PITTS: Just one other question. The Office of Special Master, what did you say or what do you think would happen if we didn't not find (sic) this?
29
SECRETARY O'BANNON: If you put no money in this line item, we would continue to pay it as we are presently being ordered to do out of the Pennhurst budget.
30
REPRESENTATIVE PITTS: You would be obligated to do that?
31
SECRETARY O'BANNON: I believe so.
32
MR. BROWN: I would like to follow up on what Representative Pitts was asking you, Madame Secretary, and take a little step further. This body has been known on occasion to write into a bill that thou shalt not. What would happen if we let the line item sit and say thou shall not pay any of Pennhurst's money to the Master?
33
REPRESENTATIVE DeVERTER: We will go to jail.
34
REPRESENTATIVE SIRIANNI: I am willing to go to jail.
35
MR. BROWN: I would go, too. I don't expect you to answer that....
36
30a-31a. There followed a brief discussion of the Willowbrook litigation in New York, and the fact that the New York legislature had omitted a line item in an appropriation for the funding of a hearing panel.15 Secretary O'Bannon explained:
37
On one level, I think it is a different situation because we are under litigation and this is an arm of the court. We have not consented. In Willowbrook, there was a consent decree in creation of a panel there. I would not be optimistic for this coming year that the technique would work, but maybe in subsequent years. But I am an optimist to believe that the Supreme Court is going to rule in favor of the Commonwealth and there will be no master and no Judge Broderick order after June 30, 1981. All of this discussion may be just for our own entertainment.
38
32a-33a.
39
Despite O'Bannon's dubiety about whether Mr. Brown's suggested technique would work, the Pennsylvania General Assembly accepted his suggestion. It appropriated, as a line item appropriation, $35,000 for the masters, adding:
40
It is the intent of the General Assembly that this appropriation be used for shutdown costs and that no other funds of the Commonwealth be spent for these functions.
41
That appropriation bill was passed by the House on June 17 and the Senate on June 22 and signed by the Governor on July 1, 1981. As late as June 22, 1981 O'Bannon and others in the Department of Public Welfare discussed the possibility of requesting a veto of the legislative expression of intention, but no steps were taken to that end.16
42
Meanwhile, before the appropriations bill became law, the district court's June 4 orders directing payment of the expenses of the masters by July 1 was entered and served on the Commonwealth and O'Bannon. The Department's general counsel, on June 23, 1981, sent a memorandum to the Department's Comptroller advising him that the payments required by the June 4 orders should not be made. (Exhibit P. 34). In a letter dated June 29, 1981 the attorney for the Commonwealth defendants informed the court that the Commonwealth would pay no more for the Masters' expenses for the fiscal year July 1, 1981-July 30, 1982 than $35,000. Defendant Howse, a Deputy Secretary of the Department, on July 1, 1981 sent the Comptroller a conflicting instruction to comply with the June 4 orders (Exhibit P. 36), but the next day O'Bannon concluded that those orders should not be obeyed. The general counsel of the Department thereupon instructed the Comptroller to ignore Howse's instruction and to withhold payment. (Exhibit P. 37).
43
It appears, therefore, that as soon as the appropriations bill became law the Department of Public Welfare, acting through some of its highest officers, took the position that they would not obey the June 4 orders, and so advised the court. No Rule 60(b) motion was made for relief from either the June 4 payment orders or the underlying provisions of the March 17, 1978, April 24, 1980, July 14, 1980 or March 2, 1981 injunctions specifying the Masters' duties and the Commonwealth's obligation to fund their services.
44
When advised of the Commonwealth's position, the original plaintiffs moved for the issuance of an order directing the Commonwealth defendants to show cause why they should not be held in contempt. The moving papers referred to the March 17, 1978, April 24, 1980 and June 4, 1981 orders and to the letter from counsel for the Commonwealth defendants informing the court that no funding for the masters would be made beyond $35,000. The defendants' answer admitted the facts alleged, but denied that they amounted to a contempt. An order to show cause issued, and on July 24, 1981 a hearing was held. At the hearing, counsel for respondents O'Bannon and the Commonwealth stated on the record that they were not contesting the underlying validity of the court orders. Transcript of July 14, 1981 Hearing at 90-100. They have consistently maintained that position. Before this court they assert:
45
The sole issue (in the contempt proceeding) was defendants'/appellants' ability to comply with District Court orders requiring them to pay the expense of court-appointed masters. The propriety of those orders in and of themselves was not at issue.
46
Appellants' Reply Brief at 1.
47
O'Bannon did not testify in the contempt proceeding, but on her behalf it was urged that she acted in good faith but was prevented from obeying the court's orders by forces beyond her control. The district court, on the evidence presented, found that she was not acting in good faith, but had instigated the action of the legislature for the purpose of creating an excuse for dismantling the Masters' offices. 61a. The court found that O'Bannon and the Department of Public Welfare of the Commonwealth were in contempt of the June 4, 1981 and July 14, 1981 orders, and ordered:
48
1. The Department of Public Welfare and the Honorable Helen O'Bannon, Secretary of the Department of Public Welfare, shall pay into the Registry of this Court civil fines totalling $10,000 per day for each day after September 2, 1981, that full payment has not been made pursuant to this Court's Orders of June 4, 1981 and July 14, 1981.
49
2. In the event the Department of Public Welfare and the Honorable Helen O'Bannon, Secretary of the Department of Public Welfare, do not make full payment pursuant to the Orders of June 4, 1981 and July 14, 1981 on or before September 2, 1981, the plaintiffs shall take such steps as are legally necessary to add the Honorable R. Budd Dwyer, Treasurer of the Commonwealth of Pennsylvania, as a party defendant in this action.
50
3. The Department of Public Welfare and the Honorable Helen O'Bannon, Secretary of the Department of Public Welfare, shall appear before this Court on Thursday, October 15, 1981, at 9:30 A.M. in Courtroom 10B, United States Courthouse, 601 Market Street, Philadelphia, Pennsylvania, to show cause why the Court should not impose on them a compensatory fine in an amount sufficient to compensate the plaintiffs for the costs and counsel fees incurred in the preparation and trial of these contempt proceedings.
51
4. For the purpose of ascertaining the amount of the compensatory fine sufficient to compensate plaintiffs for costs and counsel fees, the plaintiffs shall submit affidavits on or before October 1, 1981, setting forth in detail the time expended by counsel, the matter upon which the time was expended, and the costs incurred in the preparation and trial of these contempt proceedings.
52
72a-73a. From this order O'Bannon and the Commonwealth appeal. Paragraph 3 of the order establishes that its intended effect is that the Commonwealth should pay the $10,000 a day civil fine. The parties agree that the payments required by the June 4 and July 14, 1981 orders have never been made, and that the Commonwealth has, since September 2, 1981, paid into the Registry of the District Court fines at the rate of $10,000 a day.17 By order of January 8, 1982, the District Court relieved the Commonwealth of the obligation to continue to pay into the Registry of the Court the coercive and compensatory civil fine and purged the Commonwealth Department of Public Welfare and Secretary O'Bannon of civil contempt.
III
53
The provisions of the District Court's order and the nature of a civil contempt proceeding present difficult questions of appellate jurisdiction and assuming such, of scope of review.
54
* Appellees suggest that this appeal must be dismissed because it is from a non-final unappealable order, and rely on the recent en banc decision of this court in Croker v. Boeing Co., 662 F.2d 975, 980 (3d Cir. 1981). In Croker v. Boeing Co., we held that "a judgment in a case such as this may not be considered final for purposes of appeal until a district court has determined the extent of liability for any attorney's fees to be awarded." Id. at 983. Because paragraphs 3 and 4 of the order appealed from leave open the question whether costs and counsel fees shall be awarded to the plaintiffs, and if so, the amount thereof, appellees argue that Croker v. Boeing Co. is dispositive.
55
Croker v. Boeing Co. is, however, distinguishable both on its facts and for the underlying policy reasons on which it is premised. That case presented the issue whether an appeal in an action involving money damages could be taken where the only issue unresolved was the amount of attorney's fees to be awarded. The holding of the court that it could not was based on two policy reasons: making certain the time when an appeal must be taken; and bringing before a single appellate panel all claims in a case at one time.
56
In this case, the primary issue has been the injunctive relief to which plaintiffs are entitled. Although we do not hold that an appeal from an order of civil contempt in an injunction action comes within the language of 28 U.S.C. § 1292(a) permitting immediate appeal from orders granting or denying injunctive relief, an examination of the history of this action shows why the Croker v. Boeing Co. holding is inapplicable. For example, the appeal from the 1978 order was heard by us, by the Supreme Court, and by us on remand from the Supreme Court, while applications for attorneys fees and costs remained, and still remain, undetermined in the District Court. It is quite likely in a situation such as presented here, where the contempt arose after the grant of a permanent injunction, that we will in the future be called upon to review whatever action is taken with respect to fees in the underlying action. Because Section 1292(a) permitted the earlier appeal it was never possible to achieve the policy of Croker v. Boeing Co. of bringing all claims in the case before a single appellate panel at one time.
57
Furthermore, civil contempt, like the injunctions and orders in the nature of injunctions which are appealable under section 1292(a), is coercive in an ongoing sense. If the order were to remain unreviewed while lengthy hearings went forward on fee applications, possible irreparable consequences to the parties might result. For example, a civil coercive contempt order committing a party to jail which represented the final issue on the merits could remain unreviewed while fee hearings went forward, or even worse, while no action was undertaken to bring the fee matter to a speedy resolution.
58
Finally, in a recent case we have explained that the holding in Croker v. Boeing Co. represents an interpretation of the single judicial unit rule embodied in Rule 54(b), and not an interpretation of finality governed by 28 U.S.C. § 1291. See de Mouy v. Ingvoldstad, 664 F.2d 21, 22 (3d Cir. 1981). See also Sibbach v. Wilson & Co., Inc., 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479 (1940) (civil contempt order reviewed as a final judgment). Since Rule 54(b) is concerned with appeals before the disposition of fewer than all of the claims or parties, it is questionable whether it has any applicability here, where the contempt was entered after the grant of a permanent injunction and no other substantive relief is sought. For all of these reasons, we conclude that the rule announced in Croker v. Boeing does not require that the appeal be dismissed. We turn therefore to the scope of review.
B
59
Although the appellants have urged otherwise, it is plain that the order appealed from is a civil, not a criminal contempt judgment. For civil contempt orders the settled rule is that, when directed against parties, such orders are interlocutory and unreviewable except incident to an appeal from a judgment otherwise appealable. E.g., McCrone v. United States, 307 U.S. 61, 59 S.Ct. 685, 83 L.Ed. 1108 (1939); Fox v. Capital Co., 299 U.S. 105, 57 S.Ct. 57, 81 L.Ed. 67 (1936); Doyle v. London Guarantee Co., 204 U.S. 599, 27 S.Ct. 313, 51 L.Ed. 641 (1907); Latrobe Steel Co. v. United Steelworkers, 545 F.2d 1336, 1340 (3d Cir. 1976); Firemen's Fund Insurance Co. v. Myers, 439 F.2d 834, 837 (3d Cir. 1971). O'Bannon and the Commonwealth contend that because the contempt order here was entered in a post-permanent injunction proceeding, it is final and appealable because there is no other judgment for which an appeal may lie. However, those cases which recognize the reviewability of post-judgment civil contempts narrowly circumscribe the issues which may be considered. Only issues which could not otherwise be subject to appellate review by the ordinary processes of the Federal Rules have been considered. In Penfield Co. v. SEC, 330 U.S. 585, 67 S.Ct. 918, 91 L.Ed. 1117 (1947), and Lamb v. Cramer, 285 U.S. 217, 52 S.Ct. 315, 76 L.Ed. 715 (1932), for example, the Supreme Court reviewed cases in which, on a party's motion for coercive civil contempt to enforce a final judgment, a lower court refused to enter an effective coercive order. See also, Stringfellow v. Haines, 309 F.2d 910 (2d Cir. 1962). In Reed v. Cleveland Board of Education, 607 F.2d 749 (6th Cir. 1979), the Court of Appeals considered contentions that one contempt order was entered without notice and a hearing, and that another was entered for violation of an order which did not give fair notice of prescribed conduct. In Vincent v. Local 294, International Brotherhood of Teamsters, 424 F.2d 124 (2d Cir. 1970), the Court of Appeals, although dismissing the appeal as moot, suggested that it had jurisdiction to consider the question whether the contemnor had in fact disobeyed the order. None of those cases suggest any erosion of the settled rule that the merits of the underlying order may not be called into question in a post-judgment civil contempt proceeding. Oriel v. Russel, 278 U.S. 358, 49 S.Ct. 173, 73 L.Ed. 419 (1929).
60
There are strong policy reasons for limiting review, even in post-final judgment contempt proceedings, to matters which do not invalidate the underlying order. If a civil contemnor could on appeal raise any substantive defense to the underlying order by disobeying it, the time limits specified in Fed.R.App.P. 4(a) would easily be set to naught. In cases such as this, where a timely appeal was taken from at least one of the underlying orders, recognizing the possibility of relitigation of the merits of that order presents the prospect of perpetual relitigation, and thus destroys the finality of judgments of both appellate and trial courts. These considerations militate strongly against the pronouncement of an interpretation of 28 U.S.C. § 1291 which would permit review in a civil contempt proceeding of any attack on validity which that party could raise or could have raised by an appeal reviewing the underlying order.
61
In this appeal O'Bannon and the Commonwealth concede that they have disobeyed the June 4 and July 14 orders. They concede that those orders gave them fair notice. They make no procedural objection to the contempt hearing. They concede, as well, that for purposes of this proceeding those orders are valid. By this last concession they apparently seek to set themselves outside the rule of Oriel v. Russel, supra, and outside the ambit of the policy reasons discussed in the preceding paragraph. Their contention is that the change in Pennsylvania law made on June 23, 1981, when the Governor signed the appropriation bill containing the legislature's mandate to disobey the injunction requiring that the Commonwealth fund the Masters' offices, is a circumstance which could not be brought to this court's attention by appeal from any order other than this civil contempt order. That contention is inaccurate. At the time the Secretary and the Department of Public Welfare made the deliberate and considered choice to advise the Court that it intended to disobey the June 4, 1981 payment order it was open to those defendants to move before the District Court under Rule 60(b)(5) or (6) for relief from paragraph 8 of the March 17, 1978 judgment on the ground that the action of the Pennsylvania legislature justified relieving the Commonwealth from the obligation there imposed. Had such a motion been made and denied, an appeal of right could have been carried here pursuant to 28 U.S.C. § 1292(a)(1). Thus it cannot be said that this is a case in which no other route to appellate review except self-help was available to the contemnors. Moreover by resorting to self-help in a situation where a post-judgment change in the law is arguably a reason for relief from the judgment, a party subject to that judgment deprives the other side of the notice and opportunity to be heard which Rule 60(b) would otherwise require, and of the protection of the provision in that rule that "(a) motion under this subdivision (b) does not affect the finality of the judgment or suspend its operation." The rule contemplates consideration by the trial court of the competing equities, of the strengths and weaknesses of the parties' positions, and of the imposition of conditions for relief from a judgment. It contemplates that an appeal will come before us with a record reflecting those considerations. The self-help route leaves the trial court with no alternative except restoration of the status quo ante bellum by a coercive contempt order.
62
Had a Rule 60(b) motion been made, the District Court could have been informed of alternative means, if any, for the performance of those functions now being carried out by the Special Master and Hearing Masters, and would have been able to make an informed decision as to the advisability of modifying paragraph 8 of the March 17, 1978 judgment. Instead, as the colloquy before the legislature and O'Bannon's countermand of Assistant Secretary Howse's direction to the Comptroller to honor the June 4 payment orders amply demonstrate, the Commonwealth Department of Public Welfare deliberately chose to avoid an orderly presentation of the contention that the legislature's action warranted some alternative to paragraph 8, and to force an immediate confrontation. Even in responding to the order directing that they show cause why they should not be held in contempt neither O'Bannon nor the Commonwealth filed a paper with or made an argument to the district court which could by appellate ingenuity be tortured into a request for consideration of a modification of paragraph 8. Instead, their position was that the action of the Pennsylvania legislature relieved them of the obligation to obey that paragraph. Since the question whether the action of the Pennsylvania legislature requires a modification of the underlying orders imposing on the Commonwealth the expenses of the Masters offices could have been raised in a Rule 60(b) motion, and we would have appellate jurisdiction over an order granting or denying Rule 60(b) relief, we hold that the effect on the underlying orders of the appropriations act may not be considered in an appeal from a civil contempt order. Any other holding would be an open invitation to any party subject to an injunction to resort to self-help whenever in its view some change in the law warranted relief from a judgment.
63
O'Bannon and the Commonwealth urge that even if the action of the Pennsylvania legislature could have been called to the trial court's attention by a Rule 60(b) motion, we should at least consider on this appeal their contention that the appropriations act made performance of the funding obligation "impossible." For this contention they rely upon Maggio v. Zeitz, 333 U.S. 56, 68 S.Ct. 401, 92 L.Ed. 476 (1948). For several reasons that case is not dispositive. In the first place, the Supreme Court's appellate jurisdiction in reviewing a decision of a federal court of appeals does not depend upon whether the order is final or interlocutory, but only upon whether the case was properly in the court of appeals. 28 U.S.C. § 1254. Maggio v. Zeitz involved a contempt of a turnover order in a bankruptcy proceeding. The contempt proceeding was specifically authorized by the former Bankruptcy Act. 11 U.S.C. § 11(a)(16) (repealed 1979). Appellate jurisdiction in the Second Circuit turned not on the predecessor to 28 U.S.C. § 1291, but on the former 11 U.S.C. § 47(a) (repealed 1979), which authorized review of orders "in proceedings in bankruptcy", whether interlocutory or final. See In re Luma Camera Service, Inc., 157 F.2d 951 (2d Cir. 1946), vacated, Maggio v. Zeitz, 333 U.S. 56, 68 S.Ct. 401, 92 L.Ed. 476 (1948). (Review of contempt proceeding in the matter of Luma Camera Service, Inc., bankrupt; Maggio, contemnor). Thus a final order from the District Court was not a necessary predicate to appellate jurisdiction in Maggio v. Zeitz.18 Moreover, the "impossibility" of which the Court speaks in that case is literal physical impossibility of compliance, and not, as here claimed, a subsequent change in the law allegedly making compliance illegal though physically possible.19 Whether in cases of literal physical impossibility of compliance a party to a final judgment must raise that contention in a Rule 60(b) motion for relief from its terms in order to seek appellate review is a question of first impression.20 We hold that a party may raise such a contention in defense to a civil contempt citation. We also hold that in the circumstances here, where the contemnor participated in effectuating the change in the law which is alleged to establish a legal impossibility, sound policy does not permit the by-passing of the orderly route to appellate review provided by Rule 60(b).
64
Our insistence that relief from the judgment should first be presented to the District Court in an orderly manner should not be construed as an expression of hostility to the spirit of economy voiced by Secretary O'Bannon and the Pennsylvania Legislature. If, in fact, the Masters' operations are now, as O'Bannon told the Legislature, redundant, the District Court must take the redundancy into account in ruling on a Rule 60(b) motion to modify the injunction. When the Court acted on March 17, 1978 the Commonwealth defendants, the County defendants, the Pennhurst staff and some parents of inmates opposed any significant relief. In face of such intransigence few, if any, alternatives were available to the Court than to resort to the use of Court appointed monitors.21 If the situation has changed significantly the defendants remain free even now to make a Rule 60(b) motion for relief from the judgment. If such a motion is made, we are confident that a less elaborate monitoring system will be carefully considered by the District Court.
C
65
One remaining objection to the civil contempt order, not presented to the District Court and not briefed by the appellants, but adverted to at oral argument of the appeal, remains to be considered. Fed.R.Civ.P. 53(a), dealing with the use of masters, provides in part:
66
The compensation to be allowed to a master shall be fixed by the court, and shall be charged upon such of the parties ... as the court may direct. The master shall not retain his report as security for his compensation; but when the party ordered to pay the compensation allowed by the court does not pay it after notice and within the time prescribed by the court, the master is entitled to a writ of execution against the delinquent party. (Emphasis supplied).
67
At oral argument the suggestion was made that the italicized language may mean that for recovery of expenses for the masters offices a writ of execution is a preferred remedy which should be resorted to before holding a state officer or the Commonwealth in contempt. Such an issue obviously would qualify as one which could not be raised either in an appeal from the underlying order or by a Rule 60(b) motion, and its consideration is not precluded by the analysis in Part III B above. There is, however, an insurmountable barrier to its consideration at this time. Ordinarily we do not consider as reasons for a reversal of an order matters which were not first presented to the District Court. E.g., Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1975); Caisson Corp. v. Ingersoll-Rand Co., 622 F.2d 672, 680 (3d Cir. 1980); Teen-Ed Inc. v. Kimball International Inc., 620 F.2d 399, 401 (3d Cir. 1980); Toyota Industrial Trucks USA, Inc. v. Citizen's National Bank of Evans City, 611 F.2d 465 (3d Cir. 1979). That rule is not a bar to our consideration of plain error. E.g., Weaver v. Bowers, 657 F.2d 1356, 1361 (3d Cir. 1981); Switlik v. Hardwicke Co. Inc., 651 F.2d 852, 857 (3d Cir. 1981); United States v. Palmeri, 630 F.2d 192, 201 (3d Cir. 1980), cert. denied, 450 U.S. 967, 101 S.Ct. 1484, 67 L.Ed.2d 616 (1981). The District Court's order cannot be so considered, however, for even if execution is a preferred remedy, an issue we need not decide, its choice or rejection would require the exercise of an informed discretion. No opportunity was ever presented to the trial court to exercise such discretion, since the Commonwealth defendants never urged a writ of execution as an alternative remedy.
IV
68
The contention that the change in Pennsylvania law is a reason for relieving the defendants of the obligation to fund the Masters' offices will not be accepted as a defense to civil contempt in this case. It must be presented to the District Court in a Rule 60(b) motion for relief from the judgment. No other defense to the contempt order was advanced in the District Court. The order appealed from will, therefore, be affirmed.
69
ALDISERT, Circuit Judge, concurring.
70
I join in the majority opinion, except for the small portion of Part I that relies on our prior adjudication in this case as if it were a binding precedent. I believe it is more accurate merely to state that a previous majority opinion of this court, 612 F.2d 84 (3d Cir. 1979) (in banc), supporting a judgment subsequently reversed by the Supreme Court, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), rejected an attack on the district court's appointment of a special master. See 612 F.2d at 111-12. In the face of the Supreme Court's reversal, I am unwilling to accord any precedential vitality to that opinion.
71
Nevertheless, I join the majority because I am unwilling to assume a posture that would put this court out of touch with reality. It would serve no useful purpose to conduct an academic exercise that would further prolong these proceedings, in which counsel for all the litigants have shown more interest in seeking judicial endorsement of their idiosyncratic views of the law than in properly resolving a truly difficult dispute.
72
This is not an ordinary contempt proceeding. Rather, it is a vehicle chosen by the district judge to obtain Commonwealth financing for his employment of masters to implement his remedy. That financing has now been secured up to June 1982. To hold now that the appointment of the masters was invalid ab initio would serve no realistic function. The work has been performed, the funds have been expended, and there is simply no way to undo the work performed by the masters or to return the funds to the Commonwealth. Moreover, it would be counterproductive to readjust the status or classification of the Pennhurst residents who have been processed by the masters. It would have been preferable, however, for this court to have granted the motion for a stay so that the issue could have been resolved before the expenditure of massive funds in the form of civil contempt fines. I voted for a stay, but both the majority of this court and the Supreme Court ruled otherwise. It also would have been preferable to expedite these proceedings before a panel. I voted against an initial hearing in banc because of the scheduling and other delays inherent in our in banc procedure, but again a majority of this court voted otherwise.
73
Accordingly, because I am disenchanted with the establishment of the masters' apparatus, I believe that we should remove these proceedings from the appellate level and return them to the district court as soon as possible. Appellants then may move for relief under Fed.R.Civ.P. 60(b), allowing the district court to act immediately to have its remedy implemented by state officers under state law.
74
It is for these very pragmatic reasons that I join the majority. I do this to give Secretary O'Bannon the earliest possible opportunity to make a presentation on the basis of changed circumstances. Moreover, I would have our mandate issue forthwith so that the proceedings in the district court would not be further delayed.
75
GARTH, Circuit Judge, concurring in part and dissenting in part, with whom JAMES HUNTER, III, Circuit Judge, joins.
76
I agree with the majority that this court has jurisdiction over the contempt appeal at 81-2381. I reach this conclusion by a different route from the majority, however, for I believe that Latrobe Steel Co. v. United Steelworkers, 545 F.2d 1336, 1340 (3d Cir. 1976), and United States v. Spectro Foods Corp., 544 F.2d 1175, 1179 (3d Cir. 1976), establish that this court has jurisdiction to decide the validity of the contempt order in conjunction with the appeals of the district court's orders of March 17, 1978, and July 14, 1981. As for the merits of the appeal in Nos. 81-2381, I would hold that because the underlying orders appointing a Master at Pennsylvania's expense were improper, the contempt order must fall as well.
I.
77
Considered by itself, the district court's August 25, 1981, contempt order would not be appealable. It is not an "injunction" and thus there is no appellate jurisdiction under § 1292. Nor is it a "final order" appealable under § 1291. Under this court's decision in Croker v. Boeing Co. (Vertol Div.), 662 F.2d 975 (3d Cir. 1981) (en banc), so long as attorney's fees remain undetermined, an order is not "final" for our jurisdiction to attach. In this case, the district court's order holding the Commonwealth defendants in contempt reserved decision on whether the plaintiffs should be awarded attorney's fees incurred in conjunction with the contempt proceedings. In my view, Croker is controlling here, and undermines any argument that this court has jurisdiction under § 1291 to hear the appeal of the district court's order of August 25, 1981.
78
Nevertheless, I believe that the contempt appeal is properly before this court under Latrobe Steel Co. v. United Steelworkers, 545 F.2d 1336 (3d Cir. 1976), United States v. Spectro Foods Corp., 544 F.2d 1175 (3d Cir. 1976), and many other similar cases. In those cases, a preliminary injunction had been issued, followed by an order holding one of the parties in contempt for violating the injunction. In such cases, where an appeal has been taken from the preliminary injunction, this court has repeatedly held that
79
although an adjudication of civil contempt is not ordinarily appealable (until a "final decision" has been rendered), it is well established that an appellate court may consider the matter of a civil contempt in connection with an appeal from the underlying preliminary injunction.
80
Latrobe, supra, 545 F.2d at 1340 (footnote omitted). Accord, Spectro Foods, supra, 544 F.2d at 1179. The logic of these decisions appears to rest on the principle that, because civil contempt is remedial, not punitive, in nature,
81
the reversal of the (preliminary injunction) decree ... does more than destroy the future sanction of the decree. It adjudges that it never should have passed; that the right which it affected to create was not right at all. To let the liability stand for past contumacy would be to give the plaintiff a remedy not for a right but for a wrong, which the law should not do.
82
Salvage Process Corp. v. Acme Tank Cleaning Process Corp., 86 F.2d 727, 727 (2d Cir. 1936). See also United States v. United Mine Workers, 330 U.S. 258, 295, 67 S.Ct. 677, 696-97, 91 L.Ed. 884 (1947); Bethlehem Mines Corp. v. United Mine Workers, 476 F.2d 860, 864-67 (3d Cir. 1973).1
83
This "well-established" doctrine provides an entirely sufficient basis for jurisdiction over the present contempt appeal.2 In this case the underlying injunctive orders-the court's permanent injunction of March 17, 1978, and the related payment orders of July 14, 1981, issued pursuant to that injunction-have been timely appealed. Thus, to paraphrase Latrobe, although the district court's contempt order of August 25, 1981, would not ordinarily be appealable, it is clear that this court may consider that contempt order in connection with the appeal from the underlying injunctive orders of March 17, 1978, and July 14, 1981.3
II.
84
As I have indicated in my separate opinion in the appeals at Nos. 81-2448 and 81-2449, the district court's orders of July 14, 1981, requiring payment to the Special Master and the Hearing Master, were improper. And as the underlying orders upon which the contempt was predicated cannot stand, neither can the adjudication of contempt itself be upheld. In accordance with the views that I have expressed in this opinion, and in my separate opinions in the merits appeals (Nos. 78-1490, -1564, -1602) and the payment orders (Nos. 81-2448 and 81-2449), I would remand all the cases to the district court with two instructions. First and foremost, I would direct the district court to enter an order doing no more than enjoining the Commonwealth to comply with its own statutes, regulations and decisional laws affecting the care of the plaintiffs, thereby discontinuing the offices of the Special Master and the Hearing Master. Second, I would direct the district court to return to the Commonwealth any as-yet unspent moneys accumulated from the $10,000-a-day civil contempt fine, and, if requested by the Commonwealth, to resolve any questions concerning moneys already spent.4
85
Thus to the extent that the majority holds that appellate jurisdiction attaches to the contempt appeal at 81-2381 I am in agreement with that determination, even though the basis of my agreement is substantially different than the theory on which the majority proceeds. To the extent, however, that the majority has declined to discharge the contempt I must respectfully dissent for the reasons which I have specified.
86
SEITZ, Chief Judge, dissenting.
87
I do not believe the contempt order of August 25, 1981 is appealable, and would dismiss the appeal for lack of appellate jurisdiction. I agree with the majority that the basis of our jurisdiction in the appeals from the district court's order of March 17, 1978 is 28 U.S.C. § 1292(a)(1) (1976). Because plaintiffs' attorneys' fees incurred in securing the injunction have not been set, we do not have jurisdiction of those appeals under 28 U.S.C. § 1291 (1976). See Croker v. The Boeing Co. (Vertol Division), 662 F.2d 975, 983-84 (3d Cir. 1981) (in banc).
88
I believe that because the 1978 order is not a final decision under section 1291, we do not have jurisdiction to review the contempt order. It has long been settled that "except in connection with an appeal from a final judgment or decree, a party to a suit may not review upon appeal an order fining or imprisoning him for the commission of civil contempt." Fox v. Capital Co., 299 U.S. 105, 107, 57 S.Ct. 57, 58, 81 L.Ed. 67 (1936). See Fireman's Fund Insurance Co. v. Myers, 439 F.2d 834, 838 (3d Cir. 1971). See also Lamb v. Cramer, 285 U.S. 217, 52 S.Ct. 315, 76 L.Ed. 715 (1932) (post-final judgment contempt order appealable). Because the contempt order in this case precedes final judgment, I disagree with the majority's conclusion that it is appealable under section 1291, and believe that appellate review of the contempt order must await final judgment in the principal action. As in any case where a civil contempt order is not immediately appealable, the result may cause hardship to the contemnors. Nonetheless, I believe the appeal from the contempt order must be dismissed.
89
The Commonwealth defendants suggest that if we lack appellate jurisdiction to review the contempt order, then a writ of mandamus should issue. I do not believe the circumstances of this case justify this extraordinary remedy. See Rodgers v. United States Steel Corp., 508 F.2d 152, 161 (3d Cir.), cert. denied, 420 U.S. 969, 95 S.Ct. 1386, 43 L.Ed.2d 649 (1975).
SUR PETITION FOR REHEARING
90
GIBBONS, Circuit Judge.
91
The Commonwealth Defendants have filed a petition for rehearing from our en banc decision filed on February 26, 1982. They make two contentions worthy of comment.
92
First, Paragraph 7 of the petition states that the District Court never ruled on motions filed by each of the defendants to amend or alter the District Court's Order of March 2, 1981, and that they therefore "justifiably believed that filing a Rule 60(b) motion in relation to this matter would be a futile act." This statement is significantly misleading.
93
There was no connection between the provisions in the March 2, 1981 Order of the District Court, to which a motion to amend or alter was addressed, and the June 4, 1981 and July 14, 1981 payment orders which were the orders that the Commonwealth disobeyed.
94
The March 2 Order provided for additional services to class members. The motion to amend or alter that order, filed on March 11, 1981, basically quarrels with the District Court's schedule for provision of those services, and with the meaning of the Supreme Court's partial stay of the previous order of this court. The motion to amend or alter the March 2 order challenges neither establishment of the Masters offices, nor the Commonwealth's obligation to fund them.
95
On August 25, 1981 the Commonwealth defendants were held in contempt for disobeying two orders directing payment of costs for the Masters. In their appeal from the judgment of contempt, the Commonwealth's defense was impossibility of performance based on a change in Pennsylvania law. This argument was not presented in the March 11 motion to alter or amend the judgment. Indeed it could not have been since the Pennsylvania legislature only passed the statute disallowing further funding of the Masters in June of 1981. The March 11 motion thus does not undermine the conclusion in the opinion of the court that the Commonwealth defendants never appealed or moved to reconsider Paragraph 8 of the District Court's March 17, 1978 judgment, but instead simply resorted to self-help. For the reasons set forth in the opinion of the court, a Rule 60(b) motion was necessary.
96
Second, the petition for rehearing argues that the Supreme Court's recent opinion in White v. New Hampshire Department of Employment Security, --- U.S. ----, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), undercuts this court's recent holding in Croker v. Boeing Co., 662 F.2d 975 (3d Cir. 1981) (en banc), that where a decision on attorney's fees is outstanding, there is not a final order which can be reviewed by the Court of Appeals. Appellants are correct that the holding of White v. New Hampshire Department of Employment Security that a request for attorney's fees raises legal issues collateral to the main cause of action overrules the portion of our opinion in Croker dealing with appealability when application for attorney's fees are not fully determined. Since the Croker rule no longer has any vitality, litigants in this circuit should rely on our previous holdings in DeLong Corp. v. Raymond Intern., Inc., 622 F.2d 1135, 1138-39 n.3 (3d Cir. 1980), and Baughman v. Cooper-Jarrett, Inc., 530 F.2d 529, 531 n.2 (3d Cir.), cert. denied, 429 U.S. 825, 97 S.Ct. 78, 50 L.Ed.2d 87 (1976), that orders disposing finally of the merits are appealable even though the questions relating to attorneys fees have been left undetermined.
97
The demise of the Croker rule on appealability does not, however, affect our holding in Halderman v. Pennhurst that the judgment of civil contempt was an appealable order. The opinion of the court distinguished Croker, we now know unnecessarily. Although the appealability holding in Croker has been overruled, White does not provide the petitioners with any support for their petition for rehearing.1
98
The petition for rehearing will be denied.
99
GARTH, Circuit Judge, concurring, with whom Judge Hunter joins.
100
Judge Gibbons, writing for the court, has denied the Commonwealth's Petition for Rehearing. I agree that the Petition should be denied, even though I maintain my disagreement with the Rule 60(b) argument found in the majority opinion. I therefore continue to hold to the view that because the payment orders and the order appointing a Master were improper, the contempt must fall as well. Nevertheless, I am in accord with the conclusion that the Commonwealth's assertions regarding its motion to alter or amend the district court's order of March 2, 1981, raise no issue requiring further consideration by this court.
101
I also agree that this court's decision in Croker v. Boeing Co., 662 F.2d 975, 981-84 (3d Cir. 1981) (en banc), is inconsistent with the Supreme Court's recent decision in White v. New Hampshire Department of Employment Security, --- U.S. ----, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), and that therefore this Circuit's Croker rule of appealability no longer has any vitality. I am concerned of course that this change in the time when an order becomes appealable may have unforeseen and dire effects on cases which are in our pipeline. It may also have a severe impact on parties who, in reliance on Croker, have taken no appeal from orders that are still awaiting determination of attorney's fees, only to find now that under White the order should have been appealed at the time of judgment and that the time for appeal has thus already passed. Yet, having once confronted this issue and having concluded at that time that prudential as well as jurisprudential considerations were best served by the Croker rule, there is little more to be said now that Croker has been effectively rejected by the Supreme Court's opinion in White.
102
While this change in the law of finality does not, of course, affect my earlier conclusion that the contempt order in this case was appealable, it does obviate the need to rely solely on Latrobe Steel Co. v. United Steelworkers, 545 F.2d 1336 (3d Cir. 1976), and United States v. Spectro Foods Corp., 544 F.2d 1175 (3d Cir. 1976), in support of jurisdiction under 28 U.S.C. § 1292. Accordingly, to the extent that I previously argued that jurisdiction over the contempt appeal could not be predicated on 28 U.S.C. § 1291, White has now persuaded me otherwise.
103
In all other respects, however, while I join in denying the Commonwealth's Petition, I continue to adhere to my previously announced position, as it is expressed in the separate opinion which I filed urging that the contempt order should be overturned.
1
The District Court opinion is reported at 446 F.Supp. 1295 (E.D.Pa.1977)
2
Id. at 1327
3
Halderman v. Pennhurst State School & Hospital, 451 F.Supp. 233 (E.D.Pa.1978)
4
Halderman v. Pennhurst State School & Hospital, 612 F.2d 84, 109, 111 (3d Cir. 1979)
5
Id. at 116 (footnote omitted)
6
449 U.S. 980, 101 S.Ct. 393, 66 L.Ed.2d 242 (1980)
7
448 U.S. 905, 100 S.Ct. 3046, 65 L.Ed.2d 1135 (1980)
8
See Memorandum of Judge Broderick, July 29, 1980, No. 78-1490, 42a-43a
9
No. 78-1490, 39a
10
Some defendants petitioned for a writ of mandamus which the Supreme Court on December 1, 1980 denied. In re Pennhurst Parent-Staff Association, 449 U.S. 1009, 101 S.Ct. 593, 66 L.Ed.2d 486 (1980)
11
Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981)
12
She testified, for example, "I think the whole masters office is a redundant, ridiculous piece of bureauracy." 17a. Secretary O'Bannon was not in office when the Commonwealth, after the District Court's liability opinion, passed up the opportunity to suggest a less redundant but equally effective plan for achieving the relief the law required. There may be merit in her redundancy objection, but it was never advanced in the appropriate forum
13
No. 78-1490, 47a
14
On May 26, 1981 this court denied a motion to stay the March 2, 1981 order, from which no appeal had been taken
15
See New York State Ass'n for Retarded Children, Inc. v. Carey, 631 F.2d 162 (2d Cir. 1980)
16
In other circumstances when the Governor of Pennsylvania learned that the legislature was attempting to interfere with a valid order of a federal court by passing a statute to abrogate that order, he refused to cooperate. In August 1978, the District Court for the Eastern district of Pennsylvania approved a consent decree requiring the Commonwealth to implement a motor vehicle emission inspection and maintenance program by May 1, 1981. Delaware Valley Citizens Council for Clean Air v. Commonwealth of Pennsylvania, No. 76-2068, 77-619 (E.D.Pa., Consent Decree Aug. 30, 1978). The Commonwealth missed the deadlines imposed by the decree, however, and the Court ordered the Commonwealth to implement the program by May 1, 1982. In 1981, the legislature attempted to interfere with the Court's order, but Governor Thornburgh vetoed the bill. See Veto Message re House Bill 456 from Governor Thornburgh to the House of Representatives (July 10, 1981). The legislature subsequently overrode the veto
17
The records of the Clerk of the United States District Court for the Eastern District of Pennsylvania discloses that fines totalling $1,200,000 have been paid by the Commonwealth
18
See also, In re Cantwell, 639 F.2d 1050, 1052 (3d Cir. 1981); In re W. F. Breuss, Inc., 586 F.2d 983, 985 (3d Cir. 1978); In re Imperial "400" National, Inc., 391 F.2d 163, 167 (3d Cir. 1968)
19
The Commonwealth's physical ability to pay can hardly be doubted. It has paid $1,200,000 in civil fines
20
That question is not decided by cases recognizing physical impossibility as a reason for withholding or terminating a contempt order. Shilletani v. United States, 384 U.S. 364, 371, 86 S.Ct. 1531, 1536, 16 L.Ed.2d 622 (1966); United States v. Bryan, 339 U.S. 323, 330, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1949); United States v. Asay, 614 F.2d 655, 660 (9th Cir. 1980); United States v. Wendy, 575 F.2d 1025 (2d Cir. 1978). Those cases all involved non-party witnesses and thus were reviewable by virtue of the Alexander-Bessette interpretation of § 1291. See Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686 (1906); Bessette v. W. B. Conkey Co., 194 U.S. 324, 24 S.Ct. 665, 48 L.Ed. 997 (1904); Fenton v. Walling, 139 F.2d 608 (9th Cir. 1943), cert. denied, 321 U.S. 798, 64 S.Ct. 938, 88 L.Ed. 1086 (1944)
21
In Rennie v. Klein, 653 F.2d 836, 849 (3d Cir. 1981) (en banc) this Court held that when state procedures facially complied with constitutional requirements and state officials were in good faith implementing them, additional procedures should not be ordered. In this case, in sharp contrast, in 1978 the defendants were firmly resisting any relief
1
To be sure, this court, sitting en banc, could overrule the panel decisions in Latrobe and similar cases. I can think of no reason for doing so, however, and I note that as recently as February 1, 1982, this court sitting en banc went out of its way to note the continuing vitality of Latrobe and Spectro. See Kershner v. Mazurkiewicz, 670 F.2d 440, 449 n.12 (3d Cir. Feb. 1, 1982) (en banc)
2
Both the majority and Chief Judge Seitz are therefore incorrect in focusing their respective analyses solely on the question of the appealability of the contempt order under § 1291
In my view, the majority's attempt to distinguish Croker needlessly clouds the law of "finality" under § 1291, and raises the prospect of numerous arguments in the future that the "underlying policy" of Croker is inapposite in this or that particular set of circumstances. Even assuming for the sake of argument that it is desirable to begin carving exceptions into the rule so recently announced in Croker, I cannot understand the need to do so in this case, in which another, well-established basis for jurisdiction is presented.
Chief Judge Seitz, on the other hand, is correct in arguing, in his separate dissenting opinion in No. 81-2381, that this court has no jurisdiction over the contempt appeal under § 1291; but he apparently overlooks another fount of jurisdiction which does support an appeal from the contempt order. In the cases cited in Judge Seitz's opinion, the contempt was not appealed in conjunction with an appeal of an injunctive order, as it was in Latrobe and Spectro Foods, and as it is here. Thus while relevant to appellate jurisdiction under § 1291, the cases cited by Judge Seitz have no relevance to, and indeed in no way bring into question, this court's jurisdiction under § 1292 over the appeal at No. 81-2381.
3
Because, as is evident from the above discussion, I conclude that this court has jurisdiction in No. 81-2381 under the Latrobe doctrine, I do not find it necessary to address any other aspects of appealability, such as the nature of the issues that may be raised on § 1291 appeals from post-judgment contempt orders. Cf. Maj. Op. in No. 81-2381, slip op. at 636-639
4
A reversal in Nos. 81-2448 and 81-2449 on the ground that Pennsylvania should not have been ordered to pay for the expenses of the Master would entitle the Commonwealth, on remand, to seek reimbursement for the moneys already deducted from the accumulated civil contempt fine and applied to the Master's expenses. I recognize, however, that because Pennsylvania had a state-law duty to perform the same functions that the Master was performing, it would have had to expend its own funds as it carried out its state-law duties. It would be for the district court in the first instance to determine whether in so doing the Commonwealth would have had to expend the same amount of money as it was required to pay in the payment orders, and if not, to make whatever adjustments as might be necessary
1
Chief Judge Seitz agrees that White v. New Hampshire Department of Employment Security, --- U.S. ----, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), overrules Croker v. Boeing Co (Vertol Division), 662 F.2d 975 (3d Cir. 1981) (en banc), insofar as Croker held that there is no appealable "final decision" for purposes of 28 U.S.C. § 1291 (1976) until attorneys' fees have been set. See --- U.S. at ---- & n.14, 102 S.Ct. at 1167 & n.14 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1593457/ | 215 S.W.3d 684 (2005)
Joe CLARK, Rex Martin and William Glass, Appellants
v.
James CASEBIER, Appellee.
No. CA 05-92.
Court of Appeals of Arkansas, Division II.
October 12, 2005.
*685 Armstrong Allen, PLLC, by: Charles A. Banks and Jeff R. Priebe, for appellants.
Cahoon & Smith, by: David W. Cahoon, for appellee.
LARRY D. VAUGHT, Judge.
Appellants Joe Clark, Rex Martin, and William Glass appeal the order of the Poinsett County Circuit Court that quieted title to disputed property in favor of appellee James Casebier following a bench trial. Appellants argue on appeal that the trial court erred in finding (1) that there had been an agreement by acquiescence that the irrigation ditch represented the boundary line between the two properties and (2) that the north side of the irrigation ditch was the boundary line between the properties. We disagree and affirm.
In December 2002, appellants purchased a tract of land from Karen and John Hutchison that had been previously owned by the Kennedy family. Prior to purchasing the land, appellants' bank required a survey of the property. This survey revealed an irrigation ditch running east to west at the southern end of appellants' property about sixty feet from the surveyed boundary line. The property located between the irrigation ditch and the actual southern boundary line of appellants' property is the area in dispute. Until the survey was completed, appellants had not been shown any property corners or boundaries on the property.
Butch Hime, the surveyor appellants hired, testified that he did not find all the markers for the property corners establishing appellants' property boundaries. Instead, he used a proportionate survey technique to establish the corners. The boundary lines were different than the original government survey showed, but this did not cause Hime concern.
Appellee owned the tract of land south of appellants' property and testified that he used the irrigation ditch to provide water for his crops. He had several pieces of irrigation equipment, including a permanent relift pump, on the disputed property. Appellee had purchased his property from *686 Orville Thomas in March 1986. Orville Thomas testified that his family had owned the land since the 1950s but that he had been familiar with the property since the 1920s. Thomas testified that he helped his father dig the irrigation ditch sometime in the 1960s. He asserted that they had attempted to locate the boundary line, and using monuments from a previous survey, they dug the irrigation ditch on his father's property. Thomas testified that at the time it was dug, the ditch "wasn't very wide." He declared that the ditch was eight or nine feet wide when the water was its highest but that it was not that wide when it was dug. Rather, the ditch had washed out some over time. Thomas stated that the purpose of the ditch was to bring water from the river for irrigation of crops and that it had always been used for that purpose. When appellee purchased the land, an older model relift pump was located near the ditch, and appellee replaced it with a newer model. Thereafter, appellee placed an underground pipe in the ground connected to the relift pump to make taking water from the ditch easier. This pump and pipe became permanent fixtures on the property. Appellee also testified that compared to the first time he was on the property was in 1971 or 1972, the ditch looked the same in the present day as it did then.
Both Thomas and appellee testified that until appellants complained, no adjoining landowner had raised any objection to Thomas's or appellee's use of the irrigation ditch and the disputed property. Appellee testified that it was his understanding that his property line was the irrigation ditch. He stated that he used the property up to the irrigation ditch as his own and used the irrigation ditch to water his crops. He stated that he removed silt from the irrigation ditch in 1986 or 1987, he hired the Kennedys to remove silt from in it in 1989, and he removed the silt himself again in 1992 and 1998. He stated that the Kennedys were working under contract for him when they removed the silt and that they did not object to his working on the irrigation ditch.
After the survey was completed and the land purchased, appellants asked appellee to remove the relift pump from the disputed property. Appellee refused, and appellants filed suit. Following a bench trial, the judge found that based on the prior conduct of the landowners, a boundary by acquiescence existed and that the northern edge of the irrigation ditch was the boundary line between the properties.
For their first point on appeal, appellants argue that the trial court erred in finding that there was an agreement by acquiescence to make the irrigation ditch the boundary line between the properties. Whenever adjoining landowners tacitly accept a fence line or other monument as the visible evidence of their dividing line and apparently consent to that line, it becomes a boundary by acquiescence. Hedger Bros. Cement & Materials, Inc. v. Stump, 69 Ark.App. 219, 10 S.W.3d 926 (2000). A boundary line by acquiescence is inferred from the landowners' conduct over many years so as to imply the existence of an agreement about the location of the boundary line. Id. at 222, 10 S.W.3d at 928. The location of a boundary line is a question of fact. Id., 10 S.W.3d at 928. Although equity cases are reviewed de novo on appeal, we will affirm a trial court's finding of fact with regard to the location of a boundary line unless the finding is clearly erroneous. Id., 10 S.W.3d at 928. A finding is clearly erroneous when, although there is evidence to support it, we are leftafter considering all of the evidencewith the definite and firm conviction that a mistake has been committed. Id., 10 S.W.3d at 928. Whether a boundary *687 line by acquiescence exists is to be determined upon the evidence in each individual case. Id. at 222-23, 10 S.W.3d at 928. In reviewing a trial court's findings of fact, we give due deference to the trial judge's superior position to determine credibility of the witnesses and the weight to be accorded to their testimony. Riddick v. Streett, 313 Ark. 706, 858 S.W.2d 62 (1993).
It is also settled law that a boundary line by acquiescence may well exist without the necessity of a prior dispute. Walker v. Walker, 8 Ark.App. 297, 651 S.W.2d 116 (1983). Nor is there any requirement of adverse usage up to a boundary fence to establish a boundary by acquiescence. Id. at 298, 651 S.W.2d at 117. Instead, whenever adjoining landowners tacitly accept a fence line or other monument as the visible evidence of their dividing line and thus apparently consent to that line, it becomes the boundary by acquiescence. Id. at 298-99, 651 S.W.2d at 117. When the adjoining owners occupy their respective premises up to the line they mutually recognize and acquiesce in as the boundary for a long period of time, they and their grantees are precluded from claiming that the boundary thus recognized and acquiesced in is not the true one, although it may not be. Id. at 299, 651 S.W.2d at 117.
