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https://www.courtlistener.com/api/rest/v3/opinions/1593037/ | 453 So.2d 286 (1984)
WINN STATE BANK & TRUST COMPANY, Plaintiff-Appellant
v.
Paul BROWNING, et al., Defendants-Appellees.
No. 16254-CA.
Court of Appeal of Louisiana, Second Circuit.
June 6, 1984.
*287 William M. Russell, III, Winnfield, for plaintiff-appellant.
Culpepper, Teat, Caldwell & Avery by James D. Caldwell, Jonesboro, for defendants-appellees.
Before PRICE, MARVIN and JASPER E. JONES, JJ.
PRICE, Judge.
Plaintiff, Winn State Bank and Trust Company, appeals a judgment in favor of defendant on his reconventional demand in an action originally instituted by plaintiff upon a promissory note executed by defendants, *288 Paul Browning and Kevin Browning.
The record reveals that Paul Browning was in the logging business under the name "Browning Wood Haulers" in Winn Parish, Louisiana. In 1979, Browning obtained a contract with Willamette Industries to haul logs. In order to service the contract it was necessary that Browning purchase additional equipment. Paul Browning, accompanied by his son, Kevin Browning, went to the plaintiff-bank to obtain a loan so as to enable him to purchase the needed equipment. Kevin Browning introduced his father to Mr. Dan Bowker, president of the plaintiff-bank.
During this initial meeting, Mr. Bowker and Paul Browning discussed the preliminary details of the loan. Mr. Browning was advised that collateral was necessary to secure the loan and that accident and health insurance (hereinafter referred to as disability insurance) and life insurance were available. The parties briefly discussed Paul Browning's state of health and the possibility that he would not be able to qualify for disability insurance.
Paul Browning used his home and surrounding acreage as collateral to secure the loan. Mr. Browning and his wife, Gloria Browning, signed a mortgage on the property for this purpose a few days after this meeting.
On June 5, 1979, Paul Browning again met with Dan Bowker to finalize the loan and to sign the promissory note. Kevin Browning was not present at this meeting. Mr. Bowker referred Mr. Browning to Mr. Cooper Little for final processing of the loan. Mr. Little drew up the note and obtained Mr. Browning's signature. Mr. Browning was given a copy of this note. The loan proceeds in the amount of twenty-two thousand dollars ($22,000) were placed into a checking account at that time. Kevin Browning later signed this note and an application for disability insurance around June 20, 1979.
In November 1979, Mr. Browning became ill and was subsequently hospitalized with a rather serious condition. When defendant later made inquiries at the bank as to disability insurance to cover the payments due under the loan, he was advised that such insurance did not exist. On August 26, 1981, plaintiff-bank filed suit on the promissory note seeking to recover the unpaid balance on the loan in the amount of twenty-three thousand fifty-seven and 38/100 dollars ($23,057.38), stating that the installment due on May 15, 1981 had not been paid. Defendants, Paul and Kevin Browning, filed a reconventional demand claiming that they were damaged by the plaintiff-bank's failure to secure disability insurance for Paul Browning.
At the trial on the merits, the parties stipulated as to the genuineness of signatures and the balance due on the note but the testimony of the parties as to the existence of disability insurance was quite conflicting.
Paul Browning testified that at the initial meeting, he advised Mr. Bowker that he had experienced medical problems with high blood pressure in the past. Mr. Bowker told him that there may be some problem in obtaining the disability insurance. However, regarding the later meeting when the note was actually confected, Mr. Browning testified that Mr. Little advised him that he should get as much insurance as possible and that there would be no problem in obtaining disability insurance. Mr. Browning testified that he then told Mr. Little that he wanted the insurance if he could get it. Mr. Browning stated that he was not aware that his son, Kevin Browning, was required by the bank to sign the note.
Mr. Browning stated that in November 1979, he became ill and was later hospitalized. Browning testified that he was diagnosed as having blastomycosis, a woods fungus. Browning underwent surgery and a substantial portion of his left lung was removed. Browning stated he remained in the hospital for approixmately thirty-eight days and underwent chemotherapy treatments at the hospital as an outpatient for approximately thirty days after his release. Mr. Browning testified that he was not *289 aware that he did not have disability insurance until his wife made inquiries at the bank after the onset of his illness and subsequent hospitalization.
At the trial there was absolutely no expert medical testimony as to the nature of Mr. Browning's illness and resulting alleged disability.
Mr. Bowker testified that Paul and Kevin Browning were aware from the preliminary discussions that Kevin was intended to be a co-signer on the note. Mr. Bowker stated that he was under the impression that Paul and Kevin Browning were going into business together and he felt that Kevin would be the strength behind the note. Mr. Bowker stated that due to Paul Browning's previous health problems, he did not feel disability insurance could be obtained for him and therefore made the decision to attempt to place the insurance coverage upon Kevin. He further testified that he instructed Mr. Little that both Kevin and Paul Browning were to sign the note and that the disability insurance was to be placed on Kevin Browning.
Mr. Cooper Little, former vice-president of the plaintiff-bank, testified that Mr. Bowker gave him instructions as to how to properly draw up the note in the presence of Mr. Browning. Little stated that he was instructed that both parties were to sign the note and that the disability insurance was to be placed upon Kevin Browning.
Kevin Browning testified that he simply accompanied his father to the bank in order to introduce him to Mr. Bowker. Kevin stated he was present at this initial meeting and that he was not questioned as to his health, credit history, or collateral for the loan nor was he informed that he was required to sign the loan. Kevin testified that sometime later he signed papers at the bank in connection with another loan but was not aware he had signed the note in dispute and an application for insurance.
It was established that the bank did receive commissions on the insurance purchased in connections with loans.
The note in the instant case is in a standard printed form payable in eighty-four installments commencing on July 15, 1979. The note shows that a premium in the amount of two thousand five hundred eighty-five and 31/100 dollars ($2,585.31) was charged for accident and health insurance. The note contains an option line to request such insurance but this line was not signed by either party. Paul Browning signed the note on line 1 with Kevin's signature on line 2. The note provides that "[u]nless other wise indicated, credit life insurance and credit accident and health insurance, if provided, insures only the maker signing on line (1)."
The evidence shows that Mr. Browning received a letter from the bank dated March 30, 1981. The letter stated in pertinent part that the bank had failed to have defendant sign the option line for accident and health insurance. In order to have the insurance to remain in force, defendant was to sign the letter and return it within a forty-five day time limit. Mr. Browning signed the letter indicating that he desired the insurance and it was promptly returned to the bank. The testimony established that this letter was sent in compliance with a FDIC examination wherein it was discovered that certain notes were lacking an option line for insurance or a signature on this option line if one was contained in the note. The bank employees were instructed to briefly examine the face of the notes for this discrepancy and the files attached to the notes were not examined. As Mr. Browning had signed the note on the line 1 but there was no signature on the insurance option line, the note appeared to be deficient and the letter was routinely sent to him in conformance with the FDIC requirements.
The trial court found that Paul Browning was covered by the disability insurance. The court noted that a premium for the insurance was charged on the face of the note and was financed as part of the loan. The note was signed on line 1 by Paul Browning and provided that the insurance would insure only the maker signing on line 1 unless otherwise indicated. Paul *290 Browning owned the collateral which was mortgaged to secure the loan and although Kevin Browning did not sign the note until a later date, Mr. Browning received the loan proceeds on June 5, 1979.
Having determined that the defendant, Paul Browning, was entitled to disability insurance under the terms of the note, the court concluded that plaintiff-bank was liable for all damages sustained by defendant as a result of plaintiff-bank's failure to obtain such insurance.
In ascertaining the amount of damages, the court noted that the lack of expert testimony made a determination of the length of Mr. Browning's disability difficult. Examining the defendant's testimony, the court noted that as a large portion of his left lung was removed, Paul Browning was "obviously seriously ill." The court stated that "[l]ogging is commonly done in dry weather and great clouds of dust raised by such operations ... are obvious to any traveler in Winn Parish. Dust prevents Browning from working. Thus, I find that Browning was totally unable to return to the logging business at any time since he became ill. The evidence leaves no doubt that logging was his occupation at the time of the loan and would have been his occupation during the term of the loan." The court then found that the damage sustained by Paul Browning was the balance due on the note.
The only issues before this court on appeal are:
(1) Whether the trial court was correct in finding that Paul Browning was entitled to coverage by disability insurance; and
(2) Whether the trial court was correct in finding that the damages sustained by defendant were the balance due upon the note, that is, he would be disabled for the remainder of the loan term.
Upon a review of the record, it is the opinion of this court that the trial court was correct in finding that Paul Browning should have had disability insurance coverage.
Although the testimony is conflicting, it appears that when Paul Browning signed the note on June 5, 1979, he was under the impression that he would have disability insurance.
In construing contracts, it is well established that "... the contract itself is the best evidence of the relationship existing between the parties and the true intention of the parties is to be sought and determined by the language of the contract when the wording is clear." Guillory v. Grain Dealers Mutual Insurance Co., 203 So.2d 762 (La.App. 3d Cir.1967) at page 763. It is also well recognized that a contract "... is to be most strictly construed against the party who prepared it." Lawson v. Martin Timber Company, 238 La. 467, 115 So.2d 821 (1959) at page 828 and numerous citations therein.
The face of the note clearly supports a finding that Browning should have been the insured party. Paul Browning signed the note on line 1. The note specifically stipulated that the accident and health insurance would insure only the maker signing on line 1 unless otherwise indicated. There were no other provisions contained in the note to indicate that Paul Browning was not the insured. A premium was charged for the insurance and was financed as part of the loan. The content of the note left no doubt that Paul Browning was intended to be the insured. This conclusion is further supported by the letter which was sent to the defendant by the plaintiff-bank in 1981 to comply with the FDIC examination.
In a very similar recent case, this court noted the following burden upon a party seeking to recover losses arising from the failure of an insurance agent to obtain insurance coverage:
(1) an undertaking or agreement by the insurance agent to procure insurance;
(2) failure of the agent to use reasonable diligence in attempting to place the insurance and failure to notify the client promptly if he has failed to obtain the insurance; and
*291 (3) the actions of the agent warranted an assumption by the client that he was properly insured.
Bonner v. Bank of Coushatta, 445 So.2d 84 (La.App. 2d Cir.1984) at p. 87 and numerous citations therein. See also Boothe v. American Assurance Co., 327 So.2d 477 (La.App. 1st Cir.1976) and American Bank and Trust Co. of Houma v. Deroche, 357 So.2d 1176 (La.App. 1st Cir.1978).
In the instant case, as in Bonner v. Bank of Coushatta, supra, the note clearly contained an agreement between the plaintiff-bank and the defendant, Paul Browning, that he would have disability insurance. It is clear from the evidence that Mr. Bowker did not even attempt to place the insurance upon Paul Browning. A premium was paid for the insurance and the note, a copy of which Mr. Browning received, indicated that he was in fact insured. Thus, defendant met his burden of proof regarding the issue of insurance coverage.
However, it is not sufficient that Paul Browning merely show that the plaintiff-bank breached its duty to obtain disability insurance on his behalf. In order to recover, defendant must prove that he was damaged by the failure of the bank to secure such insurance. See American Bank and Trust Co. of Houma v. Deroche, supra.
The trial court found that Browning was seriously ill and totally unable to return to the logging business. The court then awarded damages in the amount of the balance remaining due on the promissory note.
In order to prove that the failure of the plaintiff-bank to obtain insurance damaged him, it was incumbent upon defendant to prove two essential elements. First, the likely content of the policy which should have been issued in favor of defendant and the definition of disability contained therein, and second, that defendant, Paul Browning, is disabled as defined by the policy and will continue to be so disabled for the remainder of the loan term.
At trial, no evidence was introduced as to the likely content of the insurance policy which should have been issued to defendant. It is obvious why the defendant must prove the likely content of the policy and the definition of disability therein. It is well known that there is no standard definition of disability. Rather, the definition of disability can range from the inability to perform one specific occupation to the inability to perform any occupation to which the claimant is reasonably suited by education, training, or experience. In the absence of such evidence, it would be engaging in pure speculation for this court to determine that Mr. Browning was "disabled" under the terms of his particular policy.
Mr. Browning could have easily met this burden of proof by simply issuing a subpoena to the bank or to the insurance company the bank normally deals with, or both, for a copy of the standard policy.
Assuming that defendant had proven the likely content of the policy, the record does not contain sufficient evidence as to defendant's alleged disability.
While the record reveals that defendant was treated by several physicians for his illness, none of these physicians were called to testify on behalf of defendant. Thus, there was no expert medical testimony regarding Mr. Browning's illness and alleged disability.
The sole evidence presented at trial as to the illness and resulting alleged disability was the testimony of defendant, Paul Browning. Browning testified that he was diagnosed as having blastomycosis which necessitated removal of a substantial portion of his left lung.
In essence, defendant's testimony was that he has not been able to work in the logging business since the onset of his illness as the dust aggravates his condition. Although this testimony may be sufficient to prove a disability, since the likely content of the policy was not proven, it is impossible to ascertain from the record whether this illness would have come within the confines of this policy. Furthermore, *292 this testimony does not establish that Browning will be unable to return to the logging business at a future date. Finally, the record established that Mr. Browning had engaged in various occupations in the past and there is no evidence as to whether he will be unable to return to one of these former occupations.
La.C.C.P. Art. 2164 provides that an "... appellate court shall render any judgment which is just, legal and proper upon the record on appeal." It is well settled that an appellate court is empowered under this article to remand a case to the trial court for the taking of additional evidence where it is necessary to reach a just decision and to prevent a miscarriage of justice. See Succession of Brice, 390 So.2d 905 (La.App. 2d Cir.1980), Peterson v. Herndon, 235 So.2d 178 (La.App. 2d Cir.1970), McCullough v. Hart, 424 So.2d 531 (La.App. 5th Cir.1982), Guillott v. Guillott, 326 So.2d 551 (La.App. 3d Cir. 1976), Salley Grocer Co. v. Hartford Accident & Indem. Co., 223 So.2d 5 (La.App. 2d Cir.1968), Hamilton v. Hamilton, 258 So.2d 661 (La.App. 3d Cir.1972), Herbert v. Travelers Indemnity Co., 255 La. 645, 232 So.2d 463 (1970), and Emery v. Cabral, 400 So.2d 340 (La.App. 4th Cir.1981).
"Although a court should always remand a case whenever the nature and extent of the proceedings dictate such a course ... whether or not any particular case should be remanded is a matter which is vested largely within that court's discretion and such power to remand should be exercised only according to the peculiar circumstances presented in each individual case."
Jones v. LeDay, 373 So.2d 787 (La.App. 3d Cir.1979) at p. 789, and cases cited therein.
However, while the appellate court is empowered to remand a case for the introduction of additional evidence, this procedure must be sparingly exercised. Jones v. LeDay, supra, White v. Johns-Manville Sales Corp., 416 So.2d 327 (La.App. 5th Cir.1982), McKinney v. Levy, 212 So.2d 279 (La.App. 3d Cir.1968), Von Cannon v. State, Department of Highways, 306 So.2d 437 (La. App. 3d Cir.1975) and numerous citations therein. The reason behind a party's failure to produce available evidence material to a proper decision is not determinative of whether the power to remand shall be exercised. See Arkansas Louisiana Gas Co. v. Morehouse Realty Co., 126 So.2d 830 (La. App. 2d Cir.1961), Bodin v. Bodin, 392 So.2d 759 (La.App. 3d Cir.1980) and numerous citations therein.
In the instant case, the record is deficient as to the likely content of the insurance policy and definition of disability therein which should have been issued in favor of defendant, Paul Browning. Further, the record does not contain sufficient expert evidence as to defendant's illness and alleged resulting disability. We find that this matter cannot be properly resolved without additional evidence on these particular issues.
For these reasons, the judgment appealed from is reversed and set aside and it is now ordered that this, matter be remanded to the trial court for further proceedings consistent with law and the views expressed above. The costs of this appeal are assessed equally between the plaintiff, Winn State Bank and Trust Company, and defendants, Paul and Kevin Browning.
REVERSED AND REMANDED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599349/ | 729 So.2d 83 (1999)
Glinda D. BRASFIELD
v.
James Michael BRASFIELD.
No. 98-CA-1021.
Court of Appeal of Louisiana, Fifth Circuit.
February 23, 1999.
*84 Leonard H. Rubenstein, New Orleans, LA, for Plaintiff-Appellee.
Linda Davis-Short, Nelson J. Cantrelle, Jr., Gretna, LA, for Defendant-Appellant.
Panel composed of Judges CHARLES GRISBAUM, Jr. and EDWARD A. DUFRESNE, Jr., and THOMAS C. WICKER, Jr., J. Pro Tern.
DUFRESNE, Judge.
The defendant, James Michael Brasfield, appeals the judgment of the trial court ordering him to pay past due child support. For the reasons set forth herein, we affirm in part and vacate in part.
Glinda Dale Brasfield, plaintiff/appellee, and James Michael Brasfield, defendant/appellant, were married to each other on September 16, 1987. Of this union, three children were born, namely, Jayme Brasfield, born March 20, 1976, Jessica Brasfield, born September 11, 1980, and James Michael Brasfield, II, born November 12, 1981. Glinda and James Brasfield were subsequently divorced by a judgment issued on January 10, 1990 in the Chancery Court of Lee County, Mississippi. In this judgment, custody of the children were awarded to Glinda Brasfield, subject to the reasonable visitation rights of James Brasfield. The judgment also ordered James Brasfield to pay child support in the amount of $450.00 per month until the youngest child reached the age of twenty-one years, married, or became emancipated, or until further order of a court.
Pursuant to a petition filed by Glinda Brasfield, the divorce judgment was recognized and made executory in the Twenty-Fourth Judicial District Court for the Parish of Jefferson on March 13, 1998. At the same time, Mrs. Brasfield requested the court to fix the amount of any past due child support, make the judgment for arrearages executory, and issue a wage assignment. The motion for past due child support came for hearing on May 11, 1998, and was thereafter taken under advisement by the trial judge. After considering the evidence presented, the court rendered judgment on July 27, 1998, in favor of plaintiff, Glinda Brasfield, in the amount of $21,550.00 for past due child support through May 11, 1998, together with legal interest from date of judicial demand, and all costs of the proceedings. From this judgment, James Brasfield now appeals.
On appeal, Mr. Brasfield argues that he and his former wife had entered into an agreement to modify or terminate the child support obligation and therefore, the trial judge erred in ordering him to pay past due child support. Mr. Brasfield further argues that at the very minimum, the trial judge should have found that an implied agreement existed between the parties during the time that he had physical custody of the children, and thus, the trial judge erred in failing to give him credit for those time periods.
The general rule in Louisiana is that a child support judgment remains in full force and effect in favor of the party to whom it is awarded until that judgment is modified or terminated by the court. Fouquet v. Fouquet, *85 442 So.2d 787 (La.App. 5 Cir.1983). However, our courts have recognized that a judgment awarding child support can be extrajudicially modified by agreement of the parties. Such an agreement must meet the requisites of a conventional obligation and must foster the continued support and upbringing of the child. Dubroc v. Dubroc, 388 So.2d 377 (La.1980); Palmer v. Palmer, 95 0608 (La.App. 1 Cir. 11/9/95), 665 So.2d 48.
The burden of proof is upon the person seeking to modify his obligation. There must be a clear showing that the parties agreed to the change and the change must not be detrimental to the child. Timm v. Timm, 511 So.2d 838 (La.App. 5 Cir. 1987). Failure to protest or acquiesce in a unilateral reduction does not defeat an action for arrearages or amount to a waiver. New v. New, 93-702 (La.App. 5 Cir. 1/25/94), 631 So.2d 1183.
Generally, the only way to satisfy an obligation to pay child support is to pay the party to whom it is awarded. However, courts have held that child support can be suspended by implied agreement, where it is found that the mother delivered the physical custody of the children to the father, even though she did not specifically agree to the suspension of the child support payments. Goss v. Goss, 95-1406 (La.App. 3 Cir. 5/8/96), 673 So.2d 1366. Whether there exists an agreement between parents to suspend or modify support payments is a question of fact. The trial court is vested with great discretion in determining factual matters; in the absence of manifest error, its decision will not be overturned. Tuey v. Tuey, 546 So.2d 235 (La.App. 2 Cir.1989); Timm v. Timm, supra.
In the present case, it is undisputed that Mr. Brasfield did not pay the amount of child support ordered in the May 1990 judgment. However, there was much conflicting evidence presented to the trial judge regarding the existence of an extrajudicial agreement to modify the support award, the amount of child support owed, and the living arrangements of the parties.
At the May 11, 1998 hearing, Mrs. Brasfield claimed that her former husband owed her $21,150.00[1] for past due child support. According to Mrs. Brasfield, this calculation was based on the amount owed for the past five years, from March 1993 through April 1998, and included credit for time that the children lived with their father as well as credit for payments that Mr. Brasfield had actually made. During her testimony, Mrs. Brasfield consistently denied that she had entered into any agreement with Mr. Brasfield to reduce the amount of support owed. Mrs. Brasfield admitted that there were certain time periods that the children lived with their father, but claimed that she continued to provide support for them, with the exception of a three month period in 1994.
In contrast to this testimony, Mr. Brasfield claimed that the parties did enter into extrajudicial agreements whereby child support would be suspended. According to Mr. Brasfield, he did not owe any child support for 1993 because the parties lived together in the same house, and in addition, he worked for her company without being paid. He claimed that it was verbally understood that they were a family and that he was not going to pay child support at this time. Also, he claimed that in 1994 he did not owe any child support because during part of the year they still lived together as a family and during the remainder of the year he was left there by himself with the kids. He also claimed that he signed the house over to his former wife for $10.00 with the understanding that he would not owe her anything including child support payments. Mr. Brasfield admitted that there were certain periods that the children lived with him; however, he claimed that the mother provided no support during those time periods and further that there was an agreement that when the children were living with him, he did not have to pay any child support.
*86 In addition to the testimony of Mr. and Mrs. Brasfield, two of their children were called as witnesses. James Brasfield, II, testified that he has been living with his father for about a week, and prior to that, he lived with his mother. At one point, he lived with his sister, Jayme, for about three months, at which time his mother helped with some of the expenses. James further testified that he heard conversations between his father and mother about an agreement whereby his father would not pay child support; however, he claimed that the agreement changed several times.
Jayme Brasfield Sapp, their daughter, testified that during the several months that her younger brother stayed with her, she received money from both her father and mother.
Faced with this conflicting evidence, the trial judge apparently accepted the testimony of Mrs. Brasfield that no extrajudicial agreement to modify child support had been entered into between the parties. The record reflects that the trial judge was not manifestly erroneous or clearly wrong in his finding. While we are sympathetic to Mr. Brasfield's situation and recognize the possibility that some discussions may have transpired regarding child support payments, we find, as apparently did the trial judge, that Mr. Brasfield simply did not meet his burden of proving that the parties clearly agreed to waive or otherwise modify the court ordered payments. In making this decision, we are mindful of the fact that the children lived with Mr. Brasfield during certain periods of time. Once again, however, the trial judge was faced with conflicting testimony about the family's living arrangements and the support provided during the time that the children stayed with their father. Recognizing a trial judge's great discretion in credibility determinations, we cannot say that the trial judge erred in failing to find that an implied agreement to suspend child support existed during the periods that the children lived with Mr. Brasfield. Moreover, we note that Mrs. Brasfield, in making her calculation of past due child support, claimed to have afforded Mr. Brasfield credit for a portion of the time that the children lived with him.
On appeal, Mr. Brasfield also complains that the trial court incorrectly calculated the amount of arrearages that he owed. He specifically contends that as a claim for past due child support prescribes in five years, the trial court erred in calculating arrearages retroactive to January 10, 1990, in the amount of $44,550.00. In the trial judge's reasons for judgment, he did refer to the total amount due under the 1990 judgment. The trial judge specifically stated as follows: "The total amount due to plaintiff under the terms of the Judgment dated January 10, 1990, less any credits to which the defendant may be entitled is $44,550.00 through the hearing date of May 11, 1998. The plaintiff has given the defendant a credit of $23,000.00, a substantially larger credit than the defendant could prove he was entitled. Therefore, this Court is of the opinion that plaintiff is entitled to a Judgment for past due support in the amount claimed, $21,550.00, through May 11, 1998." It is clear from the record that Mrs. Brasfield was seeking to collect arrearages from March 1993, as the support prior to that time was apparently obtained pursuant to a wage assignment. Although the amount given by the trial judge closely reflects the amount claimed by Mrs. Brasfield, we are uncertain to what extent the trial judge relied on the total amount due under the judgment in making his calculation. Accordingly, we feel compelled to remand the case for recalculation of the amount due from March 1993 through the date of the hearing, affording Mr. Brasfield the credits to which he is entitled.
Having addressed Mr. Brasfield's arguments, we now turn to an issue raised in appellee's brief. In the present case, the trial judge awarded Mrs. Brasfield the amount of past due child support as well as legal interest from date of judicial demand and all costs of the proceedings. In her appellate brief, Mrs. Brasfield contends that the trial court erred by not awarding her attorney's fees pursuant to LSA-R.S. 9:375 A. She requests that this court amend the judgment to fix costs and legal fees. However, appellee, Mrs. Brasfield, did not appeal from the judgment of the trial court, nor did *87 she file an answer to the appeal lodged by defendant in this court. Where a party neither answers an appeal nor cross-appeals, this court is precluded from reviewing that party's requested relief. LSA-C.C.P. art. 2133. Gottsegen v. Diagnostic Imaging Services, 95-977 (La.App. 5 Cir. 3/13/96), 672 So.2d 940, writ denied, 96-0707 (La.4/26/96), 672 So.2d 909. Accordingly, the issue raised by Mrs. Brasfield in her appellate brief is not properly before this court and cannot be addressed.
For the reasons set forth herein, we affirm the trial court determination that Mrs. Brasfield is entitled to past due child support; however, we vacate the amount of child support awarded and remand the matter for recalculation of the amount due in accordance with this opinion.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.