There is ample evidence to support the trial court's findings and conclusions in this case. Since the irrigation ditch was dug in the 1960s, the owners of the southern tract of land have used the disputed property and the irrigation ditch as their own. Orville Thomas testified that when his father dug the ditch, it was with the purpose of doing so on the property line. Thomas, as well as Casebier, testified that no one ever objected to their use of the disputed land. Additionally, Thomas and Casebier were the only people to ever maintain the ditch. The one time the Kennedys removed silt from the ditch was at Thomas's direction. Appellants offered no testimony to contest appellee's evidence that the previous owners of the land had acquiesced in the irrigation ditch being the boundary.
Appellants argue that our recent opinion in Robertson v. Lees, 87 Ark.App. 172, 189 S.W.3d 463 (2004), supports their proposition that the trial court erred in finding a boundary by acquiescence. There we stated that our supreme court has held that the mere existence of a physical boundary, without evidence of mutual recognition, cannot sustain a finding of such a boundary as the property line. Id. Additionally, we noted that the intention of the parties, not the physical boundary itself, is what controls when determining whether a boundary line exists through acquiescence. Id. However, in Robertson we affirmed the trial judge's finding that no boundary by acquiescence existed because the appellant had not produced any evidence that the fence at issue had been intended to be the boundary line. Rather, the appellant attempted to rely on silence from the appellee and his predecessors in title. We specifically noted that the appellee had not been silent on the matter but had asked for persons not to mow the disputed tract and gave permission for a clothesline to be built.
This case is distinguishable from Robertson because we have evidence of the parties' intentOrville Thomas's testimony and we have silence from appellants' predecessors in titleno objection was ever made to Thomas or Casebier regarding their use of the irrigation ditch as the boundary line. The trial judge could have correctly found that it had been the previous landowners' intent that the irrigation ditch serve as the boundary line. We cannot *688 say the trial judge clearly erred on this point.
Appellants' second point on appeal is that the trial court erred in finding that the north line of the irrigation ditch represented the boundary line between the properties. A boundary by acquiescence is usually represented by a fence, a turnrow, a lane, a ditch, or some other monument tacitly accepted as visible evidence of a dividing line. See Palmer v. Nelson, 235 Ark. 702, 361 S.W.2d 641 (1962). A boundary by acquiescence has been affirmed when the parties tacitly agreed on a line running between two marks, such as concrete stobs, in Disney v. Kendrick, 249 Ark. 248, 458 S.W.2d 731 (1970), and trees in Ward v. Adams, 66 Ark.App. 208, 989 S.W.2d 550 (1999). However, Arkansas law does not support the establishment of a boundary by acquiescence along an invisible line between two large land forms, such as levees, that are not truly capable of being used as accurate markers of a boundary. Stump, 69 Ark.App. at 223, 10 S.W.3d at 928-29. Appellants cite to Stump and Lammey v. Eckel, 62 Ark.App. 208, 970 S.W.2d 307 (1998), to argue that the trial court erred in concluding that the northern edge of the irrigation ditch established the boundary line because that boundary line is not "definite." However, in both Stump and Lammey, the purported boundary lines were either invisible lines where no physical object separated the property or marked by uncertain physical objects such as stumps, bushes, and trees. That is not the case here. Rather, the irrigation ditch is a definite, physical separator. It creates a definitive physical boundary between the properties. Although the irrigation ditch does not reach the entire length of the boundary between properties, it covers the vast majority of it, with the ditch ending less than one hundred feet from the eastern edge of the properties. Additionally, although appellants argue the ditch widened over time, the testimony presented at trial does not show any appreciable amount of expansion. Appellants cite no authority to support a finding that such an inconsiderable amount of expansion would establish indefiniteness. Based on our prior precedent, we are satisfied that the trial court did not clearly err in using the northernmost edge of the irrigation ditch as the boundary marker.
Affirmed.
GRIFFEN and ROAF, JJ., agree. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592312/ | 453 So.2d 475 (1984)
United States AVIATION UNDERWRITERS, Appellant/Cross-Appellee,
v.
Mack VAN HOUTIN and Sharon Rose Van Houtin, Appellees/Cross-Appellants.
Nos. 83-1949, 83-2146.
District Court of Appeal of Florida, Second District.
July 25, 1984.
*476 Martin L. Garcia of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellant/cross-appellee.
William C. Gregg, III, Clearwater, for appellees/cross-appellants.
PER CURIAM.
United States Aviation Underwriters seeks reversal of a final summary judgment and award of attorney's fees entered in favor of the appellees, its insureds. The trial court's judgment had the effect of holding that appellees were insured for physical damage coverage under the provisions of an aircraft policy issued by appellant. We agree with appellant that under the circumstances of this case, the policy did not provide such coverage. We reverse.
Appellees, Mac Van Houtin and Sharon Rose Van Houtin, obtained aircraft insurance on their airplane from appellant, United States Aviation Underwriters. The airplane was damaged during the policy period when Mac Van Houtin overshot a runway while attempting to land. The appellant denied coverage for physical damage because of Mac Van Houtin's flying status at the time of the accident. However, the policy contained a lienholder's endorsement under which appellant was obligated to pay Cessna Finance Corporation for damages to the aircraft up to the amount of Cessna's lien without regard to coverage defenses. Therefore, appellant paid Cessna $14,750 representing the full amount of its lien.
Appellant then sued appellees for reimbursement of its payment to Cessna.[1] The court ultimately entered final summary judgment and an award of attorney's fees for the appellees, holding that appellant's policy provided physical damage coverage for the accident. The only issue we discuss in this appeal concerns coverage.
The policy contained five printed sections, a coverage summary page, and several endorsements. The first printed section contained general provisions, the second described liability coverage, the third described physical damage coverage, the fourth described medical coverage, and the fifth described coverage for other aircraft. The coverage summary page specified the limits of appellees' liability coverage, physical damage coverage, and medical coverage and included a pilots addendum which named Mac Van Houtin as the authorized pilot providing he met certain qualification requirements.
The first section of the policy which was applicable to all coverages contained the following provision:
*477 Limitations on use. To be covered under this policy the aircraft must be owned, maintained or used only for the purpose described on the Coverage Summary page and flown only by a pilot or pilots described there. The aircraft must also be registered under a "Standard" Category Airworthiness Certificate issued by the Federal Aviation Administration (FAA), or its foreign equivalent.
Three weeks after the policy was issued but before the accident occurred, endorsement number 4[2] was added, which provided:
This endorsement amends your coverage as follows:
1. The "Pilots" section shown on the Coverage Summary Page is changed to read:
"Pilots"
A) Mac Van Houtin or Greg Van Houtin each holding an FAA Pilot Certificate. Each flight by Mac Van Houtin or Greg Van Houtin while holding a Student Pilot Certificate shall be under the direct supervision or have the specific approval of a pilot holding an FAA Flight Instructor Rating.
B) Any pilot holding an FAA Private Pilot Certificate who has flown a minimum of 300 hours as Pilot In Command, at least 10 hours of which shall have been in Cessna aircraft.
2. "Your Liability Coverage" shown on Page 2 and 3 of your policy will not cover claims made against you by passengers while Mac Van Houtin or Greg Van Houtin is operating the aircraft under a Student Pilot Certificate unless accompanied by a pilot holding an FAA Flight Instructor Certificate.
3. "Your Medical Coverage" shown on Page 5 of your policy will not cover Medical Expense while Mac Van Houtin or Greg Van Houtin is operating the aircraft with passengers under a Student Pilot Certificate unless accompanied by a pilot holding an FAA Flight Instructor Rating.
It was undisputed that at the time of the accident Mac Van Houtin held only a Student Pilot Certificate and was not operating the airplane under the direct supervision or with the specific approval of a pilot holding an FAA flight instructor rating. Appellant argues that there was no physical damage coverage because Mac Van Houtin did not meet the limitations on use required by paragraph 1(A) of endorsement number 4. Appellees respond that paragraphs 2 and 3 of the endorsement had the effect of creating an ambiguity resolvable in their favor. In essence, appellees reason that since these paragraphs excluded liability coverage and medical coverage under certain circumstances, the absence of any reference to physical damage coverage suggested that there were no pilot qualification requirements applicable to physical damage coverage. We disagree.
At the outset, we recognize that insurance contracts are to be construed strictly against the insurer and liberally in favor of coverage. New Amsterdam Casualty Co. v. Addison, 169 So.2d 877 (Fla. 2d DCA 1964). Thus, if two interpretations may fairly be given to the language used in a policy, the one providing greater coverage should govern, particularly in the case of exclusions, since the burden rests on the insurer to phrase exceptions in clear and unmistakable language. Ward v. Nationwide Mutual Fire Insurance Co., 364 So.2d 73 (Fla. 2d DCA 1978). Nevertheless, while the policy provisions we have examined are rather complex, we find no ambiguities in the policy issued to appellees.
We begin our analysis by observing that the limitations on use provision clearly indicates that coverage would have been afforded only when the airplane was being operated by a pilot described in the coverage summary page. The coverage summary page as amended by the first paragraph of endorsement number 4 specifies that if Mac Van Houtin were flying under a student *478 pilot certificate rather than an FAA certificate, his flight would have to be under the direct supervision of or have the specific approval of an FAA flight instructor. Mac Van Houtin did not meet these qualifications when the accident occurred. The second and third paragraphs of endorsement number 4 are simply additional limitations on the liability and medical coverages applicable under some circumstances. Paragraph 2 provides that there would have been no liability coverage for claims by passengers while Mac Van Houtin was operating under a student pilot certificate unless he was accompanied by a pilot holding an FAA flight instructor certificate.[3] Likewise, paragraph 3 further limits medical coverage while Mac Van Houtin was operating the aircraft with passengers under a student pilot certificate to situations in which he was accompanied by a pilot holding an FAA flight instructor certificate. These additional limitations are peculiar to circumstances when passengers are involved. Such a restriction is not necessary for claims under physical damage coverage.
The absence of additional limitations on the physical damage coverage is not to be interpreted as eliminating the pilot qualification restrictions with respect to physical damage coverage. The general pilot qualification requirements of paragraph 1 apply to physical damage coverage under all circumstances. Since Mac Van Houtin did not meet these requirements at the time of the accident, the airplane was not covered. The provisions of this policy may appear complicated, but complexity should not be confused with ambiguity.
Accordingly, the final summary judgment is reversed. Likewise, the award of attorney's fees to appellees (which was granted pursuant to section 627.428, Florida Statutes (1981)) must also be reversed.
GRIMES, A.C.J., and SCHEB and OTT, JJ., concur.
NOTES
[1] The lienholder's endorsement provided in part:
If we make any payment to a lienholder or lessor because you invalidated your policy:
We will be entitled to all the rights the lienholder or lessor has against you through the lien or lease. They agree to transfer and assign to us all legal documents they hold regarding the collateral, security or rights of recovery they have with you regarding loss or damage to the aircraft.
You agree to pay us back the full amount of the payment.
[2] This endorsement was issued to include Greg Van Houtin as an additional pilot but did not otherwise change the provisions of the pilots addendum on the coverage summary page.
[3] Hence, the pilot qualification requirements with respect to claims by those other than passengers would still be controlled by the provisions of paragraph 1. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592322/ | 453 So.2d 905 (1984)
STATE of Florida, Appellant,
v.
Robert A. GAROFALO, Appellee.
No. 83-1146.
District Court of Appeal of Florida, Fourth District.
August 8, 1984.
Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellant.
No appearance for appellee.
HURLEY, Judge.
The State appeals from an order dismissing an information. We reverse on the authority of Rubin v. State, 390 So.2d 322 (Fla. 1980).
*906 In 1978 the state filed an information charging the defendant with grand theft by fraud. This information was labeled "78-3887 CF." American Totalizer Company was listed as the victim of the fraud. In 1983 the state filed a second information against the defendant. The second information contained identical allegations as those set forth in the first except that the second information named Gulfstream Park Racing Association as the victim of the fraud. The state labeled the new information with the notation "refile case number 78-3887 CF." Shortly after filing the second information the state dismissed case number 78-3887 CF. Appellee pled not guilty to the second information and filed a motion to dismiss, asserting that the statute of limitations, Section 775.15(2)(b), Florida Statutes (1983), barred prosecution for the crime charged. The trial court found that the second information named an entirely different victim from that asserted in the original information and granted the defendant's motion to dismiss.
In Rubin, supra, the defendant was first charged with grand larceny by information assigned Case No. 77-4257. The State later filed another information containing the notation "Refile of Case No. 77-4257," charging in almost identical language the same crimes as were charged in the original information. The only change in the second information was the modification of the corporate victim's name from Riverside Memorial Chapel, Inc., a subsidiary of Service Corporation International to Riverside Memorial Chapel, Alton Road, Inc., a Subsidiary of Service Corporation International. The Supreme Court in Rubin held that the second information was not barred by the statute of limitations because the language "Refile of Case No. 77-4257" contained on the second information was sufficient to link it to the first information so as to evidence a continuation of the same prosecution. In so holding, it observed that the second information did not change the crime, but only corrected a minor inaccuracy in the victim corporation's title.
We reach a like result in the instant case because the second information was based on the same incident giving rise to the original information and did not change the crime charged. We recognize that this case differs from Rubin in that the second information names a different victim, as opposed to merely correcting an inaccuracy in the title of the originally named victim, but we do not believe this is a significant distinction.
The sole purpose of a statute of limitations in the criminal context is to prevent the State from hampering defense preparation by delaying prosecution until a point in time when its evidence is stale and defense witnesses have died, disappeared or otherwise become unavailable. See State v. Hickman, 189 So.2d 254 (Fla. 2d DCA 1966). Since one who has been squarely put on notice of criminal activities with which he is charged is in a position to begin preparation of a defense on those charges, courts have traditionally held that a valid indictment tolls the statute of limitations, and that return of a superceding indictment prior to the dismissal of the original indictment does not violate the statute of limitations if the superceding indictment does not substantially alter the charge. See United States v. Friedman, 649 F.2d 199 (3d Cir.1981); United States v. Grady, 544 F.2d 598 (2d Cir.1976); United States v. Wilsey, 458 F.2d 11 (9th Cir.1972) (changing alleged date of offense); see also Rubin, supra; DiStefano v. Langston, 274 So.2d 533 (Fla. 1973); Domberg v. State, 443 So.2d 119 (Fla. 1st DCA 1983); Harris v. State, 229 So.2d 670 (Fla. 3d DCA 1969), cert. denied 237 So.2d 752 (Fla. 1970); State v. Adjmi, 170 So.2d 340 (Fla. 3d DCA 1964).
In this case, we do not believe that the substitution of the name of the true victim in the second information amounts to such a substantial alteration, and, therefore, conclude that the limitation period was tolled by the filing of the original information. The defendant was put on notice within the statutory time period as to the criminal activity with which he was charged, and the superceding information *907 did not make any substantive changes which would unreasonably prejudice the preparation of his defense. Cf. United States v. Drucker, 453 F. Supp. 741 (S.D.N.Y. 1978), aff'd, 591 F.2d 1332 (2d Cir.1978), cert. denied, 440 U.S. 963, 99 S.Ct. 1510, 59 L.Ed.2d 778 (1979); United States v. Kelley, 478 F. Supp. 514 (E.D.Mo. 1979) (statute tolled by original indictment where superceding indictment added facts to cure jurisdictional deficiency and slightly changed description of buildings affected by extortion scheme); Palmer v. State, 4 Tenn. Crim. App. 629, 475 S.W.2d 189 (1971) (superceding indictment corrected misspelling of victim's name); Ex parte Davis, 13 Cal. App.2d 109, 56 P.2d 302 (1936) (changing dates of alleged offenses).
Accordingly, we reverse the order of dismissal and remand this cause for trial.
REVERSED AND REMANDED.
DOWNEY, J. concurs.
DELL, J., dissents with opinion.
DELL, Judge, dissenting.
I respectfully dissent.
The Rubin court deemed the notation "Refile of Case No. 77-4257" on the second information a sufficient link with the first information to construe it as a continuation of the same prosecution. However, in Rubin the second information did not name a different victim but rather only made a technical correction of the corporate name of the same victim identified in the original information.
In my opinion, where a second information names an entirely different victim, it charges a different crime. If the state had tried this case on the first information and the jury had exonerated the defendant within the applicable statute of limitations, double jeopardy would not have prevented the state from prosecuting the crime charged in the second information. Le Rea v. Cochran, 115 So.2d 545 (Fla. 1959), cert. den. 362 U.S. 946, 80 S.Ct. 867, 4 L.Ed.2d 865; T.R. v. State, 364 So.2d 100 (Fla. 1st DCA 1978). Therefore, I do not believe that the supreme court intended the mere notation "refile" to constitute a continuation of the prior case if the new information names an entirely different victim. I would affirm the order of dismissal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1388357/ | 528 P.2d 382 (1974)
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Kenneth Steve EADES, a/k/a "Kenny," Defendant-Appellant.
No. 25969.
Supreme Court of Colorado, En Banc.
November 25, 1974.
*383 John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Donna A. Maranchik, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, Colo. State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Thomas M. Van Cleave III, Forest W. Lewis, Deputy State Public Defenders, Denver, for defendant-appellant.
KELLEY, Justice.
Kenneth Steve Eades, hereinafter referred to as defendant, and one Michael Lloyd Stone were jointly tried and convicted of dispensing a dangerous drug (amphetamine) in violation of 1969 Perm.Supp., C.R.S.1963, 48-8-2(2) (a). Defendant alone has taken this appeal on two grounds. First, that the evidence was insufficient to support a finding of guilt and hence the court erred in not granting defendant's motion for a judgment of acquittal. Second, the trial court erred in failing to instruct the jury on the law relating to circumstantial evidence. We agree with the trial court and affirm.
The essential facts and events leading to the defendant's arrest were in dispute at trial. However, since we are required to view the evidence in the light most supportive of the jury's verdict, for purposes of this appeal, we accept the following testimony as offered by Officer William J. Robertson of the Colorado Springs Police Department.
On June 2, 1972, at approximately 7:40 p. m., Officer Robertson, an undercover narcotics agent, was introduced to Michael Stone by a confidential informant. The meeting occurred in the courtyard of a Colorado Spring's motel in which both Stone and the defendant resided. Officer Robertson expressed an interest in purchasing 200 amphetamine tablets and after a short discussion, Stone walked across the courtyard to his parked automobile in which the defendant was sleeping. Stone woke the defendant and the two conducted a brief conversation which Officer Robertson was unable to overhear. The defendant thereupon extended his arm through the car window handing Stone two plastic bags. From his vantage point, at the rear of the car, Officer Robertson could not discern whether the defendant obtained these bags from his person or from elsewhere within the car. With bags in hand, Stone accompanied Officer Robertson to another point in the courtyard where Officer Robertson then exchanged $30 in marked official funds for the plastic bags. It was determined that the plastic bags contained a quantity of amphetamine tablets.
Stone advised the officers he would be able to sell them larger quantities in the future, so they decided not to immediately arrest either Stone or the defendant in the hope of learning their source of supply. Instead, Officer Robertson and another member of the police force attempted on three different occasions to meet with Stone to discuss the possibility of making purchases of larger quantities. On one such occasion, the police officers being unable to locate Stone, contacted the defendant in his stead. With reference to this encounter, Officer Robertson testified on cross-examination that
"[a]t the time I contacted Mr. Eades [the defendant] he said Mr. Stone was out trying to find his supplier and get the supply but that they were having trouble."
*384 The defendant and Stone were arrested on June 8, 1972, when the police learned of their intent to journey outside of the state.
Defendant challenges the sufficiency of this evidence to prove his guilt beyond a reasonable doubt. More particularly, defendant questions whether the evidence sufficiently demonstrates that he had knowledge of the contents of the bags he handed Stone.
There is direct evidence that the defendant had possession of the contraband. He contends, however, that there is no evidence that he had knowledge that the plastic bags contained amphetamine tablets. We recognized in People v. Larsen, 180 Colo. 140, 503 P.2d 343 (1972), in Ramsey v. People, 179 Colo. 172, 498 P.2d 1148 (1972) and, also, in People v. Bennett, Colo., 515 P.2d 466 (1973), that to convict one of possession of a narcotic drug that the possession must be with knowledge of the nature of the thing possessed. The same rationale applies to the charge of dispensing narcotic drugs.
The participation of the defendant here in the sale, standing alone, is somewhat equivocal. However, coupled with the fact that the defendant lived in the same motel unit with Stone and knew that Stone was trying to find the supplier to obtain more drugs, "but that they were having trouble," are strong circumstances and justify the jury's conclusion that Eades had knowledge of the nature of the contents of the plastic bags which were being sold to Officer Robertson.
The test of sufficiency of the evidence is whether the relevant evidence, viewed in its totality and in the light most supportive of the jury's verdict is sufficient to support a conclusion in the minds of reasonable men that the defendant was guilty beyond a reasonable doubt. People v. Bennett, supra; Dodge v. People, 168 Colo. 531, 452 P.2d 759 (1969), and cases cited therein.
The defendant also assigns error on the ground that the trial court failed to instruct the jury on the applicable standard in determining the sufficiency of circumstantial evidence. However, the defendant did not tender an instruction on circumstantial evidence nor did he, in his motion for new trial, assign as error the court's failure sua sponte to so instruct. He asserts for the first time on appeal that the court's failure to specifically instruct as to circumstantial evidence constituted plain error. We do not consider the court's failure in this instance to be plain error in that the defendant's substantial rights have not been affected. Crim.P. 52(b). People v. Morant, 179 Colo. 287, 499 P.2d 1173 (1972); McRae v. People, 101 Colo. 155, 71 P.2d 1042 (1937). Since there was no plain error, we adhere to the age old rule, which has been applied to the failure to instruct the jury concerning circumstantial evidence, that only questions presented in the motion for new trial will be considered on review. Lamb v. People, 181 Colo. 446, 509 P.2d 1267 (1973); Bynon v. Morrison & Morrison, Inc., 169 Colo. 384, 456 P.2d 747 (1969); Dickson v. People, 82 Colo. 233, 259 P. 1038 (1927).
The judgment is affirmed.
ERICKSON, J., dissents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/684557/ | 42 F.3d 1389
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Favis Clay MARTIN, Plaintiff-Appellant,v.Ernest BRISTOL, Individually and in his Official Capacity asMedical Administrator at the Federal CorrectionalInstitution, Memphis, Tennessee; DICK GORDON, Individuallyand in his Official Capacity as Bureau of Federal PrisonsRegional Financial Administrator at Dallas, Texas,Defendants-Appellees.
No. 94-5298.
United States Court of Appeals, Sixth Circuit.
Nov. 21, 1994.
ORDER
1
Before: KENNEDY and SILER, Circuit Judges, and CHURCHILL, District Judge.*
2
Favis Clay Martin, a pro se Texas prisoner serving the remainder of his life sentence in the federal prison system, appeals a district court judgment in favor of the defendants in his civil rights action filed pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
3
Seeking monetary and injunctive relief, Martin sued the defendants for allegedly violating his Eighth Amendment right to be free from cruel and unusual punishment. He alleged that the defendants willfully denied him surgery to remove a Morton's neuroma in his foot, recommended by an orthopedic physician, causing him unnecessary pain. During the pendency of this action, the surgery was performed. However, Martin continued to assert that he requires additional surgery to remove bone spurs from both feet, and that the delay in the surgery already performed constituted cruel and unusual punishment.
4
The district court granted the defendants' renewed motion for summary judgment in an order filed on January 3, 1994, with a separate judgment entered on January 12th. The court found that the surgery for Morton's neuroma disease was not denied but was reasonably delayed, first because of an incomplete initial request and later for security reasons and that, during the delay, Martin was treated with pain medication and cortisone shots. Further, after examination of Martin's medical records, including the report from a recent orthopedic examination, the court found that surgical removal of the bone spurs was not recommended and that the defendants had not been deliberately indifferent to Martin's serious medical needs. Martin's timely motion to reconsider was denied in an order entered on February 23, 1994.
5
On appeal, Martin argues that the district court erred by: (1) denying his motion to compel discovery, (2) denying his motion to appoint counsel, and (3) granting the defendants' motion for summary judgment. Martin has filed a motion for the appointment of counsel on appeal and for waiver of the filing of a joint appendix.
6
Upon review, we affirm the district court's judgment because there is no genuine issue of material fact and the defendants are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); LaPointe v. UAW, Local 600, 8 F.3d 376, 378 (6th Cir.1993). This court's review of an order granting summary judgment is de novo; it uses the same test as that used by the district court. Moore v. Philip Morris Cos., 8 F.3d 335, 339 (6th Cir.1993).
7
The scope of discovery lies within the sound discretion of the trial court and the denial of a motion to compel discovery is reviewed only for abuse of discretion. Lavado v. Keohane, 992 F.2d 601, 604 (6th Cir.1993). Because the only genuine issues of material fact in this case were resolved by the medical documents that were provided through discovery, the district court did not abuse its discretion in denying Martin's remaining requests.
8
Moreover, the district court did not abuse its discretion when it denied Martin's motion for the appointment of counsel. A district court has discretion to appoint counsel for an indigent civil litigant, 28 U.S.C. Sec. 1915(d), and review of a district court's order denying appointment of counsel is for abuse of discretion. Lavado, 992 F.2d at 604-05. In this case, the district court appropriately considered whether exceptional circumstances warranted the appointment of counsel and determined that they did not. Because the issues in this case were not complex and Martin stood a poor chance of success on the merits, the district court did not abuse its discretion in denying his motion for appointed counsel.
9
Finally, the district court did not err in granting summary judgment for the defendants as to Martin's Eighth Amendment claim. Prison officials may be sued under the Eighth Amendment for deliberate indifference to the serious medical needs of a prisoner because such indifference constitutes the "unnecessary and wanton infliction of pain." Estelle v. Gamble, 429 U.S. 97, 104 (1976). Such a claim has both an objective and subjective component. Moore v. Holbrook, 2 F.3d 697, 700 (6th Cir.1993) (citing Wilson v. Seiter, 501 U.S. 294, 298-99 (1991)). The objective component requires that the pain be serious. Id. The subjective component does not have a fixed meaning, but provides that the offending, non-penal conduct be wanton. Id. In the context of providing medical care, deliberate indifference should establish wantonness. Hudson v. McMillian, 112 S. Ct. 995, 998-99 (1992). It is clear from the medical records in this case that Martin's condition, although not life-threatening, was painful. However, the undisputed facts do not establish the subjective component of the Wilson test and so the defendants were properly granted judgment as a matter of law.
10
The record indicates that defendant Gordon disapproved the initial request for surgery for Martin's Morton's neuroma only because it was incomplete. When defendant Bristol resubmitted the completed request approximately two weeks later, Gordon approved the surgery. The only other delay was for security reasons when Martin discovered the date of his scheduled surgery. Thus, it is beyond question that the defendants were not deliberately indifferent to Martin's Morton's neuroma.
11
Martin's belief that he requires further surgery for the removal of bone spurs in his heels merely constitutes a disagreement over medical treatment and, as such, does not state a claim under the Eighth Amendment. See Estelle, 429 U.S. at 107; Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir.1976). Even if there was a misdiagnosis and the course of treatment prescribed was ineffectual, "[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106. Instead, Martin's remedy for any medical malpractice claim he may wish to assert lies in an action against the United States meeting the requirements of the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671-80. See Flechsig v. United States, 991 F.2d 300, 303-04 (6th Cir.1993).
12
Accordingly, the motion for the appointment of counsel is denied. The motion to waive the filing of a joint appendix is denied as moot. The district court's judgment, entered on January 12, 1994, is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.
*
The Honorable James P. Churchill, U.S. District Judge for the Eastern District of Michigan, sitting by designation | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1599136/ | 467 N.W.2d 608 (1991)
Donna Jean FOLSTAD, n/k/a Donna Jean Fairbanks, Respondent,
v.
Nancy Irene EDER, et al., Petitioners, Appellants.
No. C6-90-585.
Supreme Court of Minnesota.
April 5, 1991.
*609 Thomas A. Harder, Jardine, Logan & O'Brien, St. Paul, for appellants.
Douglas E. Schmidt, Sieben, Grose, Von Holtum, McCoy & Carey, Ltd., Minneapolis, for respondent.
Heard, considered, and decided by the court en banc.
SIMONETT, Justice.
If, prior to trial of the employee's tort action, the employer-insurer settles its subrogation claim with the defendant tortfeasor, does either the allocation formula of Minn.Stat. § 176.061, subd. 6 (1990) or the collateral source deduction of Minn. Stat. § 548.36 (1990) apply? The trial court thought the collateral source deduction applied and the court of appeals thought the allocation formula governed. We disagree with both and reverse.
Plaintiff-employee Donna Fairbanks sued defendant-appellants Nancy and Janos Eder for personal injuries sustained when plaintiff's car collided with defendants' car (driven by Nancy Eder and owned by Janos Eder) in September 1984. Plaintiff's complaint claimed damages for hospital and medical expenses and loss of income, as well as for general damages.
Plaintiff Fairbanks was in the scope and course of her employment with the Westminster Corporation at the time of the accident. Fairbanks' medical expenses of $7,717 were paid by her employer's workers' compensation insurer, Wausau Insurance Company. When plaintiff commenced suit against the defendants Eder, she notified Wausau that the carrier's subrogation *610 claim was included in the lawsuit. Wausau acquiesced in the inclusion.
On May 8, 1989, the case was called for trial. In chambers, before trial started, counsel for defendants Eder advised the court and plaintiff's counsel that defendants had settled Wausau's subrogation claim directly with Wausau, and had taken an assignment of any claims which Wausau might have. Counsel said he was waiving Wausau's claims, and that after trial he would move for "a complete set-off" pursuant to the collateral source statute or, alternatively, for "reimbursement" under Minn.Stat. § 176.061, subd. 6 of the Workers' Compensation Act. Subsequently defendants disclosed that they had paid Wausau $3,000 to settle the subrogation claim.
The jury awarded plaintiff damages to date of verdict of $9,657.14 for medical expenses, $10,000 for emotional distress, and $5,000 for pain and disability. The jury awarded no future damages and found defendant Nancy Eder 70 percent at fault and plaintiff Fairbanks 30 percent.[1]
The trial court first reduced the aggregate verdict of $24,657.14 by 30 percent to $17,260 (to account for plaintiff's 30 percent fault). The trial court then applied the collateral source statute, Minn.Stat. § 548.36, reducing plaintiff's recovery by a further $6,760 in medical expenses (70 percent of $9,657.14). This left plaintiff a net of $10,500, out of which she pays her attorney.
The court of appeals in an unpublished opinion reversed and remanded. The appeals panel held that the jury's award of $17,260 ($24,657.14 reduced for 30 percent fault) should have been distributed under section 176.061, subd. 6 of the Workers' Compensation Act. We granted defendant tortfeasors' petition for further review.
The problem in this case arises from the interplay of two statutes, the Workers' Compensation Allocation Statute, Minn. Stat. § 176.061, subd. 6 (hereafter referred to as the subdivision 6 formula), and the Collateral Source Statute, Minn.Stat. § 548.36. Both statutes govern slightly different aspects of a compensation carrier's subrogation rights in an employee's action against a third-party tortfeasor.
When an employee recovers on her tort claim in its entirety, the subdivision 6 formula provides for allocation roughly as follows: (a) first, payment of collection costs, probably about one-third; (b) one-third of the remainder free and clear to the employee; (c) payment of the compensation carrier's subrogation claim less a pro rata share of the attorney fees; and (d) any balance remaining to the employee, subject to a credit to the employer for benefits yet to be paid.
The collateral source statute on the other hand provides that if (1) plaintiff's award includes damages to compensate plaintiff for losses for which she has already been compensated by a collateral source (such as workers' compensation benefits); and if (2) plaintiff has not asserted the collateral source's subrogation rights in her action; then, to avoid a double recovery by plaintiff, the trial court deducts the amount of the collateral source from plaintiff's award. In this case, the trial court felt Wausau's subrogation claim had not been asserted and therefore deducted the medical expenses awarded by the jury from plaintiff's recovery. See footnote 5, infra.
In Keenan v. Hydra-Mac, Inc., 434 N.W.2d 463 (Minn.1989), after the jury's verdict but before post-trial motions were heard, the employer settled its workers' compensation subrogation claim with the defendant tortfeasor; and then, claiming its subrogation claim was no longer being "asserted," the employer sought to deduct the amount of compensation benefits paid to date of trial from plaintiff's award pursuant to the collateral source statute. We held the settlement of the subrogation *611 claim, occurring after the tort trial had started, came too late for the employer-insurer to invoke the collateral source deduction. We left open, however, "whether a pretrial affirmative waiver of an employer's subrogation claim might cause the collateral source statute to apply." Id., 434 N.W.2d at 466 n. 4.
It is this issue, left open in Keenan, that is now before us.
I.
Some background might first be helpful. An injured employee who has received workers' compensation benefits and who has a tort action against a third-party tortfeasor, has a number of options, including:
(1) The plaintiff-employee litigates her entire claim including the compensation carrier's subrogation interest through to a verdict; the aggregate recovery is then shared by the plaintiff-employee and the compensation carrier according to the subdivision 6 formula of the Workers' Compensation Act. See, e.g., Kempa v. E.W. Coons Co., 370 N.W.2d 414, 419 (Minn.1985). Or,
(2) The plaintiff-employee settles her entire claim including the subrogation interest, and, again, the settlement recovery is shared by the employee and the compensation carrier in accordance with the subdivision 6 formula. If the injured employee has a spouse with a loss of consortium claim, the employee may elect to have an appropriate portion of the overall settlement set aside in satisfaction of the consortium claim, leaving only the remaining portion of the settlement subject to the subdivision 6 formula, as provided in Henning v. Wineman, 306 N.W.2d 550, 553 (Minn.1981). Or,
(3) The employee settles with the third party tortfeasor in a Naig settlement, i.e., she settles for all items of tort damage not covered by the Workers' Compensation Act, and this settlement recovery is not subject to the subdivision 6 formula.[2] The compensation carrier then pursues its subrogation claim alone against the third party tortfeasor.
On the other hand, the compensation carrier also has some options with respect to its subrogation claim, such as
(1) Leaving the initiative with the plaintiff-employee to collect its subrogation claim as part of the employee's tort action, the recovery being subject to the subdivision 6 formula. Or,
(2) Settling the subrogation claim directly with the third party tortfeasor, leaving the employee free to pursue her remaining claim against the third party tortfeasor. See Johnson v. Farmers Union Cent. Exchange, 414 N.W.2d 425, 428 (Minn.App.1987) (employer-insurer "waived" its subrogation rights prior to trial). If this settlement occurs after trial of the employee's tort action has commenced, Keenan holds the subdivision 6 formula applies so as to require the compensation carrier to share in the costs of collection.
It should be kept in mind that the compensation carrier, by statute, has its own "separate additional cause of action" for medical expenses paid and for other compensation payable. Section 176.061, subd. 7 (1990). The compensation carrier can intervene in the employee's tort action or maintain a separate action for recovery of benefits either in the employer's name or in the name of the employee. Section 176.061, subd. 5. If fault on the part of the employer is not involved, the claim may be viewed as one for indemnity. Section 176.061, subd. 10.[3] In other words, the compensation *612 carrier is pretty much free to dispose of its subrogation claim as it sees fit. If the compensation carrier permits its claim to be included in the employee's claim, however, the subdivision 6 formula contemplates that the compensation carrier will share in the costs of collection incurred by the employee. Part of the problem here is how are the collection costs to be borne when the employee and the compensation carrier go their separate ways prior to trial.
II.
So much for background. The issue in this appeal is what happens if the compensation carrier selects its second option and settles with the third party tortfeasor prior to trial? Does the subdivision 6 formula still apply? We think not. Neither do we think there is any need to apply the collateral source deduction.
A.
An employee is entitled under a Naig settlement to settle her claim for all damages not covered by workers' compensation free and clear of the subdivision 6 formula. Defendants argue the compensation carrier should likewise be able to settle its subrogation claim with the tortfeasor free and clear of the subdivision 6 formula. We believe there is merit to this argument.
By "free and clear of the subdivision 6 formula," we mean that the employee keeps intact her Naig recovery, pays her own collection costs, and waives any rights she might have under the subdivision 6 formula to what the compensation carrier might subsequently recover from the tortfeasor on its subrogation claim. In other words, the employee waives her right to the "one-third" outright share she would otherwise receive under the formula. Likewise, when the compensation carrier independently settles its subrogation claim, it waives any rights it might have to the employee's subsequent recovery, specifically, the right to claim a portion of the employee's recovery as a credit against future compensation payable. Cf. Johnson, supra. In other words, when either the employee or the compensation carrier settles their own claim, the employee's third party tort action has been effectively separated into one claim for damages recoverable under workers' compensation and another claim for those damages not recoverable under workers' compensation. There is, consequently, no need to use the subdivision 6 formula.
An objection, however, may arise with respect to collection costs. Is it fair for the employer-insurer to settle its subrogation claim without sharing in the attorney fees and costs incurred by the plaintiff-employee whose prosecution of her tort claim may have contributed to the employer-insurer's ability to negotiate a settlement? Should not the employer-insurer bear a proportionate share of the expenses of collection as required by the subdivision 6 formula? In Keenan, supra, for example, the employer-insurer asserted its subrogation claim throughout the trial to a verdict, and then settled with the defendant tortfeasor. We thought it unfair that the employer could take advantage of the employee's successful prosecution of the entire tort claim to a verdict without sharing in the costs of prosecution. Id., 434 N.W.2d at 466-67. We held, therefore, that notwithstanding the postverdict settlement, the subdivision 6 formula must be applied to the entire verdict, including the subrogation claim.
We think, however, the Keenan rationale has much less force when the employer-insurer settles its subrogation claim prior to trial. Presumably the employer-insurer gets the benefit of the pretrial preparation conducted by the employee's attorney, but, ordinarily, this pretrial preparation would have been conducted anyway by the plaintiff-employee in preparing for trial of her damages not covered by workers' compensation. Ordinarily it would be no great burden for plaintiff's attorney to carry the compensation carrier's subrogation claim through pretrial; indeed, not to have the employer intervening in plaintiff's suit as a *613 party openly asserting its subrogation rights is probably a tactical advantage to plaintiff in presenting her case to a jury. Then, too, the employee's attorney's first obligation is to the employee, and, in carrying out that obligation, counsel may elect to settle the employee's claim on a Naig settlement and to abandon the compensation carrier. Plaintiff's attorney does not have the same allegiance to the compensation carrier as to the plaintiff, and, consequently, the attorney does not have the same right to expect remuneration from the compensation carrier as from the plaintiff. When, then, should collection costs under the subdivision 6 formula be imposed?
We conclude the best solution is to hold the subdivision 6 formula does not apply if the compensation carrier settles any time prior to the commencement of trial. Trial commences with selection of the jury. It seems desirable to have a bright line cutoff for the application of the subdivision 6 formula, and commencement of the trial serves as a workable demarcation line.
The possibility of unfairness to plaintiff's attorney, as suggested by the concurrence, may at times exist but is unlikely and is outweighed by the need for a bright line to guide the parties in their settlement negotiations. In commencing a third party tort action on behalf of an injured employee, prudent counsel will take into account the many factors bearing on an ultimate recovery. For example, in a case where the value of the lawsuit lies in the subrogation interest and there is no contribution claim under Lambertson v. Cincinnati Corp., 312 Minn. 114, 257 N.W.2d 679 (1977), prudent counsel might well make suitable fee arrangements with the compensation carrier before undertaking the lawsuit.
B.
We see no need for the collateral source statute to apply in this case either.
Under Minn.Stat. § 548.36, "when damages include an award to compensate the plaintiff for losses available to the date of the verdict by collateral sources," a party may file a post-trial motion to determine the amount of collateral sources. Subd. 2. The trial court reduces plaintiff's award by the amount of the collateral sources paid on plaintiff's behalf or "otherwise available" to the plaintiff, "except those for which a subrogation right has been asserted." Id. If plaintiff were able to keep awarded subrogation damages for herself because the subrogee had not asserted a claim to them, plaintiff would be making an impermissible double recovery; therefore, if the collateral source has not been asserted by the subrogee, it is to be deducted. On the other hand, when subrogated damages are asserted in plaintiff's lawsuit by the subrogee, those damages when recovered in plaintiff's action are to be paid over to the subrogee, and there is no double recovery by the plaintiff; consequently, the collateral source is not deducted from plaintiff's award when it has been asserted by the subrogee.
When the subrogated damages have been separated out of plaintiff's action and settled by the compensation carrier prior to trial, there is nothing left for the collateral source statute to act upon. Ordinarily there is no need to continue to assert in plaintiff's action a subrogation claim that has been settled and is now out of the lawsuit. There is no need to deduct what is no longer there to be deducted.
There may be instances, however, where the jury might still be asked to determine the amount of a subrogation claim that has been settled. As in the case before us now, the plaintiff-employee may need to prove medical expenses of $4,000 or more for the limited purpose of meeting the threshold for maintaining her tort action, and she should, of course, be permitted to prove her threshold. See footnote 1, supra. The jury need not know the subrogation claim has been settled.[4]
*614 III.
We turn now to the facts of this case. Wausau settled its medical expenses claim of $7,717 prior to trial. Consequently, in adding up the jury's award, the item of $7,717 for past medical expense is simply ignored. Plaintiff's gross award is $16,940.14, which, reduced 30 percent for plaintiff's fault, leaves plaintiff a net recovery (before attorney fees) of $11,858.10.
In this case defendants' counsel, operating in uncharted waters, did not ask that the subrogated medical expenses be dropped from the lawsuit but said he would move post-trial for a deduction. Consequently, the trial court, after the trial, deeming the settled subrogation claim as nonasserted, applied the collateral source statute. The result is the same as we reach in the preceding paragraph.[5]
Plaintiff Fairbanks argues the Wausau settlement should be invalidated because made without prior notice to her. She cites Easterlin v. State of Minnesota, 330 N.W.2d 704, 707 (Minn.1982), where we held that the employee's failure to notify the employer-insurer of negotiations for a Naig settlement would entitle the compensation carrier to a credit for future benefits payable against the employee's Naig recovery. But Wausau's failure to give advance notice of a settlement of its subrogation claim did not prejudice the employee's continued prosecution of her lawsuit, and we see no reason to disturb the settlement.
The defendant tortfeasors took a somewhat convoluted approach in settling with Wausau. Defendants say they took an assignment of Wausau's subrogation rights and, as assignees, then waived those rights. In this case the subrogation claim consisted solely of past medical expenses. It seems incongruous to take an assignment of a claim against one's self that one has already settled. The fact of the matter is that defendants simply settled a claim against themselves outright. Supposedly defendants took this circuitous route to make sure that the compensation carrier could not later contend a right to use the employee's tort recovery as a credit against possible future compensation payable. Because we here hold the compensation carrier waives any such right by settling, there was no need for any "assignment and waiver" maneuver by the defendants.
If in this case Wausau had been paying continuing compensation benefits, the settlement dynamics would have been different. The carrier's right under the subdivision 6 formula to a credit against future compensation to be paid might be quite valuable to the carrier, and Wausau might not have wanted to waive these rights by settling for only $3,000.[6] But that is a different case.[7] With respect to settlement of future benefits, the collateral source statute, of course, is not involved because *615 it is limited to payments made "up to the date of the verdict." § 548.36, subd. 1.
Reversed and remanded to the trial court for further proceedings in accordance with this opinion.
YETKA, Justice (concurring specially).
Although I concur in the result, the majority opinion fails to address some issues that may arise when the employer and the third-party tortfeasor reach a settlement just before trial. If the entire amount of workers' compensation paid is removed from the injured employee's claim, the plaintiff may be penalized in several ways.
First, the plaintiff may not meet the threshold requirements to bring a lawsuit. See Minn.Stat. § 65B.51, subd. 3 (1990). If the plaintiff is able to go to trial, the jury might wonder why she has not submitted medical expenses when it is apparent that she has been injured. The court would have to explain to the jury why medical expenses are not included. These explanations would further complicate an already complex system and add to jury confusion.
Finally, plaintiff's attorney fees would be subject to dramatic reduction when the employer and the third party reach an eleventh-hour settlement. Lawyers would be discouraged from taking cases in which the chances of recovery against the tortfeasor in excess of workers' compensation are not great. Consequently, many injured employees with tort claims would go unrepresented. The system would create a bonanza for insurance companies at the expense of injured workers.
Allocation of attorney fees pursuant to Minn.Stat. § 176.061, subd. 6 (1990) is premised on the notion that, once trial commences, the plaintiff's attorney has prepared for recovery of the entire sum the tortfeasor owes, and so all parties should pay their share of costs and attorney fees. The same logic applies when the employer and the tortfeasor settle just before trial. The plaintiff's attorney has prepared and has earned fees for the entire claim, including workers' compensation benefits. The majority's bright-line test imposes an arbitrary deadline: 1 hour before a settlement, the plaintiff's attorney is entitled to a percentage of the entire claim; 1 hour later, he is not.
NOTES
[1] The jury also found plaintiff had sustained no permanent injury and no disability for 60 days or more. In other words, then, plaintiff met the no-fault threshold for a tort action only because her medical expenses exceeded $4,000. Minn. Stat. § 65B.51, subd. 3 (1990). Apparently, plaintiff had incurred $1,940.14 more medical expense prior to trial, not paid for by the compensation carrier, which raised the medical expense damages to more than the subrogated amount of $7,717.
[2] See Naig v. Bloomington Sanitation, 258 N.W.2d 891 (Minn.1977). In August 1988, plaintiff Fairbanks notified Wausau by letter of pending Naig settlement negotiations, but apparently nothing further came of this by the time the case was called for trial in May 1989.
[3] Section 176.061 speaks of the "employer's" subrogation or indemnity claim even though it is usually the employer's workers' compensation carrier that is the real party in interest. At times, therefore, for simplicity and depending on the context, we will refer to the subrogation claim as belonging to the compensation carrier; at other times (such as when the employer's fault is put at issue in a Lambertson contribution claim), we may refer to the claim as the employer's claim. These usages, it should be understood, are merely shorthand references for the dual persona of employer-insurer which can be said to hold the subrogation or indemnity claim.
[4] Because of the complexity of employee third party tort actions, there is merit, we think, in trying these actions before a jury as much like an ordinary personal injury tort action as possible. See, generally, Bearse & Paulsrud, Accommodating the Competing Goals in Minnesota's Third Party Workers' Compensation Claims, 10 Hamline L.Rev. 1 (1987).
[5] The trial court first totaled the jury verdict, arriving at a total of $24,657.14, including the medical expense award of $9,657.14. The total of $24,657.14 was then reduced to $17,260 to account for plaintiff's 30 percent fault. Next the trial court deducted $6,760 ($9,657.14 less 30 percent fault) from $17,260 to arrive at judgment for plaintiff in the amount of $10,500.
The trouble with these calculations is that the trial court, in making the first 30 percent discount for plaintiff's fault, had thereby reduced the nonsubrogated medical expenses of $1,940.14 ($9,657.14-$7,717) to $1,358.10. But in making its second deduction it again deducted $1,358.10 from plaintiff's judgment. There should have been only one deduction for plaintiff's 30 percent fault. If the second deduction of $1,358.10 is added back into plaintiff's recovery, her judgment is not $10,500 but $11,858.10 the same figure this court reaches.
It would have been to the employee's advantage to have had Wausau pay or acknowledge liability to pay her the additional $1,940.14 in medical expenses. The record does not show why the additional $1,940.14 was not Wausau's responsibility to the employee; however, the trial court found without objection that Wausau's subrogation claim was $7,717.
[6] Compare Haase v. Haase, 369 N.W.2d 311 (Minn.App.1985) (where the employer-insurer pursued to verdict its subrogation claim for future benefits payable after the employee had settled with the tortfeasor on a Naig release).
[7] Another scenario is illustrated by Keenan v. Hydra-Mac, Inc., 434 N.W.2d 463 (Minn.1989), where a Lambertson contribution claim had been asserted against the employer. The employer chose to waive its subrogation claim, including the credit against future benefits payable, in return for the defendant-tortfeasor's waiver of its contribution claim. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599143/ | 467 N.W.2d 93 (1991)
Wilmer H. CONITZ and Alma A. Conitz, Plaintiffs and Appellants,
v.
Betty CONITZ, a.k.a. Betty Lou Conitz; and Betty L. Conitz, Personal Representative of the Kenneth W. Conitz Estate, Defendant and Appellee.
Civ. No. 900211.
Supreme Court of North Dakota.
March 19, 1991.
Bryan L. Giese, Mandan, for plaintiffs and appellants.
Jos. A. Vogel, Jr., of Vogel Law Firm, Mandan, for defendant and appellee.
LEVINE, Justice.
Wilmer Conitz and Alma Conitz appeal from an order denying them a new trial and relief from an order allowing Betty Conitz to remove property from real estate owned by Wilmer and Alma. We affirm.
*94 The dispute between Wilmer and Alma, on the one hand, and Betty on the other, arose from the parties' dealings with farm property and contracts for deed for the property. Beginning in 1964, Betty Conitz and her late husband, Ken, lived on property owned by her in-laws, Wilmer and Alma. In 1971, Betty and Ken placed a double-wide mobile home on the farmstead and, in 1976, they built a garage and breezeway adjacent to their mobile home. In 1981, Ken purchased from his parents the farm property by contract for deed. In 1985, Ken and Betty signed a contract for deed with Wilmer and Alma which recited that Ken had defaulted on the 1981 contract and had given Wilmer and Alma a quitclaim deed. The 1985 contract reinstated the 1981 contract irrespective of the earlier default.