NOTES
[1] Mrs. Brasfield had calculated the amount of child support due through April of 1998 and did not include May. Calculating the amount due through May of 1998, the arrearages owed would actually be $21,600.00. When the trial judge issued the judgment, he apparently considered the amount of child support due through the date of the hearing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/552161/ | 919 F.2d 795
UNITED STATES, Appellant,v.Robert W. RUSSELL and Kevin M. Russell, Defendants, Appellees.
No. 90-1333.
United States Court of Appeals,First Circuit.
Heard Sept. 5, 1990.Decided Nov. 26, 1990.
Stephen A. Higginson, Asst. U.S. Atty., Washington, D.C., with whom Wayne A. Budd, U.S. Atty., and Martin F. Murphy, Asst. U.S. Atty., Boston, Mass., were on brief, for appellant.
Maurice R. Flynn, III, Boston, Mass., by appointment of the Court, for defendant, appellee, Robert W. Russell.
John C. Doherty, Andover, Mass., on brief, for defendant, appellee, Kevin M. Russell.
Before BREYER, Chief Judge, VAN GRAAFEILAND,* Senior Circuit Judge, and SELYA, Circuit Judge.
VAN GRAAFEILAND, Circuit Judge.
1
The Government appeals from a pretrial suppression order of the United States District Court for the District of Massachusetts. For the reasons that follow, we reverse.
2
On November 6, 1989 Robert Russell and his brother, Kevin Russell, both of whom were convicted felons, were indicted by a federal grand jury for possessing firearms in violation of 18 U.S.C. Sec. 922(g). Count I of the four count indictment charged both defendants with jointly possessing two handguns on June 30, 1989. Count II charged Robert with possession on July 14, 1989. Count III charged him with possession on August 14, 1989. Count IV charged Kevin with possession on October 1, 1989. Motions to suppress evidence of the firearms charged in each count were denied with respect to Counts II and III but were granted with respect to the gun charged in Count IV and one of the two guns charged in Count I.
COUNT I
3
Shortly after midnight on the morning of June 30, 1989, a Massachusetts State Trooper stopped an automobile because its windshield was cracked and the window on the driver's side was smashed. Kevin Russell was the driver; Robert Russell was a passenger. Neither of them was the registered owner. In the routine process of checking identifications, the trooper discovered a revolver on the floor of the car. He arrested both brothers and placed them in the back seat of his car. Four days later, while the trooper was cleaning his car, he discovered another gun under the back seat.
4
Both brothers moved to suppress the evidence of the two guns on the ground that the original search and seizure on June 30 was unlawful and the discovery of the second gun was "fruit of the poisonous tree." The trooper testified at the hearing concerning the arrests and the finding of the guns. The substance of his testimony concerning the second gun was that there was no gun under the back seat of his cruiser prior to his arrests of the Russells and that no one had access to the back seat during the period between its occupancy by the Russells and the discovery of the second gun. The district court denied the motion with respect to the first gun but granted it with respect to the second gun on the sua sponte ground that "there [was] no evidence connecting that firearm with either of the defendants."
5
The district court gave no explanation for its suppression of evidence concerning the second gun other than that above quoted, and none is discernable from the defendants' motion papers, which argued for suppression only on a fruit of the poisonous tree basis. In our view, if the testimony of the trooper is accepted as true, his discovery of the second gun under the back seat of his cruiser is strongly probative of the Government's contention that the defendants put it there. Under appropriate circumstances, circumstantial evidence may be given the same weight as direct evidence. Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137-38, 99 L.Ed. 150 (1954); Joseph v. Fair, 763 F.2d 9, 10 (1st Cir.1985). We can only conclude, therefore, that the district court believed that the trooper's testimony lacked credibility. Counsel for the Russells obviously reached the same conclusion. Referring to the trooper, Kevin Russell's counsel argues that "although the District Court did not state in his [sic] order that he specifically disbelieved the witness (presumably out of kindness) there is ample support in the record to support his having not believed the witness." Brief of Kevin Russell at 5. The weakness in this argument is that it is the belief of the jury, not that of the judge, that is determinative on the issue of guilt. See Burks v. United States, 437 U.S. 1, 16-17, 98 S.Ct. 2141, 2149-50, 57 L.Ed.2d 1 (1978); United States v. Barletta, 652 F.2d 218, 219 (1st Cir.1981).
6
Although Fed.R.Evid. 104(a) provides that preliminary questions concerning the admissibility of evidence shall be determined by the court, this rule is not without its limits. Fed.R.Crim.P. 12(b) provides that any defense, objection or request "which is capable of determination without the trial of the general issue" may be raised before trial by motion. As a general rule, when a pretrial motion raises a question of fact that is intertwined with the issues on the merits, resolution of the question of fact thus raised must be deferred until trial. United States v. Knox, 396 U.S. 77, 83 & n. 7, 90 S.Ct. 363, 367 & n. 7, 24 L.Ed.2d 275 (1969); see United States v. Mandujano, 425 U.S. 564, 585 n. 1, 96 S.Ct. 1768, 1781 n. 1, 48 L.Ed.2d 212 (1976) (Brennan, J., concurring). This is particularly true where the question of fact is one involving credibility. See Bowden v. McKenna, 600 F.2d 282, 284-85 (1st Cir.), cert. denied, 444 U.S. 899, 100 S.Ct. 208, 62 L.Ed.2d 135 (1979).
7
The trooper's testimony concerning his finding of the second gun clearly was relevant. "[I]t is universally recognized that evidence, to be relevant to an inquiry, need not conclusively prove the ultimate fact in issue, but only have '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.' " New Jersey v. T.L.O., 469 U.S. 325, 345, 105 S.Ct. 733, 744-45, 83 L.Ed.2d 720 (1985) (quoting Fed.R.Evid. 401); see also Bowden v. McKenna, supra, 600 F.2d at 284 & n. 8. We find no merit in appellees' contention that the admission of testimony concerning the second gun would be prejudicial. If by the word "prejudicial" appellees mean "detrimental" or "damaging", they are of course correct. Much of the Government's evidence in a criminal case is damaging to the defendant; that is why it is offered. Evidence should be precluded only where it is unfairly prejudicial. See United States v. Devin, 918 F.2d 280, 288 (1st Cir.1990).
8
In sum, we hold that the district court erred in precluding the Government from introducing evidence concerning the second gun.
COUNT IV
9
During the time at issue herein, Kevin Russell's father was the owner of a house at 24 Granville Avenue in the City of Medford, Massachusetts. From time to time, Kevin had lived there. Serious differences arose between Kevin and his father, as a result of which the Somerville District Court issued an order on September 11, 1989 directing Kevin to refrain from abusing his father and to leave and remain away from the Granville Avenue house.
10
On October 1, 1989, while William Fargo, a Medford police officer, was on duty, he heard the police dispatcher direct another officer to proceed to 24 Granville Avenue because of a reported fight at that address. Fargo knew that the house was owned by Kevin Russell's father, and he also was familiar with Kevin Russell's criminal background. Accordingly, he called the officer to whom the direction had been given and told him to wait until Fargo "backed him up." Fargo told the officer: "You know, there are guns involved down there. He is a shooter." En route to the Granville address, Fargo was informed of the restraining order by the police dispatcher.
11
When Fargo arrived at the Russell house, Kevin's father told him that the father and Kevin had had an altercation, that Kevin had violated the restraining order, and that Kevin had broken into the house. Fargo immediately set out to find Kevin. When he found him, he took from him a tote bag that contained a loaded gun. Fargo then arrested Kevin for violating the restraining order and unlawfully possessing the gun.
12
Kevin moved to suppress evidence of the gun. At the suppression hearing, Kevin testified that he had not been served with a copy of the restraining order, and the district court so found. The district court then stated that "[i]n order for Kevin Russell to be lawfully arrested for violating a restraining order, the elements of a valid restraining order must exist." The district court concluded that "as a matter of law" Kevin's arrest was unlawful and the evidence of the gun seized by Fargo had to be suppressed. We disagree.
13
The First Circuit, in reviewing findings of probable cause, has often deferred to a district court's determination rather as if the finding in question were factual, subject to a "clearly erroneous" standard of review. See, e.g., United States v. Wiseman, 814 F.2d 826, 828 (1st Cir.1987); United States v. Moore, 790 F.2d 13, 15 (1st Cir.1986).1 Nonetheless, this circuit has also said that if a district court bases its ultimate factual finding on an erroneous legal principle, it will exercise a full power of review. United States v. Cochrane, 896 F.2d 635, 639-40 (1st Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 2627, 110 L.Ed.2d 647 (1990); United States v. LaFrance, 879 F.2d 1, 4 (1st Cir.1989).
14
Because the elements of probable cause have been summarized by this court on numerous occasions, e.g., United States v. Jimenez, 894 F.2d 1, 4-5 (1st Cir.1990); United States v. Jorge, 865 F.2d 6, 9 (1st Cir.1989), cert. denied, 490 U.S. 1027, 109 S.Ct. 1762, 104 L.Ed.2d 198 (1990), they need not be restated here. We emphasize only the constantly repeated admonition that the concept is based upon reasonable probabilities, not certainties, and that "[e]vidence required to establish guilt is not necessary." Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959); see also Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). It is quite apparent that the court below confused the issue of whether Kevin Russell violated the restraining order with the issue of whether Officer Fargo had probable cause to believe that he did. Accordingly, whether the district court's order is treated as clearly erroneous or simply erroneous, it cannot stand.
15
The order of the district court suppressing evidence of the second gun in Count I and the sole gun in Count IV is
16
Reversed.
*
Of the Second Circuit, sitting by designation
1
Cf. United States v. Sophie, 900 F.2d 1064, 1072 (7th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 124, 112 L.Ed.2d 92 (1990); United States v. Bowling, 900 F.2d 926, 930 (6th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 109, 112 L.Ed.2d 79 (1990); United States v. Patrick, 899 F.2d 169, 171 (2d Cir.1990); United States v. Maragh, 894 F.2d 415, 417-18 (D.C.Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 214, 112 L.Ed.2d 174 (1990); United States v. McKinnell, 888 F.2d 669, 672 (10th Cir.1989); United States v. Campbell, 843 F.2d 1089, 1092 (8th Cir.1988); United States v. Alexander, 835 F.2d 1406, 1408 (11th Cir.1988); United States v. Maybusher, 735 F.2d 366, 371 & n. 1 (9th Cir.1984), cert. denied, 469 U.S. 1110, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985); United States v. Belle, 593 F.2d 487, 497 & n. 14 (3d Cir.), cert. denied, 442 U.S. 911, 99 S.Ct. 2825, 61 L.Ed.2d 277 (1979); Graves v. Estelle, 556 F.2d 743, 746 (5th Cir.1977) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2440955/ | 970 N.E.2d 630 (2009)
386 Ill. App. 3d 1133
PEOPLE
v.
HARRIS.
No. 4-07-0821.
Appellate Court of Illinois, Fourth District.
February 3, 2009.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2586625/ | 226 P.3d 780 (2010)
168 Wash.2d 1004-1010
STATE
v.
MORIMOTO.
No. 83638-8.
Supreme Court of Washington, Department I.
February 9, 2010.
Disposition of Petition for Review Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599298/ | 729 So. 2d 900 (1998)
Terry ANDERSON
v.
STATE.
No. CR-95-0768.
Court of Criminal Appeals of Alabama.
May 8, 1998.
Opinion Overruling Rehearing August 28, 1998.
Certiorari Denied February 19, 1999.
*901 Michael Carl Shores, Birmingham, for appellant.
Bill Pryor, atty. gen., and Joseph G.L. Marston III, asst. atty. gen., for appellee.
Alabama Supreme Court 1972213.
LONG, Presiding Judge.
The appellant, Terry Anderson, was convicted of murder, a violation of § 13A-6-2, Ala.Code 1975. He was sentenced to life in prison.
Anderson, who was 17 years old at the time of the offense, contends that the trial court erred by denying his motion to suppress his custodial statement to police because he was not informed before making the statement that he had a right to communicate with his parent or guardian, as provided in Rule 11(B)(4), Ala.R.Juv.P.
Rule 11(B), Ala.R.Juv.P., enumerates the rights of a child who is in custody but has not yet been questioned (the so-called "SuperMiranda" rights).[1] It provides as follows:
"Before the child is questioned about anything concerning the charge on which the child was arrested, the person asking the questions must inform the child of the following rights:
"(1) That the child has the right to counsel;
"(2) That if the child is unable to pay a lawyer and if the child's parents or guardian have not provided a lawyer, one can be provided;
"(3) That the child is not required to say anything and that anything the child says may be used against the child;
"(4) That if the child's counsel, parent, or guardian is not present, then the child has a right to communicate with them, and that, if necessary, reasonable means will be provided for the child to do so."
Subsections (1), (2), and (3) of Rule 11(B) are "substantially the same as the warnings required in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)." Ex parte Whisenant, 466 So. 2d 1006, 1007 (Ala.1985). "In addition to the standard Miranda warnings, [subsection (4) mandates that] a juvenile must also be informed that he can communicate with a parent or guardian." Ex parte Whisenant, 466 So.2d at 1011 (Torbert, C.J., concurring in pertinent part). This court has long recognized the importance of affording children the additional right in Rule 11(B)(4):
"Informing the child of his right to communicate with a parent or guardian serves two important purposes. First, `[t]his simple warning will give the juvenile the opportunity to obtain the guidance necessary in order for him to evaluate his rights.' Ex parte Whisenant, 466 So.2d at 1012. (Torbert, C.J., concurring in pertinent part). Secondly, the rule recognizes that `the parent or guardian may be the conduit through which the juvenile secures an attorney.' Id."
Payne v. State, 487 So. 2d 256, 259 (Ala.Cr. App.1986), quoted in L.J.V. v. State, 545 So. 2d 240, 245 (Ala.Cr.App.1989).
"`The rationale of courts holding a child's request to see a parent equivalent to a request to see an attorney, ... is that, while an adult in trouble normally requests an attorney's assistance, a child *902 logically expresses his desire for help and his unwillingness to proceed alone by requesting a parent's presence.... [I]n the case of a child, the right to assistance of counsel is hollow unless a parent is present, for a parent is normally the child's only avenue through which to evaluate and exercise the right to counsel.'
"[Samuel M. Davis, Rights of Juveniles § 3.13 at 3-64.5 (2d ed.1991)]."
E.C. v. State, 623 So. 2d 364, 368 (Ala.Cr.App. 1992).
The incident in question, the shooting death of Montrell Tall, occurred on the afternoon of April 26, 1994. That evening, Birmingham police arrested Anderson and transported him to the station house, where he was questioned about his involvement in the shooting. Before being questioned, Anderson was informed of, and waived, the standard constitutional rights set forth in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). However, it is undisputed that Anderson was not informed that he had a right to communicate with his parent or guardian, as provided in Rule 11(B)(4), Ala.R.Juv.P. Anderson subsequently gave police a statement and answered their questions without contacting a lawyer or his parents and without having either a lawyer or his parents present. Anderson's statement, which the police recorded on audiotape, was the subject of a motion to suppress at his trial for the murder of Tall. The trial court denied Anderson's motion to suppress, and the audiotape containing his statement (State's Exhibit 14) was admitted into evidence and played for the jury during the state's case-in-chief.
In Ex parte Whisenant, supra, 466 So. 2d 1006, the Alabama Supreme Court held that the traditional exclusionary rule is applicable to all the provisions of what is now Rule 11(B), Ala.R.Juv.P. The Supreme Court further held that if any of the warnings set out in Rule 11(B) are omitted before custodial questioning takes place, including the warning that the child has the right to communicate with a parent or guardian, "the use in evidence of any statement given by the child is constitutionally proscribed." Id. at 1007. See also C.M.B. v. State, 594 So. 2d 695 (Ala. Cr.App.1991); M.B.M. v. State, 563 So. 2d 5 (Ala.Cr.App.1989); Chambers v. State, 497 So. 2d 607 (Ala.Cr.App.1986).
In denying Anderson's motion to suppress his statement, the trial court ruled that it was sufficient, for purposes of admissibility, that Anderson had been informed of and had waived the standard Miranda rights before giving the statement. In so ruling, the trial court accepted the state's argument that Rule 11(B)(4) did not apply to Anderson because of the enactment of § 12-15-34.1, Ala. Code 1975, 12 days before the offense was committed.[2] Section 12-15-34.1 automatically removes from the jurisdiction of the juvenile court a juvenile age 16 or over who is alleged to have committed any one of certain enumerated serious offenses. See § 12-15-34.1(a)(1) through (6), Ala.Code 1975. These offenders are now treated as adults.
For purposes of Anderson's case, the pertinent portions of § 12-15-34.1 provide:
"(a) Notwithstanding any other provision of law, any person who has attained the age of 16 years at the time of the conduct charged, which if committed by an adult would constitute any of the following, shall not be subject to the jurisdiction of juvenile court but shall be charged, arrested, and tried as an adult:
". . . .
"(2) A Class A felony.
"(3) A felony which has as an element thereof the use of a deadly weapon.
"(4) A felony which has as an element thereof the causing of death or serious physical injury."
The offense for which Anderson was charged clearly met several of the criteria for automatic removal under § 12-15-34.1, and the record supports Anderson's removal from the juvenile system and placement within the jurisdiction of the adult system under § 12-15-34.1: Anderson was 17 years old at the time of the alleged offense and when he was taken into custody; he was charged with the Class A felony of murder (see § 13A-6-2(c), *903 Ala.Code 1975); and the victim was shot to death with a handgun. However, we cannot agree with the state that the rights granted to Anderson under Rule 11(B) were extinguished merely because he was alleged to have committed one of the serious offenses enumerated in § 12-15-34.1, which resulted in his automatic placement within the jurisdiction of the adult system.
In Ex parte Jackson, 564 So. 2d 891 (Ala. 1990), the Alabama Supreme Court addressed the admissibility in an adult criminal prosecution of the custodial statement of a juvenile where the police, before obtaining the statement, had failed to inform the juvenile of his right under what is now Rule 11(B)(4) to consult with his parents. In holding that the juvenile's statement should have been suppressed in the criminal prosecution, the Supreme Court expressly rejected the state's argument that the trial court's determination that the juvenile was to be tried as an adult "cured" any error committed when the juvenile was not advised of his right to consult with his parents. Ex parte Jackson, 564 So.2d at 893. The Supreme Court's holding in Ex parte Jackson made clear that the exclusionary rule is equally applicable whether the state seeks to admit a juvenile's custodial statement at a transfer hearing in the juvenile court, see Ex parte Whisenant, supra, 466 So. 2d 1006, or at a criminal prosecution of the juvenile in the circuit court. Although a juvenile being tried in the circuit court may otherwise be treated as an adult, "[p]ublic policy, in addition to the constitutional requirements," supports the requirement that the juvenile be informed of his or her rights pursuant to Rule 11(B)(4). See Ex parte Jackson, 564 So.2d at 893.
Although Rule 11(B) is part of the Alabama Rules of Juvenile Procedure, "which govern the procedure for all matters in the juvenile court," Rule 1(A), Ala.R.Juv.P., it contains no limitation mandating its applicability only to proceedings in the juvenile court. Indeed, the holding in Ex parte Jackson clearly established that Rule 11(B) applies, in certain cases, to proceedings in the circuit court. The admissibility of extrajudicial statements by juveniles are subject to "the requirements of the Constitution and the prevailing case law as expressed by the appellate courts." Rule 21, Ala.R.Juv.P. Since Ex parte Jackson, this court has consistently recognized that the rights set forth in Rule 11(B), Ala.R.Juv.P., apply to juveniles regardless of which forum they may find themselves inthe juvenile court or the circuit courtand we have set aside convictions where custodial statements by juveniles obtained in violation of Rule 11(B)(4) were admitted in evidence at the criminal prosecutions of juveniles. See Smith v. State, 623 So. 2d 369 (Ala.Cr.App.1992), cert. denied, 510 U.S. 1030, 114 S. Ct. 650, 126 L. Ed. 2d 607 (1993); and Weaver v. State, 710 So. 2d 480 (Ala.Cr.App.1997).
Although we have referred to "juveniles" heretofore in this opinion, properly speaking, Rule 11, Ala.R.Juv.P., provides for the "rights of the child." By its own terms, Rule 11(B) applies where a "child" is taken into custody and questioned by law enforcement authorities. The Alabama Rules of Juvenile Procedure do not define the term "child." However, that term is defined by statute as "[a]n individual under the age of 18, or under 19 years of age and before the juvenile court for a matter arising before that individual's 18th birthday." § 12-15-1(3), Ala.Code 1975. The rights set forth in Rule 11(B) belong to any person who is defined by statute as a "child" when taken into custody; those rights are not dependant upon the forum in which the child may ultimately be called upon to answer charges. See Burks v. State, 600 So. 2d 374, 378 (Ala. Cr.App.1991).
We find nothing in the language of § 12-15-34.1 to support the state's contention that the rights granted a child pursuant to Rule 11(B) are extinguished by the fact that a child alleged to have committed an offense enumerated in that statute "shall be charged, arrested, and tried as an adult" and automatically subjected to the jurisdiction of the adult system. While § 12-15-34.1 clearly modifies the jurisdiction of the juvenile court and divests a child accused of committing a serious offense of the right to a transfer hearing in the juvenile court, see Price v. State, 683 So. 2d 44 (Ala.Cr.App.1996), it does not modify the statutory definition of the *904 term "child" and does not, by its terms, divest the child of the protections afforded by Rule 11(B). If the legislature, when enacting § 12-15-34.1, had intended to exclude from the statutory definition of "child" juveniles 16 years of age or older at the time of committing ari offense enumerated in the statute, we may presume that it would have done so. It did not. See In re D.H., 666 A.2d 462, 478 (D.C.1995) (juvenile's custodial statements were admissible in criminal prosecution where the statute authorizing the United States attorney to charge juvenile age 16 or over as an adult for enumerated serious offenses, D.C.Code § 16-2301(3)(A) (1989 Repl.), specifically provided that an individual charged with such a crime was excluded from the meaning of the term "child").
The terms "charged, arrested, and tried" as used in § 12-15-34.1 cannot feasibly be viewed as synonyms for "questioned." In many instances, an investigating officer will not know the charge that will ultimately be filed against a child who is being interrogated. It would be unreasonable, and arguably unworkable, to allow a determination of whether a juvenile has a right to the protections of Rule 11(B) (and whether the juvenile is therefore legally "a child") to be settled only after the juvenile has been interrogated and then charged with a specific offense. Indeed, Rule 11(B) specifically applies before any questioning takes place. Moreover, under the construction of § 12-15-34.1 urged by the state, where the police have obtained a juvenile's statement without informing the juvenile of his or her right to communicate with a parent or guardian, a prosecutor faced with deciding what charges to pursue against the juvenile is forced to file charges in the circuit court alleging an enumerated serious offense or else risk suppression of the statement in juvenile court for noncompliance with Rule 11(B). Thus, there may be a subtle inducement for prosecutors to "overcharge" juveniles. The state's construction would also directly contradict Ex parte Jackson, which counsels that an ultimate determination that a juvenile is to be tried as an adult has no bearing on the admissibility of a custodial statement obtained in violation of Rule 11(B). As we have indicated, our courts have consistently recognized that a juvenile "carries" certain rights as a child even after the juvenile has become subject to the procedures and penalties prescribed for adults. See Ex parte Jackson, 564 So. 2d 891; Smith, 623 So. 2d 369; and Weaver, 710 So. 2d 480. Moreover, surely a child accused of a serious offense, and therefore facing "automatic removal" to the jurisdiction of the circuit court for prosecution as an adult, has, when the child is facing custodial interrogation, at least as much need for parental guidance as a child accused of a less serious offense and who will be afforded a transfer hearing before any determination as to prosecution as an adult is made.
For the reasons we have set forth, we hold that Anderson's custodial statement was wrongfully admitted in evidence because Anderson was not informed that he had a right to communicate with his parent or guardian as provided in Rule 11(B)(4), Ala. R.Juv.P.
However, our analysis does not end there, for we must also determine whether receipt of Anderson's statement into evidence constituted harmless error. Coral v. State, 628 So. 2d 954, 973 (Ala.Cr.App.1992), aff'd, 628 So. 2d 1004 (Ala.1993), cert. denied, 511 U.S. 1012, 114 S. Ct. 1387, 128 L. Ed. 2d 61 (1994); and Smith v. State, 623 So.2d at 372. "In order for a constitutional error to be deemed harmless under Chapman [v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)], the state must prove beyond a reasonable doubt that the error did not contribute to the verdict. In order for the error to be deemed harmless under Rule 45, [Ala. R.App.P.,] the state must establish that the error did not injuriously affect the appellant's substantial rights." Coral, 628 So.2d at 973.
In this case, it was undisputed that Anderson shot and killed the victim, Montrell Tall. The state presented the eyewitness testimony of Tall's brother Marlin and of Tall's friend Devon Rice, who stated that Anderson and Tall had been involved in an argument on the day of the shooting; that Anderson drove past Tall's residence twice in his automobile before the shooting; that both times, Anderson and Tall exchanged angry words; *905 that on the second occasion, Anderson got out of his car and approached Tall as Tall stood in his yard; that the two continued their angry exchange; and that Anderson then brandished a handgun and fired several shots at Tall, one of which struck and killed Tall. Anderson testified in his own behalf and admitted that he shot Tall; however, he claimed that he shot Tall in self-defense because, he said, Tall pulled a shotgun on him and he feared that Tall was about to shoot him. The state's eyewitnesses maintained that Tall did not have a shotgun and that Anderson was the only person with a weapon during the altercation. Police investigators did not recover a shotgun from the crime scene. The defense presented testimony from Anderson's friend Michael Billingsley, who stated that he went to Tall's residence after police had arrived to investigate the shooting and that while standing outside the police tape marking the crime scene, he saw a shotgun under a shed next to Tall's driveway. Billingsley further testified that he spoke to Tall's brother Marlin later that evening and that during this conversation, Marlin told him that Tall had, as Anderson claimed, pulled a shotgun on Anderson and had tried to shoot him, but that the gun had malfunctioned. Billingsley did not notify the police of this information. Marlin Tall denied that he had such a conversation with Billingsley.
The version of the events that Anderson recounted in his custodial statement to police was similar in many respects to the account in his trial testimony. In his statement and at trial, Anderson indicated that he and Tall had at one time been friends; that their friendship had soured a little more than a year before the shooting; that he and Tall had had verbal and physical altercations during the period leading up to the shooting; that Tall had threatened to kill him on numerous occasions; that he drove past Tall's residence twice on the day of the shooting; and that he shot Tall only after Tall pulled a shotgun on him.