In 1989, Ken had died and Betty was in default on the contracts for deed. On April 19, 1989, a judgment was entered declaring Wilmer and Alma the owners of the property and cancelling the contracts for deed. Betty Conitz, individually and as personal representative of the estate of Kenneth W. Conitz, was ordered to give Wilmer and Alma a quitclaim deed and was given the right to occupy the land until September 15, 1989.
On May 8, 1989, Wilmer and Alma sought an order restraining Betty from selling certain buildings and fixtures at an auction she had scheduled. The district court granted Wilmer and Alma a temporary restraining order protecting their real property and fixtures from sale at the auction which was held to dispose of estate property.
On September 14, Betty moved for an order clarifying the restraining order. Her petition stated she was preparing to vacate the farmstead and that Wilmer and Alma had blocked the removal of the breezeway and garage attached to her mobile home. Wilmer and Alma submitted an affidavit that claimed they owned the breezeway and garage as fixtures by virtue of the 1989 judgment cancelling the contract for deed.
At a hearing on the motion, the district court heard oral testimony from Betty about the intent of the parties at the time the garage and breezeway were built in 1976. The contractor who was hired by Betty to move the garage and breezeway also testified about the physical characteristics of the property. Wilmer and Alma did not appear at the hearing, but were represented by counsel who offered photographs to show the physical characteristics of the contested property. The district court determined that there was an agreement that the breezeway and garage were personalty, and that the property, therefore, could be removed from the farm.
Wilmer and Alma filed motions for a new trial and for relief from the order. The trial court denied the motions and Wilmer and Alma appealed.
Wilmer and Alma urge us to treat Betty's motion for clarification as a motion for a judgment on the pleadings or summary judgment. They argue they are entitled to a trial on issues of disputed material fact. We disagree. The district court has the power to clarify a prior order. See Gross v. Gross, 466 N.W.2d 154 (N.D.1991); Wastvedt v. Wastvedt, 371 N.W.2d 142 (N.D.1985). Betty made her motion for clarification under Rule 3.2, North Dakota Rules of Court, and served notice of a hearing on the motion. The objective of the motion was to seek a determination whether the breezeway and garage were fixtures or personal property. The very purpose of the hearing was to aid the court in deciding the motion. There was no motion for a continuance. The district court was authorized to decide the motion for clarification after a hearing, notwithstanding the failure of Wilmer and Alma to appear. See Rules 7(b) and 6(d), NDRCivP; Rule 3.2, NDROC. We conclude that Betty's motion was not subject to the law of summary judgment.
Wilmer and Alma next assert that under the statute of frauds, it was improper for the district court to hear Betty's testimony because any agreement concerning the property had to be in writing. NDCC § 9-06-04(3). They did not raise *95 this objection at trial and it is, therefore, waived on appeal. Anderson v. Otis Elevator Co., 453 N.W.2d 798 (N.D.1990).
Wilmer and Alma also challenge the merits of the district court's decision. In Marsh v. Binstock, 462 N.W.2d 172 (N.D. 1990), we held that parties may agree to treat fixtures as personal property. Whether there has been an agreement to treat fixtures as personalty is a question of fact. Id. We review factual findings under Rule 52(a), NDRCivP, and will reverse a finding only if it is clearly erroneous. Koch v. Williams, 456 N.W.2d 299 (N.D. 1990).
The evidence presented at the hearing included Betty's testimony that at the time she and Ken built the breezeway and garage, they intended that these structures would be moved with the double-wide trailer if they left the farm. Betty also testified that the structures had been used exclusively with the trailer as one unit. The moving contractor testified that the structures were anchored to a "floating slab" of concrete, one without permanent footings, and that they could be moved without permanent damage. Wilmer submitted an affidavit asserting Wilmer and Alma's ownership of the breezeway and garage.
Assuming, arguendo, that the breezeway and garage are fixtures, based on the evidence presented at the hearing, the district court found there was an oral agreement to treat them as personalty. We conclude that finding is not clearly erroneous.
Nor did the trial court abuse its discretion in denying post-order relief. Wilmer and Alma argue that they were entitled to relief from the order because they were surprised by Betty's testimony that there was an agreement to treat the breezeway and garage as personalty. They submitted affidavits rebutting Betty's assertion of an agreement. They also argue that they have newly discovered evidence, but they do not say what it is or what element of their claim it relates to. We conclude that the district court did not abuse its discretion when it denied the motions for relief from the clarification order.
Affirmed.
ERICKSTAD, C.J., and VANDE WALLE, GIERKE and MESCHKE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2455716/ | 260 P.3d 101 (2011)
STATE
v.
GRIFFIN.
No. 103695.
Court of Appeals of Kansas.
September 23, 2011.
Decision Without Published Opinion
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592335/ | 470 N.W.2d 724 (1991)
238 Neb. 289
Margaret L. SIKYTA, Appellant and Cross-Appellee,
v.
ARROW STAGE LINES, INC., Appellee and Cross-Appellant.
No. 89-091.
Supreme Court of Nebraska.
June 7, 1991.
*726 Patrick W. Healey and K. Kristen Witter of Healey, Wieland, Kluender, Atwood, Jacobs & Geier, Lincoln, for appellant and cross-appellee.
Thomas M. White of Fitzgerald, Schorr, Barmettler & Brennan, Omaha, for appellee and cross-appellant.
HASTINGS, C.J., CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ., and COLWELL, District Judge, Retired.
SHANAHAN, Justice.
Margaret L. Sikyta appeals from a judgment in the district court for Lancaster County on the verdict for Arrow Stage Lines, Inc., in her negligence action for bodily injury sustained when she, as a passenger in an Arrow bus, fell on account of the bus driver's sudden application of the bus' brakes. Sikyta claims that reversible error resulted from the instruction on contributory negligence based on Sikyta's standing in the moving bus and submission of assumption of risk as a defense under the circumstances.
THE BUS TRIP
On the morning of November 10, 1984, Margaret Sikyta and her husband, Curtis, a "semiretired" contractor, were on a chartered Arrow bus which was carrying passengers from Ashland, Nebraska, to Lawrence, Kansas, for the Kansas-Nebraska football game that day. The bus departed Ashland at 7:30 a.m.
Interior of the Bus.
Passengers entered the bus through its right front door and stairwell, climbed three steps toward the driver's area, and then turned left into the bus' interior, which contained rows of double seats along an aisle which was 18 inches wide. Each bus seat had a shoulder-high back for a seated passenger. The bus' two right front seats, immediately adjacent to the stairwell, were separated from the stairwell by a waist-high metal partition and railing. Margaret and Curtis Sikyta were seated in the right front seats adjacent to the stairwell. Herman W. Campbell was driving the bus and its 42 passengers bound for Lawrence. At the extreme rear of the bus was a bathroom.
The Accident.
The bus was apparently moving in occasionally heavy southbound traffic on the highway. The day was clear with no moisture on the road surface. Some passengers noted that the bus was being driven "fast," perhaps around 65 miles per hour, while others described the bus' operation as nothing unusual. Margaret Sikyta, located in the window seat near the stairwell partition, was reading a morning paper and from time to time glanced at the road ahead. Somewhere in the course of the trip, Margaret observed that the bus had closely followed a car for a "few miles." Curtis, seated next to Margaret, was generally concerned that the bus, somewhere "down the road," might become involved in an accident in view of the traffic and the bus' speed.
Later in the trip, which had now taken approximately 1½ hours, Margaret decided to use the bathroom in the rear of the bus. Since Sikytas' location afforded little space for an exit maneuver from the window seat, it was necessary that Curtis Sikyta stand and move into the aisle so that Margaret might then step into the aisle and proceed to the bus bathroom. After Curtis had positioned himself in the aisle, Margaret stood and turned "sideways," facing the left or driver's side of the bus as she steadied herself by holding the back of the front seat. Meanwhile, from his vantage point in the aisle, Curtis, standing while facing forward and looking through the bus' windshield, was able to see "everything out the front of the bus" and saw *727 that the bus was overtaking a southbound "black car." When the bus was about 18 to 20 feet behind the black car, the car suddenly turned right to leave the highway. In Curtis Sikyta's view of Campbell's driving the bus, "there's no way I could tell whether he's going to hit a car or whether he's going to get slowed down in time or not." Campbell "slammed on" the bus brakes which "just threw everything about in the bus." When Campbell applied the bus brakes "suddenly," Margaret Sikyta "flew around and hit the dash and bounced down the steps head first." Curtis Sikyta grabbed the railing at the stairwell partition, but hit his head and shoulder on the bus windshield. Margaret landed in the stairwell with her head near the door and her feet on the stairs toward the driver. Curtis retrieved Margaret from the stairwell and assisted her to a seat as the bus continued toward Lawrence. As Curtis Sikyta later explained, he had feared that there would be an accident as a result of Campbell's driving, but "[n]ot necessarily that [black] car, with another car." After Curtis had stepped into the bus aisle and had the opportunity to observe the imminence of a collision between the bus and the black car, apparently everything happened so quickly that he was unable to call out a warning to Margaret.
Among the passengers, only Curtis Sikyta noted the bus' proximity to the vehicle being overtaken. One passenger, who had peered forward down the aisle somewhere in the trip, observed that the bus, while overtaking a vehicle, was so close to the overtaken vehicle that the passenger was unable to see the rear license plate on the preceding vehicle. However, this passenger was unable to verify that the overtaken vehicle observed by the passenger was the same vehicle overtaken just before the sudden application of the bus' brakes and could not determine the time interval between the passenger's observation and the application of the brakes which led to Margaret Sikyta's fall, that is, the time element might have been a "second or five minutes later."
Although none of the other passengers, with the exception of Curtis Sikyta, saw Margaret fall into the bus stairwell, some passengers recounted their movements after Campbell "stepped on his brakes." In one passenger's description, "my head went down in my lap and my back hit against the seat in front of me." Another passenger was en route to the bus bathroom and had taken "about two steps when he [Campbell] put on the brakes, and I would have fallen, but I was able to grab ahold of the seat by me."
MARGARET SIKYTA'S TRIAL
Depositions and Sikyta's Back Problems.
In her deposition, Margaret Sikyta stated that she had never seen a physician for back pain before the bus accident, although she did state that she had seen Dr. William Fulcher for "pain in [her] hip area once" before the accident.
The morning that trial commenced, the parties' counsel met with the judge and discussed the prospects of a videotape deposition by Dr. Fulcher because the doctor would be performing surgery the next morning. The substance of the discussion was prospective use of Dr. Fulcher's deposition in lieu of the physician's oral testimony adduced through his personal attendance at Sikyta's trial. Regarding a time for obtaining Dr. Fulcher's videotape deposition, the court inquired and commented:
What about this evening?
....
... Well, I mean, this is in lieu of having him here. This is not a discovery deposition, this is a trial deposition....
....
... Would it be possible for us to talk to Dr. Fulcher's office and see if they would schedule that deposition ... at the end of the day today? Is that agreeable with
....
... With everybody's agreement, I'll talk to him.
The judge, in counsels' presence, then telephoned Dr. Fulcher's office and talked with someone about the prospective deposition, *728 but the content of that conversation is undisclosed.
Later that same day, the court remarked to counsel: "Gentlemen, it is now 4:15, and I know that you have a deposition to take tonight at 5 o'clock in this case. At this time, we will therefore be in recess until 9 o'clock tomorrow." In Dr. Fulcher's deposition taken at the doctor's office in Lincoln, Sikyta's lawyer conducted direct examination, Arrow's lawyer the cross-examination.
On the morning of the second day in the trial, Sikyta's lawyer sought to introduce the videotape deposition of Dr. William Fulcher, an orthopedic surgeon who had treated Margaret Sikyta. Dr. Fulcher's deposition was taken on the first day of Sikyta's trial. Sikyta's lawyer told the court that use of the Fulcher videotape deposition at trial was necessary and, concerning a showing of Dr. Fulcher's "unavailability," commented to the court and Arrow's counsel:
Well, I thought we dealt with that yesterday when we decided that we were going to proceed and take a videotape deposition for use at trial, because he [Dr. Fulcher] is unavailable due to surgery commitments this week, as he has advised me several times. I can't represent that he's out of the city, but I think that the Court has discretion ... to permit use of videotape even if the witness may technically be in the environs, if he's not able to be here at trial.
Arrow's counsel referred to Neb.Ct.R. of Discovery 32(a) (rev. 1989), which provides:
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
....
(E) That such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used....
Arrow's lawyer then objected to use of the videotape deposition because Dr. Fulcher's "unavailability" had not been established as a "pre condition for use of [Dr. Fulcher's] deposition at trial." On the basis of the "representation" by Sikyta's lawyer, the court concluded that "Dr. Fulcher is presently in surgery and is in surgery today and unavailable to testify [and] that constitutes an exceptional circumstance, and, therefore, the deposition can be used under [Rule 32(a)(3)(E) ]."
Dr. Fulcher testified that Margaret Sikyta had been his patient in 1981 when he found "severe degenerative arthritis" in Sikyta's low back at the fourth and fifth lumbar vertebrae depicted in x rays shown to the jury. In 1981 and later, in reference to Margaret Sikyta's injuries from the bus accident, Dr. Fulcher diagnosed Sikyta's condition as "lumbar radicular syndrome," that is, radiation of pain due to nerve irritation, as a result of Margaret Sikyta's arthritic condition. In Dr. Fulcher's opinion, Margaret Sikyta's condition had been "asymptomatic," but the bus accident aggravated any preexisting condition in Margaret Sikyta's lumbar spine; hence, Margaret Sikyta's permanent disability was caused by the bus accident.
On cross-examination, when confronted with her deposition denial of any back problem before the bus accident, Margaret Sikyta testified that she had "completely forgotten about" her previous back condition. As Margaret Sikyta explained, her family physician had referred her to Dr. Fulcher in 1981 on account of her hip pain, a condition which she had mentioned in her deposition. Margaret's referral to Dr. Fulcher was prompted by her sister's death from cancer which had been accompanied by pain in the hip. Consequently, Margaret Sikyta had "completely forgotten about" her back problem, which was overshadowed by the possibility of cancer.
At the conclusion of Margaret Sikyta's case in chief, Arrow moved for a directed verdict. After the court overruled Arrow's directed verdict motion, Arrow presented its case in chief, which began with Dr. Patrick W. Bowman, an orthopedist who examined Margaret Sikyta at Arrow's request. Through his examinations, Dr. Bowman determined that Margaret Sikyta *729 suffered from "cervical spondylosis ... degenerative cervical disease or degenerative spine disease," which is manifested by symptoms such as "mechanical type achiness, aggravated by activity, relieved to some extent by rest and recumbency...." However, when Dr. Bowman asked Margaret Sikyta whether she had "suffered from any of the symptoms," aforementioned, if we assume that Margaret Sikyta was versed in the medicalese used by Dr. Bowman, she answered that her "symptoms dated exclusively from that injury" sustained in the bus accident. Nevertheless, Dr. Bowman concluded that Margaret Sikyta suffered from "longstanding degenerative spine disease," which had existed "at least since 1981, and probably before that...." Arrow called other witnesses, including the busdriver, Herman Campbell, who testified that the trip to Lawrence, Kansas, on November 10, 1984, was "uneventful" and "routine" and that he did not recall making a "sudden or abrupt stop" during the trip or Margaret Sikyta's being thrown into the bus stairwell.
Instructions and Verdict.
Over Margaret Sikyta's objection, the court instructed that Arrow claimed specific acts of negligence by Sikyta, which included her "standing while the bus was moving," and that if Arrow proved that Margaret Sikyta was standing in the moving bus, the jury should consider her contributory negligence in arriving at a verdict. Also over Sikyta's objection, the court submitted assumption of risk.
The jury returned a verdict in favor of Arrow.
Margaret Sikyta appeals; Arrow cross-appeals. We note that Sikyta's trial was disposed of on the basis that Arrow was a common carrier, a dispositional basis unchallenged in this appeal. In its review, an appellate court disposes of an appeal on the basis of the theory presented by the pleadings on which the case was tried. Union Pacific RR. Co. v. Kaiser Ag. Chem. Co., 229 Neb. 160, 425 N.W.2d 872 (1988). Accord, Rahmig v. Mosley Machinery Co., 226 Neb. 423, 412 N.W.2d 56 (1987); Foltz v. Northwestern Bell Tel. Co., 221 Neb. 201, 376 N.W.2d 301 (1985).
INSTRUCTIONS AND REVERSIBLE ERROR
In an appeal based on the claim of an erroneous instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant....
....
Regarding the claim of prejudice from an instruction given or a court's refusal to give a tendered instruction, the given instructions must be read conjunctively rather than separately in isolation. If the instructions given, which are taken as a whole, correctly state the law, are not misleading, and adequately cover the issues submissible to a jury, there is no prejudicial error concerning instructions and necessitating a reversal. [Citations omitted.] "All instructions, read conjunctively, must correctly state the law, adequately state the issues, and not mislead the jury."
Rose v. City of Lincoln, 234 Neb. 67, 74-75, 449 N.W.2d 522, 528 (1989).
CONTRIBUTORY NEGLIGENCE
A plaintiff is contributorily negligent if (1) the plaintiff fails to protect himself or herself from injury; (2) the plaintiff's conduct concurs and cooperates with the defendant's actionable negligence; and (3) the plaintiff's conduct contributes to the plaintiff's injuries as a proximate cause.
Burns v. Veterans of Foreign Wars, 231 Neb. 844, 850, 438 N.W.2d 485, 490 (1989). Accord Jensen v. Archbishop Bergan Mercy Hosp., 236 Neb. 1, 459 N.W.2d 178 (1990). See, also, Mandery v. Chronicle Broadcasting Co., 228 Neb. 391, 423 N.W.2d 115 (1988).
"One who is capable of understanding and discretion but fails to exercise ordinary care and prudence to avoid obvious danger is negligent or contributorily negligent."... "To determine whether conduct *730 constitutes negligence, the invariable standard is reasonable care, although reasonable care is directly proportional to the danger inherent in the conduct and may vary depending on the circumstances."
Rahmig v. Mosley Machinery Co., supra 226 Neb. at 452, 412 N.W.2d at 75. Accord, Lynn v. Metropolitan Utilities Dist., 225 Neb. 121, 403 N.W.2d 335 (1987); Anderson v. Union Pacific RR. Co., 229 Neb. 321, 426 N.W.2d 518 (1988).
In Sikyta's case, although the court instructed that Arrow had to prove Margaret Sikyta's contributory negligence, which, according to Arrow's specific allegations, included Sikyta's "standing while the bus was moving," the gist of the instruction is that, as a matter of law, Sikyta was negligent if she was merely standing in the moving bus. The question becomes: In and of itself, is a passenger's act of standing in a moving bus negligence?
As early as 1897, in East Omaha Street R. Co. v. Godola, 50 Neb. 906, 70 N.W. 491 (1897), this court affirmed a judgment for a plaintiff who was thrown from the platform of a streetcar owned by the defendant, which was "engaged in operating a suburban railway by means of electricity." 50 Neb. at 907, 70 N.W. at 491. Since a large number of people were in the car, the plaintiff was standing on the car's platform when the "train" sped into a curve at 12 miles an hour notwithstanding that 5 miles an hour was the maximum safe speed for negotiation of the curve. As one witness described the event: "`They went around that curve at a pretty good hickory. There was several of them took a tumble; they rolled off like pumpkins.'" 50 Neb. at 908, 70 N.W. at 492. In Godola, the court held: "The plaintiff was not, as a matter of law, guilty of contributory negligence in riding upon the platform of the motor." 50 Neb. at 909, 70 N.W. at 492.
Next, in 1907, in Coffey v. Omaha & C.B. Street R. Co., 79 Neb. 286, 112 N.W. 589 (1907), this court reviewed a wrongful death action in which a passenger, Nelson, was thrown from the defendant's streetcar and died as the result of striking the paved street. In affirming a verdict for the plaintiff, this court stated in Coffey:
Defendant contends that, since Nelson chose to stand on the lower outside step of the platform ... he was guilty of such contributory negligence as a matter of law.... [A] street railway company which permits the use of its platforms and steps for the carrying of passengers... is bound as a common carrier to use proper precaution for the protection of the passengers riding in such positions; and ... we think it cannot be said to be negligence per se for a passenger to ride in such position.
79 Neb. at 289-91, 112 N.W. at 590.
In Jacobs v. Milwaukee & Suburban Transp. Corp., 41 Wis.2d 661, 165 N.W.2d 162 (1969), the Supreme Court of Wisconsin held that a passenger on a moving bus was required to use reasonable and ordinary care, such as utilization of available safety devices, for example, handles at the end of the bus' seats, and concluded that "an ordinary prudent person would not walk down a bus aisle without hanging on or being in a position to use devices provided to aid one in maintaining his [or her] balance on a moving bus." 41 Wis.2d at 665, 165 N.W.2d at 164.
Similarly, in Southeastern Greyhound Lines, Inc. v. Chumley, 312 Ky. 154, 226 S.W.2d 777 (1950), the court considered the question of a plaintiff's contributory negligence when the plaintiff, standing in a bus aisle, was thrown about and injured when the bus came to a sudden stop. The Chumley court observed that the plaintiff, as a bus passenger, was required to "exercise the prudence and care for his own safety under the ordinary and usual exigencies attendant upon the circumstances." 312 Ky. at 160, 226 S.W.2d at 780. Cf. Sanders v. New Orleans Public Service, Inc., 422 So.2d 232 (La.App.1982) (although a passenger stood up in the bus aisle preparatory to disembarking the bus, leaving the bus seat before the bus had stopped was not contributory negligence).
In Margaret Sikyta's case, the bus was equipped with a bathroom and, therefore, provided an implicit invitation *731 for a passenger's use of the facility. Use of the bathroom required that a person walk to the facility at the rear of the bus; hence, one's walking to the bathroom was necessarily preceded by rising from a bus seat and standing preparatory to walking toward the bus bathroom. Whether there were safety devices available for Margaret Sikyta's use is undisclosed. Thus, we conclude that, in and of itself, a passenger's act of standing in a moving bus is not negligence. For that reason, the mere act of standing, without reference to attendant circumstances, cannot be classified as negligence on Margaret Sikyta's part. Yet, the trial court informed the jury that Margaret Sikyta's merely standing in a moving bus, if Arrow proved that act, constituted negligence on the part of Margaret Sikyta. Consequently, the court incorrectly instructed the jury that Margaret Sikyta was negligent as the result of her merely "standing while the bus was moving." That incorrect instruction was prejudicial to a fair disposition of Margaret Sikyta's negligence claim; hence, the instruction constituted reversible error.
ASSUMPTION OF RISK
The court also instructed that Margaret Sikyta's "assumption of risk," if proved by Arrow, was a defense to Sikyta's negligence claim.
At the outset, we again point out that contributory negligence and assumption of risk are not Tweedledum and Tweedledee affirmative defenses. Not every negligence cause of action must necessarily produce a reflex action based on contributory negligence and assumption of risk as affirmative defenses. However, contributory negligence and assumption of risk, mutually asserted as defenses to a negligence action, seem to continue as problems in the trial of negligence actions, that is, if the number of recent appeals is any indication of an existing problem. Reviewing the nature of negligence and assumption of risk may alleviate that troublesome situation.
As Prosser points out:
The whole theory of negligence presupposes some uniform standard of behavior. Yet the infinite variety of situations which may arise makes it impossible to fix definite rules in advance for all conceivable human conduct. The utmost that can be done is to devise something in the nature of a formula, the application of which in each particular case must be left to the jury, or to the court....
The courts have dealt with this very difficult problem by creating a fictitious person, who never has existed on land or sea: the "reasonable man of ordinary prudence."
....
The courts have gone to unusual pains to emphasize the abstract and hypothetical character of this mythical person. He is not to be identified with any ordinary individual, who might occasionally do unreasonable things; he is a prudent and careful person, who is always up to standard.
Prosser and Keeton on the Law of Torts, Negligence: Standard of Conduct § 32 at 173-75 (5th ed. 1984).
In reference to assumption of risk, Prosser has stated:
[T]he plaintiff is aware of a risk that has already been created by the negligence of the defendant, yet chooses voluntarily to proceed to encounter itas where he has been supplied with a chattel which he knows to be unsafe, yet proceeds to use it anyway; or where he proceeds to walk over debris on the sidewalk carelessly strewn and left there by a construction contractor. If these are voluntary choices, the plaintiff may be found to have accepted the situation, and consented to relieve the defendant of his duty.
....
... Where [contributory negligence and assumption of risk] have been distinguished, the traditional basis has been that assumption of risk is a matter of knowledge of the danger and voluntary acquiescence in it, while contributory negligence is a matter of some fault or departure from the standard of conduct of the reasonable person, however unaware, unwilling, or even protesting the *732 plaintiff may be. Obviously the two may coexist when the plaintiff makes an unreasonable choice to incur the risk; but either may exist without the other.
Prosser and Keeton on the Law of Torts, Negligence: Defenses § 68 at 481-82.
Nearly half a century ago, in Landrum v. Roddy, 143 Neb. 934, 12 N.W.2d 82 (1943), this court recognized the distinction between contributory negligence and assumption of risk:
[T]here is a clear distinction between the defense of assumption of risk and the defense of contributory negligence, notwithstanding they may arise under the same set of facts and may sometimes overlap. There is a line of demarcation which, if carefully scrutinized and followed, will allow the court to differentiate between them. Assumption of risk rests in contract or in the principle expressed by the ancient maxim, "volenti non fit injuria," whereas contributory negligence rests in tort. The former involves a choice made more or less deliberately and negatives liability without reference to the fact that the plaintiff may have acted with due care, whereas the defense of contributory negligence implies the failure of the plaintiff to exercise due care.
143 Neb. at 946, 12 N.W.2d at 89.
The distinction between contributory negligence and assumption of risk was reaffirmed in Rahmig v. Mosley Machinery Co., 226 Neb. 423, 450, 412 N.W.2d 56, 74 (1987), when we stated:
"`"One who knows of a dangerous condition, appreciates its dangerous nature, and deliberately exposes himself to the danger assumes the risk of injury from it."`" Rodgers v. Chimney Rock P.P. Dist., 216 Neb. 666, 670, 345 N.W.2d 12, 15 (1984). See Prosser and Keeton on the Law of Torts, Negligence: Defenses § 68 at 487 (5th ed. 1984) ("`Knowledge of the risk is the watchword of assumption of risk'").
In contrast with contributory negligence (fault or breach of a duty to exercise such care as an ordinary prudent person would have exercised under the same or similar circumstances), assumption of risk "`involves a choice made more or less deliberately and negatives liability without reference to the fact that the plaintiff may have acted with due care....'" Sandberg v. Hoogensen, 201 Neb. 190, 197, 266 N.W.2d 745, 750 (1978), quoting Landrum v. Roddy, 143 Neb. 934, 12 N.W.2d 82 (1943).
More recently, in Mandery v. Chronicle Broadcasting Co., 228 Neb. 391, 398-400, 423 N.W.2d 115, 120 (1988), we observed:
There is a definite demarcation between assumption of risk and contributory negligence as affirmative defenses, a delineation which may be obscured, if not totally obliterated, by incorrect application of these distinctly different defenses.
....
Before the defense of assumption of risk is submissible to a jury, evidence must show that the plaintiff (1) knew of the danger, (2) understood the danger, and (3) voluntarily exposed himself or herself to the danger which proximately caused the plaintiff's damage. [Citations omitted.] "[E]xcept where he expressly so agrees, a plaintiff does not assume a risk of harm arising from the defendant's conduct unless he then knows of the existence of the risk and appreciates its unreasonable character, or the danger involved, including the magnitude thereof, and voluntarily accepts the risk." Jensen v. Hawkins Constr. Co., [193 Neb. 220,] 226, 226 N.W.2d [346,] 350-51 [1975].
As expressed in Prosser and Keeton on the Law of Torts, Negligence: Defenses § 68 at 487 (5th ed. 1984): "`Knowledge of the risk is the watchword of assumption of risk.' Under ordinary circumstances the plaintiff will not be taken to assume any risk of either activities or conditions of which he has no knowledge. Moreover, he must not only know of the facts which create the danger, but he must comprehend and appreciate the nature of the danger he confronts. `A defect and the danger arising from it are not necessarily to be identified, and a *733 person may know of one without appreciating the other.' Knowledge of the general danger may not be enough, and some courts require knowledge of the specific risk that caused the plaintiff's harm. The standard to be applied is, in theory at least, a subjective one, geared to the particular plaintiff and his situation, rather than that of the reasonable person of ordinary prudence who appears in contributory negligence. If, because of age or lack of information or experience, he does not comprehend the risk involved in a known situation, he will not be taken to consent to assume it. His failure to exercise ordinary care to discover the danger is not properly a matter of assumption of risk, but of the defense of contributory negligence."
This court has recognized that, in determining the applicability of assumption of risk, "`The standard to be applied is a subjective one, of what the particular plaintiff in fact sees, knows, understands and appreciates. In this it differs from the objective standard which is applied to contributory negligence.'" Makovicka v. Lukes, 182 Neb. 168, 171, 153 N.W.2d 733, 735 (1967) (quoting from Restatement (Second) of Torts § 496 D, comment c. (1965)).
Thus, while contributory negligence is predicated on an objective standard involving a hypothetical, fictitious, or mythical person, namely, the reasonably or ordinarily prudent person, assumption of risk is predicated on a standard involving a very real person, namely, a particular plaintiff, and the plaintiff's voluntary exposure to a known danger caused by the defendant's negligence, although the plaintiff actually recognizes and understands the danger which proximately causes damage to the plaintiff. Consequently, this court concluded that assumption of risk was inapplicable in the following: Vanek v. Prohaska, 233 Neb. 848, 448 N.W.2d 573 (1989) (plaintiff's decedent lacked knowledge that defendant's vehicle was approaching from behind the decedent, who was jogging along the right side of a county road, although decedent may have generally known that her presence on the right side of the road was more dangerous than her being on the road's left side, which would have afforded a frontal view of oncoming traffic); Cassio v. Creighton University, 233 Neb. 160, 446 N.W.2d 704 (1989) (length of time during which plaintiff's decedent had been a scuba diver did not establish that decedent knew the risks of diving alone at the time when decedent drowned); Carnes v. Weesner, 229 Neb. 641, 428 N.W.2d 493 (1988) (plaintiff's walking on ice which covered the only access to her automobile was not a voluntary exposure to danger); Mandery v. Chronicle Broadcasting Co., supra (plaintiff, unaware that joists were missing beneath a floor, walked on the floor, which, on account of its weakened condition, collapsed and injured plaintiff); Rahmig v. Mosley Machinery Co., 226 Neb. 423, 412 N.W.2d 56 (1987) (plaintiff lacked knowledge about a design defect in a guillotine scrap shear which malfunctioned on account of the defect and traumatically amputated plaintiff's fingers).
In Mandery v. Chronicle Broadcasting Co., supra, we recognized that a plaintiff's knowledge of danger, as an element in assumption of risk, may be proved by circumstantial evidence, since knowledge is a state of mind or a mental process.
However, in our review of the record in Margaret Sikyta's case, we find no direct evidence that she knew and understood that sudden application of the bus' brakes was imminent to avoid a collision between Arrow's bus and the preceding automobile. Although Margaret Sikyta was aware of general traffic conditions that morning, she made no specific observation concerning any particular automobile ahead of the bus immediately before sudden application of the bus' brakes and was unaware of the preceding automobile's movement in turning from the highway as she commenced her walk to the bus bathroom. Thus, there is no evidence from which an inference might be drawn that Margaret Sikyta knew of imminent danger involving the bus as it overtook the preceding automobile and, notwithstanding her knowledge of that imminent danger, placed herself in a position to suffer the consequences *734 of attempted extrication from the dangerous situation, namely, sudden application of the bus' brakes in an effort to avoid a collision. Hence, we conclude that Arrow did not produce sufficient evidence to warrant submission of assumption of risk and permit the jury to conclude that Margaret Sikyta knew of the immediate and specific danger involved in the bus' operation in relation to the overtaken automobile, but, nevertheless, exposed herself to that danger which proximately caused her fall and injury. Therefore, on the basis of the record presented, the defense of assumption of risk should not have been submitted to the jury.
As a result of the improper submission of assumption of risk and instruction on that defense, the jury may have found that Margaret Sikyta assumed the risk, as claimed by Arrow. Consequently, the trial court's submitting assumption of risk was prejudicial to Margaret Sikyta's substantial right to a fair trial on her negligence claim and constituted reversible error.
ARROW'S CROSS-APPEAL
Arrow's Motion for Directed Verdict.
Although error was committed in the instruction on contributory negligence and by submitting assumption of risk, Arrow contends that its motion for directed verdict, made at the conclusion of Margaret Sikyta's case in chief, should have been sustained. However, after the court overruled Arrow's directed verdict motion, Arrow presented its case in chief. A defendant who moves for a directed verdict at the close of evidence in the plaintiff's case in chief and who, when the court overrules the directed verdict motion, proceeds with trial and introduces evidence waives the appellate right to challenge correctness in the trial court's overruling the motion for directed verdict. See, Lincoln Co. Sheriff's Emp. Assn. v. Co. of Lincoln, 216 Neb. 274, 343 N.W.2d 735 (1984); Church of the Holy Spirit v. Bevco, Inc., 215 Neb. 299, 338 N.W.2d 601 (1983); Baker v. Blue Ridge Ins. Co., 215 Neb. 111, 337 N.W.2d 411 (1983). Arrow's assigned error regarding the directed verdict motion is without merit.
Since we have concluded that reversible error occurred in Margaret Sikyta's trial, ordinarily, we would not consider Arrow's remaining assignments of error. However, Arrow's assigned errors beyond the directed verdict question refer to matters which may recur on retrial or which should be of some general interest to bench and bar in trials involving use of a deposition from a witness characterized as "unavailable."
Discredit of Margaret Sikyta's Testimony.
Arrow claims that Margaret Sikyta's testimony concerning her injuries is discredited as a matter of law. To support its position, Arrow refers to State v. Robertson, 223 Neb. 825, 828, 394 N.W.2d 635, 637 (1986):
Where it is clear that a party as a witness, to meet the exigencies in pending litigation and without reasonable explanation, changes such witness' testimony and then testifies to facts materially different concerning a vital issue, the subsequent and altered testimony from such witness is discredited as a matter of law and should be disregarded.
See, also, Momsen v. Nebraska Methodist Hospital, 210 Neb. 45, 313 N.W.2d 208 (1981).
During trial, Margaret Sikyta offered an explanation for her inconsistent deposition statement concerning existence of her back problem before the bus accident, namely, the possibility of cancer caused Margaret to focus on her medical examination and treatment for pain in her hip and overlook previous medical attention to her back. We are unable to conclude, as a matter of law, that her explanation is unreasonable and, therefore, a basis for mandatory discredit of her testimony. Whether Margaret Sikyta's explanation is reasonable and preserves her credibility is a matter for a jury's evaluation concerning witness credibility or weight to be given a witness' testimony.
The Fulcher Deposition.
Finally, Arrow claims that there was an insufficient showing that Dr. Fulcher could not or would not personally appear in court *735 to testify in the trial. In particular, Arrow contends that Sikyta failed to provide the trial court with a sworn factual basis, for example, an affidavit or testimony, for a determination whether a deponent was unavailable as a witness at trial.
Sikyta's lawyer never requested a subpoena for Dr. Fulcher's attendance at Sikyta's trial. See United States v. Bowen, 411 F.2d 923 (5th Cir.1969) (witness, who previously testified in a deposition, could not be located for service of a subpoena to compel attendance at trial; deposition testimony was allowed). Rather, regarding prospective use of the Fulcher videotape deposition as substantive evidence at trial, Sikyta's lawyer alluded to the absence of a subpoena for Dr. Fulcher as a result of some agreement or stipulation that the deposition could be used in place of testimony adduced through Dr. Fulcher's personal appearance in court. However, stipulated use of the Fulcher deposition as a substitute for the physician's testimony adduced through courtroom interrogation does not appear in the deposition. Hence, we must conclude that there was no stipulation for use of Dr. Fulcher's videotape deposition pursuant to Neb.Ct.R. of Discovery 32(a)(3)(E) (rev. 1989), although the circumstances, especially obtaining the deposition during trial, strongly suggest arrangements for more than a "discovery" deposition.
The Nebraska Discovery Rules for All Civil Cases, which became effective on January 1, 1983, are generally and substantially patterned after the corresponding discovery rules in the Federal Rules of Civil Procedure.
The tenor of Rule 32 is to prefer "live" testimony, that is, oral testimony adduced in a courtroom within the presence and hearing of a jury. Referring to Fed.R. Civ.P. 32, the court observed in Klepal v. Pennsylvania Railroad Company, 229 F.2d 610, 612 (2d Cir.1956): "[S]olicitude [is] disclosed in the rules generally for trials on oral testimony and the disposition to avoid trial on depositions alone where it can properly be avoided or where injustice or unfairness will not result." See, also, Rule 32(a)(3)(F) (due regard to the importance of presenting the testimony of witnesses orally in open court).
However, Rule 32(a)(3) does allow use of a witness' deposition in certain situations. A party seeking to admit or use a deposition on the basis that the witness is unavailable must establish that the requirements of Rule 32(a)(3) are satisfied. Rascon v. Hardiman, 803 F.2d 269 (7th Cir.1986). A showing of witness unavailability may be made through counsel's statements to the court. Castilleja v. Southern Pacific Company, 445 F.2d 183 (5th Cir. 1971). See, e.g., Comeaux v. T.L. James & Co., Inc., 666 F.2d 294 (5th Cir. 1982); Nanda v. Ford Motor Company, 509 F.2d 213 (7th Cir.1974); United States v. Bowen, supra; Frederick v. Yellow Cab Co. of Philadelphia, 200 F.2d 483 (3d Cir.1952).
Determination that a witness is unavailable, thereby authorizing use of the witness' deposition pursuant to Rule 32(a)(3)(E), is within the discretion of a trial court, whose ruling will be upheld on appeal in the absence of an abuse of discretion. See Castilleja v. Southern Pacific Company, supra. See, also, Pearl v. Keystone Consol. Industries, Inc., 884 F.2d 1047 (7th Cir.1989); Comeaux v. T.L. James & Co., Inc., supra; Huff v. Marine Tank Testing Corp., 631 F.2d 1140 (4th Cir.1980); Nanda v. Ford Motor Company, supra; United States v. Bowen, supra.
Also, we note that Sikyta's lawyer stated that Dr. Fulcher had "advised me several times" that the physician would be occupied in surgery during the week of Sikyta's trial. The statements by Margaret Sikyta's lawyer certainly dispel any notion that use of Dr. Fulcher's deposition became a necessity as the result of an emergency or something unexpected or unforeseeable, such as a sudden summons to surgery. Under the circumstances, a predeposition application for use of a deposition under Rule 32(a)(3)(F) might have avoided some of the procedural turmoil and headache. Rule 32(a)(3)(F) provides that a deposition may be used *736 [u]pon application and notice prior to the taking of the deposition, that circumstances exist such as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.
Most curious is the fact that Dr. Fulcher was available for a late afternoon deposition, but no subpoena was issued for Dr. Fulcher's court appearance to give testimony in the jury's presence at the time when he was otherwise available for the deposition.
Consequently, we need not continue further into the propriety of using Dr. Fulcher's deposition in place of his testimony adduced through his personal appearance in the courtroom during Margaret Sikyta's trial. From our examination of the Fulcher deposition, we note that Arrow's lawyer extensively cross-examined Dr. Fulcher. Moreover, Arrow does not demonstrate that use of the Fulcher deposition deprived Arrow of a substantial right, prevented a just result, or otherwise worked adversely or prejudicially to Arrow's case or defense. Arrow would be hard pressed to show deprivation of a substantial right or prejudice in light of the verdict favorable to Arrow. For that reason, we decline to delve further into the question about a proper procedure for showing that a witness is unavailable within the purview of Rule 32(a)(3)(E).
As a concluding comment about use of the Fulcher deposition, we recommend that trial courts abstain from involvement in the production or gathering of information pertinent to witness unavailability as a basis for use of a witness' deposition pursuant to Rule 32(a)(3). Such involvement not only complicates application of our standard of review, but presents unnecessary problems at the trial level in reference to a determination whether a witness is unavailable.
CONCLUSION
As we have previously mentioned, there is reversible error in the trial of Margaret Sikyta's case. For that reason, we set aside the district court's judgment entered on the verdict and remand this cause to the district court for a new trial.
REVERSED AND REMANDED FOR A NEW TRIAL. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592342/ | 135 S.W.3d 884 (2004)
Ex parte Jason Christopher SMITH.
No. 2-03-247-CR.
Court of Appeals of Texas, Fort Worth.
March 18, 2004.
*885 H.F. Rick Hagen, Denton, for appellant.
Bruce Isaacks, Crim. Dist. Atty., Kathleen Walsh, Earl Dobson, Paige McCormick, Asst. Dist. Attys., Denton, for appellee.
*886 Panel B: LIVINGSTON, HOLMAN, and WALKER, JJ.
OPINION
SUE WALKER, Justice.
I. INTRODUCTION
Appellant Jason Christopher Smith appeals from the trial court's denial of the relief sought in his pretrial writ of habeas corpus. In a single point, Smith alleges that his prosecution is barred by the statute of limitations and that the tolling provision alleged by the State is invalid. We hold that the tolling provision is not sufficiently specific and that the lack of specificity is a substantive defect. See TEX. CODE CRIM. PROC. ANN. arts. 12.02, 12.05(b), 27.08(2) (Vernon 1977). Accordingly, we sustain Smith's point, and order the information dismissed.
II. FACTUAL BACKGROUND
Smith was indicted on July 30, 1998, for aggravated assault of Shanna Whitley. The case proceeded to trial, and a jury found Smith not guilty of aggravated assault but guilty of the lesser-included offense of misdemeanor assault. Smith appealed; this court reversed the trial court's judgment and remanded the case for a new trial. Smith v. State, No. 02-00-323-CR (Tex.App.-Fort Worth Jan. 10, 2002, no pet.) (not designated for publication).
The State did not file a new pleading or charging instrument. In preparing for his upcoming retrial, Smith filed a special plea of double jeopardy and motion to dismiss, alleging that he was unlawfully being tried under the July 30, 1998 indictment.[1] Smith pointed out that the indictment charged him with aggravated assault, an offense a jury found he was not guilty of committing. The trial court denied these motions and called Smith's case for trial on January 6, 2003.
During voir dire, the State moved to dismiss, and obtained dismissal of, the indictment against Smith. On January 8, 2003, the State filed an information and complaint in county criminal court charging Smith with misdemeanor assault. The information included a tolling provision and is set forth below in its entirety.
*887
Smith then filed a motion to dismiss and an application for writ of habeas corpus alleging, in part, that the information was barred by the statute of limitations. The trial court issued the writ, conducted a hearing, and overruled Smith's motion to dismiss and request for habeas relief based on the contention that prosecution on the misdemeanor assault information was barred by limitations.[2] This appeal followed.
III. STANDARD OF REVIEW
A pretrial writ of habeas corpus is the proper procedural vehicle to raise the contention that the prosecution is barred by the statute of limitations. See, e.g., Ex parte Tamez, 38 S.W.3d 159, 160 (Tex.Crim.App.2001). In reviewing the charging instrument we look only to the face of the pleading. Id. at 160-61. The State may not rely on proof alone, but must allege facts which show that the statute of limitations has been tolled. Ex parte Dickerson, 549 S.W.2d 202, 203 (Tex. *888 Crim.App.1977). If the pleading, on its face, shows that the offense charged is barred by limitations, then it is appropriate that habeas corpus relief be granted. Tamez, 38 S.W.3d at 160-61.
The writ of habeas corpus is an extraordinary writ and neither a trial court nor an appellate court should entertain an application for writ of habeas corpus when there is an adequate remedy by appeal. Ex parte Weise, 55 S.W.3d 617, 619 (Tex.Crim. App.2001). A defendant may raise by pretrial habeas corpus claims concerning double jeopardy, collateral estoppel, and bail, because those protections would be undermined if they are reviewable only after a conviction. Ex parte Culver, 932 S.W.2d 207, 210 (Tex.App.-El Paso 1996, pet. ref'd). The burden is upon the applicant to establish his entitlement to habeas corpus relief. Jaime v. State, 81 S.W.3d 920, 924 (Tex.App.-El Paso 2002, pet. ref'd).
IV. THE TOLLING ALLEGATION
The statute of limitations for misdemeanor assault is two years. See TEX. CODE CRIM. PROC. ANN. art. 12.02. The time during the pendency of an indictment does not, however, count towards the limitations period. Id. art. 12.05(b); see also McAlister v. State, 119 S.W.3d 460, 462 (Tex.App.-Fort Worth 2003, no pet.); White v. State, 50 S.W.3d 31, 51-52 (Tex.App.-Waco 2001, pet. ref'd). Here, the State attempted to allege article 12.05(b)'s tolling provision in the second paragraph of the information set forth above.
Smith claims that the information's tolling allegation is invalid for two reasons. First he claims that, although limitations is tolled under article 12.05(b) during the time an indictment is pending, this provision is inapplicable here because the original indictment charged him with a June 1, 1998 aggravated assault under penal code section 22.02 while the new January 8, 2003 information charges him with a misdemeanor offense under a different penal code section, section 22.01. See TEX. PENAL CODE ANN. §§ 22.01, 22.02 (Vernon 2003). The State contends that Smith is estopped from raising this point because he obtained the benefit of a lesser-included offense charge and cannot now argue that the lesser-included offense is barred by the statute of limitations. See, e.g., Arroyo v. State, 117 S.W.3d 795, 798 (Tex.Crim. App.2003); Prystash v. State, 3 S.W.3d 522, 532 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000); State v. Yount, 853 S.W.2d 6, 9 (Tex.Crim.App.1993). By way of a supplemental letter brief, however, Smith concedes that the Texas Court of Criminal Appeals decided the merits of this issue adversely to him during the pendency of this appeal. See Hernandez v. State, No. 826-02, 2004 WL 203116, at *6 (Tex.Crim. App. Feb. 4, 2004).
Secondly, Smith contends that the tolling allegation set forth in the second paragraph of the information is not sufficiently specific to toll limitations because it does not indicate that it stems from the same criminal conduct as the one alleged in the indictment. The State argues that this complaint is not properly before us because Smith did not object on this basis in the trial court. Smith's application for writ of habeas corpus does raise this issue, however, by complaining that the prosecution "alleges an entirely new offense, different from the one alleged in the indictment."
Smith argues that, to be effective, the information's tolling provision had to allege that the indictment charging him with a June 1, 1998 aggravated assault against Whitley remained pending against him until the issuance of this court's mandate. Smith argues that nothing in the information's tolling allegation establishes that it was the indictment charging the June 1, *889 1998 aggravated assault of Whitley that remained pending, not some other indictment alleging a totally different aggravated assault. Smith asserts that the State could have met its burden by pleading in the tolling allegation the trial or appellate court cause number relating to this first trial, the victim's name, or the date of the alleged offense. The State contends that habeas corpus relief is not available for Smith's claims regarding the statute of limitations because we "would have to go beyond the face of the pleading to find the tolling provision invalid" in violation of Tamez. 38 S.W.3d at 160-61.
Here, the first paragraph of the information establishes that at the January Term 2003, the State charged Smith with a misdemeanor assault of Shanna Whitley and alleged that the offense occurred on or about June 1, 1998. Because the statute of limitations for misdemeanor assault is two years, the face of the first paragraph of the information shows that the prosecution is barred by the statute of limitations absent some tolling provision. See TEX.CODE CRIM. PROC. ANN. art. 12.02. The second paragraph of the information attempts, however, to allege a tolling provision: specifically an article 12.05(b) tolling provision excluding the time during the pendency of an indictment from the time counted toward the two-year limitations period. See id. art. 12.05(b); see also McAlister, 119 S.W.3d at 462; White, 50 S.W.3d at 51-52.
The question is whether the tolling provision allegation set forth in the second paragraph of the indictment is sufficiently specific to establish, by looking only at the face of the information, that an indictment was previously pending against Smith for the same criminal conduct charged in the information. Our recent holding in McAlister addresses this issue. 119 S.W.3d at 461-62. In McAlister, the appellant was charged by information under cause number 9202-E with misdemeanor assault by causing bodily injury to Amos McAlister. Id. The information alleged that the assault occurred on June 6, 1999. Id. Subsequently, the State presented a July 24, 2002 information filed under cause number 1971-E alleging the same offense, only with more detail, and moved to dismiss the earlier information. Id. The trial court dismissed the first information, and the case proceeded to trial on the July 24, 2004 information over the appellant's objection that the offense charged in the subsequent information was time-barred. On appeal, the appellant contended that the offense charged in the July 24, 2004 information was time barred and that article 12.05(b)'s tolling provision did not apply because the two informations were in fact for different offenses. Id. at 462. We rejected the appellant's argument because "the new information also recited that the case was previously filed under cause number 9202-E.... both indictments allege the same criminal offense (assault), the same commission date, and the same victim." Id. at 463.
Here, the tolling allegation asserted by the State does not indicate that the case was previously filed under a particular district court cause number. The tolling allegation does not reference this court's prior appellate cause number. The tolling allegation does not allege that the indictment previously pending against Smith was for the same offense charged in the information. It does not allege that the indictment previously pending against Smith charged him with an aggravated assault committed on June 1, 1998, or that the victim of the charged assault was Shanna Whitley. In short, the tolling allegation does nothing more than plead that from July 30, 1998 through March 21, 2002, an indictment was pending against Smith in the 362nd District Court of Denton County for aggravated assault of someone at sometime. Looking solely to the face of *890 the pleading, we hold that the State's tolling allegations are not sufficiently specific to show that the indictment pending was for the conduct charged in the information. Cf. McAlister, 119 S.W.3d at 462-63 (pleading former information's cause number, date of offense, and victim's name was sufficiently specific to toll limitations under article 12.05(b)); White, 50 S.W.3d at 51-52 n. 24 (subsequent information sufficient).
Having determined that the State's tolling allegation in paragraph two of the information does not sufficiently plead facts triggering article 12.05(b)'s tolling provision, the next question we must address is: what is the proper remedy? The court of criminal appeals explained presentation of a statute of limitations defense in Proctor v. State, 967 S.W.2d 840, 844 (Tex.Crim.App.1998). In Proctor, the court stated that "[b]efore trial, a defendant may assert the statute of limitations defense by filing a motion to dismiss under Article 27.08(2) of the Texas Code of Criminal Procedure." 967 S.W.2d at 844; see also Farrar v. State, 95 S.W.3d 648, 650 (Tex.App.-Eastland 2002, no pet.). Article 27.08(2) provides that "[t]here is no exception to the substance of an indictment or information except: ... 2. That it appears from the face thereof that a prosecution for the offense is barred by a lapse of time." TEX.CODE CRIM. PROC. ANN. art. 27.08(2) (Vernon 1989). Article 27.08(2) permits the accused to attack the State's defective indictment or information; this provision permits a "substance" exception to an indictment or information when it appears from the face of the instrument that a prosecution for the offense is barred by time. Farrar, 95 S.W.3d at 650. The remedy for this pleading error is either the dismissal or amendment of the indictment or information. Id.
The writ of habeas corpus is an extraordinary remedy which will issue only if the applicant has no adequate remedy at law. Weise, 55 S.W.3d at 619. Here, Smith has no adequate remedy at law. He pursued a motion to dismiss, and it was denied. Cf. Ex parte Brooks, 97 S.W.3d 639, 640 (Tex. App.-Waco 2002, no pet.) (habeas applicant should pursue claim that his arrest was based solely on racial profiling in motion to suppress); Ex parte Garrison, 47 S.W.3d 105, 107 (Tex.App.-Waco 2001, pet. ref'd) (habeas applicant should pursue claim of speedy trial violation by motion to quash or motion to dismiss). And a pretrial writ of habeas corpus is the proper procedural vehicle to raise the contention that the prosecution is barred by the statute of limitations. Tamez, 38 S.W.3d at 160. The January 8, 2003 information charging Smith with a June 1998 misdemeanor assault, on its face, shows that the offense charged is barred by limitations, absent any tolling provisions. Accordingly, in light of the State's ineffectual tolling provision pleadings, it is appropriate that relief be granted in this case. See Tamez, 38 S.W.3d at 160-61.
We sustain Smith's point.
V. CONCLUSION
Having sustained Smith's sole point, we vacate the trial court's order overruling Smith's motion to dismiss and habeas corpus relief based on the contention that the prosecution was barred by limitations and dismiss the January 8, 2003 information.
NOTES
[1] Smith cited Kennedy v. State, 732 S.W.2d 708, 709-10 (Tex.App.-Corpus Christi 1987, no pet.) (holding double jeopardy bars retrial under indictment charging offense defendant was acquitted of committing by virtue of being found guilty only of lesser-included offense).
[2] The trial court granted the writ as to Smith's contention that the information's new, additional, manner and means of committing the offense by "sucking" was barred by limitations. The allegation of "sucking" was ordered stricken from the information. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592247/ | 19 So.3d 241 (2009)
Mark ALLBRITTON and Kristie Allbritton
v.
Robert DAWKINS, Jr.
2080063.
Court of Civil Appeals of Alabama.
March 27, 2009.
*242 Ronald R. Cook of Smith & Alspaugh, P.C., Birmingham, for appellants.
Russell B. Robertson of Laird & Robertson, P.C., Jasper, for appellee.
MOORE, Judge.
Mark Allbritton and Kristie Allbritton ("the Allbrittons") appeal from a judgment declaring that "Allbritton Lane" is not a public road, denying their request for a restraining order and/or an injunction, and denying their claims that they held an easement by prescription or by necessity across property owned by Robert Dawkins, Jr. We reverse the trial court's judgment and remand the case to allow the joinder of indispensable parties.
Procedural Background
On January 23, 2008, Mark Allbritton and his wife, Kristie Allbritton, filed a "Petition for Temporary Restraining Order and/or Preliminary Injunction," naming Robert Dawkins, Jr., as the defendant. The Allbrittons alleged that a dirt road, referred to as "Allbritton Lane," runs across property owned by Dawkins and serves as the only means of ingress and egress to the property on which the Allbrittons reside, that Allbritton Lane is a public road, and that Dawkins or his tenant had blocked the Allbrittons' access to the property on which they reside by interfering with their passage over Allbritton Lane. The Allbrittons also alleged that they had acquired an easement by prescription or by necessity across the property owned by Dawkins. The Allbrittons requested the issuance of a preliminary injunction and/or a temporary restraining order to prevent Dawkins from interfering with the Allbrittons' use of Allbritton Lane.
*243 The Allbrittons and Dawkins reached an "Agreement on Issues Pendente Lite." In that agreement, the parties agreed that whether Allbritton Lane was a public or private road was an issue central to the resolution of this action. The trial court adopted the parties' agreement as to the issues presented in the case. Dawkins answered the complaint and counterclaimed, seeking damages for trespass to private property and seeking a judgment declaring the rights of the parties as to Allbritton Lane.
On September 4, 2008, the trial court conducted a bench trial, at which it received ore tenus evidence. The trial court subsequently entered its judgment finding that Allbritton Lane was not a public road as defined by the laws of Alabama; that the Allbrittons' use of Allbritton Lane had not been shown to be adverse to Dawkins and/or his predecessors in title for a period of 20 years and that, as a result, the Allbrittons were not entitled to an easement by prescription across Dawkins's property; and that the Allbrittons had not established that they were entitled to an easement by necessity across Dawkins's property. The trial court concluded that Dawkins was the sole owner of his property and ordered Dawkins to refrain from taking any action to block or obstruct the Allbrittons' use of Allbritton Lane for 60 days after the issuance of the court's judgment. The trial court further stated that, after the 60-day period, Dawkins was entitled to exercise full and complete dominion over his property. All remaining claims and counterclaims were dismissed with prejudice. The Allbrittons appealed to the Alabama Supreme Court; that court transferred the appeal to this court, pursuant to § 12-2-7, Ala.Code 1975.
Factual Background
Although the trial court received extensive ore tenus evidence at the September 2008 bench trial, we need consider only limited facts. It was established at trial that neither Mark Allbritton nor Kristie Allbritton owned any legal interest in any of the property at issue. When they filed their petition and at trial, the Allbrittons were living on property owned by Mark's mother. The Allbrittons, however, did not join Mark's mother or any other persons as plaintiffs in the action.
Additionally, other evidence established that, although Dawkins owns a portion of the property over which Allbritton Lane runs, he does not own the entire length of Allbritton Lane. Carl Allbritton, a third party who was not joined in this action, also owns a portion of the property over which Allbritton Lane runs. In traveling along Allbritton Lane in order to access the property owned by Mark's mother, the Allbrittons must pass across Carl Allbritton's property; moreover, to access his property, Dawkins also must pass across Carl Allbritton's property. However, Carl Allbritton was not made a party to the action; the Allbrittons named only Dawkins as a defendant.
Analysis
The absence of an indispensable party is a jurisdictional defect that renders the proceeding void. See Gilbert v. Nicholson, 845 So.2d 785, 790 (Ala.2002). Although no party to this appeal has raised the issue of indispensable parties, the absence of an indispensable party can be raised for the first time on appeal by the appellate court ex mero motu, even if the parties failed to present the issue to the trial court. Id.
Our supreme court has stated:
"Rule 19, Ala. R. Civ. P., provides for joinder of persons needed for just adjudication. Its purposes include the promotion of judicial efficiency and the final *244 determination of litigation by including all parties directly interested in the controversy. Where the parties before the court adequately represent the absent parties' interests and the absent parties could easily intervene should they fear inadequate representation, no reason exists why the trial court could not grant meaningful relief to the parties before the court. Also, joinder of absent parties is not absolutely necessary where determination of the controversy will not result in a loss to the absent parties' interest or where the action does not seek a judgment against them. . . .
"[The supreme court] has also held, however, that in cases where the final judgment will affect ownership of an interest in real property, all parties claiming an interest in the real property must be joined."
Byrd Cos. v. Smith, 591 So.2d 844, 846 (Ala.1991) (citations omitted). See also Johnston v. White-Spunner, 342 So.2d 754 (Ala.1977) (when a trial court is asked to determine property rights of property owners not before the court, the absent property owners are indispensable parties and any judgment entered in the absence of those parties is void).
In this case, the Allbrittons requested that the trial court determine whether Allbritton Lane is a public or private road or, alternatively, to determine whether easements existed in favor of the property on which the Allbrittons live. Because any determination of those issues could impact the ownership interests in real property of Carl Allbritton, Mark's mother, and any other person owning an interest in property over which Allbritton Lane runs, those absent property owners are indispensable parties to this action. Byrd Cos., supra; and Johnston, supra. The absence of the other affected property owners renders the trial court's judgment on those issues void.
Additionally, the county is an indispensable party to an action seeking to determine whether a road is public or private. Boles v. Autery, 554 So.2d 959, 962 (Ala.1989). See also Ala.Code 1975, § 23-1-80 ("The county commissions of the several counties of this state have general superintendence of the public roads . . . within their respective counties. . . .").
"The trial court's determination of whether the road was public or was private might affect not only the rights of the individual litigants but also the rights of members of the public to use the road, the duty of the county to maintain it, and the liability of the county for failure to maintain in. If the county is not joined as a party, then neither it nor other members of the public are bound by the trial court's ruling. Accordingly, if the county and other persons are not bound, then the status of the road as public or private is subject to being litigated again, and the results of later litigation may be inconsistent with the results of the initial litigation."
Boles, 554 So.2d at 961. As recognized in Boles, the fact that a county employee is called to testify as a witness at trial as occurred in this case does not negate the requirement that the county be joined as a party to the action. Id.
"The absence of a necessary and indispensable party necessitates the dismissal of the cause without prejudice or a reversal with directions to allow the cause to stand over for amendment." J.C. Jacobs Banking Co. v. Campbell, 406 So.2d 834, 850-51 (Ala.1981). See also Brewton v. Baker, 989 So.2d 1137, 1140 (Ala.Civ.App. 2008) (quoting and relying on J.C. Jacobs Banking Co., supra). We, therefore, reverse the judgment of the trial court, and we remand the case to allow joinder of all *245 necessary and indispensable parties and for further proceedings consistent with this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592437/ | 453 So.2d 684 (1984)
Thomas Peyton EDWARDS, Jr.
v.
Linda F.W. JAMES.
No. 54953.
Supreme Court of Mississippi.
July 18, 1984.
L.J. McKinney, Jr., Wallace & Dean, Columbus, for appellant.
L. Marshall Goodwin, Jordan & Woolbright, Columbus, for appellee.
Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.
ROY NOBLE LEE, Presiding Justice, for the Court:
The Family Court of Spartanburg, South Carolina, entered a consent decree on December 13, 1972, divorcing Thomas Peyton Edwards and Linda F.W. James (Edwards) and fixing support for a minor child of the parties at $50.00 per month to be paid by Edwards. Subsequently, on March 16, 1982, Linda James filed a petition for modification of the decree in the Chancery Court of Lowndes County, averring that Thomas Edwards was able to pay $350.00 per month support for the child and that there had been a material change in circumstances surrounding the child and the parties. Edwards filed a handwritten pro *685 se answer to the petition for modification, setting out his inability to pay additional support.
The docket setting for the April 1982 Term of the Lowndes County Chancery Court occurred on Monday, April 12, 1982, at which setting James did not appear to request a trial setting. The record is not clear whether Edwards was present for the docket call.
On April 19, 1982, the lower court issued a fiat setting 1:30 p.m., April 29, 1982, for hearing the modification petition and a petition to cite for contempt.[1] On that date, viz., April 29, 1982, the court proceeded with hearing the modification petition in the absence of Edwards, increased the child support payments to $175.00 per month, and awarded $200.00 for James' attorney's fees.
On July 1, 1982, Edwards filed a petition to set aside the April 29, 1982, order modifying the original decree and increasing child support, and, on September 23, 1982, James filed a petition to cite Edwards for contempt because of his failure to make the $175.00 support payments. An agreed order was entered setting December 16, 1982, for hearing the contempt citation and the petition to set aside the decree. Edwards filed an answer on November 16, 1982, setting out as an affirmative defense that the order of April 29, 1982,[2] was entered without notice to him and that he was denied due process of law when the hearing proceeded in his absence. The petition to set aside the April 29, 1982, order was overruled and Edwards has appealed to this Court with supersedeas.
Edwards assigns as error that he was not given notice of the April 29, 1982, modification hearing and, therefore, was not afforded an opportunity to appear and present his defense. James does not deny that Edwards failed to receive notice of the hearing. We address only that question.
The Mississippi Rules of Civil Procedure pertinent to the question follow:
Rule 40(b)
(b) Notice. The clerk shall, at least twenty days prior to the date cases will be set for trial, notify all attorneys of record of the time and date the trial calendar will be set. After setting, the clerk forthwith, and in no event more than three days after an action has been placed on the trial docket, shall notify all attorneys of record of trial settings by mailing a copy of the docket of the court.
Rule 81(d)
(d) Domestic Relations. Complaints, petitions, or motions for temporary relief pending a divorce or separation action, for modification of custody, support, and alimony judgments, and for enforcement of such judgments by contempt proceedings or otherwise, shall be governed by the provisions of these rules as to motions.
Rule 6(d)
(d) Time: Motions. A written motion, other than one which may be heard ex parte, and notice of the hearing thereof, shall be served not later than five days before the time fixed for the hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion; and, except as otherwise provided in Rule 59(c), opposing affidavits may be served not later than one day before the hearing, unless the court permits them to be served at some other time.
James cites Campbell v. Campbell, 357 So.2d 129 (Miss. 1978), and takes the position that the divorce was originally granted by a South Carolina court; that the parties were not under the jurisdiction of the Mississippi court upon filing the petition; and that Rule 6(d) does not apply. *686 In Campbell, a Mississippi chancery court granted a divorce, together with support payments, and the respondent subsequently moved to the State of Iowa. Upon filing the modification petition in the Mississippi court, publication was made for the respondent in Iowa. We held that jurisdiction of the Mississippi court is a continuing jurisdiction and publication was sufficient notice. In the case sub judice, the record is uncontradicted that Edwards had no notice of the special setting on the petition to modify the decree. Campbell is not applicable. James commences this action by filing her bill to modify. Rule 81(d) requires that the procedural aspects of the case be governed by the provisions of the Civil Rules relating to motions. One of those provisions is Rule 6(d) which placed upon James and her attorney the obligation to serve upon Edwards notice of the April 29, 1982, hearing not later than five (5) days before April 29, 1982. James did not do this and the record does not indicate that any of the notice rules were complied with.
James also argues that all the information pertinent to Edwards' defense was contained in his handwritten answer and the outcome would have been the same. This argument is not well taken. Even though the result might have been the same, Edwards, and every other defendant or respondent, has the right to notice in a court proceeding involving him, and to be present, and to introduce evidence at the hearing. That valuable right was denied Edwards and requires that the April 29, 1982, decree of the lower court modifying the original South Carolina decree be vacated, and the case be remanded for a new trial on its merits.
REVERSED AND REMANDED.
PATTERSON, C.J., WALKER, P.J., and BOWLING, HAWKINS, DAN M. LEE, ROBERTSON and SULLIVAN, JJ., concur.
PRATHER, J., not participating.
NOTES
[1] The order referred only to the petition for contempt and not to the modification petition.
[2] Also the fiat dated April 19, 1982, setting the hearing for April 29, 1982. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592283/ | 453 So.2d 1260 (1984)
STATE of Louisiana
v.
Dion MITCHELL.
No. CR83-854.
Court of Appeal of Louisiana, Third Circuit.
June 27, 1984.
Writ Denied September 28, 1984.
*1262 Monty L. Doggett, Natchitoches, for defendant-appellant.
Eric R. Harrington, Asst. Dist. Atty., Natchitoches, for plaintiff-appellee.
Before GUIDRY, LABORDE and KNOLL, JJ.
GUIDRY, Judge.
Defendant, Dion Mitchell, was charged by grand jury indictment on March 31, 1982, with aggravated rape, a violation of La.R.S. 14:42, and with attempted simple kidnapping, a violation of La.R.S. 14:45 and 14:27. Defendant filed a motion to suppress a confession and a motion to suppress identification testimony. Both motions were heard and denied on August 27, 1982. The defendant thereafter pled not guilty to both charges. After waiving his right to trial by jury, and after trial by a judge on April 18, 1983, defendant was found guilty as charged on both counts. Following a pre-sentence investigation, defendant was sentenced to the mandatory sentence of life imprisonment at hard labor, without benefit of parole, probation or suspension of sentence on the conviction of aggravated rape. The defendant was also sentenced to two and one-half years, to run concurrent with the above sentence, for the conviction of attempted simple kidnapping. Defendant appeals both convictions and sentences alleging seven assignments of error.
Suzanne Oliver, the alleged victim, testified as follows: On the afternoon of March 31, 1982, she was working alone at Guillams Electric, Inc. in Natchitoches, Louisiana. As she was sweeping the walkway in front of the business, two black men approached her asking for cigarettes. They questioned Ms. Oliver about applying for a job and inquired about the whereabouts of her boss and the other employees. One of them asked to use the telephone. Ms. Oliver consented and the two men entered the building. The two men overpowered Ms. Oliver and forced her into a rear office. One of the men, by physical force and under the threat of an open-bladed knife, proceeded to have intercourse with Ms. Oliver while the other kept a look out. The man was having difficulty in having an erection and the ordeal went on for over an hour. Just as he was penetrating the victim, his partner who had been watching the front door suggested they go elsewhere before someone arrived. Ms. Oliver was instructed to get dressed. The man who had been watching the front door brought Ms. Oliver's car around to the front of the building. The defendant, holding Ms. Oliver in a necklock, dragged her outside the building to the car. Ms. Gena Crow, a friend of Ms. Oliver's who happened to be driving by, observed the two men abducting Ms. Oliver, stopped her car in the street and shouted at them. Ms. Oliver broke away from the men and escaped into her friend's car. The two men ran away into the fields behind the building.
Ms. Oliver and Ms. Crow went directly to the police station, told what had happened, described the two men and the direction in which they had run. The defendant, Dion Mitchell, was apprehended shortly thereafter at about 4:00 p.m. and brought to the police station. As he was led handcuffed to the room where Ms. Oliver was still seated, she spontaneously identified him as her assailant.
The State introduced into evidence a written waiver of rights and an inculpatory statement, both allegedly signed by the defendant. The statement reflects that it was completed at 7:00 p.m. on March 31, 1982. At trial on the motion to suppress and at trial on the merits, defendant denied making or signing the statement and denied any involvement in the incident.
Ms. Oliver submitted to a medical examination about five hours after the alleged incident which revealed bruises and abrasions on the neck, upper arm, chest and about the face. There was no physical evidence of a penetration. The only other physical evidence of the assault was the results from the crime lab showing the presence of foreign pubic hair which had the characteristics of negroid hair.
*1263 The seven assignments of error alleged by defendant on appeal are as follows:
1. The trial court erred in refusing to suppress the identification of the defendant by the victim, based on an unconstitutional one-on-one viewing of the defendant.
2. The trial court erred in refusing to suppress the confession of defendant without requiring testing of handwriting exemplars.
3. The trial court erred in limiting defense counsel's interrogation of the prosecutor, concerning the prosecutor's possible influence on statements made by the victim.
4. The trial court erred as a matter of law in finding that an aggravated rape took place beyond any reasonable doubt.
5. The trial court erred in convicting defendant of aggravated kidnapping without sufficient corroborative evidence.
6. The trial court erred in failing to grant a new trial based on the court's failure to apply the proper standard of reasonable doubt.
7. Based on the facts in this case, a mandatory life sentence is cruel, excessive and unusual punishment as prohibited by the Eighth and Fourteenth Amendments to the United States Constitution and Article I, Section 20 of the Louisiana Constitution.
ASSIGNMENT OF ERROR NO. 1
By this assignment, the defendant contends that the trial court erred in refusing to suppress the out of court identification of the defendant by the victim because it was based on an unconstitutional one-on-one viewing of the defendant. Defendant also contends that the in-court identification testimony of the victim should have been suppressed because it was based solely on the unconstitutional out-of-court identification.
In his argument on this assignment, defendant relies on Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969) and Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). These cases and others follow the holding of Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), that the Fourteenth Amendment's guarantee of due process is violated by the admission of evidence deriving from unnecessarily suggestive identification procedures conducive to mistaken identification.
In the present case, the trial judge considered the factors set out in Neil v. Biggers, supra, and reiterated in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) and concluded that the victim's in-court and out-of-court identifications of the defendant were reliable. Although the record supports this conclusion, we think that this issue is more properly disposed of on the basis that the out-of-court identification was not the result of unnecessarily suggestive identification procedures. The record supports the trial judge's finding of fact that the police, at the time of the defendant's arrest, did not suggest to her that he was the alleged rapist. The defendant was taken directly to a room for questioning without stopping by the only available route through the station. When the victim happened to notice him, she made an unsolicited spontaneous identification. There was nothing to suggest to the victim that the defendant had been apprehended in connection with her case. The identification was independent of any police procedure and the rule of Stovall and its progeny does not apply in this case. For these reasons, we find that the in-court and out-of-court identifications were properly admitted.
ASSIGNMENT OF ERROR NO. 2
Defendant has not briefed this assignment. Assignments of error which are not briefed are considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982).
*1264 ASSIGNMENT OF ERROR NO. 3
Through this assignment the defendant argues that the trial court erred in limiting the defense counsel's interrogation of the prosecutor in the hearing on the motions to suppress concerning the prosecutor's possible influence on statements made by the victim. The defendant asserts that the trial judge abused his discretion by ending the defense counsel's questioning of the prosecutor, concerning his coaching of a witness, after only minutes of examination.
The record appears to indicate that defense counsel was given adequate opportunity to question the prosecutor concerning this matter. The defense counsel was arguing that the assistant district attorney had coached the victim concerning the necessity of an identification based on observations other than the one-on-one confrontation discussed in assignment number one. As discussed therein, no such necessity existed. The trial judge merely exercised his discretion in directing counsel to proceed with the case and to end his unnecessary examination and accusations against the assistant district attorney.
"In the discipline of his court, the trial judge is vested with a sound discretion to stop the prolonged, unnecessary and irrelevant examination of a witness, whether such examination be direct or cross, and even though no objection be urged by counsel." LSA-R.S. 15:275.
It appears to be clearly settled that the trial judge has complete discretion to stop unnecessary examinations. Moreover, "his rulings will not be disturbed unless an abuse of discretion is shown". State v. Naas, 409 So.2d 535 (La.1981), cert. denied, 457 U.S. 1119, 102 S.Ct. 2933, 73 L.Ed.2d 1332. See also State v. Chapman, 410 So.2d 689 (La.1981). We find no abuse of discretion in the ruling of the trial judge.
ASSIGNMENTS OF ERROR NOS. 4 AND 5
Defendant contends by these assignments that the State failed to prove the essential elements of the crimes of aggravated rape and aggravated kidnapping[1] beyond a reasonable doubt.
A defendant has not been afforded due process and his conviction cannot stand unless, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact would conclude that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Graham, 422 So.2d 123 (La.1982).
Rape is defined as the act of anal or vaginal sexual intercourse with a male or female person who is not the spouse of the offender, committed without the person's lawful consent. La.R.S. 14:41 further provides that "emission is not necessary; and any sexual penetration, vaginal or anal, however slight is sufficient to complete the crime." The only element essential to a conviction, which the defendant asserts was not proven beyond a reasonable doubt by the State, was that there was a penetration.
The defendant argues that the testimony of the victim upon which the State relied to prove penetration was equivocal. He refers to a written statement given by the victim within an hour of the incident, which was made part of the record. The statement describes the sequence of events occurring over a period of time of over an hour. Although the victim recounts at one point that the defendant "didn't have an erection and he couldn't get it in", and then later "he was starting to penetrate inside me when the guy with the green pants came in and told the guy in the blue vest, let's go", the context of the statements make it quite clear that the two *1265 statements are not contradictory, but merely describe different points in time. Any ambiguity in the statement "starting to penetrate inside of me" was cured at trial by the victim's testimony in which she made it very clear that there was indeed a slight penetration. We do not find it surprising, and neither did the attending physician or the crime lab expert, that there was a lack of physical evidence of vaginal penetration. The victim admitted that there was no emission and only a slight penetration. This is all that is required by statute to constitute rape. Other particulars of the victim's statement were corroborated by physical evidence tending to establish her veracity. Under well settled jurisprudence, the victim's testimony alone is sufficient to establish the fact of penetration. State v. Rives, 407 So.2d 1195 (La.1981). Viewing the evidence in a light most favorable to the prosecution, the trial judge could have concluded that the State proved penetration as well as every other element of the crime of aggravated rape beyond a reasonable doubt.
We also find that viewing the evidence in a light most favorable to the prosecution, the trial judge could reasonably conclude that the State proved the essential elements of the crime of attempted simple kidnapping.
"Simple kidnapping is:
(1) The intentional and forcible seizing and carrying of any person from one place to another without his consent;..." La.R.S. 14:45(A)(1).
The facts demonstrate, both through the victim's testimony and the testimony of an eyewitness, Ms. Gena Crow, that the defendant was, with specific intent, forcibly removing Ms. Oliver from her place of employment to her car, to leave for an unknown destination, without her consent. The defendant's partner had driven Ms. Oliver's car around to the front of the building. The engine was running. The defendant came out of the building with his arm around Ms. Oliver's neck attempting to force her into her own car. The chance intervention of her friend who happened by thwarted the defendant's attempt to forcibly take Ms. Oliver to an unknown destination. In our view, the State clearly made out its charge of attempted simple kidnapping.
ASSIGNMENT OF ERROR NO. 6
The apparent thrust of this argument is that the trial judge erred in failing to grant a new trial where the fact that the defendant was found guilty with "such a lack of evidence" demonstrates that the judge could not have applied the proper standard of reasonable doubt. As the previous discussion demonstrates, there was sufficient evidence to support the convictions of the defendant, applying the proper standard of reasonable doubt. We therefore find no merit in this assignment of error.
ASSIGNMENT OF ERROR NO. 7
Defendant's remaining assignment of error challenges the mandatory life sentence imposed by the trial court for the conviction of aggravated rape, as violative of the Eighth Amendment of the U.S. Constitution, being cruel and unusual punishment.
This assignment has no merit. With respect to statutes not requiring capital punishment, mandatory sentences are not unconstitutional. State v. Farria, 412 So.2d 577 (La.1982); citing State v. Prestridge, 399 So.2d 564 (La.1981).
For the above and foregoing reasons, the defendant's convictions and sentences are affirmed.
AFFIRMED.
NOTES
[1] The defendant was charged and convicted of attempted simple kidnapping, a violation of La. R.S. 14:45 and 14:27. He was not convicted of aggravated kidnapping, a violation of La.R.S. 14:44. Thus, defendant's argument that the State failed to prove the perpetrator intended to force the victim or someone else to give up something of value is without merit since this is not a requisite element of the crime of simple kidnapping. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592307/ | 453 So.2d 808 (1984)
Timothy BUNNELL, Petitioner,
v.
STATE of Florida, Respondent.
No. 64105.
Supreme Court of Florida.
July 19, 1984.
Robert E. Jagger, Public Defender, and Howard L. Crown, Asst. Public Defender, Sixth Judicial Circuit, Clearwater, and G. Robertson Dilg, Sp. Asst. Public Defender, Public Defender Clinic, Stetson College of Law, Orlando, for petitioner.
Jim Smith, Atty. Gen., and Robert J. Landry and Theda James Davis, Asst. Attys. Gen., Tampa, for respondent.
SHAW, Justice.
This petition seeks review of a district court decision, State v. Bunnell, 447 So.2d 228 (Fla. 2d DCA 1983), which expressly upheld the validity of chapter 82-150, Section *809 1, Laws of Florida (codified as section 843.035, Florida Statutes (Supp. 1982)). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.
Bunnell was charged in county court with obstruction of justice by giving false information in violation of section 843.035. Bunnell moved to dismiss on the ground that chapter 82-150, section 1, Laws of Florida, violated the "one-subject" provision of article III, section 6 of the Florida Constitution. The trial court granted the motion, finding that chapter 82-150 contained two subjects bearing no reasonable relationship to each other. On appeal, the district court reversed, holding that the statute was constitutional in that it did not violate article III, section 6. We disagree and quash the district court decision.
In pertinent part, article III, section 6 provides that "[e]very law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title."
The title of chapter 82-150 reads:
An act relating to the Florida Council on Criminal Justice; creating s. 843.185, [now section 843.035] Florida Statutes, prohibiting the obstruction of justice by false information; providing a penalty; amending s. 23.152(3), (4) and (8), Florida Statutes, changing and reducing the membership of the council; providing for nonvoting representatives of members; providing for review and repeal of Part VIII of Chapter 23, Florida Statutes, relating to the "Florida Criminal Justice Council Act" in accordance with the Regulatory Sunset Act; providing an effective date.
Section 1 of the act creates section 843.185 which reads:
843.185 Obstruction by false information. Whoever in any manner knowingly gives a false name or a false address with intent to obstruct the due execution of the law, or with the intent to intimidate, hinder, or interrupt any law enforcement officer or beverage enforcement agent in the legal performance of his duty under the construction or laws of this state, whether such obstruction is effected or not, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
Section 2 of the act amends section 23.152, Florida Statutes (1981), relating to the Florida Council on Criminal Justice. Section 3 repeals section 23.152 and other sections relating to the Florida Council on Criminal Justice, effective 1 July 1983, subject to "sunset" review under section 11.61, Florida Statutes (1981). Section 4 provides an effective date of 1 July 1982.
The purpose of the requirement in article III, section 6 that "the subject shall be briefly expressed in the title" is to provide notice to all concerned of the general nature and substance of the act. Kirkland v. Phillips, 106 So.2d 909 (Fla. 1958). We agree with the district court that the title provides adequate notice and is not constitutionally infirm for that reason.
The subject matter of the act is another matter. We recognize the applicability of the rule that legislative acts are presumed to be constitutional and that courts should resolve every reasonable doubt in favor of constitutionality. Hanson v. State, 56 So.2d 129 (Fla. 1952). Nevertheless, it is our view that the subject of section 1 has no cogent relationship with the subject of sections 2 and 3 and that the object of section 1 is separate and disassociated from the object of sections 2 and 3. State ex rel. Landis v. Thompson, 120 Fla. 860, 163 So. 270 (1935); and Williams v. State, 100 Fla. 1054, 132 So. 186 (1930). We hold that section 1 of 82-150 was enacted in violation of the one-subject provision of article III, section 6, Florida Constitution.
The district court decision is quashed and the case remanded for proceedings consistent with this opinion.
It is so ordered.
BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD and EHRLICH, JJ., | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592311/ | 19 So.3d 259 (2007)
TIMOTHY L. CRONK
v.
STATE.
No. CR-06-0180.
Court of Criminal Appeals of Alabama.
October 26, 2007.
Decision of the alabama court of criminal appeal without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592488/ | 19 So.3d 168 (2009)
Billy Fred McCARRELL, Appellant
v.
Janie Annette Hyde McCARRELL, Appellee.
No. 2008-CA-00580-COA.
Court of Appeals of Mississippi.
October 13, 2009.
*169 William Bolton Seale, Walls, attorney for appellant.
William P. Myers, Jackson, Amy Holliman Brown, attorneys for appellee.
Before KING, C.J., GRIFFIS, CARLTON and MAXWELL, JJ.
CARLTON, J., for the Court.
¶ 1. Janie and Billy McCarrell divorced after a twelve-year marriage. The chancellor ordered Billy to pay Janie $1,800 per month in rehabilitative alimony and Janie's attorneys' fees which totaled $15,803. Billy appeals these decisions. We find no error and affirm the chancellor.
FACTS AND PROCEDURAL HISTORY
¶ 2. Janie and Billy married on June 30, 1995. In November 1996, Janie gave birth to their only child, Billy James. Billy filed for divorce on August 2, 2006. Both parties pled irreconcilable differences as the ground for divorce. The parties entered into an agreed order of divorce and a property settlement. The chancellor granted Janie physical custody of Billy James and ordered Billy to pay $800 per month in child support.
¶ 3. The chancellor issued a written opinion that the chancery clerk entered on December 20, 2007. In this opinion, the chancellor ordered Billy to pay Janie $1,800 per month for five years as rehabilitative alimony with the first payment due on January 5, 2008. The chancellor also issued a final decree of divorce that the chancery clerk entered on January 18, 2008.
¶ 4. Billy appeals, alleging that the chancellor: (1) abused her discretion when she awarded Janie rehabilitative alimony in the amount of $1,800 per month for five years; (2) erred when she ordered Billy to make his first alimony payment on January 5, 2008, when the clerk did not enter the final *170 decree of divorce until January 18, 2008; and (3) abused her discretion when she ordered Billy to pay Janie's attorneys' fees in the amount of $15,803. Finding no error, we affirm the chancellor's judgment.
STANDARD OF REVIEW
¶ 5. "This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." R.K. v. J.K., 946 So.2d 764, 772(¶ 17) (Miss.2007). Additionally, we have found that "[w]henever a chancellor's decision is based on credible evidence, this Court will affirm that decision." C.A.M.F. v. J.B.M., 972 So.2d 656, 666-67(¶ 44) (Miss.Ct.App.2007) (citations omitted). "Or differently stated, this Court may reverse a chancellor's findings of fact only when there is `no substantial evidence in the record' justifying his findings." Id. at 667(¶ 44) (citations omitted).
I. REHABILITATIVE ALIMONY
A. Award of Rehabilitative Alimony
¶ 6. At the conclusion of the chancellor's detailed analysis of the Armstrong[1] factors, the chancellor stated the following:
In light of the factors outlined above, [Janie] is entitled to periodic alimony. Yet she has not asked the Court for periodic alimony, but for rehabilitative alimony for a period of time to allow her to get her education and become self-supporting. [Janie's] demand for rehabilitative alimony is designed to allow her to attain that goal.
The chancellor then awarded Janie rehabilitative alimony for a period of five years, beginning on January 5, 2008, to be paid in the monthly sum of $1,800.
¶ 7. Billy argues that the record fails to support the chancellor's award of rehabilitative alimony, and he urges this Court to reverse and render that portion of the chancellor's order. In turn, Janie contends that the chancellor did not abuse her discretion in granting her the award of rehabilitative alimony.
¶ 8. "Rehabilitative alimony provides for a party who is trying to become self-supporting and prevents that party from becoming destitute while searching for a means of income." Voda v. Voda, 731 So.2d 1152, 1155(¶ 8) (Miss.1999). Moreover, "[t]he primary purpose of rehabilitative alimony is to give the former spouse the opportunity to enter the work force." Alexis v. Tarver, 879 So.2d 1078, 1080(¶ 7) (Miss.Ct.App.2004).
¶ 9. In her opinion, the chancellor provided the following findings (among others not listed) under the Armstrong factors when she granted Janie rehabilitative alimony: (1) Billy earned $92,000 in income for 2006, and Billy's projected income for 2007 amounted to $109,000; (2) in contrast, Janie presently earned $11.77 per hour on a part-time basis at her job at FedEx; (3) Billy had significant earning capacity, while Janie's earning capacity was expected to increase greatly if she obtained an associate's or bachelor's degree; (4) Janie planned to attend college part time and to work full time; (5) Janie testified that she could complete her associate's degree in four years, but in order to attend college, she required financial assistance from Billy to meet her monthly expenses; (6) Janie had full custody of Billy James; (7) Billy wastefully dissipated the largest asset of the marriage, the $55,000 of equity in the family home, when he "had sufficient funds" to stop the foreclosure of the home, but he did not do so; (8) Billy wastefully dissipated over $15,000 in certificates of *171 deposit, which the chancellor found "were clearly established as marital property"; (9) Billy received a "disproportionately larger distribution of marital assets" than Janie; (10) Billy left the marriage with $720 in marital debt, while Janie assumed $4,566 in marital debt, $1,000 in medical bills, and $1,200 in debt to her mother for Janie's attorneys' fees; (11) Janie paid monthly rent in the amount of $800, along with utilities, lawn maintenance, groceries, gasoline, and other expenses; and (12) both parties agreed that Janie did not currently have the education and skills that would allow her to make a good living.
¶ 10. Based on the above findings of the chancellor, we find the chancellor did not err in awarding Janie rehabilitative alimony in the monthly amount of $1,800 as it serves the purpose of helping Janie become self-supporting and prevents her from becoming destitute while doing so. See Voda, 731 So.2d at 1155(¶ 8). This issue lacks merit.
B. Effective Date of Janie's Rehabilitative Alimony Award
¶ 11. Billy contends that his alimony payments did not become effective until the chancery clerk filed the final decree of divorce on January 18, 2008. Billy's assertion fails to consider that the clerk filed the chancellor's opinion containing the order on December 20, 2007. Billy does not assert lack of knowledge of the December 20, 2007, entry. Janie submits that in the chancellor's December 20, 2007, written opinion, the chancellor ordered Billy to pay rehabilitative alimony beginning on January 5, 2008. Therefore, Janie contends that Billy should have complied with the chancellor's order by making his first payment by January 5, 2008.
¶ 12. Billy contends that he only had to comply with the final decree and not with the chancellor's December 20, 2007, order that is set forth in the opinion of the court. However, our jurisprudence recognizes that the chancellor possesses the statutory authority to order temporary alimony and make proper orders and judgments thereon. Miss.Code Ann. § 93-5-17(2) (Miss. 2004). Moreover, courts are always deemed open for purposes of making and directing all interlocutory motions, orders, and rules. See also M.R.C.P. 77(a).
¶ 13. In McCardle v. McCardle, 862 So.2d 1290, 1292(¶ 9) (Miss.Ct.App.2004), this Court recognized that "[a]ll orders, judgments and decrees commanding the payment of alimony, attorney's fees and expenses of litigation, temporary alimony, child support payments, as well as orders including child custody and visitation rights may all be enforced by an action for contempt against the offending party." A review of the record in this case reflects that on December 20, 2007, the chancellor provided a detailed memorandum opinion of the court setting forth the court's findings, conclusions, and application of the law. In her written opinion, the chancellor awarded Janie rehabilitative alimony in the amount of $1,800 per month, beginning on January 5, 2008, and continuing monthly for five years. The chancery clerk filed the chancellor's written memorandum opinion on December 20, 2007. The clerk then filed the chancellor's final decree of divorce on January 18, 2008. The final decree of divorce incorporated both the property settlement and the chancellor's previous December 20, 2007, written memorandum opinion containing the order to pay rehabilitative alimony due on January 5, 2008.
¶ 14. Certainly, the chancellor possesses the authority to order temporary alimony and make all proper orders and judgments thereon. Miss.Code Ann. § 93-5-17(2); M.R.C.P. 77(a); see also Langdon v. Langdon, 854 So.2d 485, *172 496(¶ 44) (Miss.Ct.App.2003). The duty to pay temporary support terminates upon entry of the final judgment of divorce, but the judgment does not eliminate the obligation to pay temporary alimony arrearages which accrued before the entry of the final decree. Prescott v. Prescott, 736 So.2d 409, 416(¶ 35) (Miss.Ct.App.1999) (citing Lewis v. Lewis, 586 So.2d 740, 741 (Miss.1991)). Stated differently, a temporary order is not a final order; however, arrearages accrue on unpaid temporary support payments. Id. Further, temporary support orders are enforceable through contempt actions. McCardle, 862 So.2d at 1292(¶ 9); see also Bell on Mississippi Family Law § 9.01[5][c], at 236 (2005).
¶ 15. Here, the chancellor issued a written memorandum opinion that was entered on December 20, 2007, containing the order to pay the rehabilitative alimony beginning on January 5, 2008. Billy correctly asserts that he was required to comply with the final decree; however, he was also required to comply with previous orders of the court made prior to the final decree. We note that Billy raised this issue before the chancellor on his motion for reconsideration of final decree, and the chancellor denied the motion. We find that this issue lacks merit. See M.R.C.P. 77(a).
II. Attorneys' Fees
¶ 16. Taking into consideration governing case law and, specifically, the guidelines set forth by the supreme court in McKee v. McKee, 418 So.2d 764, 767 (Miss.1982), the chancellor awarded Janie $15,803 in attorneys' fees. Billy argues that the chancellor erred in awarding Janie attorneys' fees because Janie failed to prove that she could not pay her attorneys' fees and because the chancery court never actually cited him for contempt. Billy further states that Janie's award of $15,000 in equitable division of the marital property evidences that Janie has the financial ability to pay her own attorneys' fees.
¶ 17. However, we note that Billy did not preserve this issue for appeal. At the hearing, Billy neither objected to the introduction of evidence as to an award of attorneys' fees, nor did he object to the manner in which the chancellor was asked to apply the McKee factors. Billy only objected to Janie testifying as to whether she believed that her attorneys' fees constituted a fair and reasonable rate. In response, the chancellor sustained the objection and allowed Janie to testify as to her lay opinion, but not as an expert witness. When Janie then introduced an itemized statement of her attorneys' fees, Billy failed to object.
¶ 18. The procedural bar notwithstanding, our jurisprudence generally provides that "[a]n award of attorney's fees is appropriate in a divorce case where the requesting party establishes an inability to pay." Gray v. Gray, 745 So.2d 234, 239(¶ 26) (Miss.1999) (citations omitted). Conversely, if "a party is financially able to pay her attorney, an award of attorney's fees is not appropriate." Young v. Young, 796 So.2d 264, 268-69(¶ 11) (Miss.Ct.App. 2001) (quoting Martin v. Martin, 566 So.2d 704, 707 (Miss.1990)). As the issue of whether to award attorneys' fees in a divorce case constitutes a discretionary matter left to the chancellor, this Court is "reluctant to disturb" such a finding. Id. at 268(¶ 11).
¶ 19. Additionally, a chancellor may also award attorneys' fees based on a party's wrongful conduct as stated in Chesney v. Chesney, 849 So.2d 860, 863(¶ 12) (Miss. 2002) as follows:
There have been a number of prior decisions upholding the award of attorney's fees to one party where the other party *173 has been found to be in contempt of court or where that party's actions caused additional legal fees to be incurred. See A & L, Inc. v. Grantham, 747 So.2d 832, 844-45 (Miss.1999) (holding that awarding attorney's fees under certain circumstances, regardless of the party's ability to pay, is not a reward, but reimbursement for the extra legal costs incurred as a result of the opposing party's actions); Douglas v. Douglas, 766 So.2d 68, 71 (Miss.Ct.App.2000) (where a party who is entitled to the benefits of a previous judicial decree is forced to initiate further proceedings to gain compliance with the previous order of the court, an award of attorney's fees is appropriate).
¶ 20. A review of the record in this case sheds light on the chancellor's analysis. To guide courts in the manner in which they award attorneys' fees, the McKee court stated the following:
In determining an appropriate amount of attorney[s'] fees, a sum sufficient to secure one competent attorney is the criterion by which we are directed. Rees v. Rees, 188 Miss. 256, 194 So. 750 (1940). The fee depends on consideration of, in addition to the relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case.
McKee, 418 So.2d at 767.
¶ 21. The chancellor explained why she awarded Janie $15,803 in attorneys' fees in stating the following in her December 20, 2007, opinion:
An itemized statement of attorney[s'] fees incurred by [Janie] was made an exhibit at the trial of this matter, which reveals that [Janie] has paid $4,500 towards her attorney[s'] fees that totaled over $11,500 prior to trial. Testimony and evidence adduced at trial reveals that [Janie], based on her expenses that exceed her part-time income, does not have the financial ability to pay her attorney[s'] fees, and that she in fact used temporary support payments to make a partial payment of fees incurred on her behalf. [Janie] does not have any further assets to pay her attorney[s'] fees. On the other hand, there is evidence that [Billy] made $92,000 in 2006. In September 2006, [Billy] cashed in certificates of deposit totaling over $15,000 without notifying [Janie] and without sharing any of the money with [Janie]. [Billy] purchased his own home in December 2006, and drives a 2006 Hummer, for which he pays $1,100 per month, and that [Billy] is projected to earn even more for 2007. A great financial disparity exists between the parties. [Billy] has the financial ability to pay [Janie's] attorney's fees. [Janie] is unable to pay.
Additionally, the record reveals that [Billy] failed to comply with the [agreed order] on numerous occasions (he was delinquent in payment of his court-ordered temporary support to [Janie] at the trial of this matter, as acknowledged by [Billy] at trial). [Janie] was forced to incur insufficient fund charges due to [Billy's] bad checks for temporary support.... [Janie] was forced to file two separate [petitions for contempt] against [Billy]. [Billy] brought to one of the hearings on the [petition for contempt] four delinquent payments to avoid being held in contempt. One of the checks did not clear the bank due to insufficient *174 funds. Further, the evidence shows that numerous hours and attorney[s'] fees were expended in an attempt to force [Billy] to comply with the [agreed order], in which he represented that he had brought the mortgage payments on the marital home current through September 2006. The evidence before this court is overwhelming that at the time of his representation to the [c]ourt the mortgage was delinquent, resulting in foreclosure of the home.... Meanwhile, during the entire tumultuous time that [Janie] was forced to incur significant attorney[s'] fees for [Billy's] wrongful and contemptuous conduct, and which ultimately resulted in the marital home being foreclosed, [Billy] never missed a rent or house payment on his house in... Hernando, Mississippi, never missed a Hummer payment, made a down payment on a hunting trip, and was shopping for dates on the Internet.
¶ 22. Additionally, in light of the McKee factors, the chancellor noted that Janie's attorneys set forth an itemized statement that Janie presented at trial and entered into evidence without objection. The chancellor found that the work performed on her behalf by her attorneys and the fees charged "were fair and reasonably necessary, and such rates are in keeping with the usual and customary charges in the community." The chancellor also stated that "[Janie] further testified that a large portion of the attorney[s'] fees she owes was incurred as a result of [Billy's] wrongful conduct...."
¶ 23. As stated, Billy failed to object to the introduction of evidence as to the attorneys' fees as well as to the manner in which the chancellor was asked to apply the McKee factors. However, a review of the record reflects that credible evidence supported the chancellor's decision to award Janie $15,803 in attorneys' fees. First, the chancellor pointed to ample evidence that Janie could not afford to pay her attorneys' fees. See Gray, 745 So.2d at 239(¶ 26). Second, the chancellor discussed how Janie incurred significant attorneys' fees due to Billy's wrongful and contemptuous conduct. See Chesney, 849 So.2d at 863(¶ 12). Third, the chancellor deemed Janie's legal fees as reasonable in light of her application of the McKee factors. See McKee, 418 So.2d at 767.
¶ 24. As this Court has stated, "the chancellor's goal is to achieve equity." Humphries v. Humphries, 904 So.2d 192, 199(¶ 24) (Miss.Ct.App.2005). With the goal of equity in mind, we find that the chancellor in this case did not abuse her discretion when she awarded Janie $15,803 in attorneys' fees. Again, procedural bar notwithstanding, we find no merit in this issue.
¶ 25. THE JUDGMENT OF THE DESOTO COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT.
NOTES
[1] Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592498/ | 453 So.2d 161 (1984)
BOYD-SCARP ENTERPRISES, INC. and State Farm Fire & Casualty Company, Appellants,
v.
Charlie SAUNDERS and D/B/a Saunders Electric and Commercial Union Insurance Company, Appellees.
No. AU-336.
District Court of Appeal of Florida, First District.
July 19, 1984.
*162 Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, Orlando, for appellant.
Beth A. Ferguson of Meyers & Mooney, Orlando, for appellee/claimant.
Ronald S. Webster of Whittaker, Pyle, Stump & Webster, Orlando, for appellee/carrier.
SMITH, Judge.
The employer/carrier appeal a deputy commissioner's order granting workers' compensation benefits to claimant. The primary issue for our consideration is whether the deputy commissioner erred in finding that the claimant was a "statutory employee" of Boyd-Scarp Enterprises, Inc., pursuant to Section 440.10(1), Florida Statutes (1981), and was not an independent contractor. We disagree with the deputy commissioner's findings on this primary issue and reverse.
Boyd-Scarp is a general contractor engaged in the construction business, performing all of its work exclusively through subcontractors. On December 28, 1982, claimant, a master electrician and sole proprietor of Saunders Electric, was given the job by Boyd-Scarp of rewiring a burned-out house. Claimant was to be paid for "time and material," was given wiring plans and specifications to follow, and was responsible for providing his own materials, tools and help. He was not actively supervised by anyone from Boyd-Scarp during the actual performance of the work. While working in the attic of the burned out house, claimant accidently stepped on a broken board and fell ten feet onto a concrete floor, suffering a severe spinal cord injury. After approximately two-and-one-half months in various hospitals, he was discharged on March 25, 1983, and was confined to a wheelchair with impaired use of his hips and legs and no ability to use his ankles.