Although Anderson's custodial statement was generally consistent with his trial testimony, there were specific parts of his statement that differed from his testimony and that cut against his claim at trial that his shooting of Tall was in self-defense. Although some of these differences were subtle, the prosecutor used portions of Anderson's statement effectively against him when cross-examining Anderson and when making the state's closing arguments. Although not dispositive of our harmless error analysis, we note that the prosecutor, in seeking to have Anderson's statement allowed in evidence, urged the trial court that the statement was "very incriminating" and was a "key part" of the state's case. (R. 214.)
In one damaging portion of his statement, Anderson indicated that several months after his friendship with Tall had dissolved, after he had become frustrated and afraid as a result of Tall's repeated harassment of him and threats against him, he had paid some people to "do something" to Tall, but these people had failed to follow through and had not done anything. When cross-examining Anderson, and later in closing arguments, the prosecutor suggested that because the people Anderson had hired would not do to Tall what Anderson had paid them to do, Anderson purchased a handgun "from a source" for the purpose of "going to do it himself." (R. 320-21, 376-77.) Although Anderson's own trial counsel elicited Anderson's testimony on this subject before Anderson was cross-examined on the issue, Anderson's counsel arguably found it necessary to do so to soften the impact of the information, which was already in evidence through Anderson's custodial statement, and to seek to portray the matter in a light more favorable to Anderson by suggesting that Anderson's hiring people to "do something" to Tall was merely an indication of how afraid Anderson was that Tall intended to harm him. However, from this part of Anderson's custodial statement, particularly as it was portrayed by the prosecutor, a jury might reasonably have inferred that Anderson drove past Tall's residence on the day of the shooting "looking for trouble" and not, as Anderson maintained at trial, because Tall's residence was on the regular route between the house of a friend Anderson was visiting that afternoon and a McDonald's restaurant that Anderson said he and his friend *906 drove to for fast food. Such a view of the evidence would damage Anderson's claim of self-defense.
In addition, the prosecutor was able to exploit an ambiguity elsewhere in Anderson's statement to police to significantly undermine Anderson's claim at trial that he fired his weapon at Tall because he feared Tall was about to shoot him. The evidence adduced at trial, including Anderson's custodial statement and his testimony, indicated that Anderson drove past Tall's residence twice on the day of the shooting and that the shooting occurred on the second occasion. Anderson indicated in both his statement and his trial testimony that on each of the two occasions, Tall had pointed a shotgun at him and had threatened to kill him after an angry exchange. In both his statement and his trial testimony, Anderson indicated that the first time Tall had pointed the shotgun at him that he believed Tall had no intention of shooting, that he was not afraid, that he did not take Tall's threat seriously, and that he even taunted Tall. At trial, Anderson stated that one reason he did not think Tall would shoot on the first occasion was that he did not "see him put anything in the chamber" of the shotgun. (R. 295-96.) With regard to the second time he drove past Tall's residence, Anderson testified at trial that he saw Tall "put one in the chamber" of the shotgun, that Tall ran toward him with the shotgun pointed at him, that he therefore believed that this time Tall actually intended to fire the shotgun at him, and that he took out his pistol and fired at Tall in self-defense while retreating toward his car. In his custodial statement with regard to this second occasion, although Anderson appeared at first to maintain that he believed that this time Tall indeed intended to shoot him and did not fire at him only because the shotgun had malfunctioned, he later made a comment in his statement that could be construed as indicating that he believed that Tall was only attempting to scare him and that, as was the case with the first occasion that Tall had pointed the shotgun at him, he did not believe Tall intended to shoot this time either. The prosecutor seized upon this portion of Anderson's statement, which was admittedly ambiguous, and argued strenuously during his cross-examination of Anderson that Anderson had changed his story for trial, and later during the state's closing argument that Anderson's claim of self-defense must fail because Anderson's statement indicated that he had not fired at Tall under a reasonable apprehension that Tall was about to use deadly force against him. Although we cannot say that the jury accepted the prosecutor's interpretation of Anderson's statement in this regard, we also cannot say with any certainty that the jury could not have found the prosecutor's argument to be persuasive.
Accordingly, we will not say that the error in admitting Anderson's custodial statement into evidence at his trial was harmless beyond a reasonable doubt. Therefore, the judgment in this case is reversed, and the cause is remanded to the trial court for proceedings consistent with this opinion.
REVERSED AND REMANDED.
McMILLAN, COBB, BROWN, and BASCHAB, JJ., concur.
On Application for Rehearing
LONG, Presiding Judge.
APPLICATION FOR REHEARING OVERRULED; RULE 39(k) MOTION DENIED.
COBB and BASCHAB, JJ., concur.
BROWN, J., dissents with opinion.
McMILLAN, J., joins in dissent.
BROWN, Judge, dissenting.
Although I concurred in this Court's original opinion in this case, issued on May 8, 1998, I was deeply troubled by our holding. Upon careful consideration of the state's application for rehearing and the accompanying brief, I must respectfully dissent from the denial of rehearing.
In our May 8, 1998, opinion this Court held:
"We find nothing within the language of § 12-15-34.1 to support the state's contention that the rights granted to a child pursuant to Rule 11(B) are extinguished by the fact that a child alleged to have committed *907 an offense enumerated in the statute `shall be charged, arrested, and tried as an adult' and automatically subjected to the jurisdiction of the adult system. While § 12-15-34.1 clearly modifies the jurisdiction of the juvenile court and divests a child accused of committing a serious offense of the right to a transfer hearing in the juvenile court, see Price v. State, 683 So. 2d 44 (Ala.Cr.App.1996), it does not modify the statutory definition of the term `child' and does not, by its terms, divest the child of the protections afforded by Rule 11(B). If the legislature, when enacting § 12-15-34.1, had intended to exclude from the statutory definition of `child' juveniles 16 years of age or older at the time of committing an offense enumerated in the statute, we may presume that it would have done so. It did not."
729 So.2d at 903-04.
Upon further consideration of § 12-15-34.1, Code of Alabama 1975, I believe that the Legislature's intent was to withdraw from persons falling within the purview of the statute all protections traditionally afforded to a "child." "It is a `well established principle of statutory interpretation that the law favors rational and sensible construction.'" King v. State, 674 So. 2d 1381, 1383 (Ala.Cr.App.1995) (quoting 2A Norman J. Singer, Sutherland Statutory Construction § 45.12 (5th ed.1992)). Moreover, "`[t]he courts will not ascribe to the Legislature an intent to create an absurd or harsh consequence, and so an interpretation avoiding absurdity is always to be preferred.'" Daugherty v. Town of Silverhill, 672 So. 2d 813, 816 (Ala.Cr.App.1995) (quoting 1A C. Sands, Sutherland Statutory Construction § 23.06 (4th ed.1972) (emphasis omitted)).
Section 12-15-34.1 provides, in pertinent part:
"(a) Notwithstanding any other provision of law, any person who has attained the age of 16 years at the time of the conduct charged, which if committed by an adult would constitute any of the following, shall not be subject to the jurisdiction of juvenile court but shall be charged, arrested, and tried as an adult:
"(1) A capital offense.
"(2) A Class A felony.
"(3) A felony which has as an element thereof the use of a deadly weapon.
"(4) A felony which has as an element thereof the causing of death or serious physical injury."
(Emphasis supplied.)
The language of the statute could not be clearer: anyone over 16 who commits any of the listed offenses is to be treated as an adult and shall be removed from the jurisdiction of the juvenile court. The language of the statute plainly excludes juveniles 16 and older from the definition of a "child" by stating that they are to be treated as adults. In my opinion, this Court's holding in its May 8, 1998, opinion that the fact that the statute provides that the juvenile was to be treated as an adult did not mean that he was divested of the protections afforded by Rule 11(B), Ala.R.Juv.P., amounts to sophistry. That holding creates a new category of criminal defendant, one who is neither wholly a "child" nor entirely an "adult." Certainly, this could not have been what the Legislature intended when it enacted § 12-15-34.1.
I believe this Court's reliance on the Alabama Supreme Court's decisions in Ex parte Jackson, 564 So. 2d 891 (Ala.1990), and Ex parte Whisenant, 466 So. 2d 1006 (Ala.1985), was misplaced. As the state correctly points out, both of those cases were decided before the enactment of § 12-15-34.1. At that time, the only method by which juvenile defendants could be tried as adults in circuit court was by way of a transfer hearing in the juvenile court, as provided in § 12-15-34. Because every juvenile defendant's case originated in juvenile court, Rule 11(B) was therefore applicable to the initial encounters between the juveniles and the law enforcement officers in Jackson and Whisenant.
By contrast, § 12-15-34.1 prevents an entire category of juvenile defendants from ever encountering the juvenile court system. Because none of the proceedings against these juveniles took place in juvenile court, the Alabama Rules of Juvenile Procedure have no application in those cases. See Rule 1, Ala.R.Juv.P. ("These rules govern the *908 procedure for all matters in the juvenile court.") This Court's original interpretation of § 12-15-34.1 was neither rational nor sensible.
There may be strong policy arguments in favor of the holding requiring that juveniles removed from the jurisdiction of the juvenile court pursuant to § 12-15-34.1 be advised of the rights enumerated in Rule 11(B), Ala. R.Juv.P. 729 So.2d at 903. However, it is not the province of this Court to make policy. Our function is to interpret the law. Art. III, § 43, Alabama Constitution of 1901, states:
"In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men."
"Courts, above all others, are charged with a very sacred duty not to encroach upon the domain of other departments of government under our constitutional system of government." Hendrix v. Creel, 292 Ala. 541, 545, 297 So. 2d 364 (1974). As the Alabama Supreme Court stated in Piggly Wiggly No. 208, Inc. v. Dutton, 601 So. 2d 907, 911 (Ala. 1992):
"`No branch of the government is so responsible for the autonomy of the several governmental units and branches as the judiciary. Accordingly, we have held that courts cannot and will not interfere with the discretion vested in other units or branches of government.'"
Quoting Finch v. State, 271 Ala. 499, 503, 124 So. 2d 825 (1960).
Although the opinion purports to interpret § 12-15-34.1, it instead legislates, by choosing to overlook the express language of the statute. Courts lack the legislative authority to make policy decisions; that authority has been constitutionally assigned to the executive branch and the legislative branch. I believe that the opinion sets a dangerous precedent by disregarding the clear language of § 12-15-34.1, and replacing it with our own somewhat tortured interpretation.
Accordingly, I would grant the state's application for rehearing, and I would affirm the appellant's conviction.
NOTES
[1] Effective May 1, 1994, Rule 11, Ala.R.Juv.P., was amended to clarify the child's rights at different phases of the case. Subsection (A) enumerates the child's rights when the child is taken into custody, while subsection (B) lists those matters a child in custody must be informed of before being questioned. Before this amendment, Rule 11(A) listed the same rights now set forth in Rule 11(B). When Anderson was questioned, the pre-amendment Rule 11(A) was still in effect. However, because the current Rule 11(B) is in all important respects the same as the former Rule 11(A), we will refer to Rule 11(B) in this opinion when discussing the rights that must be read to a child in custody before questioning.
[2] Section 12-15-34.1 became effective April 14, 1994. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593045/ | 135 S.W.3d 45 (2004)
Ex Parte Thomas Christopher RETZLAFF, Applicant.
No. 74,772.
Court of Criminal Appeals of Texas.
May 19, 2004.
*46 Thomas Christopher Retzlaff, pro se.
*47 Jeffrey L. Van Horn, Asst. State Atty., Matthew Paul, State's Atty., Austin, for State.
OPINION
COCHRAN, J., delivered the opinion of the Court in which MEYERS, PRICE, WOMACK, JOHNSON and HOLCOMB, JJ., joined.
We withdraw our previous opinion and substitute this opinion. The constitutional issue presented in this writ application is whether notice that a person will be reviewed for release on mandatory supervision at some unspecified time "before [his] projected release date" constitutes timely notice consistent with due process. We hold that it does not.
I.
Applicant was convicted of Possession of a Weapon in a Prohibited Place[1] in March 1998 and sentenced to eight years in prison. He was eligible for release on discretionary mandatory supervision on April 19, 2001. On December 20, 2000, a parole panel prospectively denied him release on mandatory supervision. Applicant claims that he was not sent notice that a parole panel would be considering whether to release him at that time. The same thing happened in 2001. He was told that a parole panel would review him for release in December, 2001, but a parole panel then voted to deny his mandatory supervision release on November 13, 2001two weeks before the earliest date he was scheduled to be reviewed. Applicant filed a writ of habeas corpus, alleging that he had been deprived of due process because a parole panel reviewed his case before the month scheduled.[2]
On August 21, 2002, this Court agreed with applicant and granted him what we thought was the appropriate reliefanother hearing with sufficient advance notice of its timing so that he would have an opportunity to submit relevant information to the Board of Pardons and Paroles before it made a decision.[3] Ten months later applicant filed another writ complaining that "the Board pulled the same stunt as before." This time, it informed applicant on March 7, 2002, that it would review him for release on mandatory supervision at some unspecified future date, but that he should submit any additional written materials that he would like the Board to review "as soon as possible."[4] That unspecified date turned out to be some ten months later, on *48 January 16, 2003, but applicant was not informed of that date until he received a denial letter afterwards.