When claimant was organizing his business in July 1982, he had secured workers' compensation insurance coverage from Commercial Union Insurance Company. He had specifically elected not to be considered an employee of his business; therefore, since he had no other employees, his premium was a base minimum figure. Claimant was pleased with this arrangement because he was specifically seeking a low cost policy.
On March 7, 1983, claimant filed a claim for temporary total disability benefits and other workers' compensation benefits against Boyd-Scarp and its carrier, State Farm Fire and Casualty Company, and also against Saunders Electric and its carrier, Commercial Union Insurance Company. Boyd-Scarp/State Farm defended on the ground that claimant was not an employee of Boyd-Scarp nor an employee of a subcontractor on the job, but was a sole proprietor/independent contractor who had affirmatively chosen not to be covered under his own business's workers' compensation policy. Saunders Electric/Commercial Union defended on the ground that claimant had voluntarily elected not to be covered under the Commercial Union policy. On *163 August 8, 1983, the deputy commissioner entered his final order ruling that claimant was not covered under the Commercial Union policy, but was covered by State Farm as a "statutory employee" of Boyd-Scarp. The deputy commissioner based this ruling upon a finding that claimant was not an independent contractor, but was a subcontractor of Boyd-Scarp.
Boyd-Scarp urges five points on appeal. Initially, we affirm the deputy commissioner's finding that claimant was not covered under his policy of insurance with Commercial Union. We are not persuaded by Boyd-Scarp's arguments that Commercial Union waived its right to deny coverage to claimant or that it should be estopped to deny coverage. It is clear, however, that claimant voluntarily elected not to be considered an employee of his business and, accordingly, was not covered by the Commercial Union policy. See, Sections 440.02(2)(c), 440.05, Florida Statutes (1981).
We reverse, however, the deputy commissioner's finding that claimant was covered under the State Farm policy as a "statutory employee" of Boyd-Scarp. Section 440.10(1), Florida Statutes (1981), states that a contractor must provide workers' compensation coverage to all employees of a subcontractor when such employees have not been provided coverage by the subcontractor. This "statutory employee" language is only applicable to "employees" of a subcontractor. Pursuant to Section 440.02(2)(c), Florida Statutes (1981), a sole proprietor may affirmatively elect to be considered an employee of his business. If such election is made, then the sole proprietor would be considered an employee for purposes of Section 440.10(1). In this case, claimant affirmatively chose not to be considered an employee of his sole proprietorship; therefore, he cannot be a "statutory employee" of the general contractor, Boyd-Scarp. Cf., Vallina v. Fuego Construction Co., 443 So.2d 320 (Fla. 1st DCA 1983), in which this court affirmed the ruling of a deputy commissioner denying compensation benefits to a subcontractor's president who had elected to be exempt from coverage under the Workers' Compensation Act, and therefore was not deemed to be an employee of the general contractor under Section 440.10, Florida Statutes, with respect to injuries incurred while working at the general contractor's construction site.
General common law principles also dictate a finding that claimant was not an employee of his sole proprietorship, Saunders Electric Company. As was held in Stevens v. International Builders of Florida, Inc., 207 So.2d 287 (Fla. 3d DCA 1968), a sole proprietor may not be his own employee because there is no entity apart from the individual which could be considered the individual's employer. See, also, Chase v. Tenbroeck, 399 So.2d 57 (Fla. 3d DCA 1981). Accordingly, under both statutory and case law, it is clear that claimant is not an employee of his sole proprietorship and, therefore, is not a statutory employee of Boyd-Scarp pursuant to Section 440.10(1), Florida Statutes.
Although claimant was not a statutory employee of Boyd-Scarp, we have considered the question whether he nevertheless should be considered an actual employee of Boyd-Scarp pursuant to the broad language of Section 440.02(2)(a), Florida Statutes, which defines the term "employee," as "every person engaged in any employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, ... ." Although this language is rather all-encompassing, it must be read in pari materia with subsection (d), paragraph 1, which provides that the term "employee" does not include an "independent contractor." Section 440.02(2)(d)1.
Here, the deputy commissioner affirmatively found that claimant was not an independent contractor, basing his determination upon three factors: (1) claimant was to be paid on the basis of time expended and materials used; (2) claimant was supervised by a Boyd-Scarp superintendent; and (3) the work performed by claimant was part of the work of the general contractor *164 and not a distinctly different occupation. This latter finding was apparently made to rule out consideration of Section 440.02(2)(d)2, in determining claimant's employment status. Notwithstanding these specific findings, we are compelled to disagree with the result and reverse the deputy commissioner's ruling on this issue.
In Stevens, supra, the Third District set forth the general factors to be considered in determining whether an individual is an employee or an independent contractor. It is clear that such a determination is normally for the finder of fact and must depend upon the peculiar facts of each case. Pearson v. Harris, 449 So.2d 339 (Fla. 1st DCA 1984); Stevens, supra; Gregg v. Weller Grocery Company, 151 So.2d 450 (Fla. 3d DCA 1963). Upon a complete review of the record, however, we find that on this point the deputy commissioner gave incorrect legal effect to the facts to the extent that they were correctly found, and that he also to some extent made factual findings which are not supported by competent, substantial evidence. Some confusion on the question of the claimant's employment status is evidenced by the deputy commissioner's finding that although claimant was not an independent contractor, he was a subcontractor. In the context of these proceedings, at least, we are aware of no theory upon which these terms may be considered mutually exclusive. The issue for decision by the deputy commissioner was whether claimant was an employee of Boyd-Scarp, under any theory, or whether he was an independent contractor.
While we are not permitted to reweigh the evidence, we must rule based upon the record before us, that the uncontroverted evidence establishes claimant's relationship as one of independent contractor, rather than employee, of Boyd-Scarp. Contrary to the deputy commissioner's finding, the claimant was not actively supervised in the performance of his duties by anyone from Boyd-Scarp. Also, contrary to the deputy commissioner's finding, claimant was a master electrician engaged in a special vocation distinctly different from that of Boyd-Scarp, since Boyd-Scarp was in the general contracting business, performing all of its work exclusively through subcontractors. The claimant provided his own materials, his own tools, and hired his own helpers; he was responsible only for the end result of his work; and he was employed as a subcontractor on a limited basis with respect to only one job. On the basis of these facts, claimant was an independent contractor, not an employee. Admittedly, the claimant testified that he was paid on the basis of time expended and materials used. However, this method of payment was explained as being customary on jobs such as claimant was doing, because of the inherent difficulty in determining in advance the amount of work and materials that ultimately may be required in restoring burned out buildings. Furthermore, claimant was not carried on Boyd-Scarp's books as an employee, and there were no payroll deductions. As reiterated in Saudi Arabian Airlines v. Dunn, 438 So.2d 116 (Fla. 1st DCA 1983), the payment of wages is the least important factor in determining the character of the relationship, the essential elements being the right of control and the right to direct the manner in which the work shall be done. The method of payment alone is simply not controlling, and cannot override the abundant evidence establishing that claimant was an independent contractor.
Summarizing, the claimant voluntarily elected to be excluded from coverage under his own company's workers' compensation policy with Commercial Union. He voluntarily chose not to be considered an employee of his business; therefore, not being an "employee" of a subcontractor, he was not a statutory employee of Boyd-Scarp. He was hired as an independent contractor; therefore, he was not an actual employee of Boyd-Scarp. In short, claimant is not entitled to recovery of workers' compensation benefits from either Boyd-Scarp/State Farm or Saunders Electric/Commercial Union. Because of our resolution of these *165 issues, the remaining issues raised by appellant are moot.
REVERSED.
WENTWORTH and BARFIELD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592514/ | 453 So.2d 1163 (1984)
C & H CONSTRUCTION and Aetna Insurance Company, Employer/Carrier/Appellants,
v.
Michael LEYMAN, Employee/Claimant/Appellee.
No. AT-383.
District Court of Appeal of Florida, First District.
July 19, 1984.
Rehearing Denied September 6, 1984.
Mark E. Hungate of Fowler, White, Gillen, Boggs, Villareal & Banker, St. Petersburg, for employer/carrier/appellants.
Thomas Cassidy of Smith, Cassidy, Platt & Harris, Lakeland, for employee/claimant/appellee.
BARFIELD, Judge.
In this workers' compensation case the court is again faced with a challenge to the award of rehabilitation benefits by the deputy commissioner on the grounds that the claimant did not first apply to the Division of Workers' Compensation for evaluation before embarking on a rehabilitation program. The legal predicate for the appeal is that two cases from this court, Bailey v. Hawes Chrysler-Plymouth, 410 So.2d 986 (Fla. 1st DCA 1982) and Paradise Fruit *1164 Company v. Floyd, 425 So.2d 9 (Fla. 1st DCA 1982) conflict with Walker v. New Fern Restorium, 409 So.2d 1201 (Fla. 1st DCA 1982) and Hurricane Fence Industries v. Bozman, 413 So.2d 822 (Fla. 1st DCA 1982).
Neither in Bailey nor in Paradise Fruit Company is there any factual basis recited which would aid the appellant or this court in evaluating the statutory reference concerning application to the Division for evaluation. The overlapping of panel members concurring in all four cited cases would suggest that the factual background in each case led to the correct result.
The decisions in Walker and Hurricane Fence Industries follow full discussions of the factual backgrounds for the rulings. What is abundantly clear from those cases is that application to the Division for evaluation is not a jurisdictional prerequisite to recovery of rehabilitation benefits. Such procedure is established by statute to provide a resolution for dispute when rehabilitation services are not voluntarily offered by the employer or accepted by the employee. The provisions of Section 440.49, Florida Statutes (1981) are not indispensable, but are certainly the preferred procedure as they lend order and direction to a timely resolution of the issue of rehabilitation services and should normally be followed. Walker involved a situation where there was substantial but inexact compliance with the procedure with no prejudice to the employer shown because of the deviations from the procedure. Hurricane Fence Industries involved a situation like the one at issue here where the claimant's desire for rehabilitation was made known to the carrier and the employer but they did nothing to provide the services, instruct the claimant on how to seek that help or invoke the procedure themselves until after the claimant had followed another path to obtain the needed services. The claimant is not precluded from obtaining services independent of the employer and the Division, but when he does so he obtains those services at the risk he will not persuade the deputy commissioner that those particular services were necessary.
In this case the employer knew of the desire and need for rehabilitation services for six months before the hearing and did nothing until the eleventh hour. Just before the hearing date the employer made an appointment for the claimant to go to the Division for evaluation on a date to follow the hearing. We find it appropriate to reiterate what this court said in Hurricane Fence Industries,
Although we can appreciate the chafing effect this decision might have upon the employer, and others similarly situated, we hasten to point out that the failure of the employer or the carrier, or both, to become sufficiently informed so as to properly understand the self-executing nature of the worker's compensation law, and the increased responsibilities imposed upon them by the recent legislation, cannot be raised in defense of an otherwise meritorious claim. The facts of this case all too obviously reveal the lack of communication by the carrier with the employer, and a lack of concern by the employer until such time as the prospect of economic detriment presented itself. Then it was "too little-too late." The rehabilitation features of the workers' compensation law now in effect call for "prompt" rehabilitation services. A "do nothing" approach on the part of the employer and carrier is no longer a viable alternative.
413 So.2d at 827 (footnote omitted).
AFFIRMED.
BOOTH and WENTWORTH, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592347/ | 135 S.W.3d 840 (2004)
COASTAL BANK SSB, Appellant
v.
CHASE BANK OF TEXAS, N.A., f/k/a Commerce Bank National Association, Appellee.
No. 01-01-01013-CV.
Court of Appeals of Texas, Houston (1st Dist.).
February 12, 2004.
*841 Illeana M. Blanco, J. Clifford Gunter, III, Ralph McBride, Bryan Scott Dumesnil, Bracewell & Patterson, L.L.P., Houston, for appellant.
B. Daryl Bristow, Louis L. Bagwell, Michael Byron Bennett, Baker & Botts L.L.P., Houston, for appellee.
Panel consists of Justices TAFT, NUCHIA, and KEYES.
OPINION
EVELYN V. KEYES, Justice.
This is an appeal of a summary judgment rendered in favor of appellee/defendant, Chase Bank of Texas, N.A., f/k/a Commerce Bank National Association, in a suit for fraudulent inducement and negligent misrepresentation brought by appellant/plaintiff Coastal Bank ssb. In three issues presented for review, Coastal contends the trial court erred in rendering summary judgment because there was substantial evidence of fraudulent inducement and negligent misrepresentation and because Chase did not negate the element of reliance as a matter of law. We must determine whether the waivers/disclaimers that Coastal signed as part of its contract with Chase defeat its causes of action. Because we conclude that they do, we affirm.
FACTS
In the summer of 1998, Chase invited Coastal to join a syndicate of banks that had been lending cash to MCA, a Michigan-based mortgage company. At MCA's request, Chase was increasing the amount of MCA's available credit to $300 million and was seeking the participation of additional banks to accomplish this. Coastal agreed in August 1998 to invest $10 million in what is known as a "seasoned" line of credit (one containing higher-risk loans and, consequently, paying a higher rate of interest) as a member of the syndicate of banks lending money to MCA; it signed the contract with Chase in November 1998. Less than a month later, the syndicated banks commenced an inquiry into MCA's financial status and discovered that MCA had been systematically defrauding the banks by double-pledging millions of dollars in loans. Ultimately, all of the banks in the syndicate lost a considerable amount of money; Coastal's losses totaled approximately $7.5 million.
Before Coastal signed the contract agreeing to participate as a member of the bank syndicate, Chase provided information to Coastal about MCA in the form of a confidential memorandum to be used in Coastal's decision-making process. Both the confidential memorandum and the contract contained clauses stating that the "participant" (Coastal) had completed its own credit analysis, independently and without reliance on the "Lead" (Chase), but based instead on the borrower's (MCA's) financial statements.
Evidently, Coastal performed only a perfunctory credit analysis. Coastal did not attend a meeting that was held by MCA and various syndicate members to discuss the investment; nor did Coastal seek or obtain any credit information directly from MCA. Instead, it limited its inquiry to Chase officers and to a loan *842 officer at the Bank of New York with whom a Coastal officer, Don Mach, was familiar. When Mach inquired about MCA's history with Chase, Audrey Lokkerthe Chase loan officer responsible for the MCA creditresponded that the history was "very satisfactory." Coastal apparently made no further inquiries.
After MCA's fraud was discovered and Coastal had lost the better part of its investment, Coastal sued Chase for fraud, fraudulent inducement and negligent misrepresentation, based primarily on Lokker's statement that Chase's history with MCA was "very satisfactory." Chase moved for summary judgment on the grounds that there was no evidence to support Coastal's claims and that Chase had negated reliancean essential element of all claimsas a matter of law. The trial court granted Chase's motion and rendered a take-nothing summary judgment against Coastal, from which Coastal now appeals.
DISCUSSION
In three issues presented for review, Coastal argues that the trial court improperly rendered summary judgment because Coastal produced more than a scintilla of evidence of fraud and negligent misrepresentation, and because Chase did not negate reliance as a matter of law.
Standard of Review
Summary judgment is appropriate only when the movant shows that there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law on the issues set out in the motion. TEX.R. CIV. P. 166a(c); Tex. Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240, 252 (Tex.2002). As the defendant moving for summary judgment, Chase was required to disprove at least one essential element of each of Coastal's theories of recovery as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex.1979). A no-evidence motion for summary judgment is properly granted if, after adequate time for discovery, the non-movant fails to produce more than a scintilla of evidence raising a genuine issue of material fact on the challenged elements. See TEX.R. CIV. P. 166a(i); Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet.). The court must grant the motion unless the non-movant produces summary judgment evidence that raises a genuine issue of material fact. Id.
We hold that Chase disproved the element of reliance common to fraud, fraudulent inducement, and negligent misrepresentation as a matter of law.
Negligent Misrepresentation, Fraud, and Fraudulent Inducement
In its third issue, Coastal contends that Chase failed to establish as a matter of law that Coastal did not rely on Chase's misrepresentations. Coastal contends that Lokker's statement that Chase's history with MCA was "very satisfactory" was an actionable affirmative misrepresentation made to fraudulently induce Coastal into participating in the syndicate. Coastal further contends that Chase violated an affirmative duty to disclose information concerning MCA, thus committing fraud.
To prevail on a negligent misrepresentation claim, the plaintiff must demonstrate that (1) the representation was made by a defendant in the course of his business, or in a transaction in which he had a pecuniary interest; (2) the defendant supplied false information for the guidance of others in their business; (3) the defendant did not exercise reasonable care or competence in obtaining or communicating the information; and (4) the plaintiff suffered pecuniary loss by justifiably relying on the representation. Fed. Land *843 Bank Ass'n. v. Sloane, 825 S.W.2d 439, 442 (Tex.1991) (emphasis added).
To prevail on a fraud claim, a plaintiff must prove that (1) the defendant made a material representation that was false; (2) it knew the representation was false or made it recklessly as a positive assertion without any knowledge of its truth; (3) it intended to induce the plaintiff to act upon the representation; and (4) the plaintiff actually and justifiably relied upon the representation and thereby suffered injury. Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex.2001) (emphasis added). Fraudulent inducement is a particular species of fraud that arises only in the context of a contract and requires the existence of a contract as part of its proof. Haase v. Glazner, 62 S.W.3d 795, 798-99 (Tex.2001). That is, in a fraudulent inducement claim, the elements of fraud must be established as they relate to an agreement between the parties. Id.
Coastal contends that (1) Lokker's statement that Chase's relationship with MCA was "very satisfactory" was false; (2) Chase knew it was false; (3) Chase intended for Coastal to rely on it; (4) Chase had a duty to disclose all of the information about MCA that Coastal identifies in its brief, i.e., information related to MCA's performance; and (5) Chase had "special knowledge" that Coastal could not have acquired on its own; therefore, Coastal justifiably relied, to its harm, on Lokker's misrepresentation and the incomplete information Chase disclosed. Chase argues that, even assuming these five assertions are true, Coastal still cannot prove that its reliance on Lokker's statement or Chase's silence was justified, because justifiable reliance in both causes of action is negated as a matter of law by the "independent investigation and analysis" provisions in the confidential memorandum and the contract.
Generally, reliance on representations made in a business or commercial transaction is not justified when the representation takes place in an adversarial context. See McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 794 (Tex.1999). In determining whether Coastal met the justifiable reliance element, we must consider the nature of the relationship and the contract. Id. A party to an arm's length transaction must exercise ordinary care and reasonable diligence for the protection of his own interests, and a failure to do so is not excused by mere confidence in the honesty and integrity of the other party. Thigpen v. Locke, 363 S.W.2d 247, 251 (Tex.1962); TCI Cablevision of Tex., Inc. v. S. Tex. Cable Television, Inc., 791 S.W.2d 269, 273 (Tex.App.-Corpus Christi 1990, writ denied).
This was an arm's length transaction between two sophisticated financial institutions who were both represented by counsel. While such a relationship is not, standing alone, dispositive of the issue of reliance, it is a factor to be considered. See Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 180 (Tex.1997). Although a disclaimer of reliance will not always bar a fraudulent inducement claim, such a claim may be waived when the disclaimer clearly expresses the parties' intent to waive such claims. Id. at 181. A contract and the circumstances surrounding its formation determine whether the disclaimer of reliance is binding. Id. at 179. The circumstances surrounding the formation of the contract here and the nature of the disclaimers included in both the confidential memorandum and the contract persuade us that Coastal's reliance on Lokker's statement and Chase's silence was not justified.
The confidential memorandum sent to Coastal contains the following "Notice to *844 Recipients" that contains express disclaimers of any warranty and multiple statements indicating that Coastal was responsible for conducting its own analysis. This notice provides in pertinent part:
This Confidential Information Memorandum. . . has been prepared solely for informational purposes from information supplied by MCA and . . . supplied by Chase Securities, Inc. [Chase Securities has not] independently verified any of the information and data contained herein and make[s] no representation or warranty as to the accuracy or completeness of such information. By accepting this Confidential memorandum each recipient agrees that [Chase] shall not have any liability for any representations (express or implied) contained in, or for any omissions from, this Confidential Memorandum or any other written or oral communications transmitted to the recipient by or on behalf of [Chase] or MCA in the course of the recipient's evaluation of the proposed financing.
The information contained herein has been prepared to assist interested parties in making their own evaluation of MCA and does not purport to be allinclusive or to contain all of the information that may be material to a prospective participant's decision to participate in the financing. Each recipient of the information and data contained herein should perform its own independent investigation and analysis of the transaction and the creditworthiness of MCA. The information and data contained herein are not a substitute for the recipient's independent evaluation and analysis.
In addition to the disclaimers contained in this preliminary document, the contract contains a similar provision in paragraph 12:
The Participant [Coastal] acknowledges that it has, independently and without reliance upon the Lead [Chase] and based on the financial statements supplied by the Borrowers [MCA] and such other documents and information as the Participant has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. The Participant also acknowledges that it will, independently and without reliance upon the Lead and based on such financial statements and such other documents and information as the Participant has deemed appropriate, perform and will continue to perform (a) a complete analysis of the credit quality of and documentation for Seasoned Warehouse Revolving Loans, and (b) the maintenance of complete and current credit information on the Borrowers during the term thereof.
The language in these documents is clear and unambiguous. Coastal contractually agreed not to rely on the information or statements made by Chase, but to perform an independent investigation when deciding whether to participate and to rely on its own investigation and analysis.
In C & A Investments, Inc. v. Bonnet Resources Corp., 959 S.W.2d 258, 263-64 (Tex.App.-Dallas 1997, writ denied), similarly, the sophisticated purchaser of a commercial real estate loan sale agreement, C & A, sued the seller, Bank One, and the seller's agent, Bonnet Resources, in contract and fraud, seeking to recover its earnest money. C & A claimed the Bonnet officer who oversaw the sale had represented that the loan was current when, in fact, it was in default. Id. at 259-60. The court held that because the contract before it contained "ample cautionary language" precluding the purchaser's reliance on the seller's representations, the purchaser had contractually agreed not to rely on the seller's statements and could not recover on its fraud claim. The situation and disclaimers in C & A are virtually *845 indistinguishable from the situation and disclaimers here. See id. at 261-63; see also Airborne Freight Corp., Inc. v. C.R. Lee Enter., Inc., 847 S.W.2d 289, 297 (Tex. App.-El Paso 1992, writ denied) (written contract vitiated any justifiable reliance of plaintiff on "sweeping off-hand statement" of defendant's agent). We conclude that Coastal cannot prove that it justifiably relied on Chase's representation or silence. See Schlumberger, 959 S.W.2d at 181; Thigpen, 363 S.W.2d at 251.
We hold that Chase established its entitlement to summary judgment as a matter of law. We overrule all issues presented for review.
We affirm the summary judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592349/ | 453 So.2d 1313 (1984)
FIRST NATIONAL BANK OF PULASKI, TENNESSEE, and Parmenas Cox and Robert E. Curry, individually, and d/b/a Cox and Curry Insurance Agency, a partnership
v.
Carl R. THOMAS and Delma M. Thomas.
82-1259.
Supreme Court of Alabama.
June 22, 1984.
*1314 Jere C. Trent, Athens, for appellants.
Jimmy E. Alexander of Alexander, Corder & Plunk, Athens, for appellees.
BEATTY, Justice.
This is an appeal by the defendants, First National Bank of Pulaski, Tennessee, (Bank) and Parmenas Cox and Robert Curry, individually and doing business as a partnership, Cox and Curry Insurance Agency in Pulaski, Tennessee, from a judgment for plaintiffs, Carl R. and Delma M. Thomas. We affirm.
The town of Ardmore is located in the northern part of Limestone County, Alabama, and is separated from the town of Ardmore, Tennessee, by Main Street. The Ardmore branch of the Bank fronts on the northern, or Tennessee, side. At the times material to this case, Parmenas Cox was chairman of the Bank's board of directors and Robert E. Curry was the Bank's president. Cox and Curry were also partners in a general insurance agency under the name of Cox and Curry Insurance Agency. They conducted their business in Ardmore by utilizing the offices and the employees of the Bank, paying the Bank for employee services, rent, and utilities, with the commissions (40%) on policies sold going to the Bank. Barbara Hodges, a resident of Limestone County, was manager of the *1315 Bank's Ardmore branch. In its operations, the Bank made credit life and disability insurance available to its customers through the Cox and Curry Insurance Agency, with the Bank writing the policies.
Plaintiffs Carl R. and Delma M. Thomas, husband and wife, are Alabama residents, living in Elkmont in Limestone County near Ardmore, Tennessee. They owed a mortgage indebtedness to the Bank which covered their home and an adjoining rental house. On March 13, 1978, the Thomases refinanced this existing loan with the Bank, evidenced by a promissory note. The Bank furnished a disclosure statement.
On July 17, 1978, Carl Thomas suffered a heart attack and has not worked since that date. The Thomases refinanced their Bank indebtedness in each of the years 1979 through 1982. Shortly after the 1982 renewal, Billy Bell, an employee of the Bank who acted as a bank guard and an appraiser and collector, went to plaintiffs' premises. He measured the Thomases' house but did not go inside. Bell then went next door to the Thomases' rental house. He was invited inside by the tenant, Suzanne Pylant, who knew Bell. Bell left shortly thereafter.
On October 13, 1982, the Thomases brought this action against the defendants, claiming damages for breach of contract and trespass, among other claims. Plaintiffs' contract claim alleged that on March 13, 1978, defendants agreed to insure Carl R. Thomas for credit life and disability insurance in the amount of $22,834.88 in consideration of a premium in the amount of $302.83 paid by plaintiffs; that plaintiff Carl R. Thomas suffered a heart attack on July 17, 1978, with his resulting complete disability; that the disability benefits thereupon became due and payable, but that the defendants had failed and refused to pay them.
As amended, the trespass count alleged:
"2. The said Defendant Bank caused said uniformed guard, while dressed as a law enforcement officer and while armed, to enter upon the real estate owned by the Plaintiffs and in their possession, including the home and the dwelling house of the Plaintiffs, the curtilage thereto, as well as an adjoining dwelling house and the curtilage thereof, with knowledge on such Defendant's part that such an intrusion was an invasion of the rights of the Plaintiffs; the said Defendant intentionally acted and which resulted in the invasion of the rights of the Plaintiff, and said Defendant reasonably foresaw that the act done would result in an invasion of the Plaintiffs' possessory interest and damages to the Plaintiff.
"3. On said occasion, the Plaintiffs owned said land, or the Plaintiffs were in possession of said land, and the said Defendant Bank, by its agent, intentionally and with force, trespassed on Plaintiffs' land without the Plaintiffs' consent, the force being implied, and the Plaintiffs were damaged by the Defendant's entry. The market value of the Plaintiffs' real estate was decreased, the Plaintiffs were subjected to humiliation, embarrassment and emotional suffering and distress; the Defendant's trespass on Plaintiffs' land was attended by rudeness, wantonness, recklessness, or was done in an insulting manner, or was accompanied by circumstances of oppression or aggravation or gross negligence, and the Plaintiffs are entitled and expressly claim punitive damages."
Defendants Cox and Curry moved to dismiss the claim on the ground that no personal jurisdiction existed over them. This motion was overruled, whereupon they made a general denial. The Bank denied that the Thomases applied for or paid for disability insurance or that the Bank agreed to insure against disability. The Bank also denied the allegations of trespass.
At the conclusion of plaintiffs' case and at the close of the evidence, defendants' motions for directed verdicts were denied. The jury returned a verdict against the Bank and Cox and Curry on the contract claim in the amount of $30,723.00. It returned a verdict against the Bank on the trespass claim in the amount of $25,000.00. *1316 Post-trial motions for a new trial and for judgment notwithstanding the verdict were denied, and all defendants appealed.
The first issue raised by appellants Cox and Curry is whether or not the Circuit Court of Limestone County had personal jurisdiction over them.[1] It is their contention that no jurisdiction existed, as evidenced by an affidavit filed with their motion to dismiss and by the testimony of Parmenas Cox. They have established, it is argued, that at all times they were residents of Tennessee; that they were licensed to do business within Tennessee; that they did business only in Tennessee; and that all of the transactions in question occurred in Tennessee. Thus, they insist, there were no contracts within the state of Alabama relative to the subject matter upon which to bestow in personam jurisdiction. To the contention that Rule 4.2(a)(2)(G), A.R.Civ.P., gave jurisdiction, they maintain that there is a complete absence of evidence that any of their agents or employees agreed to obtain disability insurance for plaintiffs. To the contrary, these defendants argue, all of the plaintiffs' contracts were with employees of the Bank only, and there was no evidence that the Bank employees acted as employees of Cox and Curry. Rule 4.2(a)(2)(G) reads as follows:
"(2) Sufficient contacts. A person has sufficient contacts with the state when that person, acting directly or by agent, is or may be legally responsible as a consequence of that person's:
"...
"(G) Contracting to insure any person, property, or risk located within this state at the time of contracting ...."
In Alabama Power Co. v. VSL Corporation, 448 So.2d 327 (Ala.1984), this Court adopted the reasoning contained in Garrett v. Key Ford, Inc., 403 So.2d 923 (Ala.Civ. App.1981):
"`The ultimate test of in personam jurisdiction is "reasonableness" and "fairness" and "traditional notions of fair play and substantial justice."' Oswalt v. Scripto, Inc., 616 F.2d 191, 200 (5th Cir.1980). That case merely restated the rule announced in the leading case of International Shoe Co. v. State of Washington, etc., 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), that an in personam judgment may be rendered against a nonresident if he has certain minimum contacts so that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.' 326 U.S. at 316, 66 S.Ct. at 158." 403 So.2d at 925.
In VSL Corporation, this Court held that a Minnesota steel fabricating corporation, which did not actively solicit business in Alabama and had no officers, directors, or employees in Alabama, nevertheless was amenable to Alabama process, because the company knew that its products were to be used in Alabama and were actually shipped to Alabama.
Considering the requirement of "minimum contact," this Court has quoted with approval the passage from 2 J. Moore, Federal Practice, par. 4.25, pp. 4-258 through 4-267 (2d ed. 1982), in View-All, Inc. v. United Parcel Service, 435 So.2d 1198 (Ala.1983), especially the following at 1201:
"If there are substantial contacts with the state, for example a substantial and continuing business, and if the cause of action arises out of the business done in the state, jurisdiction will be sustained. If there are substantial contacts with the state, but the cause of action does not arise out of these contacts, jurisdiction may be sustained. But if there is a minimum of contacts, and the cause of action arises out of the contacts, it will normally be fair and reasonable to sustain jurisdiction. If there is a minimum of contacts and the cause of action does not arise out of the contacts, there will normally be no basis of jurisdiction, since it is difficult to establish the factors necessary *1317 to meet the fair and reasonable test."
The evidence in this case disclosed that the Cox and Curry Insurance Agency handled many insurance policies dealing with Alabama transactions. The Bank branch, in fact, was placed at Ardmore to serve the trade area which included Limestone County and it drew many customers from the entire area. Additionally, Cox and Curry were principal officers of the Bank, whose employees wrote or offered insurance for their agency in connection with its many real estate loans on property in Alabama. The record shows that Barbara Hodges, manager of the Ardmore branch of the Bank, talked with Cox and Curry from time to time and conferred with them regarding the insurance written by the Bank. An employee of the Bank, Gail Gower, filled out the loan disclosure form for the plaintiffs' 1978 loan and also handled the insurance in connection with that loan, placing it with the Cox and Curry Insurance Agency. Under those circumstances, it is both fair and reasonable to require Cox and Curry to come to this state and defend this action, and does not offend principles of due process. DeSotacho, Inc. v. Valnit Industries, Inc., 350 So.2d 447 (Ala.1977); Rule 4.2, A.R.Civ.P., and comments. Thus, we hold that Alabama had personal jurisdiction of Cox and Curry based on their service by certified mail.
The second issue raised by the defendants is whether there was any evidence of an agreement between the parties for disability insurance.
On this question of insurance, the evidence is disputed. Prior to the renewal of plaintiffs' loan on March 13, 1978, plaintiffs had borrowed money from the Bank in 1976, giving a mortgage on their home in return. In the spring of 1977, plaintiffs had purchased additional real estate and refinanced their original loan. Plaintiffs' exhibit number one, the Bank's copy of the disclosure statement for that 1977 loan, contained the following statement under "Insurance": "I desire credit life and disability insurance. Cost $192.89 for the term of credit." (Emphasis added.) The "yellow" copy of this disclosure statement given to Carl Thomas, however, did not duplicate that "Insurance" item but did contain this marginal notation: "Credit Life (not required by bank, customer directs payment to Cox & Curry, Agent). $192.89."
When the identical loan amount, $22,834.88, was refinanced on March 13, 1978, the "yellow" copy of the loan disclosure statement contained the same reference to credit life and disability insurance; however, the premium cost was stated as $302.83. Again, the marginal reference on the same form, although stating the premium as $302.83, referred only to "Credit Life."
In describing the 1978 loan agreement, Carl Thomas testified:
"I refinanced it and I told Mrs. Gower that I wanted credit life and disability insurance and she said if I got sick it would pay for itthe payments on it until I got better able to work and at the end of the yearit was a twelve month contractat the end of the year if I was totally disabled to work, it would be paid for, if I died it would be paid for."
His testimony was corroborated by Mrs. Delma Thomas, who testified concerning the 1978 transaction:
"I know we talked about insurance. My husband distinctly told Mrs. Gower that he wanted credit life and disability insurance if it was available."
Plaintiffs had been directed to Mrs. Gower by Ms. Hodges, the Bank branch's senior managing officer. Parmenas Cox himself testified:
"Q. Ms. Gower, when she handled this transaction in March of 1978, she was acting for and on behalf of Cox and Curry Insurance Agency with reference to the insurance?
"A. I wish I was permittedwith your permission, I would like to explain a little bit about the relationship of the insurance agency and the bank.
*1318 "Q. Well, all I am getting atI know that she worked for the bank but she was acting on behalf of the insurance agency with reference to the insurance; was she not?
"A. That's right.
"Q. And she was acting on behalf of the bank with reference to handling the loan transaction?
"A. That's correct."
In this case, the plaintiffs sued upon the defendants' alleged agreement to insure plaintiff for credit life and disability insurance, as well as an alleged insurance contract. The trial court submitted to the jury the question whether there had been a contract "whereby the Defendants agreed to produce or furnish to them a policy of disability insurance."
In Highlands Underwriters Ins. Co. v. Elegante Inns, 361 So.2d 1060 (Ala.1978), this Court stated at 1065:
"Once the parties have come to an agreement on the procurement of insurance, the agent or broker must exercise reasonable skill, care, and diligence in effecting coverage.... When the agent or broker has failed in the duty he assumes, the principal may sue either for breach of the contract or, in tort, for breach of the duty imposed on the agent or broker...." (Citations omitted.)
That quotation follows the general principle approved in American Life Ins. Co. of Alabama v. Carlton, 236 Ala. 609, 184 So. 171 (1938), and provided in 43 Am.Jur.2d Insurance § 161 (1982):
"Instead of making a contract of present insurance, the parties may make an agreement to enter into a contract of insurance at a future date. Such executory contracts to insure in the future are valid and enforceable, even though oral, if all the other essentials of a valid contract are present."
The Bank argues that its customary business practice was to type the insurance coverage on the left margin of its promissory notes, and points out that the seven notes executed by the Thomases between 1972 and 1982 referred to "Life Ins." or "Life Insurance," the 1978 note containing the notation, "Life Ins. $302.83." The evidence of the Thomases, however, is that the copies of the disclosure statements for 1977 and 1978 refer to credit life and disability insurance, that Mrs. Gower made the representation referred to earlier, and further, that the Thomases were never provided with any policy or shown any agreement between them and the Cox and Curry Insurance Agency, the Bank, or any insurance company.
The facts adduced established reasonable inferences that Mrs. Gower was an agent for the Cox and Curry Insurance Agency, as well as for the Bank, to provide disability insurance coverage for plaintiff Carl Thomas for the consideration expressed in the disclosure statement. That issue, it follows, was properly submitted to the jury; hence, the trial court did not err in refusing to direct a verdict for the defendants on this issue. Cf. Allstate Ins. Co. v. Richards Electric Co., 447 So.2d 175 (Ala. 1984).
The Bank also argues that the trial court erred in regard to the plaintiffs' trespass count by failing to grant its motions for directed verdict and judgment notwithstanding the verdict. On appeal, the Bank asserts that it had a right to possession of the property in question under its mortgage given by the Thomases. The record discloses that this defense is being raised for the first time on appeal. In the sequence of pleadings, the Thomases alleged trespass by the Bank in Count Eight of their complaint. In its "Answer to Count Eight," the Bank entered a general denial. It is clear from a reading of the record that under its plea of general denial the Bank's evidence was directed toward establishing consent or permission to enter the Thomases' premises.
Moreover, the trial court's oral instructions to the jury did not cover the Bank's present claim of a right of possession by virtue of the mortgage. On the trespass count, the trial court charged as follows:
*1319 "Now, in order for the Plaintiffs to prove to you or reasonably satisfy you that there was a trespass, they have the burden to show you or reasonably satisfy you from the evidence of several things. First of all, they must show you that they had title to the property or land and I don't think there is any dispute about whether they owned the property. Secondly, they must show that they were in possession of this land and I don't think there is any dispute about that.... Now, the Defendant, in answer to the charge of trespass, says that they had permission to enter upon the land. That is, they had consent to walk upon the plaintiff's land...."
Following the giving of this charge, all defendants expressed satisfaction, and no further instructions were requested.
The assertion now, for the first time, that the Bank as mortgagee had a right to enter upon plaintiffs' premises raises a theory which we cannot consider. Dixie Highway Express, Inc. v. Southern Railway Co., 286 Ala. 646, 244 So.2d 591 (1971). Having permission or consent to enter upon the land, on the one hand, and having the right as mortgagee to enter upon that land, are obviously inconsistent and different theories. Having permission or consent implies that plaintiffs had the right to control the Bank's entry, while having the right to enter the land as mortgagee implies a right of entry not dependent upon permission or consent of the plaintiff mortgagors. Having tried its case below on the theory of consent, the Bank cannot now pursue the new theory of entrance by right as mortgagee.
Additionally, the Bank contends that there was no evidence of trespass. It is undisputed that Bell was acting for the Bank at the Thomases' premises. Employee Bell, according to the Bank, went to the Thomases' property to make a routine appraisal and did so without incident. He was greeted at the residence by Lowell T. Mays, Mrs. Thomas's brother, who acceded to Bell's purpose to step off the lot lines. According to the Bank, Bell was also allowed to appraise the rental property occupied by Mrs. Pylant, who knew Bell was employed by the Bank.
Mays, testifying for the plaintiffs, denied giving Bell any permission to come on the property and stated that he told Bell: "You should wait until they return. They should be back any minute." Bell's response, according to Mays, was: "That's all right. I will step it off." Mays said that Bell spent 15 to 20 minutes on plaintiffs' property. According to plaintiffs' evidence, Bell was wearing a uniform the same as that worn by members of the Ardmore Police Department, with the logo of that department on each shoulder. The evidence disclosed that the Town of Ardmore had not authorized the wearing of that uniform by Bell. According to Mays, Bell had in his possession a .38-caliber revolver.
Mays further testified that when the Thomases arrived 30 minutes after Bell's departure, he reported Bell's visit and it caused them to become very upset. Mrs. Thomas testified on cross-examination that Bell's visit upset her and that she was sure it decreased the value of their property "if people thought we were having to sell our property." She also testified that she became ill and remained in bed for three weeks on account of Bell's visit. Carl Thomas himself testified that he was humiliated and embarrassed by Bell's being out there, because people who knew he was "down and out" might have wondered whether he was about to lose his property. He also stated that he became emotionally upset, could not sleep, and also lost 20 pounds in weight following Bell's visit. There was also evidence that Barbara Hodges, the Bank manager, knew of Carl Thomas's heart condition.
The Bank also argues that there was no evidence of any damage to the Thomases or to their land. On that issue, the plaintiffs alleged:
"The market value of the Plaintiffs' real estate was decreased, the Plaintiffs were subjected to humiliation, embarrassment and emotional suffering and distress; the Defendant's trespass on Plaintiffs' *1320 land was attended by rudeness, wantonness, recklessness, or was done in an insulting manner, or was accompanied by circumstances of oppression or aggravation or gross negligence, and the Plaintiffs are entitled and expressly claim punitive damages."
In his oral charge to the jury, the trial judge instructed that under the evidence the jury could not award any recovery for substantial damages to the plaintiffs' land should they find that a trespass occurred. That instruction did allow nominal damages, and also, should the jury find a trespass, punitive damages if the trespass "was done ... in a manner which was rude or which was wanton or which was reckless or which was insulting or which was malicious or oppressive."
The evidence for plaintiffs established that they were in possession of the land in question and had not given the Bank or Bell permission to enter it. Under that evidence, the jury could have found that Bell was a trespasser and that plaintiffs were entitled to nominal damages. Johnson v. Martin, 423 So.2d 868 (Ala.Civ. App.1982); Foust v. Kinney, 202 Ala. 392, 80 So. 474 (1918). Moreover, punitive damages may be awarded in a trespass action for a trespass attended with rudeness, wantonness, recklessness, or an insulting manner, or accompanied by circumstances of fraud and malice, oppression, aggravation, or gross negligence. Rushing v. Hooper-McDonald, Inc., 293 Ala. 56, 300 So.2d 94 (1974). Rushing also contained citations to well-established authorities allowing recovery for mental suffering proximately caused by trespass to property committed under circumstances of insult or contumely. These principles have been applied in cases similar to the case at bar. In Dixie Construction Co. v. McCauley, 211 Ala. 683, 686, 101 So. 601, 603 (1924), involving a trespass by searching for stolen property, this Court found no error in the allowance of consequential and punitive damages, stating:
"The wrong complained of, though committed with the politeness of a Chesterfield, was calculated to bring an honest person into public contempt, to humiliate a just pride, and to wound proper feeling. For such wrong plaintiff was entitled to substantial damages .... Mattingly v. Houston, 167 Ala. 167, 52 So. 78."
And, in Mathers v. Taylor, 47 Ala.App. 124, 251 So.2d 622 (1971), a trespass case involving a seizure of personal property from plaintiffs' home by one claiming to be a sheriff, the Court of Civil Appeals held that the circumstances warranted an award of punitive damages.
In this case, the jury could have reasonably concluded that Bell, while wearing the uniform of the Ardmore Police Department, which he was not authorized to wear, with a revolver strapped to his side, went upon the plaintiffs' land without permission and spent 15 to 20 minutes there, stepping off the length and width of the two houses located there. He was asked by Mrs. Thomas's brother to wait but refused to do so. He was observed by a neighbor, Mrs. Pylant, by plaintiffs' son, and by Mrs. Thomas's brother, Mays. The Thomases, being pressed financially, testified to humiliation, embarrassment, and mental anguish at the prospect of losing their home. This evidence satisfied the scintilla rule and made the issue of damages, nominal and punitive, one for the jury. Hickox v. Vester Morgan, Inc., 439 So.2d 95 (Ala.1983).
The final argument of the defendants concerns alleged misconduct toward the jury. It is contended that Avis Cremin, Mr. Thomas's sister, made an improper contact with at least one juror which was calculated to and did result in prejudice to the defendants. The circumstances surrounding this episode are as follows:
Following the noon recess, taken after the defense had rested, the Bank's counsel informed the trial court of statements made to him by two of his witnesses, Bell and Gower. These witnesses had told him that they had overheard Avis Cremin talking to a group of jurors and that she had talked to one of them for four or five minutes. Thereupon, the trial court, out of *1321 the jury's presence, allowed the Bank's counsel to question Avis Cremin under oath. The record shows that Ms. Cremin did state to a person something she had heard someone else say. She testified that she did not know the person was a juror; that she was excited and, not speaking specifically to that person, said: "Thank God, I think they have settled it." She testified that she had no other conversation with that person. In addition, she said she was with another group of people and they all were talking about "the water being up at the A & P parking lot." She said she did not recognize any of these persons as being jurors and denied talking to any juror about any matter pertaining to the case. She conceded that she said to someone that she was afraid that her brother would not live to get home. She made the remark to nobody in particular, she said, but she believed she said it to Mr. Thomas's stepdaughter Patty. She also said to Mr. Cox that her brother was under a lot of stress. Ms. Cremin said she was "pretty sure" that there were no jurors present when this statement was made. According to her testimony, several members of the Thomas family were in court throughout the trial, and it is inferable from the record that these exchanges occurred during recess.
It was also established that Ms. Cremin was not a witness and had not participated in developing the case for plaintiffs, and, according to her, she did not "even know what [was] going on." She had also noticed some of the bank people in the hall during recess talking back and forth. The plaintiffs themselves did not mingle or congregate with any jurors. At the conclusion of the testimony, defendants Cox and Curry moved for a mistrial, which was denied.
Although sensitive to the requirement of a fair and impartial jury free from outside influences, Alabama Gas Corp. v. American Furniture Galleries, 439 So.2d 33 (Ala.1983), this Court cannot conclude from these circumstances that the trial court was in error in refusing to grant the motion for a mistrial. No juror was called, and there was no other evidence proffered to establish either improper contact or that any juror was prejudiced. Casual and ordinary civilities, even between parties and jurors during recesses, do not suffice to avoid a verdict, if no sinister purpose and no effect upon a juror are apparent. Louisville & Nashville R.R. Co. v. Turney, 183 Ala. 398, 62 So. 885 (1913).
There being no reversible error under the issues raised by the defendants, the judgment must be, and it is, affirmed.
AFFIRMED.
MADDOX, JONES, SHORES and EMBRY, JJ., concur.
NOTES
[1] The Bank raised no issue of jurisdiction throughout the proceedings in the trial court, and raises none on this appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592357/ | 389 F.Supp. 572 (1975)
Mary BOWEN, Plaintiff,
v.
WOHL SHOE COMPANY, Defendant.
Civ. A. No. 73-H-1153.
United States District Court, S. D. Texas, Houston Division.
February 20, 1975.
*573 Thomas Osa Harris, Houston, Tex., for plaintiff.
*574 Harry M. Reasoner, Houston, Tex. (Vinson, Elkins, Searls, Connally & Smith, Houston, Tex.) Veryl L. Riddle, St. Louis, Mo. (Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo.), for defendant.
MEMORANDUM AND OPINION
CARL O. BUE, Jr., District Judge.
Plaintiff alleges wrongful discharge from employment by her employer in violation of state law and of the federal antitrust laws. The defendant has moved for summary judgment on Counts One and Three of plaintiff's Amended Complaint (the state law claims) and has moved to dismiss Count Two (the antitrust claim) for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b) (6), Fed.R.Civ.P. The facts upon which the three counts are based flow from one set of events. The material facts pertinent to Counts One and Three are substantially undisputed, and summary treatment is appropriate for these counts. Defendant's motion for summary judgment as to Count One is granted. Defendant's motion for summary judgment as to Count Three is granted in part.
The antitrust claim raised by Count Two presents a question of first impression in this Circuit.[1] Additional evidence has been made available to the Court beyond the bare pleadings, and the Court therefore has treated defendant's motion to dismiss Count Two as a motion for summary judgment, pursuant to the last sentence of Rule 12(b)(6). Viewed in a light most favorable to plaintiff as the party opposing summary judgment, the facts now before the Court indicate that plaintiff's complaint does state an antitrust claim upon which relief can be granted. However, the available facts have proved insufficient to permit the Court to resolve the legal issues raised by Count Two. Further development of the evidence will be necessary before summary treatment can be considered appropriate for Count Two.
I. FACTS[2]
Plaintiff was formerly an employee of defendant and was the manager of the children's shoe department at the Foley Bros. store in the Almeda Shopping Mall in Houston, Texas. Defendant operated this department through a lease and concession arrangement with Foley Bros. While employed with defendant, plaintiff funded the creation and establishment of a company to operate a shoe store in Conroe, Texas, the residence of plaintiff, located approximately 55 miles from defendant's store. Orthopedic shoes for children were sold at the store, apparently the only outlet for such shoes in the Conroe area. Other types of shoes were also carried. Plaintiff invested money in the store because she desired supplemental income for her retirement. See Deposition of Plaintiff at 25-36 and 83 (May 8, 1974).
Plaintiff commenced her employment with defendant in either January or November, 1953,[3] and was continuously employed by defendant, with one exception not important for purposes of this suit, until the time of her discharge in October, 1972. She was apparently a loyal employee, and there is no indication whatever that her work record at any time was less than commendable and satisfactory.
As the result of her establishment of, and participation in, the operations of the Conroe store, plaintiff began to have difficulties with her supervisors, including several executives of defendant in the Houston area and ultimately executives of the defendant in the home office *575 in St. Louis, Missouri. Conflicting comments were made to her regarding the consequences of her maintaining the Conroe operation insofar as her employment with defendant was concerned. Plaintiff persisted in maintaining the Conroe store until she realized that this position might jeopardize her continued employment with defendant. While continuing to believe that operation of a children's orthopedic shoe store in the Conroe area was financially a sound investment, plaintiff evidenced a willingness to sell the store in order not to jeopardize her employment with defendant. See Deposition of Plaintiff at 52-53 (May 8, 1974).