Applicant now claims that he "was denied a meaningful opportunity to be heard when the Parole Board conducted a hearing in [his] case on a date for which [he] had not been given notice." He argues that the "ambiguous, vague" notice that he had received on March 7, 2002, was "was just as defective" as the notice he had received in 2001, and that the Board therefore violated his right to due process under the Fifth and Fourteenth Amendments.
II.
From 1977 until 1987, an eligible inmate whose "actual calendar time" plus "accrued good conduct time" equaled the term of his sentence was automatically released on mandatory supervision and treated as if he were on parole.[5] "[M]andatory supervision was originally created to ensure parole custody for all prisoners in order to prevent recidivism."[6] It was intended to provide the inmate with a supervised transition from prison to the local community and to ensure that parole officers would provide the releasee with guidance, control, assistance, and support. Beginning in 1987, amendments to that statute made some inmates, those convicted of especially serious offenses and those who had used a deadly weapon in committing their crime, ineligible for release on mandatory supervision.[7] Those inmates were either released on regular parole or required to serve their entire sentence. Nonetheless, some of those who were required to be released on mandatory supervision were not rehabilitated and still constituted a danger to the public.
Therefore, in 1995, the Texas Legislature amended the mandatory supervision statute to permit a parole panel to exercise some discretion in deciding whether a person who was eligible for release on mandatory supervision should, nonetheless, be kept in custody.[8] Under the revised Government Code section, "[a]n inmate may not be released to mandatory supervision if a parole panel determines that:
(1) the inmate's accrued good conduct time is not an accurate reflection of the inmate's potential for rehabilitation; and
(2) the inmate's release would endanger the public."[9]
This statute is a "failsafe" mechanism to protect society from the inappropriate release of those who are not truly rehabilitated and who would constitute a present danger to the public. Under the current provision, an inmate who is eligible for release on mandatory supervision will be released unless the parole panel makes these two specific findings. Given the wording of the statute, an eligible inmate has a vested, statutory entitlement to release on mandatory supervision, but it is a defeasible interestone that may be defeated, *49 but only if the parole panel makes these findings in its review.
We must assess the gravity of the interests at stake in this reviewthe inmate's interest in liberty and society's interest in safetyin determining what process is due under the federal constitution. The parole panel has great discretion in the regular parole review process as an inmate does not have a statutorily vested liberty interest in being released on parole.[10] Under the Texas Government Code, however, a parole panel has much less discretion in denying an inmate release on mandatory supervision. The statute vests a liberty interest in the eligible inmate, and the statutory presumption is slanted toward release.[11] The parole panel must justify non-release.
The two statutory findings that justify non-release are predictive judgments based upon discrete factual conclusions and subjective appraisals. Necessarily, then, they are highly contingent upon accurate, up-to-date information and explanation. The due process goal in any parole board review is to "minimize the risk of erroneous decisions."[12] Thus, "the quantum and quality of the process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error."[13]
Timely notice to the inmate that he will be reviewed for mandatory release gives him the opportunity to provide written input, marshal evidence of his custodial behavior, clarify adverse material in his file, provide letters, references, and information concerning possible employment or housing. To be effective, this notice must be given sufficiently in advance of the mandatory supervision release review date to allow the inmate to prepare and submit any such information. On the other hand, material submitted too early may be outof-date or superceded by other information or events by the time the review is actually undertaken.[14] Timely notice, which provides sufficient opportunity to submit relevant, up-to-date information by affected parties, is a rudiment of due process, and it reassures both the individual and society that "fair dealing rather than caprice will govern the affairs of men."[15]
In Greenholtz, the Supreme Court addressed, inter alia, the notice required by the Due Process Clause of the Fourteenth Amendment in the context of parole hearings, a more discretionary decisionmaking hearing than that under the Texas mandatory supervision statute. In that context, the Supreme Court noted that the Nebraska *50 parole board provided constitutionally adequate notice because it
informs the inmate in advance of the month during which the hearing will be held, thereby allowing time to secure letters or statements; on the day of the hearing it posts notice of the exact time. There is no claim that either the timing of the notice or its substance seriously prejudices the inmate's ability to prepare adequately for the hearing.[16]
It therefore reversed the court of appeals' decision which had required the Nebraska parole board to give the inmate advance notice of the exact time of the hearing, as well as a list of factors that the board would consider. The Supreme Court found this unnecessary as a component of due process. The Court, in Greenholtz, adopted a functional test concerning the adequacy of notice: the inmate must show not only deficiencies in the notice, but how those deficiencies adversely affect him.[17] In that case, the Nebraska inmates failed to show that they would be adversely affected in their ability to submit timely supportive materials because the parole board gave them advance notice only of the month of their parole hearing, not the exact time and date.
Given an inmate's vested liberty interest set out in the mandatory supervision statute, we conclude that written notice that an inmate will be reviewed at some unspecified time in the future, coupled with a request that he submit relevant materials "as soon as possible," is constitutionally deficient notice. It fails to specify any relevant time frame, and it is so vague that it poses an unacceptable risk of adversely affecting an inmate. With this type of notice, an inmate could be reviewed the day after the notice was sent and therefore his materials could not be submitted in time, or he could be reviewed in ten to twelve months, in which case his materials may be entirely out-of-date. This notice is, from a constitutional due process standpoint, the same as no notice at all.
Following the Supreme Court's reasoning in Greenholtz, we hold that, in the normal case,[18] an inmate is entitled to notice of the specific month and year in which he will be reviewed for release on mandatory supervision. We also hold that he must be given at least thirty days advance notice that he will be reviewed in the specified month so that he has a sufficient opportunity to submit materials on his behalf.
Applicant has also alleged harm. He states:
In the case at hand, applicant was harmed because had he known that his parole hearing was going to be conducted on January 16, 2003, he would have used all of the time right up to that date to have letters of support submitted by his wife and children and friends; thus, giving the Board the chance to consider this relevant and material information prior to its making a decisionthis is the very same set of circumstances and allegations that were made in the prior Writ application that the Court of Criminal Appeals granted!
Although the generic notice that the Board gave applicant in March, 2002, was sufficient to put him on notice that he would be reviewed some day, our order of August 21, 2002, surely led him to believe that he would receive "timely notice" before his next review.
*51 Given the repeated failures to provide adequate and timely notice to this particular applicant,[19] we conclude that applicant is entitled to the specific habeas corpus relief that he has requesteda new review "as soon as possible." Because the mandatory supervision statute requires release unless a parole panel makes specific findings, we find that Thomas Christopher Retzlaff's continued incarceration is illegal and unconstitutional unless, within sixty days, a parole panel has given him timely notice of a review to be held before the fifty-ninth day and has provided him at least thirty days to submit whatever explanatory material he wishes the panel to consider. Under our statute, the onus is on a parole panel to invoke the review process and make its findings, not on the eligible inmate to request a review. Without a parole panel's two statutory findings, made only after timely due process notice to the inmate giving him an opportunity to submit materials, the Texas Department of Criminal JusticeCID must release an eligible inmate to mandatory supervision.
Copies of this opinion will be delivered to the Texas Department of Criminal Justice-CID and to the Texas Board of Pardons and Paroles.
KELLER, P.J., filed a dissenting opinion in which KEASLER, J., joined.
HERVEY, J., filed a dissenting opinion in which KEASLER, J., joined.
KELLER, P.J., dissenting.
The State's motion for rehearing highlights several problems with the Court's original opinion: (1) TDCJ, not the parole board, releases offenders, (2) TDCJ, not the parole board, notifies offenders of their review date, (3) it is not always practical to specify a particular month or date for review because release dates sometimes fluctuate, and (4) thirty days notice is not always practical because some inmates have already approached the release date or will do so in less than thirty days. The Court's revised opinion remedies the first concern, and addresses but does not entirely resolve the third concern. It does not address the second and fourth concerns.
According to the pleadings filed on rehearing, the Board of Pardons and Paroles voted on over 18,000 discretionary mandatory supervision cases during the last fiscal year. The determinations are made by no more than eighteen individuals. And there are thousands of other parole-related decisions made each year by the Board. Inmates are currently given notice about nine months prior to a projected release or review date.[1] The parole board's practice is to conduct a review no sooner than four months prior to the projected release or review date. It appears to me that this procedure meets due process standards under both this Court's caselaw and that of the United States Supreme Court.
*52 While the Supreme Court in Greenholtz stated that Nebraska satisfied due process by informing the inmate "in advance of the month during which the hearing will be held," it did not say that due process requires the parole board to specify the specific month review takes place or to give at least 30 days notice of the review.[2] The Supreme Court has said that "due process is flexible and calls for such procedural protections as the particular situation demands." [3] "The quantum and quality of process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error."[4] Notifying the prisoner nine months in advance and giving him at least five months time to respond sufficiently minimizes the risk of an erroneous decision. If the inmate has important information to offer, one would expect that he would take less than five months to submit such information. And, given the predictive and subjective nature of any decision regarding an inmate's suitability for release, it is highly unlikely that the basis of the Parole Board's decision would be seriously undermined by information obtained at the last minute.
Moreover, I continue to adhere to my position that, to be entitled to relief on a Geiken[5] lack of notice claim, the applicant must show that he has actually been denied a meaningful opportunity to be heard.[6] In this case, the applicant was given advance notice that he would be considered for mandatory supervision, and, if the affidavits attached to the State's motion for rehearing are believed, the applicant was not only afforded the opportunity to submit information in support of release but did in fact submit such information.
The considerations discussed above would be enough for me to urge the Court to reconsider the merits of the application, except that it now appears the applicant has been released to mandatory supervision. According to an April 23, 2004 affidavit of William W. Seigman, a parole panel approved applicant for mandatory supervision on April 21, 2004. So, both mine and the Court's concerns have become moot. It now makes little sense for the Court to fix its original opinion by issuing a revised opinion, when that revised opinion orders the parole board to do something it can no longer dogive advance notice of a mandatory release review when the inmate has already been released. Under the circumstances, we should withdraw our prior opinion and dismiss the application as moot.
HERVEY, J., dissenting.
This dissenting opinion is substituted for the prior dissenting opinion which is withdrawn. The Court has apparently decided that it will provide the extreme remedy of applicant's early release from prison (even though a parole panel has determined that this would endanger the public) if the parole panel does not meet the Court's extrastatutory and arbitrary deadline for reviewing applicant for mandatory supervision release after "timely notice" to applicant. All of this ignores the ultimate due process question and has the very real potential of putting the security of the public at risk. I must, therefore, respectfully *53 dissent to this particular exercise of the judicial power.
Applicant has filed a habeas corpus application. The record reflects that applicant previously filed another habeas corpus application in which he claimed that a parole panel had not provided him with adequate notice that it would review him for mandatory supervision release. This Court disposed of this writ on August 21, 2002, when it issued an opinion deciding that applicant was denied a meaningful opportunity to be heard when the parole panel reviewed him for mandatory supervision release in November 2001. The parole panel had notified applicant that it would review him in December 2001. Ex parte Retzlaff, slip op. at 1-2 (Tex.Cr.App. No. 74,412, delivered August 21, 2002) (unpublished) (by reviewing applicant early, the Board denied applicant a meaningful opportunity to be heard): see also Ex parte Shook, 59 S.W.3d 174 (Tex.Cr.App. 2001). This Court's August 21, 2002, opinion ordered the parole panel to "consider Applicant for mandatory release and provide him with timely notice that such consideration will occur." Id.
Applicant filed this current habeas corpus application in June 2003. Applicant contends in this proceeding that a parole panel considered him for mandatory supervision in January 2003 without providing him with adequate notice that the parole panel would do so. The record in this habeas corpus proceeding reflects that on March 7, 2002, the parole panel notified applicant in writing that it would again consider applicant for mandatory supervision release at some unspecified future date. This written notice further stated that if applicant wished to submit any additional information, he should do so "in writing as soon as possible to the TDCParole Division, P.O. Box 13401, Capitol, Station, Austin, TX 78711 OR to your Institutional Parole office." The record further reflects that on January 16, 2003, the parole panel denied applicant mandatory supervision release because, among other things, applicant's release would endanger the public and also because applicant committed a major disciplinary offense during the preceding six months. Applicant waited about six months (from January 2003 to June 2003) to file this application for habeas corpus.
Applicant contends that the parole panel did not provide him with adequate notice that it would review him for mandatory supervision release in January 2003. Applicant claims that the "ambiguous, vague" notice that applicant received on March 7, 2002, is the same as no notice at all and that the "[January 2003] hearing was just as defective as the old one [in November 2001] because the Board pulled the same stunt as before!!"
DUE PROCESS
In Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, the Supreme Court decided that Nebraska's "discretionary parole" statutory scheme (which is similar to Texas' mandatory supervision release statutory scheme) afforded all "the process that is due" by providing the inmate with an opportunity to be heard and informing the inmate of why he was denied "discretionary parole." See Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 2108, 60 L.Ed.2d 668 (1979).[1] But, *54 this Court decides that the parole panel violated applicant's federal constitutional due process rights because it should have provided applicant with better notice of the time it would review applicant for mandatory supervision release. But the due process issue is not necessarily whether applicant should have received better or perfect notice. The due process issue is whether the notice that applicant did receive provided applicant with an opportunity to be heard before the parole panel denied him mandatory supervision release. See Greenholtz, 99 S.Ct. at 2108.