Ultimately, plaintiff's maintenance of the Conroe operation resulted in the loss of her job with defendant. Defendant's policy[4] regarding the Conroe store was finally expressed in no uncertain terms to plaintiff in September and early October of 1972, when the president of defendant, Ben Peck of the St. Louis home office, informed plaintiff by letter of his regret that plaintiff had "now made the final decision to leave the company". See Defendant's Exhibit No. 2, Letter from Ben Peck to Plaintiff, September 28, 1972. Mr. Peck went on to say: "I had high hopes that the long discussion we had this past Sunday afternoon would lead to your continuing your many long years of wonderful relationship with Wohl Shoe Company." Id.
Plaintiff interpreted this letter as an indication that defendant had terminated her employment, not that she had chosen to resign, which she represents that she certainly did not intend to do. She responded accordingly in a letter to Mr. Peck on October 4, 1972. See Defendant's Exhibit No. 3, Letter from Plaintiff to Defendant's President, October 4, 1972. In this letter, plaintiff emphasized that she was not choosing to be terminated by the company; indeed, she stated that she could not understand why she was being "fired" from the company. Rather, she emphasized that she wanted to invest in the Conroe store to add income to her retirement savings, that the Conroe store "does not compete" with the Almeda Mall store of defendant, but that in any event, plaintiff was making an effort to sell the Conroe store "upon terms that would permit the present Conroe personnel to continue their employment". Id. Plaintiff also emphasized that she very much wanted to continue her longstanding relationship with defendant, but that if she could not, she desired severance pay and retirement benefits to which she considered herself entitled.
Mr. Peck responded to this letter on October 9. See Defendant's Exhibit No. 4, October 9, 1972. He stated that plaintiff was unjustified in feeling that she had been terminated from employment by the company. Rather, Mr. Peck characterized the severing of her employment as being occasioned
by your own decision that you wish to continue your ownership interest in the Conroe shoe store, an interest which we have told you is inherently inconsistent and incompatible with your continued employment in the retail division of Wohl Shoe Company.
See Defendant's Exhibit No. 4 at 1. Mr. Peck went on to state that
as a matter of company policy which we have enforced consistently throughout our retail organization for a long, long time we cannot allow such a duality of interests to continue; therefore, we have had to ask you to make your election as to whether you wished to continue with us, or with the Conroe store. Since you have chosen the latter course, that choice has effectively resulted in your own voluntary determination to leave your former employment with us. We sincerely regret that decision on your part, but it is one we have no choice but to recognize in the circumstances. (Emphasis added) *576 Id. Mr. Peck then went on to state that the plaintiff would receive all of the employment benefits to which she was entitled, including Retirement Trust benefits. Id.
Subsequently, plaintiff has attempted to seek other employment and has filed with the Texas Employment Commission, see Defendant's Exhibit No. 1, Application for Employment with the Texas Employment Commission, October 17, 1972, but has had no success as of the time her suit was filed in finding new employment. She apparently continues to operate the Conroe store.
II. PLAINTIFF'S ALLEGATIONS
Because of these events, plaintiff filed this suit, alleging three counts as grounds for recovery. See Plaintiff's First Amended Complaint, June 7, 1974. Count One alleges wrongful discharge of plaintiff by defendant; Count Two alleges violation of the antitrust laws by defendant, specifically, Section 1 of the Sherman Act, 15 U.S.C. § 1, and the antitrust laws of Texas, Tex. Bus & Comm. Code §§ 15.02-15.04, V.T.C.A., wherein defendant allegedly unlawfully restrained trade. Count Three alleges wrongful deprivation of pension rights. Plaintiff further contends that damages should be awarded in the amount of $442,600.[5]
Defendant has moved for summary judgment as to Counts One and Three and has moved to dismiss the claims under Count Two pursuant to Rule 12(b)(6), Fed.R.Civ.P., contending that the antitrust allegation fails to state a claim upon which relief can be granted. Since Counts One and Three present questions of state law, they will be considered first.
III. COUNT ONE
Defendant contends that the employment agreement between it and plaintiff was oral, not written, and that Texas law, which should be applicable to this count under diversity jurisdiction principles, permits discharge of an employee at will when an oral employment agreement is in effect. Defendant bolsters this argument by contending that since an employment agreement is in effect which could last longer than one year, the agreement would have to be in writing to be enforceable, under the Texas Statute of Frauds, Tex.Bus. & Comm. Code § 26.01. Since there was no writing between defendant and plaintiff, according to defendant, plaintiff's claim is barred by the Statute of Frauds.
Plaintiff responds to this by contending that letters were sent by defendant's president indicating defendant's desire to keep plaintiff as an employee for some period of time probably longer than a year, and that the claim is therefore not barred by the statute of frauds since the employment agreement is evidenced by some written document.
This Court agrees that Texas law controls this question. After considering the available documents, especially plaintiff's description in her deposition of the kind of employment relationship she had with defendant, see Deposition of Plaintiff at 17-18 and 20 (May 8, 1974), this Court concludes that under Texas law the employment agreement between plaintiff and defendant was an oral one. Therefore, defendant could *577 discharge plaintiff at will, with or without cause. NHA, Inc. v. Jones, 500 S. W.2d 940 (Tex.Civ.App. Ft. Worth 1973, writ ref'd n. r. e.); Scruggs v. George A. Hormel & Co., 464 S.W.2d 730 (Tex.Civ.App. Dallas 1971, writ ref'd n. r. e.). Accordingly, defendant's motion as to Count One is granted. Summary judgment is awarded in favor of defendant as to Count One, and plaintiff's Count One claim is dismissed.
IV. COUNT THREE
Since plaintiff's claim for wrongful discharge must be dismissed, plaintiff is not entitled to recover under state law for future pension rights allegedly wrongfully deprived. However, this Court cannot accept the contention of defendant that no valid agreement existed between it and plaintiff so as to deprive plaintiff of previously vested pension benefits because the employment agreement was not in writing. An employment contract providing for an indefinite term of service is not invalid, even though it can be terminated at will by either party. NHA, Inc. v. Jones, 500 S.W.2d 940 (Tex.Civ.App. Ft. Worth 1973, writ ref'd n. r. e.).
Therefore, plaintiff is entitled, under state law, to the full amount of her share of pension benefits paid into the Retirement Trust program of defendant up to the date of her termination. However, the amount of this share cannot be determined on the basis of the information now available to the Court, and so must be resolved after additional appropriate evidence is submitted. Particularly, the Court is unable to resolve the following questions: the precise length of time plaintiff served with the defendant company;[6] whether this time period has been agreed upon by the parties;[7] the total amount due plaintiff under a formula considering both periods of service that are suggested; and whether the amount which has been paid to plaintiff[8] constitutes full satisfaction of her pension claims.
V. COUNT TWO: SHERMAN ACT VIOLATIONS
Defendant has moved to dismiss plaintiff's Sherman Act claim[9] under Rule 12(b)(6), Fed.R.Civ.P. In support of this motion, defendant first asserts that plaintiff has no standing to bring this Sherman Act claim. See Reply Memorandum in Support of Defendant's Motions for Summary Judgment and to Dismiss (August 5, 1974). Defendant then contends that plaintiff has not stated a claim under the Sherman Act: the Sherman Act discusses only restraint of competition, and plaintiff has specifically emphasized that her Conroe shoe store does not compete with defendant's store; the Sherman Act is only applicable to a contract, combination or conspiracy in restraint of trade, and no such contract, combination or conspiracy existed in this case because only defendant's unilateral conduct was involved. See Memorandum in Support of Defendant's *578 Motions for Summary Judgment and to Dismiss at 5-6 (July 16, 1974).
Matters outside the pleadings have been made available to the Court. The last sentence of Fed.R.Civ.P. 12(b)(6) permits this Court to determine whether any issue of genuine fact exists, and if it finds none, it must proceed to decide the questions of law involved. The Court concludes on the facts now before it that plaintiff's complaint does state a claim and that the Court is unable on the basis of the existing record to resolve the merits of the claim summarily.
A. Standing
The antitrust laws impose a threshold statutory standing requirement on antitrust plaintiffs.[10] Therefore, the instant plaintiff must allege injury to her business or property and must additionally demonstrate that she was "directly injured", or in the "target area" of the effect reasonably foreseeable from the allegedly illegal conduct.[11] The gist of this requirement is that a private antitrust plaintiff may not complain of the existence of a Sherman Act violation in the abstract. Gray v. Shell Oil Co., 469 F.2d 742 (9th Cir. 1972), cert. denied, 412 U.S. 943, 93 S.Ct. 2773, 37 L.Ed.2d 403 (1973).
The Supreme Court has specifically held that the phrase "business or property", as that phrase is used in 15 U.S.C. § 15, refers to commercial interests or enterprises. Hawaii v. Standard Oil Co., 405 U.S. 251, 264, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972); cf. North Texas Producers Assoc. v. Young, 308 F.2d 235 (5th Cir. 1962), cert. denied, 372 U.S. 929, 83 S.Ct. 874, 9 L.Ed.2d 733 (1963). Plaintiff's Conroe store qualifies as such an interest or enterprise.[12]
This Court further concludes that defendant's conduct was "directed at" plaintiff or, alternatively that the actions of defendant were those whose effect would foreseeably affect plaintiff as one in the "target area". See Radovich v. National Football League, 352 U.S. 445, 77 S.Ct. 390, 1 L.Ed.2d 456 (1957). To this Court, plaintiff's employment was clearly terminated by defendant for her operation of the Conroe store. Defendant's termination of the plaintiff was the end result of its volitional move either to have plaintiff give up the Conroe store or lose her job. See Defendant's Exhibit No. 4, Letter from Ben Peck to Plaintiff (October 9, 1972), quoted on page 575, supra. With all the economic controls at its command, defendant could effectively dictate plaintiff's employment as well as the direction of commerce in orthopedic shoes in the Conroe area.
Defendant challenges plaintiff's standing because of her status as an employee. Defendant strongly contends that this plaintiff could have no standing when her employment was terminated because her employment involved no separately cognizable sales territories or commissions, and her only loss was of a salaried position. See Reply Memorandum in Support of Defendant's Motion for Summary Judgment and to Dismiss at 9 (August 5, 1974).
Defendant's contention misapprehends the thrust of plaintiff's claim as amplified in her deposition. Plaintiff's operation *579 of the Conroe store removes her from among jobless plaintiffs who are deprived by virtue of employment termination of promoting their employer's market territories through unique control of these territories, and who have standing, therefore, because of their "employment" status[13] and relocates her among that class of potential antitrust litigants who are trying to enter, or who have successfully entered, the industry, and therefore have standing because of their "entrepreneurial" status. See, e. g., North Texas Producers Assoc. v. Young, supra, 308 F.2d 235; cf. Martin v. Phillips Petroleum Co., 365 F.2d 629 (5th Cir. 1966).[14]
The so-called "employee" cases, see note 13, supra, do play a role in this case, however. Language in the "employee" cases speaks broadly of the presence of an injury to business or property as the result of loss of employment. The United States Court of Appeals for the Fifth Circuit has utilized such language in the Dailey case. 380 F.2d at 487. Further, the Radovich case has been interpreted to provide an antitrust cause of action to a person who lost his employment (and was no longer able to practice his profession) as the result of a "boycott" or "blackballing" by his employer in violation of the antitrust laws. See Reibert v. Atlantic Richfield Co., 471 F.2d 727, 730 (10th Cir.), cert. denied, 411 U.S. 938, 93 S.Ct. 1900, 36 L. Ed.2d 399 (1973).
Plaintiff's "entrepreneurial" status, rather than her "employee" status, causes the Court to conclude that she has standing to allege an antitrust claim. Still, her loss of salary and other employee benefits remain in the case as an element of possible damages recoverable, should violations of the antitrust laws be proved. See, e. g., Vandervelde v. Put & Call Brokers & Dealers Assoc., 344 F.Supp. 118 (S.D.N.Y.1972) (salary or commissions lost as result of antitrust violation held recoverable as damages).
B. Statement of An Antitrust Claim
1. Restraint of Trade and the Rule of Reason
The simple wording of Section 1 of the Sherman Act is deceptive. A literal interpretation of the section would dictate that any commercial transaction, contract, combination or business conspiracy could be deemed to violate it. United States v. Topco Associates, 405 U.S. 596, 606, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972). As the Supreme Court recognized in the Topco case, the Congress did not intend to prohibit all such contracts, or even all contracts that might in some insignificant degree or attenuated sense restrain trade or competition. As a consequence, the Supreme Court has developed a "rule of reason" analysis for Section 1 cases.[15]See Standard *580 Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911). Thus, certain business actions "restrain trade" if they unduly restrict competition or obstruct the due course of trade, primarily restricting or suppressing commercial competition unreasonably. Northern Pacific Ry. v. United States, 356 U. S. 1, 4-5, 78 S.Ct. 514, 2 L.Ed.2d 545 (1956); Apex Hosiery Co. v. Leader, 310 U.S. 469, 495, 500, 60 S.Ct. 982, 84 L.Ed. 1311 (1939).
2. Sufficiency of Plaintiff's Complaint
The sufficiency of an antitrust complaint is tested by determining whether it is "wholly frivolous." Radovich v. National Football League, supra, 352 U.S. at 453, 77 S.Ct. 390. The complaint should not be dismissed for failure to state a claim unless "nothing can be extracted from [the complaint] that falls under the Act of Congress." Id. The claim should merely be tested under the Sherman Act's general prohibition as to unreasonable restraints of trade and meet the further requirement that petitioner has thereby suffered injury. Id., Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 73 S. Ct. 872, 97 L.Ed. 1277 (1953).
Plaintiff has standing to bring this claim because of her "entrepreneurial" status. Her claim is inartfully pleaded, alleging only that defendant's alleged coercive conduct in imposing and then carrying out the restrictive aspects of the employment agreement "unreasonably restrained plaintiff in her employment and her investment practices." See Plaintiff's First Amended Complaint at 2, Count Two (June 7, 1974). As such, the complaint only tangentially alleges unreasonable conduct injurious to competition.
However, as the Court noted previously, see page 1, supra, additional pleadings and information have been made available to the Court which amplify the contents of the complaint. See Deposition of Plaintiff (May 8, 1974); Plaintiff's Opposition to Defendant's Motion for Summary Judgment and to Dismiss (July 26, 1974); Plaintiff's Supplemental Memorandum Opposing the Motions for Summary Judgment and to Dismiss (August 13, 1974). The additional information indicates that plaintiff's complaint does possibly state a claim. Sufficient facts have not yet been presented, however, to permit favorable summary resolution of legal issues, either in favor of plaintiff or defendant.
Expansion of plaintiff's claim to include the additional available information does not fully rectify the semantic inadequacies of plaintiff's complaint. She is still contending that "defendant restrained trade by imposing upon plaintiff a choice of loss of employment or loss of investment and that under the circumstances, the restraint was unreasonable." See Plaintiff's Supplemental Memorandum Opposing the Motions for Summary Judgment and to Dismiss, ¶ II.A.2 at 5 (August 13, 1974).[16] And *581 defendant is contesting the presence of any Sherman Act violation because plaintiff's Conroe store is allegedly not in competition with defendant's Almeda Mall store.
However, coupled with the allegation of unreasonable restraint on plaintiff is the additional contention that defendant's discharge policy unreasonably restrained trade by injuring shoe store competition in Conroe. Id. at 3. That is, it is urged that plaintiff's lost salary has possibly caused the Conroe operation to suffer from diminished available capital, resulting in the possible decline of competition and of the passage of unique goods sold at the Conroe store from the mainstream of commerce in that area.[17] Plaintiff further suggests that trade has been unreasonably restrained as to orthopedic children's shoes because her store is allegedly the sole supplier of such shoes in Conroe. See Deposition of Plaintiff at 89 (May 8, 1974).
3. CONTRACT, COMBINATION OR CONSPIRACY IN RESTRAINT OF TRADE
Defendant characterizes the complained of employment termination as "unilateral conduct" by it. Defendant then takes the position that such conduct is not cognizable under a Section 1 claim of unreasonable restraint of trade because of the absence of a contract, combination or conspiracy to so restrain trade.
The Court is not wholly persuaded by this contention. A combination or contract to restrain trade can occur if two parties are participants, even if the agreement will benefit only one party. United States v. Parke, Davis & Co., 362 U.S. 29, 44, 80 S.Ct. 503, 4 L. Ed.2d 505 (1960). The Parke, Davis case involved resale price maintenance. Manufacturers who were found to have violated the antitrust laws had coerced retailers to maintain a certain price level on the manufacturers' goods by suggestion through threats of termination. Though the Supreme Court found the combination to be highly detrimental to the retail entities, the Court held that acquiescence in the illegal scheme was sufficient to establish a "combination". Id. The Court later reaffirmed this view of the definition of "combination". See Albrecht v. The Herald Co., 390 U.S. 145, 149, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968) (termination of exclusive distributorship of newspaper routes by the newspaper publisher constitutes illegal combination between publisher and newspaper carrier). The attempt by defendant to enforce a policy against plaintiff regarding the Conroe store thus conceivably qualifies as a "combination" or "contract" potentially violative of Section 1. At least, at this stage such a possibility cannot be excluded. The alleged attempt of Foley Bros. and defendant together to force plaintiff to relinquish the Conroe store also potentially qualifies. See note 4, supra.
To the Court, the allegation of these injuries by the plaintiff sufficiently states a claim under the law, inasmuch as the claim cannot be viewed as wholly frivolous under the Radovich test, supra. Defendant's actions which resulted in the termination of plaintiff's employment *582 could interfere with, or affect, interstate commerce unreasonably in restraint of trade as contemplated by the Congress. See A. Cherney Disposal Co. v. Chicago & Sub. Refuse Dist. Assoc., 484 F.2d 751, 758 (7th Cir. 1973), cert. denied, 414 U.S. 1131, 94 S.Ct. 870, 38 L.Ed.2d 755 (1974).
The Court has been unable to find any reported decision wherein a plaintiff has challenged as violative of the Sherman Act a termination of employment for operating an independent, allegedly noncompeting, commercial enterprise. See note 16, supra. Therefore, to avoid premature adjudication of the potentially significant antitrust question presented regarding the validity of the instant restrictive employment agreement, the Court advances certain guidelines to facilitate thorough development of additional pertinent evidence by the parties.
C. Burden on the Parties
Plaintiff's successful statement of a claim does not relieve her of other burdens as an antitrust plaintiff. To prevail on the merits, she must establish that a violation of the antitrust laws has in fact occurred, that the illegal conduct charged actually caused a business or property injury, and that the injury suffered is measurable in dollars. See Antitrust Developments: 1955-1968, at 279 [Supplement to Report of the Attorney General's National Committee to Study the Antitrust Laws, 1955].
First, it must be determined whether the defendant's policy restrains trade, and whether Foley Bros. is involved in administering this policy, or a like policy, in conjunction with defendant. This requires ascertaining whether plaintiff's Conroe store competes with defendant's Almeda Mall operation. If only the Conroe market is involved, there must still be a determination whether, and the extent to which, plaintiff's Conroe store competes with other Conroe shoe stores, whether trade was impeded at plaintiff's Conroe store, and, if so, whether impeding trade at plaintiff's Conroe store substantially affects available goods in the Conroe area.
Second, given the existence of some restraint, the reasonableness of this restraint must be evaluated against the goal of protecting competition sought to be promoted by the Sherman Act. Analyzing the reasonableness of particular restraints includes consideration of the facts peculiar to the business in which the restraint is applied, the nature of the restraint and its effects, and the history of the restraint and the reasons for its adoption. United States v. Topco Associates, supra.
The parties should concentrate on demonstrating by use of statistical and other proof, whether defendant's actions constituted an "unreasonable" restraint of trade. Both parties are therefore directed to pursue appropriate discovery and ultimately to prepare supporting memoranda to demonstrate the relationship of such proof to the legal criteria outlined in this order. Counsel should also confer concerning the appropriate method for computing damages, should antitrust liability be found.
CONCLUSION
By this Memorandum and Opinion, the Court has granted defendant's motion for summary judgment as to Count One of plaintiff's complaint and has granted in part defendant's motion for summary judgment as to Count Three. The development of facts beyond the bare pleadings has prompted the Court to treat defendant's motion to dismiss under Rule 12(b)(6) as a motion for summary judgment. On this basis, the Court concludes that plaintiff's complaint does state a claim upon which relief can be granted, and that summary judgment is not proper at this time because certain pertinent factual areas remain unresolved and at issue.
NOTES
[1] Cf. Alders v. AFA Corporation of Florida, 353 F.Supp. 654 (S.D.Fla.1973), aff'd without written opinion, 490 F.2d 990 (5th Cir. 1974).
[2] The following statement of facts is not presented in a light most favorable to plaintiff, but rather represents all undisputed facts available in the pleadings and affidavits together with plaintiff's presentation of disputed or unproven facts.
[3] The exact starting date of plaintiff's employment is not clear from the affidavits and documents available. See n. 6, infra.
[4] There is some suggestion that the Foley's Almeda Mall store also had a policy which was involved. See Deposition of Plaintiff at 53-54 (May 8, 1974).
[5] Plaintiff's damage figure was computed according to the following formula:
(a) Plaintiff was 52 years of age at the time of her termination of employment earning a salary of $9,620 annually, with an excellent employment record;
(b) Plaintiff could reasonably have anticipated that she would have continued to earn at least that figure with accompanying increases in contributions to the retirement fund until she reached the age of 62, but for the alleged wrongful termination;
(c) That therefore plaintiff is entitled to $96,200 lost wages ($9,620 per year times 10 years) plus approximately $18,000 in lost retirement benefits during that time;
(d) That this damage figure, $114,200 ($96,200 plus $18,000) should be trebled in accordance with the antitrust provision for treble damages, 15 U.S.C. § 15, resulting in total damages of $442,600 ($114,200 × 3).
[6] Plaintiff contends that she began employment with defendant in January, 1953, and that her length of service should be considered to be 20 years. Defendant contends that plaintiff began her employment in November, 1953, and that her length of service is 19 years. See Deposition of Plaintiff at 85-86 (May 8, 1974).
[7] There is some indication that this dispute has been settled by the parties. See Deposition of Plaintiff at 85-86 (May 8, 1974). Should there be no dispute, the Court should be so advised.
[8] Plaintiff has apparently received some money. See Deposition of Plaintiff at 76 (May 8, 1974).
[9] In her first amended complaint, plaintiff alleged violation of the antitrust laws of the United States and of Texas. 15 U.S.C. § 1; Tex.Bus. & Comm.Code §§ 15.02-15.04. However, plaintiff has subsequently abandoned argument on the state antitrust claim. See Plaintiff's Supplemental Memorandum Opposing the Motions for Summary Judgment and to Dismiss at 5 (August 13, 1974). Therefore, this claim must be dismissed and is not considered by the Court in this opinion.
[10] "Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States . . .." 15 U.S.C. § 15.
[11] For an excellent recitation of the components of this additional requirement, see In Re Multidistrict Vehicle Air Pollution M.D. L. No. 31, 481 F.2d 122, 126-28 (9th Cir. 1973).
[12] Plaintiff also satisfies the collateral requirements of standing: that plaintiff has an intention to enter into a business; and that plaintiff is prepared to enter into a business. North Texas Producers Ass'n v. Young, supra. Not only has the instant plaintiff taken affirmative action to enter into the shoe-selling business, she has already made such an entry by opening the Conroe store. This entry, coupled with plaintiff's long experience in shoe store management and operation and her accompanying expertise, well-qualifies her to have standing. See Deposition of Plaintiff at 25-37 (May 8, 1974).
[13] See Dailey v. Quality School Plan, Inc., 380 F.2d 484, 487 (5th Cir. 1967); Nichols v. Spencer International Press, Inc., 371 F. 2d 332 (7th Cir. 1967); Roseland v. Phister Mfg. Co., 125 F.2d 417 (7th Cir. 1942); cf. United States v. National Assoc. of Real Estate Boards, 339 U.S. 485, 70 S.Ct. 711, 94 L.Ed. 1007 (1950).
[14] The proper distinction to this Court does not appear to be injury to salary as compared with injury to assigned sales territories and commission. Rather, injury to business or property that belongs to the corporation in which the employee's claim is derivative should be compared with injury to property that is directly attributable to the employee in which the corporation asserts an adverse interest.
[15] "Rule of reason" analysis is appropriate in this case because the complained of activity has not been held per se violative of Section 1.
The following restraints of trade have been deemed to be per se illegal: (a) horizontal price fixing, United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940); (b) resale price maintenance, Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502 (1911); (c) division of markets, United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967); (d) group boycotts, Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959); (e) tying arrangements, International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947); Fortner Enterprises, Inc. v. U. S. Steel Corp., 394 U.S. 495, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969); and (f) reciprocal dealing, United States v. Griffith, 334 U.S. 100, 68 S.Ct. 941, 92 L.Ed. 1236 (1948).
[16] Defendant's employment policy amounts to a "present" restrictive covenant not to compete; i. e., a covenant between an employer and current employees. Such covenants, which usually involve restrictions on an employee's post-employment activities, have received little attention in federal antitrust actions because of the localized nature of such controversies and their apparently successful regulation, where appropriate, by state antitrust laws. See, e. g., Tex.Bus. & Comm. Code §§ 15.02-15.04. See generally, Goldschmid, Antitrust's Neglected Stepchild: A Proposal for Dealing With Restrictive Covenants Under Federal Law, 73 Colum.L.Rev. 1193 (1973); Annotation, Enforceability, Insofar as Restrictions Would Be Reasonable, of Contract Containing Unreasonable Restrictions on Competition, 61 A.L.R.3d 397 (1975); Annotation, Enforceability of Restrictive Covenant, Ancillary to Employment Contract, as Affected by Territorial Extent of Restriction, 43 A.L.R.2d 94 (1953). Cf. Annotation, Validity Under the Federal Antitrust Laws (15 U.S.C. §§ 1 et seq.), of Agreements Between Employers or Employer Associations Imposing Restrictions on Employment, 2 A.L.R.Fed. 839 (1969).
In Texas, the validity of a restrictive covenant depends upon its reasonableness as to duration and area. Compare Martin v. Kidde Sales & Service, Inc., 496 S.W.2d 714 (Tex.Civ.App. Waco 1973, no writ) with T. E. Moor & Co. v. Hardcastle, 421 S.W.2d 126 (Tex.Civ.App. Beaumont 1967, writ ref'd n. r. e.).
[17] The rather limited nature of trade allegedly involved in this case does not detract from the significance of plaintiff's claim. Radiant Burners, Inc. v. Peoples Gas Light & Coke Co., 364 U.S. 656, 660, 81 S.Ct. 365, 5 L.Ed.2d 358 (1961). Wholly local business restraints can produce effects condemned by the Sherman Act. United States v. Employing Plasterers Assoc., 347 U.S. 186, 189, 74 S.Ct. 452, 98 L.Ed. 618 (1954). The Sherman Act reaches as far as the commerce clause will allow. United States v. Topco Associates, 405 U.S. 596, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592370/ | 135 S.W.3d 845 (2004)
Michael M. ROACH, Appellant
v.
Patricia Sue ROWLEY, Appellee.
No. 01-03-00057-CV.
Court of Appeals of Texas, Houston (1st Dist.).
February 19, 2004.
Kristopher M. Stockberger, Houston, TX, for Appellant.
*846 James C. Benson, Benson & Anderson, L.L.P., Esther Anderson, Houston, TX, for Appellee.
Panel consists of Justices NUCHIA, ALCALA, and HANKS.
OPINION
SAM NUCHIA, Justice.
Appellant, Michael M. Roach, appeals an order denying his objection to a temporary administrator's final accounting. We affirm.
BACKGROUND
Michael Wayne Garson died on March 25, 2001, leaving his father, Robert Garson (Garson), as his only heir. Garson filed an application for letters of independent administration in which he stated that Michael Wayne Garson had died intestate. Michael Gullo filed an opposition to Garson's application, asserting that, at the time of the decedent's death, he had a valid, unrevoked, written will. Garson filed an application for the appointment of a temporary administrator pending the contest of the estate, and the probate court appointed appellee, Patricia Sue Rowley, an attorney with the firm of Benson & Anderson, as temporary administrator. Roach, a devisee under the will, filed a petition in intervention.
Between November 13, 2001 and October 7, 2002, Rowley filed nine applications for interim payment of her fees and expenses.[1] The probate court approved each of these applications, and the sums requested were paid to Benson & Anderson. Roach asserts that a total of $24,993.57 was paid to Rowley and that this amount was over 20% of the fair market value of the estate. Rowley does not contest these assertions. Roach did not file an objection to any of the applications for interim payment. Rowley filed an amended account for final settlement on November 25, 2002, and, on December 13, Roach filed his objection to the final accounting in which he objected only to the fees paid to Rowley. On December 19, the probate court signed an order denying Roach's objection and an order approving the amended final accounting. The court filed findings of fact and conclusions of law in response to Roach's timely request.
On appeal, Roach challenges the court's conclusions of law as follows:
14. Devisee does not have standing to object to Temporary Administratrix's Final Accounting in the presence of a serving personal representative.
15. Devisee waived his objection to all nine fee orders.
Roach also challenges the court's "ruling that the five percent (5%) calculation for [the temporary administrator]'s fee was unreasonably low" and the court's award to the temporary administrator of the entire amount of fees requested. We consider only Roach's first two issues regarding standing and waiver.
DISCUSSION
Standing
Roach first complains that the probate court improperly concluded that Roach did not have standing to object to the final accounting. We review a trial court's conclusions of law de novo. Nelkin *847 v. Panzer, 833 S.W.2d 267, 268 (Tex.App.-Houston [1st Dist.] 1992, writ dism'd w.o.j.).
At the time Roach filed his objection to the final accounting, the heir and devisees had reached a family settlement agreement, the probate court had signed an order approving the agreement, and Gullo, one of the devisees, had been appointed as personal representative of the estate of Michael Wayne Garson. Rowley argued in the trial court and argues on appeal that the personal representative of the estate of a decedent is the only person entitled to sue for the recovery of property belonging to the estate unless the personal representative has refused to enforce a debt due the estate, citing Frazier v. Wynn, 472 S.W.2d 750, 752 (Tex.1971). In Frazier, the supreme court stated that, before heirs at law could maintain a suit for the recovery of property belonging to an estate, they must allege and prove that no administration is pending and that none is necessary. Id. at 752. The court applied this rule to the plaintiffs suit to recover damages for breach of a lease held by the decedent. Id. Although there had been no administration of the estate, there was a necessity for administration, and the heir was not entitled to maintain the suit. Id. at 752-53.
In the present case, Roach was not filing a lawsuit to recover property belonging to the estate. He was merely objecting, as an interested party, to the final accounting. Section 10 of the Probate Code provides:
Any person interested in an estate may, at any time before any issue in any proceeding is decided upon by the court, file opposition thereto in writing and shall be entitled to process for witnesses and evidence, and to be heard upon such opposition, as in other suits.
TEX. PROB.CODE ANN. § 10 (Vernon 2003). Rowley argues, without citing authority, that the probate court's conclusion of law that Roach did not have standing to object to the final accounting is "a clear exception to [Roach]'s claim of standing" under section 10. We consider the language of section 10 to be clear and to permit the filing of an objection by any interested party to any issue in any proceeding before the probate court.
We find no cases specifically holding that an interested party may file an objection to a final accounting even though the estate has a personal representative. However, the facts in Burke v. Satterfield, 525 S.W.2d 950 (Tex.1975), involve such an objection.
In Burke, a devisee objected to the final accounting filed by the independent executor. Id. at 952. The trial court dismissed the objections for lack of jurisdiction on the grounds that a probate court's control over independent administration of estates is strictly limited to situations set out in the probate code. Id. The court of appeals reversed, and the supreme court affirmed the court of appeals' judgment as modified and remanded the cause to the probate court for further proceedings. Id. The supreme court held that the language of section 149A invests the probate court with jurisdiction to consider exceptions to a final accounting. Id. at 954. Thus, the probate court had jurisdiction to consider the objections to a final accounting filed by an interested person.
We conclude that, under section 10 of the Probate Code, and consistent with Burke, any interested person may file an objection to a final accounting of a decedent's estate. We hold that Roach had standing to object to the temporary administrator's final accounting. Accordingly, we sustain Roach's first issue.
Waiver
In his second issue, Roach complains that the probate court erred in concluding that his objection to the temporary *848 administrator's final accounting was waived. Roach contends that the annual or interim accounts are not res judicata and may be brought forward in the final accounting to be re-examined, citing De-Gaugh v. Jamison, 419 S.W.2d 389 (Tex. Civ.App.-Houston [1st Dist.] 1967, writ ref'd n.r.e.), and Portanova v. Hutchison, 766 S.W.2d 856 (Tex.App.-Houston [1st Dist.] 1989, no writ). DeGaugh and Portanova involve challenges by the heirs to administrators' handling of the estates, and the fees paid to the administrators were not an issue in either case. See Portanova, 766 S.W.2d at 857-58; De-Gaugh, 419 S.W.2d at 391.
The issue in this case is whether the orders of the probate court approving the application of the temporary administrator for payment of fees and expenses were final and appealable orders. A probate order is appealable if it finally adjudicates a substantial right; if it merely leads to further hearings on the issue, the order is interlocutory. Wittner v. Scanlan, 959 S.W.2d 640, 642 (Tex.App.-Houston [1st Dist.] 1995, writ denied) (citing Huston v. Fed. Deposit Ins. Corp., 800 S.W.2d 845, 848 (Tex.1990)). In Wittner, we held that an order awarding attorney's fees was final for the purposes of appeal, reasoning that, because the administration of the estate was an ongoing process, it would be unfair to defer appellate review of the order until the estate was closed.[2]Id.
Roach contends that it would have been "impractical, inappropriate and onerous to police" the temporary administrator's billing practices in her applications for fees. He argues that he could not know the full value of the estate until the final accounting, and, therefore, that he could not determine the proper amount of fees to be paid to the administrator until the final accounting was filed.
The record reflects that Roach received each of Rowley's applications for interim payment when they were filed with the probate court. These applications were for payment for legal fees, not fees as an administrator, and itemized time sheets were attached to the applications. In the orders awarding the requested fees, the trial court finds the fees to be reasonable compensation for the services rendered. There is no language in the orders indicating that they are interlocutory. We hold that the orders awarding Rowley's fees and expenses were final and appealable orders. Because he did not appeal these orders within 30 days, Roach has waived his appeal. Accordingly, we overrule Roach's second issue.
CONCLUSION
Our disposition of Roach's second issue is dispositive of this appeal. Therefore, we need not reach his third and fourth issues challenging the amount of the fees paid.
We affirm the judgment.
NOTES
[1] Eight of these applications are in the appellate record. Rowley lists nine applications in her response to Roach's objection to the final accounting. The exact number of applications is unclear because there is some inconsistency between the applications in the record and Rowley's list. Nevertheless, Roach does not challenge the probate court's findings that nine applications were filed, that the probate court approved all nine applications by order, and that the last order was signed on October 7, 2002.
[2] In Wittner, we distinguished Lurie v. Atkins, 678 S.W.2d 510 (Tex.App.-Houston [14th Dist.] 1984, no writ) in which the appellate court held that an order awarding the administrator's fees was not a final order because, in that case, the order stated that the award of fees was interlocutory. Wittner v. Scanlan, 959 S.W.2d 640, 642 (Tex.App.-Houston [1st Dist.] 1995, writ denied). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592376/ | 453 So.2d 428 (1984)
George W. BRANNEN, Appellant,
v.
STATE of Florida, Appellee.
No. AU-469.
District Court of Appeal of Florida, First District.
June 21, 1984.
Michael E. Allen, Public Defender, and Charlene V. Edwards, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Andrea Smith Hillyer, Asst. Atty. Gen., for appellee.
NIMMONS, Judge.
Brannen was charged with two counts of battery on a law enforcement officer and one count of resisting an officer with violence. He was convicted of the lesser offense of simple battery on each of the battery on law enforcement officer counts and the lesser offense of resisting an officer without violence on the other count. We affirm the two simple battery convictions but reverse the resisting conviction.
The offense of resisting an officer, either with or without violence, requires, as an essential element, that the officer be engaged "in the execution of legal process or in the lawful execution of any legal duty."[1] The information charged that the resisting occurred as the officer was engaged "in the lawful execution of a legal duty, to wit: making a lawful arrest of George W. Brannen for a misdemeanor, to wit: disorderly intoxication."
Counsel for the defendant requested that the court define for the jury the offense of disorderly intoxication and submitted an instruction which set forth the elements of that misdemeanor. The defendant was seeking to defend on the basis that the state had failed to prove the above referred element which was essential to make a case of resisting. More particularly, the defendant's position was that he had not committed the offense of disorderly intoxication in the presence of the officer and that, absent *429 legal process, an arrest for such misdemeanor may be made only when it is committed in the presence of the officer.
The trial court denied the requested jury instruction. Such denial was error. In Smith v. State, 399 So.2d 70 (Fla. 5th DCA 1981), the court correctly noted:
An essential element of the offense under Count Three was that the arresting officers were engaged "in the execution of legal process or in the lawful execution of any legal duty." See § 843.01, Fla. Stat. (1979). The lawful duty requirement was an essential element to be shown by the prosecution and subject to jury determination, applying the reasonable doubt criterion. Licata v. State, 156 Fla. 692, 24 So.2d 98 (1945); Lee v. State, 368 So.2d 395 (Fla. 3rd DCA 1979), cert. denied, 378 So.2d 349 (Fla. 1979).
399 So.2d at 71.
The state, however, argues that the following portion of the standard jury instructions[2] under Section 843.01 and 843.02 requires a contrary result:
The court further instructs you that (read duty being performed from charge) constitutes [execution of legal process] [lawful execution of a legal duty].
The state then points to the court's following instruction:
The court further instructs you that the arresting of a person for the misdemeanor of [disorderly] intoxication constitutes a lawful execution of a legal duty.
The state says that the defendant was entitled to no more than the above instruction. We disagree and hold that the trial court erred in not affording the defendant the opportunity of having the jury determine the question of whether this particular arrest for disorderly intoxication was lawful. In order for the jury to make such determination, it must, of course, be informed of the definition of the offense, in this instance disorderly intoxication.
We have considered the other points raised by appellant and find them to be without merit. The judgments are affirmed with respect to the simple battery counts, but the judgment on the third count is reversed and the case is remanded for a new trial on the charge of resisting without violence.
BARFIELD, J., concurs.
THOMPSON, J., dissents without opinion.
NOTES
[1] Sections 843.01 and 843.02, Florida Statutes (1981).
[2] Standard Jury Instructions in Criminal Cases (1981 Edition), pp. 195 and 196. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2440952/ | 963 N.E.2d 245 (2012)
357 Ill. Dec. 292
HERNANDEZ
v.
SCHERING CORP.
No. 113285.
Supreme Court of Illinois.
January 1, 2012.
Disposition of petition for leave to appeal Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3073223/ | 11TH COURT OF APPEALS
EASTLAND, TEXAS
JUDGMENT
Billy Wayne Williams, * From the 32nd District
Court of Nolan County,
Trial Court No. 4736-A.
Vs. No. 11-14-00185-CR * August 7, 2014
The State of Texas, * Per Curiam Memorandum Opinion
(Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.)
This court has inspected the record in this cause and concludes that the appeal
should be dismissed for want of jurisdiction. Therefore, in accordance with this
court’s opinion, the appeal is dismissed. | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1592387/ | 19 So. 3d 264 (2007)
STATE
v.
CONNIE MARIE QUINN.
No. CR-06-1532.
Court of Criminal Appeals of Alabama.
November 13, 2007.
Decision of the alabama court of criminal appeal without published opinion. Dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592393/ | 453 So. 2d 67 (1984)
Robert COOPER, Appellant,
v.
STATE of Florida, Appellee.
No. AU-145.
District Court of Appeal of Florida, First District.
March 2, 1984.
Michael Allen, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Andrew Thomas, Asst. Atty. Gen., for appellee.
NIMMONS, Judge.
Cooper, a person under 18 years of age, was charged by information with sexual battery upon a 10-year-old child pursuant to Section 794.011(2), Florida Statutes (1981), which provides that such an offense is a "capital felony." The jury found him guilty of the lesser offense of "assault with intent to commit sexual battery," which is actually an aggravated assault under Section 784.021(1)(b), Florida Statutes (1981).[1] Cooper asserts on appeal that the trial court erred in denying his motion requesting a 12-member jury and his motion to dismiss the information on the grounds that he was entitled to be proceeded against by grand jury indictment. We affirm.
In Buford v. State, 403 So. 2d 943 (Fla. 1981), the Court extended the holding of Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977), (which reversed the death penalty imposed for the rape of an adult woman) to the rape of a child, the Florida Supreme Court holding that the death penalty for child rape was violative of the Eighth Amendment's proscription against cruel and unusual punishment. After Buford, death was no longer a possible penalty in Florida for sexual battery, regardless of the age of the victim. The defendant in the instant case was, therefore, never at risk of the imposition of the death penalty for the October, 1982, offense with which he was charged.
Nevertheless, appellant claims that he was entitled to be proceeded against by indictment and to be tried by a 12-member jury and relies upon certain provisions of Florida law which he says require reversal. Article I, Section 15 of the Florida Constitution provides, in pertinent part:
"(a) No person shall be tried for capital crime without presentment or indictment by a grand jury. .. ."
Also, Section 913.10, Florida Statutes (1981), and Fla.R.Crim.P. 3.270 provide for a jury of 12 persons in all "capital cases." *68 However, these provisions governing the manner of charging capital crimes and the number of petit jurors required to try such crimes are procedural attributes of capital crimes and fall when the death penalty is abolished. Cf. Reino v. State, 352 So. 2d 853, 857 (Fla. 1977); Donaldson v. Sack, 265 So. 2d 499 (Fla. 1972); compare Rowe v. State, 417 So. 2d 981 (Fla. 1982). We are simply not persuaded that the fact that Section 794.011(2) defines sexual battery of a child 11 years of age or younger as a "capital felony" means, as appellant urges, that the above procedural requirements are still applicable notwithstanding the fact that the capital feature of the crime has been effectively eliminated.
Appellant relies in part upon Milliken v. State, 398 So. 2d 508 (Fla.5th DCA 1981), which held that a charge of sexual battery under Section 794.011(2) must be by indictment because the charged offense is a capital felony. There, the state attempted to proceed by information because, as the state contended, the offense was a "normal" sexual battery and that imposition of the death penalty could not be sustained, relying upon Purdy v. State, 343 So. 2d 4 (Fla. 1977). But, significantly, Milliken was a pre-Buford case, and capital punishment was still a possible penalty in childrape cases. Understandably, therefore, the Fifth District held that the prosecution must be by indictment. See also Howard v. State, 385 So. 2d 739 (Fla. 3rd DCA 1980).
Appellant also relies upon Nova v. State, 439 So. 2d 255 (Fla.3rd DCA 1983). Nova involved a prosecution for first degree murder. Prior to commencement of the trial, the state and defense entered into a stipulation whereby the state "would waive the death penalty making it punishable by 20 years, if convicted" and, in consideration thereof, "the defense would waive a 12-man jury" and proceed to trial with six jurors. Nova was tried and convicted of first degree murder by a six-member jury. The court imposed a life sentence with the requirement that he serve at least 25 years before being considered for parole. The Third District reversed the trial court's denial of Nova's Rule 3.850 motion. Appellant points to the holding in Nova:
"[S]o long as a twelve-person jury is fixed by law to try a person accused of a capital crime, the right to a jury of that number is constitutional and an invasion of that right a denial of due process."
439 So.2d at 262. However, as with Milliken, Nova is materially distinguishable from the case at bar because, by reason of the Buford decision, death was never a possible penalty for appellant Cooper.
The Fourth District has held in Hogan v. State, 427 So. 2d 202 (Fla. 4th DCA 1983), that the defendant who, as here, was tried on a charge of child sexual battery under Section 794.011(2), was not entitled to a 12-member jury. Hogan also held that sexual battery under that section, became a "life felony" after Buford and that the mandatory penalty of life imprisonment with no parole eligibility for the first 25 years, as provided under Section 775.082(1), was not applicable. We are not called upon to decide the appropriate post-Buford penalty under Section 794.011(2) inasmuch as the defendant in the instant case, as we have noted, was convicted of the lesser offense of aggravated assault. However, we note that our sister court in Rusaw v. State, 429 So. 2d 1378 (Fla. 2nd DCA 1983), although agreeing with Hogan's conclusion that a 12-member jury was no longer required, disagreed with Hogan as to the appropriate penalty and held that one convicted under Section 794.011(2) must be sentenced to life imprisonment with no eligibility for parole for the first 25 years pursuant to Section 775.082(1), citing Buford, supra, 403 So.2d at 954. See also Duke v. State, 444 So. 2d 492 (Fla. 2nd DCA 1984). The Third District agrees with Rusaw with respect to the appropriate sentence under Section 794.011(2). State v. Jimenez, 445 So. 2d 204 (Fla. 3rd DCA 1983); State v. Mendoza, 444 So. 2d 570 (Fla. 3rd DCA 1984).
There being no error in the state's reliance upon an information as the appropriate charging document and in the use of a *69 6-member jury, the judgment is AFFIRMED.
We certify the following as a question of great public importance pursuant to Fla.R. App.P. 9.030(a)(2)(A)(v):
IN A PROSECUTION FOR SEXUAL BATTERY UNDER SECTION 794.011(2) WHERE DEATH IS NOT A POSSIBLE PENALTY BECAUSE OF THE HOLDING IN BUFORD V. STATE, 403 So. 2d 943 (FLA. 1981): (1) MAY THE STATE PROCEED BY INFORMATION INSTEAD OF INDICTMENT, AND (2) IS THE DEFENDANT ENTITLED TO A 12-MEMBER JURY?
SMITH and WIGGINTON, JJ., concur.
NOTES
[1] No issue has been raised as to whether aggravated assault under Section 784.021(1)(b) is a lesser included offense under the crime charged in the information. We note that such lesser offense was submitted to the jury at the defendant's request. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592406/ | 162 Wis. 2d 837 (1991)
470 N.W.2d 888
BENJAMIN PLUMBING, INC., Plaintiff-Appellant,
v.
Bette BARNES, Defendant-Respondent,
William K. WHITCOMB, Defendant-Respondent-Petitioner,
Harry LUDWIG and Response to Hunger, an Unincorporated Association, Defendants-Respondents.
No. 89-1334-FT.
Supreme Court of Wisconsin.
Argued April 23, 1991.
Decided June 20, 1991.
*841 For the defendant-respondent-petitioner there were briefs by Diane Nicks, Madison and oral argument by Diane Nicks.
*842 For the plaintiff-appellant there was a brief by Robert W. Aagaard, Madison and oral argument by Robert W. Aagaard.
HEFFERNAN, CHIEF JUSTICE.
This is a review of a published decision of the court of appeals[1] reversing a summary judgment of the circuit court for Dane county, George A.W. Northrup, circuit judge, which dismissed an action brought by Benjamin Plumbing, Inc., against William K. Whitcomb individually for breach of contract. We affirm.
The circuit court found that, based on the undisputed facts, Benjamin Plumbing reasonably should have been placed on notice that it was not contracting with Whitcomb as a private individual but rather with the corporation, "Response to Hunger Network" (RHN), which Whitcomb was representing.
The court of appeals reversed the circuit court's summary judgment, holding that, because the agent Whitcomb did not in any way assume his duty to disclose the corporate status of his principal, RHN, he was liable to Benjamin Plumbing as a party to the contract. The court of appeals also rejected Whitcomb's defense that, as a director of RHN, a nonprofit corporation, he was immune from such contractual liability under sec. 181.287, Stats.[2]
*843 We affirm the court of appeals, which held that Whitcomb, acting as an agent for a partially disclosed principal, is liable on the contract. We conclude that the undisputed facts known to Benjamin Plumbing at the time of contracting with Whitcomb did not raise a reasonable inference that RHN was a corporation, and accordingly Benjamin had no notice of the corporate identity of the principal. We also conclude that sec. 181.287, Stats., does not provide Whitcomb with any statutory immunity, because Whitcomb's liability did not arise "from a breach of, or failure to perform, any duty resulting solely from his . . . status as a director" of RHN.
The facts of this case are not in dispute. In 1987 Whitcomb contacted Benjamin Plumbing, Inc., an incorporated family plumbing business located in Madison, about the possibility of doing some plumbing *844 work on a canning project for the "Response to Hunger Network" on the Mendota State Hospital grounds.
In a letter dated May 5, 1987, to Donald Knapp, the general manager of Benjamin Plumbing, Whitcomb requested a "rock bottom" price for the plumbing work. The letter stated that a minimum subsistence rate would be appreciated because "we have to search for donations to pay for this work and in the end we do not even have a product that will bring us any income." Under Whitcomb's signature were the typed words, "William K. Whitcomb, For Response to Hunger Network." In the letterhead, however, were the words, "National Council of the Churches of Christ in the United States of America, CHURCH WORLD SERVICE," with Whitcomb listed as its regional director.
In a letter dated June 20, 1987, and addressed to "Response to Hunger, To Whom It May Concern," Knapp set forth Benjamin Plumbing's price quotations for work on the cannery project. The letterhead used by Knapp set forth the words, "Benjamin Plumbing, Inc."
In a letter to Knapp dated July 9, 1987, Whitcomb accepted Benjamin Plumbing's rates and authorized Knapp to start the work. Whitcomb advised Knapp that he could be reached at his Church World Service address and phone number. Under Whitcomb's signature were the typed words, "William K. Whitcomb, Canning CommitteeRHN." The letterhead was captioned, "RESPONSE TO HUNGER NETWORK."
Benjamin Plumbing completed the work but was subsequently paid only $5,000 of the final bill, which amounted to $10,603.66. The appropriateness of the total bill is not disputed. On October 30, 1987, Benjamin Plumbing filed an "Application and Certificate for Payment," asking for payment of the balance. Response to *845 Hunger Network was listed in the document as the owner of the cannery project.
On December 6, 1988, Benjamin Plumbing, not having received payment, filed an action against Whitcomb and two other members of RHN individually and RHN as an unincorporated association. The complaint alleged that all the defendants were jointly and severally liable for the unpaid balance of the plumbing contract. In their answer, the defendants denied contractual liability and affirmatively asserted that "Response to Hunger Network, Inc., is a Wisconsin corporation formed pursuant to Chapter 181 of the Wisconsin statutes."
Thereafter, Benjamin Plumbing brought a motion for summary judgment supported by an affidavit of its corporate president, David Benjamin, and copies of the various letters exchanged by the parties. The defendants opposed that motion, claiming that Whitcomb was a corporate director and that the other members were corporate officers of RHN and, accordingly, that they were all statutorily immune under sec. 181.287, Stats. The defendants also asserted that the mere failure to utilize RHN's full corporate name (which under sec. 181.06 would include some form of the word, "incorporated")[3] when contracting does not automatically abrogate the statutory protections. The motion in opposition was supported by RHN's articles of incorporation and affidavits of Whitcomb and the other individual defendants.
The circuit court found that there were no material facts in dispute and considered the dispositive issue of *846 law to be whether RHN's failure to expressly identify itself as a corporation in the contract and other correspondence destroyed the "personal liability protection under Wisconsin statutes." Focusing on sec. 181.06, Stats.,[4] and case law from other jurisdictions interpreting similar "corporate name" statutes, the circuit court concluded that the defendants should not be stripped of their personal liability protection unless Benjamin Plumbing could prove that it was "injured or misled by such misdescription" (citing 19 C.J.S., Corporations, sec. 1136 (1940)).
Examining the exhibits submitted in support and opposition to summary judgment, the circuit court held that, while there was no specific reference to RHN's incorporated status anywhere in the correspondence, Benjamin Plumbing, "itself a corporate entity, should have been placed on notice that it was not dealing with private individuals." The letters clearly indicated that the plumbing work was for RHN. Thus, because Benjamin Plumbing did not affirmatively allege any special harm or that the corporate status was purposefully concealed, the circuit court declined to "pierce the corporate veil" and hold the defendants personally liable.[5]
Because Whitcomb individually contracted with Benjamin Plumbing without disclosing RHN's corporate status, the court of appeals reversed the circuit court's judgment dismissing the action against Whitcomb but affirmed it as to the other defendants. 156 Wis. 2d at 278-79.[6] Believing it was faced with an issue of first *847 impression, the court of appeals adopted various "black letter" agency principles setting forth that a person making a contract for a "partially disclosed principal" is a party to the contract and liable for its breach and that a principal is partially disclosed when the other party has notice that the agent is acting for a principal but has no notice of the principal's (corporate) "identity." 156 Wis. 2d 280, (citing Restatement (Second) of Agency, secs. 4(2), 321 (1958)). As applied to corporate contracts, the court of appeals stated the general rule that an agent has a duty to disclose the corporate identity of the principal to avoid personal liability. 156 Wis. 2d at 280-81 (citing 3A W. Fletcher, Cyclopedia of the Law of Private Corporations, sec. 1120, at 237-38 (rev. ed. 1986), and case law from other jurisdictions).
The court of appeals concluded that Whitcomb was personally liable because he was the contracting party and there was no evidence that the corporate status of RHN was disclosed to Benjamin Plumbing. 156 Wis. 2d at 281-82. It emphasized that its holding was premised on agency principles and not upon "piercing the corporate veil" theory, which looks to the wrongful conduct of the defendant. Id. at 281-83.
Finally, the court of appeals rejected Whitcomb's contention that sec. 181.287, Stats., independently provided him with statutory immunity. The court noted that the statute only shields a director from liability "arising from a breach of or failure to perform, any duty resulting solely from his or her status as a director." 156 Wis. 2d at 283. Because the court of appeals did not *848 consider Whitcomb's contractual liability to "solely" arise out of or relate to his status as a director of RHN, it deemed sec. 181.287 inapplicable. Id. at 284-85.
We granted Whitcomb's petition for review to determine (1) whether an agent is personally liable on a contract where the other party did not have notice of the corporate status of the principal at the time of contracting, and (2) whether sec. 181.287, Stats., provides immunity to a director contracting on behalf of a corporation who is otherwise liable on the contract under common law agency principles.[7]
[1, 2]
This court has long adhered to the general rule that, where an agent merely contracts on behalf of a disclosed principal, the agent does not become personally liable to the other contracting party. See Theuerkauf v. Sutton, 102 Wis. 2d 176, 188, 306 N.W.2d 651 (1981); Hooper v. O.M. Corwin Co., 199 Wis. 139, 146, 225 N.W. 822 (1929). Under common law agency principles, however, an agent will be considered a party to the contract and held liable for its breach where the principal is only partially disclosed. A principal is considered partially disclosed where, at the time of contracting, the other party has notice that the agent is acting for a principal but has no notice of the principal's corporate or other *849 business organization identity. See Estate of Kaiser, 217 Wis. 4, 8, 258 N.W. 177 (1935). See also Restatement (Second) of Agency, secs. 4(2), 321 (1958).
[3]
Where the principal is a business entity and not a natural person, a unique set of problems arises. Varying legal rights and liabilities attach to different types of business organizations, e.g., sole proprietor, partnership, voluntary association, and corporation. Under well accepted legal principles, for example, all partners, as owners of the partnership, are jointly and severally liable for the contractual debts incurred by the partnership. See Fox Valley Builders Corp. v. Day, 71 Wis. 2d 785, 791, 238 N.W.2d 748 (1976); sec. 178.12, Stats.
[4]
Similarly, when an entity is considered a voluntary association, all members of the association are jointly and severally liable for the association's contractual obligations. See Elections Board v. Ward, 105 Wis. 2d 543, 548, 314 N.W.2d 120 (1982). "A voluntary association is defined as individuals who join together for a certain object and are called for convenience by a common name." Hafenbraedl v. LeTendre for Congress Committee, 61 Wis. 2d 665, 666, 213 N.W.2d 353 (1974) (quoting Herman v. United Automobile Aircraft & Agricultural Implement Workers, 264 Wis. 562, 567, 59 N.W.2d 475 (1953)). It is generally recognized, furthermore, that numerous charitable and religious organizations are unincorporated associations consisting of a large and changing membership. See 2 Williston on Contracts, sec. 307, pp. 433-34 (3rd ed. 1959).
[5]
Where a business entity is a corporation, however, the shareholders, as owners of the corporation, are generally not personally liable for the contractual obligations *850 of the corporation. See Sprecher v. Weston's Bar, Inc., 78 Wis. 2d 26, 37, 253 N.W.2d 493 (1977). A corporation, be it for profit or not for profit, enters into contracts and incurs liability as a separate legal entity. The limited liability attribute of corporations is in fact what makes this business organization so significant. See generally R. Hamilton, The Law of Corporations, secs. 2.1, 2.5 (1980).[8]
Where a party is contracting with a business entity, therefore, it makes a considerable difference whether or not it is a corporation on the other side of the bargaining table. If the agent with whom the party contracts is a partner, sole proprietor, or member of a voluntary association, the party may expect that agent to be personally liable on the contract. If the party knows the agent is contracting for a corporation, however, the agent would not be liable on the contract unless he or she expressly assumed such liability. The fact that the agent might also be a director or officer of the corporation is generally irrelevant under agency principles. See Kiel v. Frank Shoe Mfg. Co., 245 Wis. 292, 298-99, 14 N.W.2d 164 (1944).
[6]
The general rule that agents are contractually liable where the principal is partially disclosed has produced the rule that an agent is liable where the contracting party is not aware of the corporate status of the principal. *851 See 18B Am. Jur. 2d, Corporations, sec. 1833 (1985); 3A Fletcher Cyc. Corp, sec. 1120 (rev. ed. 1986).
[7, 8]
In applying this rule to cases factually similar to the one before us, numerous courts from other jurisdictions have agreed on the following ancillary principles. It is the agent who seeks to escape liability who has the burden of proving that the principal's corporate status was disclosed. See Jensen v. Alaska Valuation Service, Inc., 688 P.2d 161, 163 (Alaska 1984). Such a duty of disclosure creates no hardship on agents, for it is within their power to relieve themselves of liability. Howell v. Smith, 261 N.C. 256, 262, 134 S.E.2d 381 (1964). Conversely, the contracting party does not have any duty to inquire into the corporate status of the principal even when it is within that party's capability of doing so. Detroit Pure Milk Co. v. Patterson, 138 Mich. App. 475, 480, 360 N.W.2d 221 (1984). As a matter of fairness, the contracting party should not be saddled with the burden of "ferret[ing] out the record ownership" of the principal's business. See Van D. Costas, Inc. v. Rosenberg, 432 So. 2d 656, 659 (Fla. App. 1983).
[9]
Because the contracting party needs notice of the principal's corporate status, the use of a trade name is normally not sufficient disclosure. G.W. Andersen Construction Co. v. Mars Sales, 210 Cal. Rptr. 409, 412, 164 Cal. App. 3d 326 (1985); see generally Annotation, 150 A.L.R. 1303 (1944). The failure to use the "Inc." notation in correspondence between the agent and third party or in the contract itself is often critical in the determination of whether there was adequate disclosure of corporate status. See, e.g., Delaware Valley Equipment Co., Inc. v. Granahan, 409 F. Supp. 1011, 1014 *852 (E.D. Pa. 1976); Lagniappe of New Orleans, Ltd. v. Denmark, 330 So. 2d 626, 626-27 (La. App. 1976).
[10-12]
Finally, whether the contracting party has sufficient notice of the principal's corporate identity is a question of fact. See Collins v. Brayson Supply Co., 157 Ga. App. 438, 278 S.E.2d 87 (1981). The contracting party is generally said to have notice of the "identity of the principal if he knows, has reason to know, or should know of it, or has been given a notification of the fact." See David v. Shippy, 684 S.W.2d 586, 588 (Mo. App. 1985) (quoting Restatement (Second), Agency, sec. 4, comment a). There, however, must be more than a mere suspicion of the principal's corporate status. See A to Z Rental Center v. Burris, 714 S.W.2d 433, 435 (Tex. App. 1986). The trier of fact may look to the acts and circumstances surrounding the transaction until the time of contracting to determine whether there was actual or constructive notice. See Como v. Rhines, 198 Mont. 279, 284, 645 P.2d 948 (1982); Haas v. Harris, 347 N.W.2d 838, 840 (Minn. App. 1984). Notice must be given at or prior to the execution of the contract documents. In the case before us the circuit court incorrectly held that Benjamin Plumbing had constructive notice of RHN's corporate status. The error arises from the court's erroneous conception of the law that the burden was on Benjamin. It was on Whitcomb.
[13, 14]
In reviewing a grant of summary judgment under sec. 802.08, Stats., we are required to apply the same standards as are to be applied by the trial court. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). If there are no material issues of fact, then summary judgment is appropriate where "only one reasonable inference can be drawn from these facts." *853 See Ervin v. City of Kenosha, 159 Wis. 2d 464, 480, 464 N.W.2d 654 (1991).
[15]
Based on the record before us, we conclude that the only reasonable inference that can be drawn from the undisputed facts is that Benjamin Plumbing had neither actual nor constructive notice of the corporate identity of the principal, RHN, at the time of contracting with Whitcomb.
First, the trial court found, and Whitcomb concedes, that there was no express disclosure of RHN's corporate status in the contract or correspondence between the parties. The first time Benjamin Plumbing had actual notice that RHN was a Wisconsin corporation was upon receipt of the defendants' answer to its complaint.
Second, the fact that Benjamin Plumbing was aware that Whitcomb was acting on behalf of an entity called RHN reveals nothing of Benjamin's awareness of the type of business organization it was dealing with. All business entities are not corporations. In fact, being an incorporated business itself, Benjamin Plumbing could have reasonably concluded that RHN would have used its corporate name in its firm letterhead, as did Benjamin, if it were in fact a corporation. As previously noted, Benjamin had no affirmative duty to investigate the business ownership record of the principal, RHN. Whitcomb, as an agent, had the obligation to disclose RHN's corporate status in order to prevent incurring liability on the contract.[9] RHN was essentially using a tradename.
*854 Third, the fact that RHN was manifestly a charitable, nonprofit organization does not lead to the inference that it was a corporation. As noted above, RHN might just as well have been an unincorporated association. While there are admittedly only a limited number of types of business organizations, identifying RHN as a corporation as opposed to an unincorporated association without some evidence of that fact would be mere conjecture. The fact that Benjamin Plumbing actually did bring suit against RHN as an unincorporated association and against Whitcomb and the others as its members was certainly reasonable given the lack of corporate identification.
Finally, the fact that Whitcomb did not in so many words expressly assume contractual liability is not dispositive. Clearly, the opposite is also true. Whitcomb did not expressly disavow personal liability on the contract as he so easily could have. It is exactly because there is a lack of express intentions to the contrary that courts have found an implied intention to hold the agent personally liable where the corporate identity of the principal is not disclosed.[10] Whitcomb is liable because he is the contracting party. Had Benjamin Plumbing known RHN was a corporation with limited liability, it might well have taken precautionary measures to protect its interests.[11]
*855 Whitcomb points out, however, that the statutes only expressly require nonprofit corporations to use their corporate name when suing and being sued. See secs. 181.04(2) and 181.06, Stats. He states that it is well accepted that corporations need not contract in their legal corporate name. See 19 C.J.S., Corporations, sec. 661 (1990) (previously sec. 1166 (1940)); cf., sec. 181.04(7), Stats. Whitcomb reasons, therefore, as did the circuit court on summary judgment, that an agent should not incur personal liability for the principal's failure to contract in its corporate name.
[16]
The legal principles presented by Whitcomb are inapposite. These general rules only relate to the corporate principal's liability on a contract, not the agent's. Clearly, it has long been the rule in Wisconsin that a corporation can be contractually bound even where the corporate name was not used in the contract. See Woodrough & Hanchett Co. v. Witte, 89 Wis. 537, 538-39, 62 N.W. 518 (1895). Where the principal's corporate status has not been disclosed, however, the courts have uniformly held the agent liable on the contract as well. See 19 C.J.S., Corporations, sec. 540 (1990).
In conclusion, Whitcomb's liability stems from the lack of notice to Benjamin Plumbing that the principal, RHN, was in fact a corporation. The burden of giving such notice was upon Whitcomb. Whitcomb's contractual liability is not based on any wrongdoing which would trigger the application of the "corporate veil" doctrine.[12] The undisputed facts do not support any reasonable *856 inference that Benjamin had actual or constructive notice of RHN's corporate identity.
Having determined that Whitcomb is liable under common law agency principles, this court must now determine whether Whitcomb, as a director of a non-profit corporation, is statutorily immune under sec. 181.287, Stats.
[17-19]
In construing a statute, this court must ascertain and give effect to the intent of the legislature. In determining legislative intent, however, first resort must be to the language of the statute itself. See State v. Pham, 137 Wis. 2d 31, 34, 403 N.W.2d 35 (1987). We must give words their ordinary and accepted meanings and try to give effect to every word so as to not render any part of the statute superfluous. See State v. Sher, 149 Wis. 2d 1, 9, 437 N.W.2d 878 (1989). "Only when the language of the statute is unclear or ambiguous should this court examine the scope, history, context, subject matter, and object of the statute to discern legislative intent." Rice v. City of Oshkosh, 148 Wis. 2d 78, 84, 435 N.W.2d 252 (1989).
Section 181.287, Stats., provides in relevant part that directors and officers of nonprofit corporations are not liable:
. . . to the corporation, its members or creditors, or any person asserting rights on behalf of the corporation, its members or creditors, or any other person, for damages, settlements, fees, fines, penalties or other monetary liabilities arising from a breach of, or failure to perform, any duty resulting solely from his or her status as a director or officer.
*857 Upon the reading of sec. 181.287, Stats., we agree with the court of appeals that Whitcomb cannot be granted immunity unless his liability related solely to his status as a director of RHN. See 156 Wis. 2d at 284-85. Whitcomb's contractual liability to Benjamin Plumbing, however, stems from his position as an agent to a partially disclosed corporate principal and not from his status as a director of RHN. A mere employee or anyone else authorized to contract on behalf of a corporation can be held liable under the partially disclosed agency theory.
[20]
While we do not attempt completely to define the contours of director and officer immunity under the statute, we conclude that sec. 181.287, Stats., only limits liability based on a breach of fiduciary duty to the corporation. The legislature's broad extension of immunity to "creditors" and "any other person," however, creates some ambiguity. To the extent directors and officers can be said to only owe general fiduciary obligations to the corporation and not to creditors and other third persons individually (See McGivern v. Amasa Lumber Co., 77 Wis. 2d 241, 260, 252 N.W.2d 371 (1977)), the statutory provisions extending immunity to persons other than those asserting rights on behalf of the corporation or its members might be considered superfluous. Accordingly, we look beyond the four corners of the statute for further indication of legislative intent.
[21]
While corporations are statutory creatures, the basic relationship between a corporation and its directors and officers has been established by common law. This court has long recognized that directors and officers can be held liable for a breach of their fiduciary duty to the corporation and its shareholders. See Rose v. Schantz, 56 Wis. 2d 222, 228, 201 N.W.2d 593 (1972); *858 The North Hudson Building and Loan Ass'n v. Childs, 82 Wis. 460, 475, 52 N.W. 600 (1892). See generally Note, Degree of Diligence a Director Must Exercise to Avoid Liability to the Corporation, 7 Marq. L. Rev. 159 (1922-23).
Throughout the years, however, the legislature has increasingly attempted to regulate by statute director and officer liability in respect to both for-profit (ch. 180, Stats.) and nonprofit (ch. 181) corporations.[13] In 1987, the corporation statutes were substantially revised and sec. 180.307 and sec. 181.287 were added. See 1987 Act 13, secs. 8, 17. With limited exceptions, sec. 180.307 established that a director of a for-profit corporation was not liable to the corporation or its shareholders (or those asserting rights on their behalf) for liabilities "arising from a breach of, or failure to perform, any duty resulting solely from his or her status as a director." Section 180.307(1), 1987-88 (emphasis supplied).
As we have seen, sec. 181.287, Stats., on the other hand, provided directors and officers of nonprofit corporations with such limited liability and extended it to obligations owed to creditors and any other person. In this regard, the legislative history to sec. 181.287 clearly suggests that directors and officers of nonprofit corporations were granted broader immunity than their forprofit counterparts because of their special organizational purposes.[14]
*859 But while the legislature has obviously gone to great lengths to carefully limit the liability of directors of non-profit corporations, we cannot ignore the express language of sec. 181.287, Stats., which focuses on liability claims based "solely" on the defendant's status as a director. As previously noted, Whitcomb's liability to Benjamin Plumbing as an agent for a partially disclosed corporate principal was not solely dependent on his status as a director of RHN.
[22]
We recognize the rule that "statutes in derogation of the common law must be strictly construed," i.e., where a "statute would change the common law, the legislative intent to change the common law must be clearly expressed." See LePoidevin v. Wilson, 111 Wis. 2d 116, 129-30, 330 N.W.2d 555 (1983). If the legislature had intended to abrogate common law agency principles in such a situation, we do not believe sec. 181.287, Stats., would have been worded as it was. Because Whitcomb's *860 liability is not solely dependent on his status as director of RHN, we conclude that sec. 181.287 does not provide him with any immunity. He is liable as an agent of a partially disclosed principal in circumstances where he never, at or before the execution of the contract, assumed the burden of giving notice of his principal's corporate status. Accordingly, he is liable as a party to the contract.
By the Court.Decision affirmed.
SHIRLEY S. ABRAHAMSON, J. (dissenting).
I dissent because I conclude that this case cannot be decided as a matter of law on summary judgment.
The applicable rule of law is that in the absence of a manifestation to the contrary, there is an inference that an agent as well as the partially disclosed principal are parties to a contract. Restatement (Second) of Agency, secs. 4(2), 147, 321 (1958). "It is sometimes stated that if an agent discloses the fact that he is an agent, but not the name of his principal, he is personally liable. This, however, is not literally true. It is possible by language clearly indicating that the agent intends to assume no liability, and that all rights and liabilities are to be those of an unnamed principal, to produce the desired result."[*]
Whether Benjamin Plumbing, Inc., had sufficient notice of the principal's corporate identity and whether it intended to contract only with the partially disclosed principal, not the individual agent, are questions of fact to be determined at trial.
In this case no single written document constituting the contract was signed. Defendant Whitcomb met with a representative of Benjamin Plumbing and wrote to *861 Benjamin Plumbing on business stationery, signing as a representative of Response to Hunger Network. Benjamin Plumbing's written estimate was addressed to Response to Hunger Network and more specifically to "To Whom it May Concern." Benjamin Plumbing's Application and Certificate for Payment was addressed to Response to Hunger Network. Mr. Whitcomb's name does not appear on any documents Benjamin Plumbing sent to Response to Hunger Network.
The documents filed with the motion for summary judgment show that Benjamin Plumbing knew an entity was involved and addressed all its communications apparently constituting the contract to the entity, not to the individual defendants named in this action.
The affidavit filed on behalf of Benjamin Plumbing asserts that the defendants individually contracted with Benjamin Plumbing and that Response to Hunger Network was not a party "to the contractual undertakings named in the plaintiffs complaint." Whitcomb's affidavit asserts that he "contacted and corresponded with Benjamin Plumbing solely on behalf of Response to Hunger Network, Inc." The parties dispute facts and the reasonable inferences from undisputed facts. I conclude that under these circumstances summary judgment is inappropriate. A trial is necessary.
For the reasons set forth, I dissent.
NOTES
[1] Benjamin Plumbing, Inc. v. Barnes, 156 Wis. 2d 276, 456 N.W.2d 628 (Ct. App. 1990).
[2] 181.287 Limited liability of directors and officers. (1) Except as provided in subs. (2) and (3), a director or officer is not liable to the corporation, its members or creditors, or any person asserting rights on behalf of the corporation, its members or creditors, or any other person, for damages, settlements, fees, fines, penalties or other monetary liabilities arising from a breach of, or failure to perform, any duty resulting solely from his or her status as a director or officer, unless the person asserting liability proves that the breach or failure to perform constitutes any of the following:
(a) A wilful failure to deal fairly with the corporation or its members in connection with a matter in which the director or officer has a material conflict of interest.
(b) A violation of criminal law, unless the director or officer had reasonable cause to believe his or her conduct was lawful or no reasonable cause to believe his or her conduct was unlawful.
(c) A transaction from which the director or officer derived an improper personal profit.
(d) Wilful misconduct.
(2) Except as provided in sub. (3), this section does not apply to any of the following:
(a) A civil or criminal proceeding brought by or on behalf of any governmental unit, authority or agency.
(b) A proceeding brought by any person for a violation of state or federal law where the proceeding is brought pursuant to an express private right of action created by state or federal statute.
(c) The liability of a director under s. 181.29.
(3) Subsection (2)(a) and (b) does not apply to a proceeding brought by a governmental unit, authority or agency in its capacity as a private party or contractor.
[3] Section 181.06 1987-88 provides in relevant part:
181.06 Corporate name. The corporate name:
(1) Shall contain the word "corporation", "incorporated", or "limited", or an abbreviation of one of such words; this subsection shall apply only to corporations organized or changing their name after the enactment of this chapter.
[4] The circuit court inadvertently listed sec. 181.07 in its memorandum decision.
[5] In a footnote at the end of its opinion, the circuit court stated that the "undisclosed principal doctrine of agency law" was not argued by the parties and apparently was not controlling.
[6] The court of appeals reasoned that the other defendants never had any dealings with Benjamin and accordingly were "shielded from personal liability by reason of their status as corporate officers." Id. at 279 n.1. The propriety of this ruling is not an issue before this court. At any rate they were not signatory to the contract.
[7] Whitcomb also argues that he is statutorily immune as a volunteer under sec. 181.297, Stats. We do not address this issue raised for the first time on appeal to this court. See Hardscrabble Ski Area, Inc. v. First National Bank of Rice Lake, 42 Wis. 2d 334, 345, 166 N.W.2d 191 (1969); North Gate Corp. v. North Gate Bowl, Inc., 34 Wis. 2d 516, 523, 149 N.W.2d 651 (1967). We note, in any event, that nowhere in the pleadings, affidavits, and exhibits submitted by the defendants to the trial court on summary judgment is there any allegation of Whitcomb's status as a "volunteer" as that term is defined by sec. 181.297(1).
[8] As an important exception to this basic rule of nonliability, courts historically have been willing to "pierce the corporate veil" and hold shareholders individually liable where the corporation was inadequately capitalized ("empty shell") or fraudulently used as a mere instrumentality ("alter ego"). See Consumer's Co-op of Walworth County v. Olsen, 142 Wis. 2d 465, 419 N.W.2d 211 (1988).
[9] We note that in Philipp Lithographing Co. v. Babich, 27 Wis. 2d 645, 648, 135 N.W.2d 343 (1965), this court applied the analogous rule that "partners who continue to hold themselves out as such after the formation of a corporation cannot escape responsibility for contracts entered into after the change in business status without adequate notice that the partnership has been dissolved."
[10] Whitcomb points out that in Bostwick-Braun Co. v. Szews, 645 F. Supp. 221 (W.D. Wis. 1986), a Wisconsin federal district court did not find two agents individually liable even though they failed to sign a contract in their corporate capacity. We consider this case factually distinguishable and note, in any event, that we are not bound by this decision.
[11] At oral argument, Benjamin Plumbing suggested that it might have requested that a bond be posted or that payment be made through a controlled bank account. We note, however, that proof of prejudice is not a relevant consideration in this decision.
[12] Fairbanks v. Chambers, 665 S.W.2d 33 (Mo. App. 1984), cited by Whitcomb in support of his position, only highlights this distinction. See id. at 40.
[13] In 1951, for example, the legislature enacted sec. 180.40, which enumerated various conditions when directors could be held liable. See L. 1951, ch. 731, sec. 7. That statute specifically preserved common law principles, however, by stating that the provisions were "[i]n addition to any other liabilities imposed by law upon directors of a corporation." See sec. 180.40(1), Stats. 1987-88.
[14] The Legislative Council's note to sec. 181.287 provides:
NOTE: Section 181.287 is based on s. 180.307, created by this bill, providing a liability immunity for directors and officers of corporations organized under ch. 180. As it applies to corporations organized under ch. 181 (nonprofit corporations), the provision is expanded to include liability to creditors and to 3rd parties generally, in addition to liability to the corporation, the corporation's members, or any person asserting rights on their behalf. The special committee concluded that, given the organization and purposes of nonprofit corporations, additional statutory protection from personal liability should be extended to directors and officers of such corporations.
Because the liability protections under s. 181.287 extend to liability to 3rd parties, sub. (2) clarifies that the liability immunity under this section does not apply to proceedings, civil or criminal, brought by or on behalf of a governmental unit or to proceedings brought by any person for any violation of state or federal law where the proceeding is brought pursuant to an express private right of action created by state or federal statute.
1987 Assembly Bill 301, p. 36 (Wisconsin Assembly Bills 1987, 301-335).
[*] 2 Williston, Contracts, sec. 285. p. 335-336 (3d ed. Jaeger ed. 1959). See also Comment, sec. 321, Restatement (Second) of Agency, p. 70 (1959). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592417/ | 453 So.2d 838 (1984)
SPANISH OAKS CONDOMINIUM ASSOCIATION, INC., a Florida Corporation Not-for-Profit, Appellant,
v.
COMPSON OF FLORIDA, INC., a Florida Corporation, Appellee.
No. 84-412.
District Court of Appeal of Florida, Fourth District.
June 13, 1984.
Rehearing Denied August 23, 1984.
*839 Mark B. Schorr of Becker, Poliakoff & Streitfeld, P.A., Fort Lauderdale, for appellant.
Guy W. Harrison of Mershon, Sawyer, Johnson, Dunwody & Cole, Miami, for appellee.
GLICKSTEIN, Judge.
This is an appeal from an order, denying appellant's verified motion to vacate the final order. We reverse and remand.
It is uncontradicted from the verified motion that appellant's counsel did not receive his conformed copy of the final order which the trial court signed on November 14, 1983; nor did he know of its entry until a telephone conversation with his opposing counsel on December 30, 1983.
The trial court was incorrect in contending that it had no discretion to vacate the final order under these circumstances; and it should have vacated the order in light of the absence of anything in the record to rebut the motion which appellant's attorney swore to be true.
Rule 1.080(h)(1), Florida Rules of Civil Procedure, provides:
(h) Service of Orders
(1) A copy of all orders or judgments shall be transmitted by the court or under its direction to all parties at the time of entry of the order or judgment. No service need be made on parties against whom a default has been entered except orders setting an action for trial as prescribed in Rule 1.440(c) and final judgments that shall be prepared and served as provided in subdivision (h)(2). The court may require that orders or judgments be prepared by a party, may require the party to furnish the court with stamped, addressed envelopes for service of the order or judgment, and may require that proposed orders and judgments be furnished to all parties before entry by the court of the order or judgment. [Emphasis added.]
The Committee note thereto states, in part:
Two changes have been made to subdivision (h)(1), which have resulted in a wholesale redrafting of the rule. First, the provision requiring the submission of proposed orders to all counsel prior to entry by the court has been deleted, any inaccuracies in an order submitted to the court being remediable either by the court's own vigilance or later application by an interested party. Secondly, the rule now requires that conformed copies of any order entered by the court must be mailed to all parties of record in all instances (and to defaulted parties in two specified instances), for purposes of advising them of the date of the court's action as well as the substance of such action. Nothing in this new rule is meant to limit the power of the court to delegate the ministerial function of preparing orders. [Emphasis added.]
*840 We are unimpressed by the fact that appellant's attorney received a copy of a proposed final order from his opponent on November 3, 1983, together with a copy of a cover letter to the trial court, which said:
Enclosed is a proposed Final Order which we believe reflects your rulings on Compson's Motion for Summary Judgment in the above styled cause. Thank you.
Even if the trial judge had previously advised the attorneys that he would request such of the attorney in whose favor he decided, as he had, the notification contained in the letter of November 3, 1983, and the "proposed" final order did not satisfy the requirement of notice which Rule 1.080(h)(1) was re-designed to insure.
In footnote 1 of Cottone v. Broward County School Board, 431 So.2d 355 (Fla. 4th DCA 1983), this writer expressed his concern that trial judges not "rubber stamp" proposed judgments which involve findings of fact and conclusions of law. There was no reason to believe, in the present case, that the trial court would or did. Before seeing the trial court's conformed copy, however, appellant's attorney could not predict whether the trial court would sign the order as presented or change it. The attorney apparently had no complaint with its form, as he directed no exception to the trial court. This lack of complaint as to form is of no moment in determining whether there was notice of the date the final product was entered whatever form that order took.
ANSTEAD, C.J., concurs.
WALDEN, J., concurs specially with opinion.
WALDEN, Judge, concurring specially.
I would reverse and remand upon authority of Woldarsky v. Woldarsky, 243 So.2d 629 (Fla. 1st DCA 1971); Gibson v. Buice, 381 So.2d 349 (Fla. 5th DCA 1980); and Gordon v. Green, 382 So.2d 1344 (Fla. 5th DCA 1980).
BY ORDER OF THE COURT:
The order on attorney's fees of June 13, 1984, is vacated.
We grant appellee's motion for clarification as to the award of attorney's fees and conclude:
1. The fees incurred in this appeal shall be treated as part of the fees incurred in the plenary appeal.
2. All issues as to entitlement and amount shall be determined after plenary appeal and final resolution of this cause.
In all other respects, appellee's motion for rehearing is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592478/ | 19 So.3d 335 (2009)
In re COMMITMENT OF George DeBOLT.
George DeBolt, Appellant,
v.
State of Florida, Appellee.
No. 2D07-2174.
District Court of Appeal of Florida, Second District.
March 4, 2009.
*336 James Marion Moorman, Public Defender, and Frank D.L. Winstead, Special Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Joseph Hwan-Yul Lee, Assistant Attorney General, Tampa, for Appellee.
EN BANC
PER CURIAM.
George DeBolt was found to be a sexually violent predator and was civilly committed pursuant to the Jimmy Ryce Act ("the Act") following a jury trial. DeBolt argues that the trial court abused its discretion in allowing the State to question one of his experts regarding a past disciplinary matter. We agree and reverse.
In February 2002, the State filed a notice of its intention to seek the involuntary *337 civil commitment of DeBolt as a sexually violent predator pursuant to the Act. At the civil commitment trial, the State presented two expert witnesses who evaluated DeBolt and determined that he qualified as a sexually violent predator. DeBolt presented two expert witnesses who testified to the contrary. During cross-examination of one of DeBolt's expert witnesses, the State was permitted to ask the following question regarding Dr. Brown's credibility over defense objection:
Q: Dr. Brown, in the state of Washington, in 1999, you were formally disciplined and received a four-year restriction on your license as a sex offender treatment provider for adolescent sex offenders. Is that not true?
Dr. Brown responded in the affirmative. On redirect, Dr. Brown explained the circumstances surrounding the disciplinary proceeding, which had nothing to do with his work in Florida in Jimmy Ryce cases. After deliberations, the jury unanimously found DeBolt a sexually violent predator and the trial court thereafter entered a judgment and commitment order.
DeBolt filed a motion for a new trial alleging that the trial court erred in permitting the State to attack the credibility of DeBolt's witness regarding a past disciplinary matter. After a hearing on the motion, the trial court denied DeBolt's motion for a new trial and subsequently rendered a written order denying same. In the instant appeal, DeBolt makes the same argument he made in his motion for new trial.
Section 90.609, Florida Statutes (2006), provides that the character of a witness may be attacked only by reputation evidence that refers to character relating to truthfulness. Under section 90.610, a witness's credibility can only be impeached by convictions of crimes involving false statements or dishonesty. Thus, evidence regarding particular acts of misconduct may not be introduced for purposes of impeaching a witness's credibility. See Farinas v. State, 569 So.2d 425, 429 (Fla.1990); Tormey v. Trout, 748 So.2d 303, 306 (Fla. 4th DCA 1999). Counsel may therefore not make inquiries on cross-examination about unethical conduct on the part of expert witnesses, Farinas, 569 So.2d at 429, or disciplinary actions in their profession, Tormey, 748 So.2d at 306.
The State's question in this case about whether Dr. Brown had been formally disciplined during his treatment of adolescent sex offenders goes far beyond convictions of crimes involving false statements or dishonesty and into the realm of the improper questioning referenced above. Accordingly, the trial court abused its discretion in allowing the question over DeBolt's objection.
We next address the State's argument that any error in allowing the question was harmless. Because the Act is civil in nature and not criminal, see State v. Harris, 881 So.2d 1079, 1083 (Fla.2004), we apply the civil standard for harmless error, see Marshall v. State, 915 So.2d 264, 268 (Fla. 4th DCA 2005). DeBolt must establish that "it is reasonably probable that a result more favorable to the appellant would have been reached if the error had not been committed." Damico v. Lundberg, 379 So.2d 964, 965 (Fla. 2d DCA 1979); see also Esaw v. Esaw, 965 So.2d 1261, 1264 (Fla. 2d DCA 2007); Fla. Inst. for Neurologic Rehab., Inc. v. Marshall, 943 So.2d 976, 979 (Fla. 2d DCA 2006). It is clear in civil cases where expert testimony is the focal point of the trial that the erroneous admission of expert credibility evidence constitutes harmful error. See Linn v. Fossum, 946 So.2d 1032, 1041 (Fla.2006); Donshik v. Sherman, *338 861 So.2d 53, 56 (Fla. 3d DCA 2003); Myron ex rel. Brock v. Doctors Gen. Hosp., Ltd., 704 So.2d 1083, 1092 (Fla. 4th DCA 1997).
The instant case boiled down to a credibility contest between the State's two experts, who testified that DeBolt qualified as a sexually violent predator, and DeBolt's two experts, who testified to the contrary. The evidence that was erroneously admitted discredited one of DeBolt's experts on the basis that he was formally disciplined and received a four-year restriction on his license as a sex offender treatment provider for adolescent sex offenders. Because expert testimony was the focal point of the trial, the improper attack on Dr. Brown's credibility was not harmless.
We recognize that this court has previously applied the criminal harmless error standard in Jimmy Ryce appeals. See Lee v. State, 854 So.2d 709, 712-13 (Fla. 2d DCA 2003); Williams v. State (In re Williams), 841 So.2d 531, 531 (Fla. 2d DCA 2003). To the extent that they conflict with our holding today, we recede from those decisions.
Reversed and remanded.
NORTHCUTT, C.J., and ALTENBERND, FULMER, WHATLEY, CASANUEVA, DAVIS, SILBERMAN, KELLY, VILLANTI, WALLACE, LaROSE, and KHOUZAM, JJ.,[1] Concur.
NOTES
[1] Judge Crenshaw did not participate in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592814/ | 453 So.2d 1355 (1984)
UNITED STATES FIDELITY AND GUARANTY COMPANY, et al., Appellants,
v.
DEPARTMENT OF INSURANCE of the state of florida and Bill Gunter, As Insurance Commissioner of the State of Florida, Appellees.
No. 64405.
Supreme Court of Florida.
July 5, 1984.
*1357 John K. Aurell, John Radey and Michael L. Rosen of Holland & Knight, Tallahassee; John M. McNatt, Jr., Jack W. Shaw, Jr. and J. Stephen O'Hara, Jr. of Mathews, Osborne, McNatt, Gobelman & Cobb, Jacksonville; and Martin B. Unger of Swann & Haddock, Orlando, for appellants.
Daniel Y. Sumner and David A. Yon, Department of Insurance, Tallahassee, for appellees.
BOYD, Chief Justice.
This cause is before the Court on appeal from a judgment of the Circuit Court of the Second Judicial Circuit, sitting in Leon County. An appeal of the judgment was taken to the First District Court of Appeal and that court certified the judgment to be of great public importance and to require immediate resolution by this Court. Having exercised our discretion to review the judgment, we have plenary jurisdiction of the appeal. Art. V, § 3(b)(5), Fla. Const.
The judgment before us on appeal held section 627.066, Florida Statutes (1981), commonly referred to as the automobile insurance excess profits law, constitutional. After carefully considering all of the appellants' challenges to the validity of the law, we find it constitutional in all respects and therefore affirm the judgment of the circuit court.
The legislature first enacted the excess profits law in 1977. Ch. 77-468, § 23, Laws of Fla. That law required private passenger automobile insurers to file with the Department of Insurance forms containing information about earned premiums, losses and loss adjustment expenses, administrative and selling expenses incurred in Florida, and policyholder dividends. The law also required the insurers to file a schedule of their loss adjustment expenses for the three most recent accident years beginning with 1976. Excess profits were calculated to be amounts in excess of five percent of the anticipated underwriting profit. Finally, the law authorized the Department of Insurance to order the return of excess profits to policyholders and to *1358 exempt certain insurers from complying with the reporting requirements. Specifically, the law provided:
(6) If the insurer group has realized an excessive profit, the department may order a return of the excessive amounts to policyholders.
(7) In determining what action should be taken if excessive profits are realized, the department shall consider the following as they relate to Florida private passenger automobile insurance:
(a) The underwriting profit or loss of the insurer group in prior years.
(b) The financial strength and stability of the insurer group.
(c) The loss development patterns of the insurer group.
(8) The department may excuse an insurer from complying with these reporting requirements if the volume of business written by the insurer would not justify the expense of the reporting requirement.
§ 627.066(6)-(8), Fla. Stat. (1977).
After receiving an order to refund their excess profits, Government Employees Insurance Company, Liberty Mutual Fire Insurance Company, and Liberty Mutual Insurance Company filed suits in two circuit courts, seeking to have section 627.066 declared unconstitutional. Their main contention was that subsections six through eight gave the Department of Insurance unbridled discretion to order refunds of excess profits and therefore constituted an unconstitutional delegation of legislative authority. The trial judges in both cases agreed and granted the insurers' motions for summary judgment, holding section 627.066 to be unconstitutional.
The department appealed and at the same time sought from the legislature an amendment to the statute to abolish the defects found by the circuit court judges. The legislature obliged by enacting Chapter 80-236, Laws of Florida. Section 26 of that chapter amended and renumbered subsections six through eight of section 627.066 to provide as follows:
(7) If the insurer group has realized an excessive profit, the department shall order a return of the excessive amounts after affording the insurer group an opportunity for hearing and otherwise complying with the requirements of chapter 120. Such excessive amounts shall be refunded in all instances unless the insurer group affirmatively demonstrates to the department that the refund of the excessive amounts will render a member of the insurer group insolvent under the provisions of the Florida Insurance Code.
(8) The excessive amount shall be refunded on a pro rata basis in relation to the final compilation year earned premiums to the voluntary private passenger automobile policyholders of record of the insurer group on December 31 of the final compilation year.
§ 627.066(7) and (8), Fla. Stat. (1981). Section 27 of the law made these new provisions retroactive:
(13) Since it appears to the Legislature that private passenger automobile insurer groups have realized excessive profits during all or part of the years 1977, 1978, and 1979 and that such profits were realized in part due to statutory changes for which rates were not adequately adjusted, it is the desire and intent of the Legislature that the provisions of this section, as amended by chapter 80-236, Laws of Florida, shall apply retroactively to excessive profits realized during the years 1977, 1978, and 1979. In the event that such retroactive application is judicially determined to be unconstitutional, it is the intent of the Legislature that the act be given prospective application as stated hereinafter. Prior to July 1, 1982, the data required by this section shall be submitted to the department for the years 1979, 1980, and 1981. Excessive profits shall be calculated in accordance with the provisions of this section. However, only the excessive profits realized *1359 by the insurer group in 1981 shall be refunded to policyholders, and such refunds shall be made in accordance with this section. Prior to July 1, 1983, the data required by this section shall be submitted to the department for the years 1980, 1981, and 1982. Excessive profits shall be calculated in accordance with this section; however, refunds shall only be made for excessive profits realized in the years 1981 and 1982. Thereafter, excessive profits shall be calculated and refunded on the basis of 3 years as set forth in this section.
§ 627.066(13), Fla. Stat. (1981).
When the department issued notices ordering the refund of excessive profits earned from 1977 through 1979, several insurance companies, including all of the appellants in this case, filed actions in circuit court, seeking to have the 1980 amendments declared unconstitutional. The trial court granted judgment on the pleadings in favor of the insurance companies on the ground that the 1980 law was unconstitutional in its retroactive application to excessive profits realized in the years 1977, 1978 and 1979 because it impaired rights and obligations under contracts entered into before the effective date of the law. The department appealed to the district court of appeal, which in turn certified the case to this Court as one of great public importance requiring immediate resolution by this Court. We reversed, finding that it was "the 1977 excess profits law, and not the 1980 amendments, that provides the basis for the department's authority to order a return of excess profits." Department of Insurance v. Teachers Insurance Co., 404 So.2d 735, 741 (Fla. 1981). We reasoned that the insurance companies were unaffected by the 1980 amendments, which merely removed the department's discretion not to order a refund, unless they could "allege and prove, which they have not, that but for the 1980 amendment, the department would not have initiated the refund orders." Id.
When the case returned to the trial court, appellants amended their complaints to allege that but for the 1980 amendment the department would not have issued refund notices because the 1977 law had been declared unconstitutional. Before trial the trial court granted partial summary judgment, finding the 1977 law to be unconstitutional. However, at the end of the trial, the trial court entered a final judgment upholding the constitutionality of section 26, chapter 80-236 and finding that the appellants had failed to prove that the department would not have required the excess profits earned since 1977 to be refunded had section 23, chapter 77-468, Laws of Florida, not been replaced by section 26, chapter 80-236, Laws of Florida. The appellants appealed to the district court of appeal which certified the case to be of great public importance requiring immediate resolution by this Court.
Appellants argue that the department lacked the authority to issue refund notices under the 1977 law since it had been declared unconstitutional. They claim the department must abide by the earlier rulings that the 1977 law was unconstitutional since it dismissed its appeals in those two cases where it was held unconstitutional, and since it did not cross-appeal the lower court's partial summary judgment reaffirming those earlier decisions. Appellants further argue that the 1977 law could not have served notice upon them that any excess profits earned from 1977 through 1979 would be subject to refund and that the 1980 amendment could not validate the earlier law nor be retroactively applied.
We do not agree with appellant's assertions that the 1977 law cannot be used by the department as a basis for its authority to issue refund orders. The fact that the department dismissed its appeals from those earlier circuit court rulings rendered those judgments final and binding on the parties to those lawsuits. But the department is not precluded from arguing in the present litigation that the 1977 law is a *1360 valid source of authority. Even though we adhere to our ruling in Teachers on that point and even though it is not clear to us that the 1977 law was an improper delegation of legislative authority, we will now address the question we avoided in Teachers of whether 1980 amendment authorizing the department to order refunds of excess profits earned since 1977 is an unconstitutional impairment of contracts. See Art. I, § 10, Fla. Const. We hold that section 627.066(13), Florida Statutes (1981), does not violate this constitutional provision and that the department is therefore authorized to order refunds of excess profits earned since 1977.
In contract clause cases such as this, we have decided to adopt the method of analysis used by the United States Supreme Court. Pomponio v. Claridge of Pompano Condominium, Inc., 378 So.2d 774 (Fla. 1979). This method requires a balancing of a person's interest not to have his contracts impaired with the state's interest in exercising its legitimate police power. In a case similar to this the United States Supreme Court recently outlined the main factors to be considered in applying this balancing test.
The threshold inquiry is "whether the state law has, in fact, operated as a substantial impairment of a contractual relationship." Allied Structural Steel Co., 438 U.S. 234, at 244, 98 S.Ct. [2716], at 2722 [57 L.Ed.2d 727]. See United States Trust Co., 431 U.S. 1, at 17, 97 S.Ct. [1505], at 1515 [52 L.Ed.2d 92]. The severity of the impairment is said to increase the level of scrutiny to which the legislation will be subjected. Allied Structural Steel Co., 438 U.S., at 245, 98 S.Ct., at 2723. Total destruction of contractual expectations is not necessary for a finding of substantial impairment. United States Trust Co., 431 U.S., at 26-27, 97 S.Ct., at 1519-1520. On the other hand, state regulation that restricts a party to gains it reasonably expected from the contract does not necessarily constitute a substantial impairment. Id., at 31, 97 S.Ct., at 1522, citing El Paso v. Simmons, 379 U.S. 497, 515, 85 S.Ct. 577, 587, 13 L.Ed.2d 446 (1965). In determining the extent of the impairment, we are to consider whether the industry the complaining party has entered has been regulated in the past. Allied Structural Steel Co., 438 U.S., at 242, n. 13, 98 S.Ct., at 2721, n. 13, citing Veix v. Sixth Ward Bldg. & Loan Ass'n, 310 U.S. 32, 38, 60 S.Ct. 792, 794-795, 84 L.Ed. 1061 (1940) ("When he purchased into an enterprise already regulated in the particular to which he now objects, he purchased subject to further legislation upon the same topic"). The Court long ago observed: "One whose rights, such as they are, are subject to state restriction, cannot remove them from the power of the State by making a contract about them." Hudson Water Co. v. McCarter, 209 U.S. 349, 357, 28 S.Ct. 529, 531, 52 L.Ed. 828 (1908).
If the state regulation constitutes a substantial impairment, the State, in justification, must have a significant and legitimate public purpose behind the regulation, United States Trust Co., 431 U.S., at 22, 97 S.Ct., at 1517, such as the remedying of a broad and general social or economic problem. Allied Structural Steel Co., 438 U.S., at 247, 249, 98 S.Ct. at 2723-2725. Furthermore, since [Home Building & Loan Ass'n v.] Blaisdell, [290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413] the Court has indicated that the public purpose need not be addressed to an emergency or temporary situation. United States Trust Co., 431 U.S., at 22, n. 19, 97 S.Ct., at 1518, n. 19; Veix v. Sixth Ward Bldg. & Loan Ass'n, 310 U.S., at 39-40, 60 S.Ct., at 795-796. One legitimate state interest is the elimination of unforeseen windfall profits. United States Trust Co., 431 U.S. at 31, n. 30, 97 S.Ct., at 1522, n. 30. The requirement of a legitimate public purpose guarantees that the State is exercising its police power, rather than providing a benefit to special interests.
*1361 Once a legitimate public purpose has been identified, the next inquiry is whether the adjustment of "the rights and responsibilities of contracting parties [is based] upon reasonable conditions and [is] of a character appropriate to the public purpose justifying [the legislation's] adoption." United States Trust Co., 431 U.S., at 22, 97 S.Ct., at 1518. Unless the State itself is a contracting party, see id., at 23, 97 S.Ct., at 1518, "[a]s is customary in reviewing economic and social regulation, ... courts properly defer to legislative judgment as to the necessity and reasonableness of a particular measure." Id., at 22-23, 97 S.Ct., at 1518.