The majority does not expressly hold that applicant was denied this opportunity to be heard. Instead, the Court speculates that the (March 7, 2002) notice that the applicant in this case received could deprive some future hypothetical applicant of an opportunity to be heard.[2] The Court further relies on applicant's allegation of "harm" that had he been given better notice, he "would have used all of the time right up to [January 16, 2003] to have letters of support submitted by his wife and children and friends." But, applicant has not shown that he had any (old or new) materials to submit. And, it is extremely doubtful that any unsubmitted materials that applicant may have had would have helped applicant given the Board's determination that applicant is dangerous to the publica determination that this applicant does not dispute.[3]
The situation presented in this proceeding is not like the situation described in our August 21, 2002, opinion where a parole panel notified applicant that it would consider him for mandatory supervision release in December 2001 but then considered him in November 2001. See Retzlaff, slip op. at 1-2. There, we expressly decided that applicant was denied an opportunity to be heard when the parole panel reviewed him early. See id. In this case, the parole panel did not review applicant early. The parole panel reviewed applicant within the time frame that it stated that it would review applicant in the March 7, 2002, notice. This notice also shows that applicant had an opportunity to submit any additional information to the parole panel in support of his claim for mandatory supervision release. This notice even stated that applicant should submit this information "as soon as possible." On this record, applicant has not shown that he was denied an opportunity to be heard.[4]
*55 THE REMEDY
The Court, contrary to the "plain" language of the applicable statutory scheme, further decides that "[w]ithout the two statutory findings, made only after timely due process notice to the inmate giving him an opportunity to submit materials, a parole panel must release an eligible inmate to mandatory supervision." This is an extreme, and potentially dangerous to the general public, remedy for any due process violation that may have occurred here. Instead of putting the public at risk with the early release from prison of dangerous inmates because of a parole panel's failure to comply with our orders, the Court should incarcerate the responsible Board officials under its contempt powers until they comply with the Court's orders. This, and not putting dangerous inmates back on the streets before they have served their sentences, is the usual method of enforcing our orders.
I respectfully dissent.
NOTES
[1] TEX. PEN.CODE § 46.03.
[2] See Ex parte Shook, 59 S.W.3d 174 (Tex. Crim.App.2001). In that case, we explained that:
when the Board gives the inmate notice of a specific date on which the hearing is scheduled to take place, the inmate is entitled to rely on that information and accordingly has until that date to submit relevant information on his behalf. If the Board holds the hearing for such consideration on a date earlier than the specific date the inmate has been notified that the hearing will take place, then the inmate has been misled by the notice and denied the full opportunity he was told he would have in order to submit relevant information to the Board.
Id. at 176.
[3] Specifically, we ordered the Board to "consider Applicant for mandatory release and provide him with timely notice that such consideration will occur." Ex parte Retzlaff, No. 74,412, slip op. at 2 (Tex.Crim.App.2002) (not designated for publication). We do not have any record that the Board provided applicant with an additional review and timely notice of that review based upon our order.
[4] This notice is a standardized form which states, in pertinent part: "Before your projected release date, the Board will review your file and all available records to determine if you will be released." This document does not inform the inmate of his projected release date.
[5] See former TEX.CODE CRIM. PROC. art. 42.18, § 8(c).
[6] H.B. 1433 Comm. Report (Amended), 74th Leg. (April 11, 1995).
[7] TEX. GOV'T CODE §§ 508.147 & 508.149.
[8] See H.B. 1433 Comm. Report (Amended), 74th Leg. (April 11, 1995) ("[t]he purpose of this Act is to give the Pardons and Parole Board a lever to close the `automatic open door' of mandatory supervision.... This legislation allows for discretionary release by the Pardons and Parole Board for all inmates, while still providing for the original intent of the legislation, supervised release, in most instances").
[9] TEX. GOV'T CODE § 508.149(b).
[10] See Ex parte Geiken, 28 S.W.3d 553, 558 (Tex.Crim.App.2000) (noting that while the parole system in Texas creates no presumption of release on parole, the mandatory supervision statute does).
[11] Id. ("[u]nlike parole, which requires that the Board vote in favor of release, the mandatory supervision statute requires that the offender be released absent Board action to the contrary").
[12] Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 13, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (discussing what process is constitutionally due for state parole board hearings).
[13] Id.
[14] See Geiken, 28 S.W.3d at 560 (noting that "[t]he option of providing the Board with information supportive of release is of little practical use if the inmate is unaware that such a review will be taking place"); see also Ex parte Shook, 59 S.W.3d 174, 175 (Tex. Crim.App.2001) (reiterating prior holding that constitutional due process requires Board to give inmates timely advance notice of their review for release on mandatory supervision).
[15] Morrissey v. Brewer, 408 U.S. 471, 499, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (Douglas, J., dissenting).
[16] Greenholtz, 442 U.S. at 14 n. 6, 99 S.Ct. 2100.
[17] Id.
[18] We recognize that there may be logistical peculiarities in a particular caseor small class of casesthat could make designation of a specific month for review impractical.
[19] Section 508.149(d) of the Texas Government Code provides that a parole panel determination not to release an inmate on mandatory supervision is immune from administrative or judicial review, but it does provide the inmate with two further opportunities for re-review within the following two years. TEX. GOV'T CODE § 508.149(d). The wording of this provision indicates that, after three unsuccessful annual reviews, an inmate need not be reviewed again for release on mandatory supervision. This applicant's first two reviews were made without sufficient due process notice. For this, his last review, he is entitled to a "speedy and effectual" habeas remedy.
[1] The Board of Pardons and Paroles is not a party to this case. Neither is TDCJ. Their first opportunity to provide relevant information was, thus, on rehearing by way of an amicus brief. Much of the information in the pleadings on rehearing is, for this reason, presented to the Court for the first time.
[2] Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 14 n. 6, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979).
[3] Id. at 12, 99 S.Ct. 2100.
[4] Id. at 13, 99 S.Ct. 2100.
[5] Ex parte Geiken, 28 S.W.3d 553 (Tex.Crim. App.2000).
[6] Ex parte Shook, 59 S.W.3d 174, 176-177 (Tex.Crim.App.2001).
[1] I generally agree with the Court's description of Texas' mandatory supervision release statutory scheme. In this case, the habeas record reflects that the parole panel made the necessary findings that makes applicant ineligible for mandatory supervision release. In addition, it would appear that Texas inmates have less of a "liberty" interest under the current statutory scheme than they did under the prior scheme since the prior scheme provided for "automatic" release and the current scheme does not. See Greenholtz, 99 S.Ct. at 2106-07 (describing how Nebraska's "discretionary parole" statutory scheme created a due process protected liberty interest in the expectation of parole).
[2] For example, on page eight of its opinion, the Court states:
With this type of notice, an inmate could be reviewed the day after the notice was sent and therefore his materials could not be submitted in time, or he could be reviewed in ten to twelve months, in which case his materials may be entirely out-of-date. This notice is, from a constitutional due process standpoint, the same as no notice at all.
[3] In deciding that "an inmate is entitled to notice of the specific month and year in which he will be reviewed for release on mandatory supervision," the Court's opinion reads too much into footnote six of Greenholtz. There, the Supreme Court noted that there was no claim that notifying an inmate of the month in which he would be reviewed for "discretionary parole" violated due process. See Greenholtz, 99 S.Ct. at 2107 n. 6. The Supreme Court did not hold that due process required this. See id.
[4] Notwithstanding this, it is worth mentioning the overall context in which cases like this come before the Court. The State of Texas may without violating the Constitution require inmates like applicant to serve their entire sentences day for day with no hope of parole or any other form of early release. Nevertheless, Texas citizens through their Legislature have provided for inmates like applicant to be reviewed for early release atleast once a year. The statutory scheme even requires these inmates' release unless the Board makes the necessary findings that would prevent this. Though the applicable statutory scheme does not require it, a parole panel also provides these inmates with an opportunity to submit materials each time they are reviewed for early release. In this case applicant received everything that he was entitled to receive under state law when the parole panel denied him early release based on the findings required by the statutory scheme. Arguably, this is all "the process that is due" applicant. See Jimenez v. State, 32 S.W.3d 233, 244-45 (Tex.Cr.App.2000) (McCormick, P.J., concurring) (due process requires that a defendant receive what state law provides). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593051/ | 135 S.W.3d 527 (2004)
Thelma SCHEMBRE, Rebecca M. Mcnair, Bobby Joe Schembre, Laurie V. Laiben, Frank Schembre, Jr., Appellants,
v.
MID-AMERICA TRANSPLANT ASSOCIATION, Jefferson Memorial Hospital, Chris Guelbert, Respondents.
No. ED 81539.
Missouri Court of Appeals, Eastern District, Division One.
May 11, 2004.
*528 Robert J. Lenze, St. Louis, MO, for Appellants.
Edward S. Meyer, Judith C. Brostron, St. Louis, MO, Randall D. Sherman, Hillsboro, MO, for Respondents.
GEORGE W. DRAPER III, Judge.
Thelma Schembre, et al. (hereinafter and collectively, "Appellant") appeals from the trial court's grant of summary judgment in favor of Mid-America Transplant Services (hereinafter, "MTS"), Jefferson Memorial Hospital (hereinafter, "Hospital"), and Christopher Guelbert, R.N. (hereinafter, "Guelbert") after harvesting leg bones, tissue, and corneas from Frank Schembre, Sr. (hereinafter, "Decedent"). Appellant argues the trial court erred in granting summary judgment with respect to MTS, Hospital, and Guelbert because there were genuine issues of material fact with respect to: (1) each parties' negligence, thus precluding immunity under the Uniform Anatomical Gift Act (hereinafter, "the UAGA"), Section 194.270.3 RSMo (1996)[1]; (2) whether the parties acted in good faith under the UAGA; and (3) whether the parties exceeded the scope of Appellant's consent. We affirm in part; reverse and remand in part.
*529 On November 28, 1998, Decedent suffered a heart attack and was transported to Hospital's emergency room. Appellant and two of her adult children arrived shortly thereafter. Hospital staff notified Appellant that Decedent could not be resuscitated and had passed away. Appellant and her children were moved to "the quiet room," an area of the hospital where families were allowed to collect themselves upon the death of a loved one. While in the quiet room, the family was approached by Guelbert, a Hospital employee, who inquired about their willingness to consider donating organs, bone, or tissue from Decedent's body.
Appellant and her children discussed with Guelbert the options should they choose to make any donation. Guelbert informed Appellant that Decedent did not meet the requirements for donation of organs, but suggested they could donate eyes, bone, or tissue if they wished. Initially, Appellant declined to give consent to any donation, but after discussing with her children Decedent's wish to help people, she agreed to donate his corneas. Appellant was adamant about restricting the donated organs from being used for research purposes.
Guelbert then inquired about her willingness to consent to donating Decedent's bone in his legs. At this point, the parties' account of the conversation differ. Appellant and her two children testified Guelbert indicated with his hands the amount of bone which would be removed from Decedent's leg, stating it was approximately two inches. When Appellant questioned his estimate by stating it appeared to be more than two inches, Guelbert told her it would be approximately two to four inches, to be removed from below the knee and above the ankle.
Appellant had additional questions which she testified Guelbert was unable to answer, so he left the quiet room and an unidentified female nurse came in to give a better explanation of the process. Appellant and her son testified this unidentified female nurse explained the eyeball would be slit to facilitate harvesting the corneas, but it would not be removed from Decedent's body. The female nurse also affirmed Guelbert's representation that approximately two to four inches of bone would be removed from Decedent's leg. Appellant and her son stated the female nurse appeared to be writing on a clipboard, and they thought she was noting the limitations on the consent form. Again, Appellant stated she did not want any donated organs to be used for research.
Guelbert testified he explained the donation process in detail to Appellant and her children. Guelbert stated he remembered the family being very much in favor of organ donation, and they had several questions. He testified he told the family the entire eyeball would be removed in order to harvest the cornea. Further, Guelbert explained to the family in detail that the long bones of the leg would be removed if they chose to donate bone. Guelbert stated he would have indicated any limitation with respect to the donation on the consent form.
After lengthy discussion, Guelbert assisted Appellant in completing the consent form. Guelbert went through the form item by item and read it to Appellant. The form indicated a check mark "yes" in the boxes for donation of "eyes" and "bone." The box labeled "any needed tissues" was marked "no." Guelbert stated he read the completed form to Appellant, which she then signed. Appellant testified she did not read the consent form because she was too distraught from her husband's death. There are no limitations on the face of the consent form.
*530 Upon completion of the consent form, Guelbert contacted MTS in order to make arrangements for harvesting the corneas, bone, and tissue. Matthew Thompson (hereinafter, "Thompson"), a compliance manager employed by MTS, testified about the standard protocols for procuring eye, bone, and tissue donations. Thompson testified that "bone" is a term of art used in the organ donation community that generally encompasses the removal of the lower bones of the leg, including the iliac crest, femur, tibia, fibula, and fascia lata. Moreover, when a cornea is donated, the entire eye is removed during the process.