Energy Reserves Group, Inc. v. Kansas Power and Light Co., 459 U.S. 400, 103 S.Ct. 697, 704-06, 74 L.Ed.2d 569 (1983) (footnotes omitted). In applying these factors, the United States Supreme Court held that a Kansas statute which imposed price controls on the sale of intrastate natural gas differing from the prices agreed to by the parties was not an unconstitutional impairment of contract. In reaching this decision, the Court emphasized "the fact that the parties [were] operating in a heavily regulated industry." Id. 103 S.Ct. at 706. The Court also reasoned that Kansas had a legitimate state interest in exercising "its police power to protect consumers from the escalation of natural gas prices caused by deregulation." Id. 103 S.Ct. at 708.
Similarly, in this case, the appellants are operating in a heavily regulated industry. See Florida Insurance Code, chapters 624-632, Florida Statutes (1981). For years the legislature has regulated the contents of insurance policies and has authorized the department to approve or disapprove insurance policy forms. See §§ 627.410, .411, .413, Florida Statutes (1981). Moreover, when chapter 77-468, Laws of Florida, was enacted, the insurers were put on notice that any funds received exceeding five percent of their anticipated profit under the statute might be subject to refund orders and therefore they did not obtain a vested right to those funds. Department of Insurance v. Teachers Insurance Co. Since section 627.066(13) allows insurers to keep their anticipated profits plus five percent, and since the insurers knew when they entered into these contracts that excess profits might have to be refunded, the statute does not operate as a substantial impairment of a contractual relationship.
Furthermore, what minimal impairment does exist is outweighed by the state's interest in eliminating unforeseen windfall profits. Section 627.066(13) specifically states that excess profits were realized in the years of 1977-1979 due to statutory changes. These changes were made in response to escalating insurance costs in order to protect policyholders from paying exorbitantly high premiums. Changes were made to reduce the insurers' costs of doing business so that these savings could be passed on to policyholders in the form of lower premiums. Since it was impossible to calculate in advance the precise impact the statutory changes would have on insurers' earnings, the legislature deemed it fit to require the insurers to file information on their earnings and expenses and authorized the Department of Insurance to calculate and order refunds of any excess profits. We do not find this method of protecting policyholders from paying exorbitantly high premiums to be unreasonable.
Some of the appellants argue that section 627.066 violates equal protection by discriminating against small insurance companies and insurance companies with declining premiums. They presented evidence at the trial showing that such companies are subject to being required to refund a disproportionate share of the excess profits. They contend that smaller companies are more likely to reach the threshold requirements for refunding excess profits because they experience greater fluctuations in profits. They also presented evidence *1362 showing that because accounting practices mismatch revenues and expenses, companies with decreasing premiums will often show excess profits when there are actually none.
We find these arguments unpersuasive. The statute does not on its face classify insurers into different categories.
The proper classification for purposes of equal protection analysis is not an exact science, but scouting must begin with the statutory classification itself. Only when it is shown that the legislation has a substantial disparate impact on classes defined in a different fashion may analysis continue on the basis of the impact on those classes.
Califano v. Boles, 443 U.S. 282, 293-94, 99 S.Ct. 2767, 2774, 61 L.Ed.2d 541 (1979). Since the statute places all insurers in the same category, evidence pertaining to the disproportionate impact the statute may have on particular subgroups of insurers does not present a substantial question of whether the statute violates equal protection.
Next appellants argue that section 627.066 is not reasonably related to the legislative goal of protecting policyholders from exorbitantly high rates. They contend that the statute may actually cause higher rates by encouraging inefficient management and discouraging competition. The fact that a statute may not actually accomplish its intended goals is not a sufficient reason for declaring the statute unconstitutional. The test is whether the legislature at the time it enacts the statute has a reasonable basis for believing that the statute will accomplish a legitimate legislative purpose. See In re Estate of Greenberg, 390 So.2d 40 (Fla. 1980); Northridge General Hospital v. City of Oakland Park, 374 So.2d 461 (Fla. 1979). In this case the legislature believed that because of changes in the insurance laws, some insurers would benefit greatly and earn profits far in excess of what was anticipated when their rates were approved. We find the legislature had a reasonable basis for believing that authorizing the department to order refunds of such excess profits would protect policyholders from paying exorbitantly high rates.
Some of the appellants also argue that the statute is unconstitutionally vague and ambiguous. Specifically, they claim that the terms "due recognition of investment income" and "loss development factor" are so vague that persons of common intelligence must guess at their meaning. However, there was evidence that these terms denote actuarial concepts that have a specific meaning. Because these concepts can be specifically defined and consistently applied, they are not unconstitutionally vague or ambiguous. See Florida Welding & Erection Service, Inc. v. American Mutual Insurance Co., 285 So.2d 386 (Fla. 1973).
The next point on appeal is that section 627.066 is unconstitutional because it contains an irrebuttable presumption that insurers who earn excess profits are charging exorbitantly high premiums. In statutes regulating economic matters, a legislative presumption does not constitute a denial of due process if there is some rational connection between the fact proved and the ultimate fact presumed. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976). Since we have already found that there is a reasonable basis for believing that section 627.066 serves the purpose of protecting policyholders from exorbitantly high rates, it follows that this section does not contain an unconstitutional irrebuttable presumption.
Finally, appellants argue that chapter 80-236 violates the requirement of article III, section 6, of the Florida Constitution that every law shall embrace only one subject. We find this argument to be without merit. Sections 26 and 27 of chapter 80-236 pertain, along with the rest of *1363 chapter 80-236, to the general subject of insurance. Thus the law does not embrace more than one subject. Moreover the effect of sections 26 and 27 is briefly expressed in the title of chapter 80-236. We see no infirmity under article III, section 6. See The Board of Public Instruction of Broward County v. Doran, 224 So.2d 693 (Fla. 1969).
We find section 627.066, Florida Statutes (1981), to be consistent with constitutional requirements. The judgment of the circuit court is therefore affirmed.
It is so ordered.
OVERTON, ALDERMAN and SHAW, JJ., concur.
McDONALD, J., concurs in part and dissents in part with an opinion.
McDONALD, Justice, concurring in part/dissenting in part.
I agree that chapter 80-236, Laws of Florida, is constitutional for all insurance contracts entered into after its effective date, June 27, 1980. I concede that there is a valid argument that it may apply to proceeds received by insurance carriers after that date even though the contracts for those proceeds antedated this chapter. I fervently disagree, however, that this 1980 statute can reach back and mandate a return of monies received by an insurance carrier before June 27, 1980. Chapter 77-468, section 23, Laws of Florida, which sought to require a refund, cannot support the refund because it was and is an invalid law. It has no effect.
The insurance companies and their insureds contracted for insurance coverage. The companies earned their premiums by furnishing the insurance coverage. The obligations were fixed. To require a refund of premiums already received is a clear violation of the constitutional prohibition against enacting a statute which impairs an existing contract. I don't think anyone would seriously suggest that had the legislature authorized an insurance company to assess its policyholders for additional premiums because its losses were too great such a statute would be constitutional. Certainly not, because that too would have impaired contracts. It works both ways. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593428/ | 135 S.W.3d 698 (2003)
The STATE of Texas, Appellant,
v.
Rafael SANCHEZ, Appellee.
No. 05-02-00717-CR.
Court of Appeals of Texas, Dallas.
April 10, 2003.
Rehearing Overruled May 28, 2003.
Discretionary Review Granted October 1, 2003.
Discretionary Review Granted June 30, 2004.
*699 Michelle Poblenz Skov, Asst. Dist. Atty., Michael Acuna, Matthew R. Filpi, Asst. Dist. Atty., Dallas, for appellant.
Katheryn Heather West, Jim Moore, Moore, Gunter & Bruneman, Dallas, for appellee.
Rafael Sanchez, Red Oak, pro se.
Before the Court en banc.
OPINION
MOLLY FRANCIS, Justice.
Rafael Sanchez was charged with a consumer affairs violation in a City of Dallas municipal court of record. On the day the case was set for trial, Sanchez made an oral motion to quash the complaint, and the trial court granted the motion. The State appealed to the County Criminal Court of Appeals, arguing the motion was untimely and the municipal court therefore erred in granting the motion. The County Criminal Court of Appeals affirmed, and the State appealed to this Court.
To resolve the issue presented, we must address the meaning of the language "before the date on which the trial on the merits commences" in article 45.019(f) of the Texas Code of Criminal Procedure. For the reasons set out below, we conclude the oral motion was timely. Consequently, we affirm the judgment of the County Criminal Court of Appeals.
Chapter 45 of the Texas Code of Criminal Procedure governs actions in the justice and municipal courts. All pleadings of the defendant may be oral or in writing as the court may direct. TEX.CODE CRIM. PROC. ANN. art. 45.021 (Vernon Supp.2003). Article 45.019(f) provides:
If the defendant does not object to a defect, error, or irregularity of form or substance in a charging instrument before the date on which the trial on the merits commences, the defendant waives and forfeits the right to object to the defect, error, or irregularity. Nothing in this article prohibits a trial court from requiring an objection to a charging instrument be made at an earlier time.
Id. art. 45.019(f) (emphasis added). The State asserts the motion was untimely because it was presented on the day the case was scheduled to go to trial.
When we interpret statutes, we seek to effectuate the "collective" intent or purpose of the legislators who enacted the legislation. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). When attempting to discern this collective legislative intent or purpose, we necessarily focus our attention on the literal text of the statute in question and attempt to discern the fair, objective meaning of the text at the time of its enactment. Id. "Where the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add to or subtract from such a statute." Id. An exception to this rule is if the statute's plain meaning would lead to absurd consequences that the legislature could not possibly have intended. Id.
Here, the statute requires a defendant to object to the charging instrument "before the date on which the trial on the merits commences" or waive that objection. Commence means to "begin, start" or "to initiate formally by performing the first act." WEBSTER'S THIRD NEW INT'L DICTIONARY 456 (1981). Thus, giving the words of the statute their plain meaning, a municipal court defendant must object before the date on which the trial begins or starts or waive his complaint. In other words, some act must be performed to *700 begin the actual trial before waiver occurs. To give the statute the meaning advanced by the State would require this Court to improperly add language, in particular the word "scheduled" or "set," to the statute that is not there. "Scheduled" to commence does not equate with actual commencement of trial; an event can be scheduled to occur but then be reset. The statute cannot have the meaning advanced by the State.
Moreover, the exception does not apply in this case because a plain-meaning application would not lead to absurd results. To the contrary, the statute allows the judge to hear a motion to quash on the day the case is scheduled for trial. If a municipal court judge grants the motion to quash, the State has two options: (1) it can challenge the ruling by appeal under article 44.01(a)(1) of the code of criminal procedure or (2) it can simply refile the complaint. The ultimate result is that a judge has the ability to ensure the complaint is not defective prior to trial, if presented with a motion to quash.
On the other hand, if the judge denies the motion (thereby suggesting the grounds in the motion to quash are not meritorious) and commences trial, the defendant has waived his complaint. If the judge denies the motion but does not begin trial on that day, the defendant's motion is timely and may be considered on appeal. We cannot conclude these consequences could not possibly have been intended by the legislature.
Having considered the meaning of the statute, we turn to the facts of this case. We begin by noting there is no reporter's record from the municipal court hearing because the judge refused the State's request that one be made. Thus, we have only the clerk's record to review. While the absence of a reporter's record has not hampered our ability to resolve the precise legal question presented, we remind the municipal court judge of the statutory requirements regarding records. See TEX. GOV'T CODE ANN. § 30.00010 (Vernon Supp.2003).
In its original brief, the State does not argue, nor does our record reflect, that any act was performed that commenced the trial on the merits. Rather, in a onepage brief, the State simply asserted Sanchez "orally presented the motion on the very same day that the case was set for trial on the merits." Because the State failed to argue in its original brief that trial had already commenced when Sanchez moved to quash the complaint, it is not necessary to the disposition of this appeal, and in fact would be dicta, to determine precisely what actions would constitute commencement of trial on the merits in a bench trial or jury trial.
We note that, in a reply brief, the State asserts in a single sentence that the motion to quash itself constituted commencement of trial. Texas Rule of Appellate Procedure 38.3 permits an appellant, in its reply brief, to address "any matter in the appellee's brief." TEX.R.APP. P. 38.3. However, a reply brief is not intended to allow an appellant to raise new issues. Whether presentment of a motion to quash would constitute commencement of trial on the merits was not an issue raised by appellee's brief. Consequently, we need not consider the matter as it is a new issue raised in the State's reply brief.
Regardless, the State's assertion is without merit and would render the statute meaningless. If trial begins with a motion to quash, a motion to quash could never be timely presented on the date before trial on the merits commences. In other words, all motions to quash, regardless of when presented, would be untimely.
The State has not shown that Sanchez's motion was untimely; consequently, the trial court did not err in considering the motion presented on the day the case was *701 scheduled for trial. We resolve the issue against the State.
We affirm the judgment of the County Criminal Court of Appeals.
JAMES and LANG, JJ., dissenting separately.
Dissenting Opinion by Justice LANG.
I join Justice James's dissent, which suggests that principles of statutory construction require the conclusion that the trial court erred in granting Sanchez's oral motion to quash. However, I write separately to suggest that a defendant's objection to the charging instrument should be in writing, filed "before the date on which the trial on the merits commences," and considered in a hearing before the trial court in order to preserve the objection on appeal.
THE MAJORITY'S HOLDING
I join Justice James in respectfully dissenting from the holding of the majority. My concern is founded upon the fact that article 45.019(f), by its clear language, requires a defendant to "object" to any defect "in a charging instrument before the date on which the trial on the merits commences." The majority's holding upon which I focus concludes that an "objection" need not be heard before the date the trial is scheduled. It appears to me that the reasoning of the majority on this point turns, in part, on the fact that this case comes to us from a corporation court, where the procedure is intended to be more relaxed. For instance, pleadings and motions in justice and corporation courts need not be in writing unless directed by the court. See TEX.CODE CRIM. PROC. ANN. art. 45.021 (Vernon Supp.2003). Accordingly, motions or objections are typically presented orally on the day a case is scheduled for trial.
The State argues that this last minute objection by Sanchez violated the code and gave it insufficient notice such that no time was available before trial to amend and thereby correct the complaint. I believe that the State's position has merit. However, I also believe that, without intending to do so, the majority's holding has adversely affected the rights of defendants.
I respectfully suggest that the majority leaves the process of when and how to "object" in a state of some uncertainty. Certainly, the majority's holding creates negative ramifications for the State by allowing this last minute, informal objection. However, the effect on a defendant is that he is left to "gamble" as to whether he will risk waiver by waiting until the date a case is scheduled for trial to make his "objection." The risk and uncertainty which a defendant faces as a result of the majority's interpretation of the code section cannot be one which was envisioned by the legislature. Therefore, I cannot agree with the majority's statement that "[w]e cannot conclude that these consequences could not possibly have been intended by the legislature." To the contrary, I respectfully contend that the majority's interpretation paves the way for potential consequences which are so unfair to defendants that the legislature could not have intended them. Such a result flies in the face of the presumption that the legislature intended to enact a just and reasonable statute. See TEX. GOV'T CODE ANN. § 311.021(3) (Vernon Supp.2003) ("In enacting a statute, it is presumed that . . . a just and reasonable result is intended."); see also Cole v. Tex. Employment Comm'n, 563 S.W.2d 363, 367 (Tex.Civ. App.-Fort Worth 1978, writ dism'd) (presumption that legislature intended a just and reasonable result in enacting legislation).
The risk or "gamble" to which I refer above is created by the majority's interpretation of the phrase in article 45.019(f): "the date on which the trial on the merits *702 commences." The meaning of "commences" is pivotal. The majority holds that since trial might not "commence" (i.e., "begin") on the date the case is scheduled for trial, a defendant may make an oral objection on that date. If the trial court sustains the objection, it is timely and preserved, even though the State will have had no notice of it until the parties are called to the bench for trial announcements. On the other hand, if the trial court overrules the objection and then proceeds to trial that day, the objection is untimely and any error is waived.
Under the rule found by the majority, the defendant is put to an election of whether to risk the possibility that the judge will overrule his objection and continue to trial. If the defendant guesses wrong and the court overrules what might be a meritorious objection on appeal, the defendant is foreclosed from raising the issue in an appellate argument. Thus, a defendant who proceeds according to the "informal," oral, and last-minute process cultivated and used in justice and corporation courts exposes himself to the risk that he may fail to preserve his objection. In my mind, such a system is no better than a spin of the wheel of chance. Such an uncertain process does not conform with the basic fairness and predictability requirements of procedural due process. See Zinermon v. Burch, 494 U.S. 113, 125-127, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (due process encompasses a guarantee of fair procedure); see also Long v. State, 742 S.W.2d 302, 320 (Tex.Crim.App.1987), overruled in part on other grounds by Briggs v. State, 789 S.W.2d 918, 923 (Tex. Crim.App.1990) (due process is in itself essentially fairness or at the very least is the vehicle used to arrive at fairness).
EXPANDING ON JUSTICE JAMES'S DISSENTING OPINION
Although I concur with the reasoning of Justice James's dissent, I go further. Justice James specifically says that he would require that the defendant make his objection before the scheduled trial date, but he would not require that a pretrial hearing be scheduled. While I agree that a defendant should make his objection before the scheduled trial date, I suggest that a "better practice" is to require the motion to be in writing and filed before the date on which trial on the merits commences in order to preserve the objection. Additionally, I suggest the defendant must request that his objection be considered in a hearing prior to the commencement of trial. Such a hearing may be conducted by the trial court on the same date it has set the case for trial, but before any other part of the case is pursued.
I am certainly mindful that pleadings and motions in justice and corporation courts need not be in writing unless directed by the court. However, the procedure I suggest would give adequate notice of the defendant's objections to the State and rid the process of the "gamble" of waiver. While I also believe such a procedure would not offend the majority's concerns as to judicial economy, I think it would unequivocally comply with the express requirements of article 45.019(f). If a defendant follows these steps, the parties and appeals courts would be left with no question as to whether error has been preserved. Finally, I believe this procedure is supported by the case law respecting article 1.14(b), which interprets the requirements for the preservation of one's objection to an indictment or information and governs the determination of the point at which that objection must be presented to the trial court. See, e.g., Whitsey v. State, 853 S.W.2d 769 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd) (appellant preserved error on motion to quash indictment where he filed written motion two days before trial and obtained hearing on *703 morning of trial); cf. Prudhome v. State, 989 S.W.2d 852 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (appellant did not preserve error with general or "form" motion but would have satisfied Whitsey with pretrial motion and hearing).
CONCLUSION
I agree with Justice James that the majority's interpretation leads to results the legislature could not possibly have intended. However, I write separately to suggest what I believe is a straight-forward, reliable, and safe procedure for the State, defendants, and courts to employ in order to comply with the current version of the code. Finally, I suggest that, due to the majority's holding, the gamble of waiver remains. This matter can best be resolved by the legislature through revision of the statute to tell us precisely when timely objections must be made. Defendants in justice and corporation courts are entitled to a predictable and clear process for the preservation of their objections to charging instruments.
Dissenting Opinion by Justice JAMES.
JAMES, Justice, dissenting.
The central focus of the legal issue before us is defining "before the date on which the trial on the merits commences." In its resolution of the issue before the Courtwhether Sanchez's motion to quash the charging instrument was untimely, leading to error by the municipal court in granting the motionthe majority addresses whether the date scheduled is the date a trial commences. However, the majority does not incorporate the meaning of the before the date statutory language in its interpretationlanguage crucial to the statute's meaning. Because the majority's interpretation leads to a result the legislature could not have possibly intended, and because the majority's interpretation of the before the date language allows for the statutory language to apply to the date the trial is scheduled, I respectfully dissent.
BACKGROUND
The City of Dallas charged Sanchez with a consumer affairs violation in Municipal Court Number Eight. Trial was set for October 11, 2000, and on that day, Sanchez appeared before the court. He made an oral motion to quash the charging instrument. The court granted Sanchez's motion to quash.
In the State's appeal to the county criminal court of appeals (pursuant to the government code[1]), the State argued Sanchez's motion was untimely because the Texas Code of Criminal Procedure requires objections to defects, errors, or irregularities in the form or substance of a charging instrument to be made before the date the trial commences. See TEX.CODE CRIM. PROC. ANN. art. 45.019(f) (Vernon Supp.2003). The State further argued the court did not have the "discretionary authority" under which it heard the motion, pointing to article 45.019, which provides discretion only in the court's ability to require such motions to be made at an earlier time. See id. The county criminal court of appeals affirmed the trial court's judgment, concluding the motion to quash was timely because the trial on the merits had not commenced.
The majority points out the State did not, in its original brief, argue that the trial had already commenced.[2] Regardless of the majority's contention, we need not *704 decide whether hearing a motion to quash commences a trial.[3] Instead, to resolve whether the municipal court erred in granting Sanchez's motion, we need only analyze the statutory language to determine if the day set for trial is the day contemplated by the legislature as "the date on which the trial on the merits commences." In recognizing the purpose of the statutory language this Court has previously interpreted,[4] I conclude the day the case is set for trial is the only day a party may, with foresight, be on notice as to when the day the trial will commence will occur, in such a way that he may timely raise his objections to charging instruments without "sand bagging" the State.
TIMELINESS OF MOTION TO QUASH
The Texas Code of Criminal Procedure provides guidelines for the timing of objections to charging instruments: "If the defendant does not object to a defect, error, or irregularity of form or substance in a charging instrument before the date on which the trial on the merits commences, the defendant waives and forfeits the right to object to the defect, error, or irregularity." TEX.CODE CRIM. PROC. ANN. art. 45.019(f). The before the date on which the trial on the merits commences language in article 45.019 is the same language found in article 1.14(b).[5]See id. art. 1.14(b). That language is also similar to the code's language in article 28.10(a), which provides for the State's ability to amend a charging instrument before the "date the trial on the merits commences." See id. art. 28.10(a). Therefore, I see precedential value in prior analyses of articles 1.14(b) and 28.10(a).
*705 Addressing issues of timing, the code of criminal procedure provides that a defendant who fails to object to a defective charging instrument "before the date on which the trial on the merits commences waives and forfeits the right to object to the defect." Id. arts. 1.14(b), 45.019(f). The county criminal court of appeals concluded the trial had not yet commenced on the day the motion was presented and granted, and therefore, the motion was timely. The narrow question before us, then, as the majority correctly points out, asks when is the date on which the trial on the merits commences. However, we must determine when that date occurs with an understanding defendants need notice of when that date will occur before it occurs, because the only time they may act, without waiver, is before the date on which the trial on the merits commences.
I agree with the standard of review the majority uses for statutory interpretation. In interpreting this language of the statute, I recognize we are to look to the plain meaning of the statute, applying the plain meaning in accordance therewith, unless the language is ambiguous or the results would lead to absurd consequences. See Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim.App.1991). In looking for the collective intent of the legislature, however, when the application of the plain language of a statute is ambiguous or would lead to absurd consequences the legislature could not possibly have intended, we will not apply the language literally. Id. We do this not to intrude upon the legislature's lawmaking powers, but rather to show respect, knowing the legislature would not act in an absurd way. Id.
The majority also defines commences as I would. However, the majority misses core aspects of the question before this Court. First, the majority does not identify the collective legislative intent or purpose of the statutory language. Second, in reading the statute's plain meaning, the majority fails to foresee the absurd results under its interpretationresults the legislature could not possibly have intended. Finally, the majority fails to apply the statutory interpretation guidelines to the entire statute before us, namely, the before the date on which language, in attempting to effectuate the collective legislative intent or purpose.
The Purpose of the Statutory Language
This Court specifically reviewed article 1.14(b) and stated, "[A] motion to quash filed on the day of trial is too late." Van Dusen v. State, 744 S.W.2d 279, 279 (Tex. App.-Dallas 1987, no pet.). In Van Dusen, we explained the purpose of the rule, stating,
A major objective of this ... rule was to aid in the elimination of "sand bagging" by defense counsel. The habit of defense counsel of not objecting until the last minute to a defective indictment or information in the trial court and then objecting on appeal if the defendant was found guilty was not favored. Consequently, the rule is drafted in such a way as to allow the prosecution to correct a defective [charging instrument] before the cause commences in the trial court.
Id. at 280. The trial court in Van Dusen denied the defendant's motion to quash, and the defendant then entered her plea the same day. Id. at 279. Concluding the defendant had failed to object before the date of trial, this Court affirmed her conviction. Id. at 280. We did not, however, distinguish between the date set for trial and the date the trial commenced. See id.
Under the majority's interpretation of the same before the date the trial on the merits commences language in article 45.019(f), a defendant may still wait until *706 the last minute to object. The majority even allows for the defendant to object on appeal if the defendant is found guilty if the court, for whatever reason, is unable to "begin" trial that day, after having called the case for trial. Furthermore, once an objection to the charging instrument is denied, a defendant may then use tactics to delay the "beginning" of trial solely for the purpose of being able to appeal, after having waited until the last minute to object. This is directly contrary to the objective we identified in Van Dusen: preventing a defendant from "sand bagging" the State.
In Van Dusen, we also stated the rule is drafted in a way to allow the State to correct a defective charging instrument. The majority asserts, however, the State would need to refile the complaint entirely or appeal the ruling. I see either option as a greater waste of judicial economy than allowing a correction of the charging instrument when it is objected to in a timely mannerbefore the day the case is set for trial.
The court of criminal appeals has also recognized the purpose of the language. In Sodipo v. State, the court engaged in a careful reading of article 28.10, which provides for the State's ability to amend a charging instrument before the date the trial on the merits commences. See Sodipo v. State, 815 S.W.2d 551, 555 (Tex.Crim. App.1990) (op. on reh'g). The court stated neither section (a) nor section (b) of the article provided for amendment on the date of trial prior to the commencement of trial on the merits. Id. In Sodipo, the lower court granted the State's motion to amend the charging instrument over the defendant's objection on the day of trial before the jury was selected. Id. at 555. The court of criminal appeals, however, reversed, stating the court erred in allowing the State to amend the charging instrument over the defendant's objection
"on the date of trial prior to the trial on the merits commencing." Id. at 556. The court stated the defendant's objection on the date of trial prior to trial commencing did not fall within the scope of article 28.10(a); it was not before the date the trial on the merits commenced. Id. The court concluded the trial court, "when faced with the State's motion to amend, should have denied the motion." Id. Although Sodipo is distinguishable in that it involved a situation in which the jury was impaneled the same day the court amended the charging instrument, it remains instructive to the present case, especially because on rehearing, the court did not specify the impaneling of the jury as core to its decision. See id. Furthermore, the court of criminal appeals stated the trial court should have denied the State's motion when presented with itnot when it later impaneled the jury and determined the trial had "commenced." See id.
As it currently reads, article 45.019(f) was added to the code of criminal procedure in 1999. See Act of June 19, 1999, 76th Leg., R.S., ch. 1545, § 16, 1999 Tex. Gen. Laws 5313, 5318. However, the similar language found in article 28.10(a) was first incorporated in 1985, changing the prior time line as specified in the statute. See Act of June 13, 1985, 69th Leg., R.S., ch. 577, § 1, 1985 Tex. Gen. Laws 2196, 2196. The former article 28.10(a) read, "Any matter of form in an indictment or information may be amended at any time before an announcement of ready for trial upon the merits by both parties, but not afterward. No matter of substance can be amended." Act of June 18, 1965, 59th Leg., R.S., ch. 722, § 1, 1965 Tex. Gen. Laws 317, 434, amended by Act of June 13, 1985, 69th Leg., R.S., ch. 577, § 1, 1985 Tex. Gen. Laws 2196. The 1985 change altered the time line from "any time before an announcement of ready for trial upon the merits by both parties" to "any time *707 before the date the trial on the merits commences."
The majority states "some act must be performed to begin the actual trial before waiver occurs." Under the old language, that "act" was the parties' announcement of ready for trial. When the legislature changed the wording, it did not merely add "before the date of to "an announcement of ready for trial upon the merits by both parties." Instead, the legislature left "commences" undefined. The majority does not explain why the requisite act to commence the trial could not be the act of the court calling the case in open court, because it is scheduled on the court's docket. And if we do not interpret "any time before the date the trial on the merits commences" as referencing that date on which the trial is scheduled, neither the defendant, the State, nor the judge will be on notice as to when the deadline will pass until after it has passed. This would not effectuate the purpose identified in Van Dusen or Sodipo.
In an article exploring the 1985 legislative changes, Professor George E. Dix acknowledges the language in both articles 28.10(a) and 1.14(b) does not provide a clear answer to whether the language applies to action taken "the day for which the trial is scheduled but before trial commences." George E. Dix, Texas Charging Instrument Law: The 1985 Revisions and the Continuing Need for Reform, 38 BAYLOR L.REV. 1, 58 (1986); see also id. at 88. Although he reviews a variety of interpretations of the article 28.10(a) language, Professor Dix recognizes the "need for preparation and the defendant's right to preparation time" in stating "the legislature may have intended that any proposed amendments, regardless of the defendant's consent, be made sufficiently before the day scheduled for trial so that any delay would not interfere with the trial on the scheduled date." Id. at 58 (emphasis added). This reasoning follows the reasoning we used in deciding Van Dusen and appears to be that used by the court of criminal appeals in deciding Sodipo.
Plain Meaning Interpretations and Results the Legislature Could Not Have Possibly Intended
The majority contends its interpretation would not lead to absurd results. I respectfully disagree. In doing so, I recognize that neither our Court nor the court of criminal appeals has determined the narrow issue of when "the trial on the merits commences," as stated in articles 1.14(b), 28.10(a), and 45.019(f), when the trial court has granted a motion to quash and dismissed the charging instrument. See State v. Turner, 898 S.W.2d 303, 306 n. 4 (Tex.Crim.App.1995), overruled on other grounds, Proctor v. State, 967 S.W.2d 840 (Tex.Crim.App.1998). However, this situation has been addressed by other courts of appeals, a dissent from the court of criminal appeals, and the majority. Accordingly, I will address each contention.
In analyzing the language of article 28.10(a), other courts of appeals have tried to determine when a trial on the merits commences for purpose of determining if a charging instrument was amended after the time authorized by statute. The Corpus Christi Court of Appeals held the trial on the merits commences when jeopardy attaches-the day the jury is impaneled and sworn. Hinojosa v. State, 875 S.W.2d 339, 342 (Tex.App.-Corpus Christi 1994, no pet.). The Tyler Court of Appeals reached a similar conclusion. Dixon v. State, 932 S.W.2d 567, 569-70 (Tex.App.-Tyler 1995, no pet.). Both of these cases involved situations wherein the jury was impaneled the same day the charging instrument was amended. See Dixon, 932 S.W.2d at 568; Hinojosa, 875 S.W.2d at 341.
*708 I am unpersuaded by these cases. See Eubanks v. Mullin, 909 S.W.2d 574, 576 n. 1 (Tex.App.-Fort Worth 1995, orig. proceeding) (stating we are not bound by opinions of sister appellate courts, but we should say clearly if we disagree with such opinion). The language in article 45.019(f) does not state "when jeopardy attaches." Other states, however, have been that specific. See Mo. ANN. STAT § 545.300 (2002) (allowing amendments to charging instruments before the jury is sworn); TENN. R.CRIM. PROC. 7 (requiring amendments before jeopardy attaches). Our legislature could have incorporated that specific language; it chose not to. Therefore, I disagree we should interpret the statute in such a way that would restrict the statute's meaning more than what the legislature provided in its language.
A dissenting opinion from the court of criminal appeals has reviewed the date on which the trial on the merits commences language in relation to a situation involving a dismissed case.[6]See Turner, 898 S.W.2d at 309-12 (Baird, J., dissenting) (applying analysis of article 28.10(a) similarly to article 1.14(b) because the legislature enacted the two articles as part of the same legislation). In advocating a bright-line rule stating "an objection to a charging instrument is timely made on the day the case is set for trial so long as the trial on the merits does not commence on that day," Judge Baird stated the trial commences when jeopardy attaches. Id. at 309-10, 311. In Turner, the case was dismissed. Id. at 304. Judge Baird reasoned that because jeopardy never attached, the trial never commenced, and thus, objections to the charging instrument were timely. Id. at 311. Judge Baird explained further that to read article 1.14(b) as requiring objections to the charging instrument to be made on a date before the date the trial is set would work against a trial court's management of its trial dockets. Id. at 312. He also reasoned trial courts do not have the time to hold pretrial hearings before the scheduled trial date. Id. Instead, the court most often calls a case scheduled for that day, hears pretrial motions, and if the case is not dismissed, the court proceeds with jury selection. Id.
I do not reach the same conclusions as Judge Baird. See Williams v. State, 848 S.W.2d 777, 780 (Tex.App.-Houston [14th Dist.] 1993, no pet.) (stating dissenting opinions are not Texas precedent). As I interpret Judge Baird's recommended bright-line rule, such a rule would allow a deadline to be controlled by future events. For example, the court could deny a motion to quash and impanel the jury the same day. In that situation, the date the trial commences has nowafter the fact become the same date as the one on which the case was set for trial. Thus, the defendant would now be precluded from raising, on appeal, a complaint regarding the denied motion to quash becausein hindsightthe motion was untimely. Conversely, if the jury is not impaneled and sworn until the next day, that defendant would be able to appeal a possibly erroneous denial of his motion to quash. Additionally, in hearing a motion to quash under Judge Baird's proposed bright-line rule, a court would be required to determine timeliness of a motion to quash or an amendment to the charging instrument before events occurred establishing that timeliness. If a court heard and ruled on such a motion and subsequently swore and impaneled the jury that same day, the motion earlier ruled upon would-after the fact-become untimely. I do not interpret such a result to fit with the legislature's intent to establish guidelines as to timeliness *709 of these motions. Furthermore, a party, whether the State or a defendant, should not be at the mercy of the date the court is able to impanel and swear the jurya futuristic and, at that time, undetermined datein determining when it must act lest it waive rights to amend or object to charging instruments.
The majority states if a defendant raises his motion to quash on the day scheduled for trial, and the motion is granted, the State may challenge the ruling or refile the complaint. This seems to offend notions of judicial economy the legislature wanted to preserve by requiring these motions before the date the case came to trial. Further, if the motion is denied, the defendant may or may not have waived his complaint; any waiver will be subject to actions that will occur after a defendant has presented his motion.
For reasons similar to those specified above, I am not persuaded the majority's interpretation would not lead to absurd results. The majority does not indicate when a trial begins. I disagree a trial begins for purposes of the statute when the parties announce ready, because the legislature changed that specific language. I disagree it is when jeopardy attaches, because the legislature did not so specify in the statute. The majority's position that a motion may or may not be timely, depending on the actions of the court after the motion is presented could not possibly have been intended by the legislature, especially considering the court of criminal appeals's decision in Sodipo that the trial court should have denied the State's motion to amend when presented with it, not when it later impaneled the jury. See Sodipo, 815 S.W.2d at 556.
Likewise, I am not persuaded by Sanchez's argument that the "date on which the trial on the merits commences" never occurred because the case was dismissed. Concluding so, as Judge Baird did in his dissent in Turner and as it appears the county criminal court of appeals did below, would lead to a defective result: a defendant would always be timely in a successful objection to a charging instrument so long as he makes the objection before the jury is impaneled and sworn, but an unsuccessful motion to quash would be untimely. Such an interpretation essentially gives no effect to the strong language of article 45.019(f). See TEX.CODE CRIM. PROC. ANN. art. 45.019(f) (stating untimely objections result in waiver and forfeiture of the right to object to a defect, error, or irregularity of form or substance). Even more absurd consequences would occur with joinder of prosecutions. See id. art. 3.02(b) (allowing prosecution for a single criminal action based on more than one charging instrument). An example may be seen in a situation where a defendant is charged under two charging instruments and moves to quash both charging instruments. If the court grants one motion and denies the other, subsequently proceeding with the swearing and impaneling of the jury the same day, the granted motion will be considered timely for appeal purposes, but the denied motion would be considered untimely and thus waived. I do not read the code as intending such contrasting results stemming from identical actions.
An Interpretation to Effectuate the Legislative Purpose
Even after I have reviewed the purpose of the language of article 45.019(f) and have identified the varying and unpredictable consequences the majority's interpretation leads to, the specific question before us remains unanswered: when is the deadline for objecting to charging instruments established by the provision "before the date on which the trial on the merits commences"? In fact, the answer depends on what specific event commences the trial on the merits. Because this question indicates *710 ambiguity in the language itself, I will look behind the plain meanings of the words in the statute to discern the legislature's intended meaning. See Boykin, 818 S.W.2d at 785.
Following the purpose of article 1.14(b) we identified in Van Dusen, I conclude allowing objections to charging instruments to be initially brought on the same day the trial is scheduled to commence would allow the defendant to engage in "sand bagging" the prosecution by not providing an opportunity or sufficient time for the prosecution to correct the charging instrument before the trial is set to commence. See Sodipo, 815 S.W.2d at 555; Van Dusen, 744 S.W.2d at 280. Additionally, I decline, for purposes of interpreting article 45.019(f), to equate the trial on the merits language of the article to the time jeopardy attached, for to do so would lead to absurd results the legislature could not have intended, i.e., a meritorious objection or motion to quash would always be timely if filed on a date before a jury is seated, and this time would be yet to be determined when the defendant raises his objection. See Boykin, 818 S.W.2d at 785. Therefore, based on the above analysis, I conclude an objection to a charging instrument first brought to the court in a motion on the day the trial court has set the case for trial is untimely and is thereby waived in accordance with article 45.019(f). In doing so, I follow the court of criminal appeals in Turner, holding, "By waiting until the date of trial, appellee `waive[d] and forfeit[ed] the right to object to the defect.'" Turner, 898 S.W.2d at 306 (brackets by court of criminal appeals) (quoting TEX.CODE CRIM. PROC. ANN. art. 1.14(b)). Furthermore, I read no discretionary language in article 45.019(f) allowing a trial court to act otherwise.
In the present case, the citation for the offense was mailed to Sanchez on March 9, 2000, and the complaint was filed on July 11, 2000. On July 12, 2000, the court set the case for trial on August 30, 2000. On August 29, Sanchez requested the case be reset, and it was reset for October 11, 2000. Sanchez had at least three months during which he could have made his objection or filed a motion objecting to the complaint. Not until October 11 did Sanchez make his oral objection to the complaint. That day was too late.
In reaching these conclusions, I do not state a court must set a separate pretrial hearing for the motion on a day prior to the day the case is set for trial. I state, instead, that a defendant must make his objection through which he complains of the charging instrument before the day the case is set for trial. This satisfies the purpose of the rule we identified in Van Dusen, allowing the prosecution to amend the charging instrument before the trial begins. Additionally, this will not further burden a trial court's docket, ameliorating Judge Baird's concerns regarding a trial court's ability to manage its docket. With due respect for the majority's concern for the municipal courts' docket management, we must effectuate the intent or purpose of the legislature. See Boykin, 818 S.W.2d at 785.
Conclusion
I have reviewed this Court's analysis of the any time before the date the trial on the merits commences language in article 1.14(b) and the court of criminal appeals's analysis of similar language in article 28.10(a). Considering those decisions in conjunction with the statutory change in 1985, which did not specify whichor whoseact would commence a trial, I conclude objections to charging instruments, to be timely, initially need to be raised before the day the trial is scheduled to commence to provide an opportunity or sufficient time for the prosecution to correct *711 the charging instrument before the trial is set to commence. See Van Dusen, 744 S.W.2d at 280. Accordingly, I would sustain the State's point of error and hold the county criminal court of appeals erred in affirming the municipal court's judgment.
SANCHEZ'S INDEPENDENT ARGUMENTS
Concluding the lower court erred in affirming the municipal court's judgment, I also address Sanchez's independent arguments. In addition to responding to the State's brief by asserting the trial had not yet begun, Sanchez asserted three independent arguments to the county criminal court of appeals supporting the trial court's dismissal. First, Sanchez stated the State's brief was untimely. Second, Sanchez argued the appeal should fail because it was not based on errors reflected in the record. Finally, Sanchez asserted the State's point of error was moot because the complaint would not have withstood a motion for instructed verdict.
Timeliness of State's Brief
In his first independent argument in support of the trial court's ruling, Sanchez argues the State did not timely file a brief because the brief was not filed within fifteen days of filing its notice of appeal. The guidelines for filing briefs on appeal from a municipal court of record are found in the government code: "The appellant must file the brief with the appellate court clerk not later than the 15th day after the date on which the transcript and statement of facts are filed with that clerk." TEX. GOV'T CODE ANN. § 30.00021(b) (Vernon Supp.2003). After receiving the municipal court record, the county criminal court of appeals notified the State its brief was due no later than February 13, 2001. The State filed its brief on February 1, 2001. Because the State timely filed its brief, Sanchez's first independent argument lacks merit.
Reflection of Errors in the Record
In Sanchez's second independent argument, he asserts the appeal should fail because the errors are not reflected in the record. Sanchez emphasizes the municipal court is a court of record, and as such, pursuant to article 45.042(b),[7] the appeal must be based on error in that record. See TEX.CODE CRIM. PROC. ANN. art. 45.042(b) (Vernon Supp.2003). Sanchez further attempts to support his argument by referring to "Rule 50(d) of the Texas Rules of Appellate Procedure." Rule 50(d) was repealed in 1997. See TEX.R.APP. P. 34 cmt. Even so, in consideration of Sanchez's claim, I note the State requested that the hearing on the motion to quash be recorded; the judge denied the request.[8] Regardless of the lack of a formal record of the hearing, the error in granting the motion to quash can clearly be seen in the judge's handwritten notes in the record: the motion was presented and granted on the day the trial commenced-not before that day. Sanchez's second independent argument lacks merit.
Mootness and Motion for Instructed Verdict
In his third and final independent argument, Sanchez argues the State's point of error is moot because the complaint would *712 not have withstood a motion for instructed verdict. Sanchez cites inapplicable articles, but the State directs us to the articles related to this claim. Article 45.032 lists when a defendant is entitled to a directed verdict in a trial in a municipal or justice court. See TEX.CODE CRIM. PROC. ANN. art. 45.032 (Vernon Supp.2003). A directed verdict is allowed if "the [S]tate fails to prove a prima facie case of the offense alleged in the complaint." Id. I will not, however, speculate on what the State would be able to prove at trial.
Sanchez further argues he would be unable to prepare a defense at trial because of the errors he complains of in the charging instrument. By not timely objecting to the charging instrument, however, Sanchez waived his right to object to either the instrument's form or substance. See id. art. 45.019(f). Sanchez may not later after the trial beginscomplain he was unable to prepare a defense to the charge.[9] Sanchez's third independent argument is, therefore, without merit.
CONCLUSION
I am unpersuaded by Sanchez's independent arguments supporting the municipal court's judgment. Additionally, having concluded a defendant must make objections to the charging instrument before the day on which the trial is set, I conclude Sanchez did not timely object to the charging instrument. I would sustain the State's point of error.
Accordingly, I would reverse the judgment of the county criminal court of appeals and remand the case to the municipal court for further proceedings.
JJ. FITZGERALD and RICHTER joining.
NOTES
[1] The briefs filed with the county criminal court of appeals are operative before this Court. See TEX. GOV'T CODE ANN. § 30.00027(b)(1) (Vernon Supp.2003).
[2] The majority acknowledges rule 38.3 permits an appellant to "file a reply brief addressing any matter in the appellee's brief." TEX.R.APP. P. 38.3. And although I recognize, for purposes of rule 38.3, a matter may not be considered raised by an appellee when he merely points out the absence of an appellant's argument, I disagree with the majority that the issue has been raised only in the State's reply brief. See Barrios v. State, 27 S.W.3d 313, 322 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). We treat an issue or point in an appellate brief as covering every subsidiary question that is fairly included. TEX. R.APP. P. 38.1(e). Furthermore, we are to liberally construe briefs in the interest of justice. See TEX.R.APP. P. 38.1(e), 38.9. In its original brief, the State argued article 45.019(f) controlled the issue, and that the day the case was set for trial was too late under article 45.019(f). The State clearly raised the issue of the applicability of article 45.019(f) to the case. The appellee stated, in his response to the State's point of error, "no trial on the merits had commenced" and argued that therefore, the court did not violate article 45.019(f). Sanchez argues this point in direct response to the State's assertion in its original brief that article 45.019(f) was the controlling statute on which it based its appeal. The State's reply to Sanchez's argument that article 45.019(f) does not apply because the trial had not commenced does not raise the issue for the first time in a reply brief. To the contrary, the State merely expanded its original argument (that the trial court violated article 45.019(f)) and addressed a matter in the appellee's brief, as allowed under rule 38.3.
[3] The majority also contends the statute would be meaningless if we were to find a motion to quash could "begin" a trial. The majority states, "[A]ll motions to quash, regardless of when presented, would be untimely." I do not read the State's argument in a similar manner. Instead, the State argues, and I agree, motions to quash presented on the day the case is set for trial are untimely. A defendant may, any day prior to that day, timely present a motion to quash.
[4] See Van Dusen v. State, 744 S.W.2d 279, 280 (Tex.App.-Dallas 1987, no pet.).
[5] Article 45.019 is applied specifically to procedures in justice and municipal courts. See generally TEX.CODE CRIM. PROC. ANN. art. 45.001 (Vernon Supp.2003). Although article 1.14(b) specifically addresses "indictments and informations" and article 45.019(f) specifically addresses "charging instruments," I see no relevant distinction in the two articles other than the additional language in article 1.14(b) which adds: "and he may not raise the objection on appeal or in any other postconviction proceeding." Id. art. 1.14(b).
[6] There, the majority did not address the issue of when the trial on the merits commences because the parties did not raise it on appeal. See Turner, 898 S.W.2d at 306 n. 4.
[7] Sanchez points us to article 45.10, but that article was renumbered to 45.042 in 1999. See TEX.CODE CRIM. PROC. ANN. art. 45.042(b) cmt. (Vernon Supp.2003).
[8] The majority states the judge's refusal does not hamper our ability to resolve the legal question before us. However, I note that without a record, we are unable to determine what transpired before the motion to quash was granted. Without this knowledge, even the majority's interpretation of the statute is difficult to apply.
[9] If Sanchez had timely filed his motion to quashbefore the day set for trialthe State could have responded by correcting the charging instrument, thereby eliminating the complaint Sanchez now raises. In his appeal, Sanchez asserts once he complained of the charging instrument on the day of trial, the State would not have been able to amend the charging instrument because any amendment would have been untimely. This argument directly contradicts Sanchez's position on appeal. The language determining when the State may amend a charging instrument is the same as the language determining when a defendant may object to the charging instrument: "before the date the trial on the merits commences." Compare TEX.CODE CRIM. PROC. ANN. art. 28.10(a) with TEX.CODE CRIM. PROC. ANN. art. 45.019(f). (We use article 28.10(a) to determine when the State may amend the charging instrument because chapter forty-five does not address this issue. See id. art. 45.002.) If Sanchezand the majority-were correct in saying the deadline had not lapsed, we would surely need to provide the State the same interpretation as Sanchez. If we did, the State could amend the indictment before we even knew if the deadline had passed. If a jury were then sworn that same day, the defendant would thenafter the jury was swornbe allowed to object. If the jury were not sworn that day, the defendant would then be allowed to request up to ten additional days to respond to the amended charging instrument. All of this would occur after both parties had appeared before the court, and perhaps even after a jury had been sworn. This would surely lead to an even greater clogging of a court's docket than the concerns already addressed in the opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1022391/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7912
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SONJI PRINCE PABELLON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., District
Judge. (CR-98-1169-HMH)
Submitted: March 28, 2007 Decided: April 25, 2007
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sonji Prince Pabellon, Appellant Pro Se. Elizabeth Jean Howard,
OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sonji Prince Pabellon appeals the district court’s text
orders denying her motion for modification of sentence pursuant to
18 U.S.C.A. § 3582(c)(2) (West 2000 & Supp. 2006) and her motion
for reconsideration. Finding no reversible error, we affirm.
Pabellon argues that the district court violated her due
process rights under the Fifth Amendment by rendering oral orders
or “text orders” rather than issuing an opinion and explaining why
her motions were denied. Based on our review of the record, we
find no evidence that Pabellon was prejudiced by the district
court’s decision to enter a text order and therefore find no Fifth
Amendment violation. Cf. Blanco de Belbruno v. Ashcroft, 362 F.3d
272, 281-82 (4th Cir. 2004).
We also uphold the denial of Pabellon’s motion for
modification of sentence. Pabellon appears to base her motion on
the Supreme Court’s decisions in Blakely v. Washington, 542 U.S.
296 (2004), and United States v. Booker, 543 U.S. 220 (2005), and
argues that the Supreme Court has lowered the sentencing range
applicable to her case. This argument has been squarely rejected
by several of our sister circuits. See Carrington v. United
States, 470 F.3d 920, 923 (9th Cir. 2006); United States v.
Rodriguez-Pena, 470 F.3d 431, 433 (1st Cir. 2006); United States v.
Price, 438 F.3d 1005, 1007 (10th Cir.), cert. denied, 126 S. Ct.
- 2 -
2365 (2006); United States v. Moreno, 421 F.3d 1217, 1220 (11th
Cir. 2005), cert. denied, 126 S. Ct. 1643 (2006).
Accordingly, we affirm the district court’s orders
denying Pabellon’s motions for modification of sentence and her
motion for reconsideration. 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 |
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