Thompson stated he initially reviewed the consent form completed by Appellant and Guelbert the evening Decedent died. Thompson testified the consent form appeared to be valid and unambiguous on its face. Further, Thompson stated it was his practice to contact the family should the consent form appear to have a discrepancy or ambiguity. Moreover, Thompson indicated families were able to place limitations on the amount of bone they donated. However, there was no such limitation on this consent form.
After arriving with a tissue recovery team from MTS, Thompson confirmed that the team procured both eyes and all of the lower leg bones, including the fascia lata, from Decedent. Upon completion of the procurement, Decedent's body was released for funeral preparation. It was at this time Appellant and her children learned of the removal of the entire eyeball and all lower leg bones.
Appellant and her children brought this suit seeking damages from MTS, Hospital, and Guelbert. All defendants filed motions for summary judgment which were granted by the trial court on the basis that the defendants were granted immunity from liability under the UAGA because they acted in good faith when harvesting the eyes, bone, and tissue. Appellant appeals.
It is well settled that when considering an appeal from a grant of summary judgment, we review the record in the light most favorable to the nonmovant. ITT Commercial Fin. v. Mid-America Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). Our review is essentially de novo. Id. at 376. The criteria on appeal for testing the propriety of summary judgment are no different from those employed by the trial court to determine the propriety of sustaining the motion initially. Id. The burden of proof on a summary judgment movant is to establish a legal right to judgment flowing from facts about which there is no genuine dispute. Id. at 378.
A "defending" party may establish a right to judgment by showing: (1) facts that negate any one of the claimant's elements; (2) that the nonmovant has not been able to produce, or will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any of the claimant's elements; or (3) that there is no genuine dispute as to the existence of facts necessary to support the movant's properly pleaded affirmative defense. Id. at 381.
The nonmovant must show by affidavits, depositions, answers to interrogatories, or admissions on file, that one or more of the material facts shown by the movant to be without any genuine dispute is, in fact, genuinely disputed. Id. A "genuine issue" exists where the record contains competent materials that establish a plausible, but contradictory, version of the movant's essential facts. Id. at 382.
Appellant's first point on appeal attacks the trial court's grant of summary judgment in favor of MTS. Appellant claims there is a genuine issue of material fact as to whether MTS was negligent in the removal *531 of the corneas, bone, and tissue from Decedent's legs such that MTS would not be immune from liability under the UAGA. MTS argues it complied with all of the requirements set forth under the UAGA by obtaining a written consent form from a qualified family member and by removing only those items which were indicated on the form.
This is a case of first impression in Missouri. As a case of first impression, it is instructive to examine cases from other jurisdictions in addressing these issues. Under the UAGA as adopted and modified in Missouri, "[a] person who acts without negligence and in good faith and in accord with the terms of this act or with anatomical gift laws of another state or foreign country is not liable for damages in any civil action or subject to prosecution in any criminal proceeding for his [or her] act." Section 194.270.3 RSMo (1996). The parties direct us to several cases from other jurisdictions which are informative on the question of what constitutes acting in "good faith," but do not contain any requirement or discussion of what encompasses acting "without negligence." This Court's research reveals that Florida adopted a similar standard requiring a finding of acting "without negligence and in good faith" in order for a party to receive immunity from civil liability under the UAGA.[2] Unfortunately, Florida offers little guidance in that it has not by court opinion addressed this issue as of this date. We address the issue of acting "without negligence" first.
Generally, in order to prove negligence, the plaintiff must plead and prove that the defendant had a duty to protect the plaintiff from injury, the defendant breached that duty, and the defendant's failure directly and proximately caused the plaintiff's injury. Robinson v. Health Midwest Development Group, 58 S.W.3d 519, 521 (Mo. banc 2001). In this instance, MTS must bear the burden of proving it acted without negligence and in good faith in order to receive immunity from civil liability for harvesting Decedent's corneas, bone, and tissue.
There is no dispute that MTS has a duty to follow the requirements set forth under the UAGA in order to complete a valid organ donation. MTS first obtained a written consent form which is permissible under Section 194.240.2. The form was executed by a member of a class of persons authorized to consent to organ donation pursuant to Section 194.220.2(2). MTS presented testimony that the consent form appeared to be valid on its face with no limitations noted. Additionally, MTS offered evidence of its standard protocol when removing the eyes, bone, and tissue and testified that it followed these protocols. Finally, no one from Decedent's family contacted MTS to limit or revoke the gift which would preclude it from accepting the gift as mandated in Section 194.220.3. There is no evidence in the record creating a genuine issue of material fact that MTS breached its duty in the instant case. Therefore, we hold MTS acted without negligence when removing Decedent's corneas, bone, and tissue.
Appellant argues should we find MTS acted without negligence, we should find acting in "good faith" is a jury question. MTS disagrees, arguing a good faith determination under the UAGA can be addressed appropriately during the summary judgment phase as a matter of law. MTS *532 relies on several cases from other jurisdictions for this proposition.
The first case to define good faith in an organ donation context was Nicoletta v. Rochester Eye and Human Parts Bank, Inc., 136 Misc.2d 1065, 519 N.Y.S.2d 928 (1987). Good faith is "an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage." Id. at 930. Nicoletta further discussed whether the issue of determining if a person acted in good faith under the UAGA was a question of fact or a question of law. Following an extensive review of good faith decisions in other contexts, the Nicoletta court held in this instance, where the legislature has so clearly prescribed a "standard by which to judge a defendant's conduct," good faith determinations are a question of law:
In those cases, most of which involved dealings of a corporate or commercial nature, there was no express or specific criteria of a statutory nature incorporating such a `standard of conduct' against which an individual's conduct could be measured, without submitting evidence in the form of in-court testimony to a trier of fact.
In the instant case, however, the Court believes that the Legislature had created an objective standard by which the good faith of a donee could be measured. The [UAGA] establishes a statutory scheme which outlines the means of effecting an anatomical gift, the classes of individuals entitled to effect such a gift, and the circumstances under which such a gift must be deemed null and void. None of the previous good faith cases have involved such a definitive standard by which to judge a defendant's conduct.
Nicoletta, 519 N.Y.S.2d at 931.
Several cases of first impression in other jurisdictions have adopted the Nicoletta analysis in finding good faith is a question of law. See Hinze v. Baptist Memorial Hospital, 1990 WL 121138, *5 (Tenn.Ct. App. Aug. 23, 1990); Brown v. Delaware Valley Transplant Program, 420 Pa.Super. 84, 615 A.2d 1379, 1383-84 (1992); Kelly-Nevils v. Detroit Receiving Hospital, 207 Mich.App. 410, 526 N.W.2d 15, 19 (1994); Rahman v. Mayo Clinic, 578 N.W.2d 802, 805 (Minn.Ct.App.1998); Andrews v. Alabama Eye Bank, 727 So.2d 62, 64-65 (Ala. 1999); Ramirez v. Health Partners of Southern Arizona, 193 Ariz. 325, 972 P.2d 658, 662-63 (Ct.App.1999). We find these authorities persuasive, and hold the good faith determination under the UAGA is a question of law which can be addressed on summary judgment. In each of these cases, the donation procurement facility was held to have acted in good faith under the UAGA, and thus granted immunity from civil liability, despite flaws with obtaining consent or in erroneously completing the consent form.[3]
We find the same result is warranted here. MTS complied with the UAGA requirements of obtaining a written consent form. This form was signed by Appellant, who is a member of the class of persons authorized to consent to organ *533 donation. Further, Thompson testified the consent form appeared to be valid on its face and if it contained an ambiguity, it was MTS's practice to contact the family to discuss the discrepancy. The record reflects MTS only removed what was specified on the face of the consent form, and there were not limitations written upon the form. Moreover, MTS offered testimony it followed its standard protocol when removing the eyes, bone, and tissue. Finally, no one from Decedent's family contacted MTS to limit or revoke the gift.
In light of these findings, we hold MTS acted without negligence and with good faith in procuring Decedent's eyes, bone, and tissue. Therefore, MTS is entitled to immunity from Appellant's claims under the UAGA. Appellant's first point is denied; we affirm the trial court's grant of summary judgment in favor of MTS.
Appellant's second point challenges the trial court's grant of summary judgment in favor of Hospital and Guelbert on similar grounds, namely, there is a genuine issue of material fact as to whether Guelbert was negligent in his explanation and representations to Appellant about the amount of bone to be removed from Decedent. Appellant offers the depositions of Guelbert, Hospital, Appellant, and her children as evidence of this disputed fact. Hospital and Guelbert respond with four arguments alleging how they were entitled to immunity under the UAGA, and thus, summary judgment was entered properly in their favor.
As was the case with MTS, Hospital and Guelbert bear the burden of proving they acted without negligence and in good faith in procuring consent from Appellant under the UAGA. Summary judgment is not as feasible in negligence cases as it may be in other types of cases. Hammonds v. Jewish Hosp. of St. Louis, 899 S.W.2d 527, 529 (Mo.App. E.D.1995). See also Bruner v. City of St. Louis, 857 S.W.2d 329, 332 (Mo.App. E.D.1993) and Miller v. River Hills Development, 831 S.W.2d 756, 763 (Mo.App. E.D.1992). In determining whether Hospital and Guelbert acted without negligence, we must examine the record to see if there is no genuine dispute as to the facts necessary to support the affirmative defense of good faith immunity.
The record reflects a definite factual dispute as to the representations Guelbert made to Appellant in the course of procuring her consent to donate Decedent's eyes, bone, and tissue. Initially, Appellant was opposed to making any donation. However, after speaking with Guelbert in great detail, she consented. Both parties give diametrically opposed accounts of the discussion with respect to the explanation of what exactly would be donated. In such a case, it is not this tribunal's duty to determine the credibility of the witnesses or resolve these factual issues. That duty is for the trier of fact.
Therefore, we find there are genuine issues of material fact that must proceed to trial. We reverse and remand with respect to the trial court's judgment granting summary judgment in favor of Hospital and Guelbert.
ROBERT G. DOWD, JR., P.J., and MARY K. HOFF, J., concur.
NOTES
[1] All further statutory references are to RSMo (1996) unless otherwise indicated.
[2] Fla. Stat. Section 765.517(5)(2002) states "A person who acts in good faith and without negligence in accord with the terms of this part ... is not liable for damages in any civil action or subject to prosecution for his or her acts in any criminal proceedings."
[3] See, e.g., Nicoletta, 136 Misc.2d 1065, 519 N.Y.S.2d 928 (good faith when eye bank justifiably relied on facially valid permission form even though signed by a person not authorized to give consent, and bank had no actual notice that family members opposed the gift); Hinze, 1990 WL 121138 (same); Kelly-Nevils, 207 Mich.App. 410, 526 N.W.2d 15 (same); Brown, 420 Pa.Super. 84, 615 A.2d 1379 (bank acted in good faith even when it did not obtain consent from person authorized to give consent after conducting a search for the decedent's family members and failing to locate them); Lyon v. United States, 843 F.Supp. 531 (D.Minn.1994)(eye bank acted in good faith when it removed eye when it relied on form doctor erroneously completed). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593068/ | 135 S.W.3d 519 (2004)
Sherrie D. GRAY, Claimant/Appellant,
v.
BOTKIN LUMBER COMPANY and Division of Employment Security, Respondents.
No. ED 84007.
Missouri Court of Appeals, Eastern District, Division Five.
May 11, 2004.
*520 Sherri D. Gray, Farmington, MO, pro se.
Cynthia Ann Quetsch, Jefferson City, MO.
Botkin Lumber Company, Inc., Farmington, MO, pro se.
SHERRI B. SULLIVAN, Chief Judge.
Sherrie D. Gray (Claimant) appeals the decision of the Labor and Industrial Relations Commission (Commission) denying unemployment benefits to her. Because we find Claimant's notice of appeal is untimely, we dismiss the appeal.
A deputy of the Division of Employment Security (Division) concluded Claimant was ineligible for unemployment benefits because she was not available for work. Claimant filed an appeal with the Appeals Tribunal and a hearing was held. The Appeals Tribunal affirmed the deputy's determination. The Appeals Tribunal noted that Claimant became pregnant and due to the high-risk nature of the pregnancy, she was placed on stringent work restrictions. Her employer, Botkin Lumber Company (Employer) granted her an unpaid medical leave, but continued to pay her insurance. The Appeals Tribunal concluded that Claimant had neither quit her job nor been fired and she expected to return to her job once she was physically able.
Claimant filed an application for review with the Commission. The Commission affirmed the decision of the Appeals Tribunal. The Secretary of the Commission certified that she mailed a copy of the Commission's decision to Claimant on December 9, 2003. Claimant filed a notice of appeal to this Court by facsimile on January 9, 2004.
A claimant has twenty days to appeal a final decision of the Commission. Section 288.210.[1] The Commission's decision becomes final ten days after the date it is mailed to the parties. Section 288.200.2. Here, the Secretary for the Commission mailed its decision to Claimant on December 9, 2003. The decision became final ten days later and the notice of appeal was due on January 8, 2004. Claimant's notice of appeal, which was filed on January 9, 2004, was untimely under Section 288.210.
This Court has a duty to determine sua sponte whether it has jurisdiction. Williams v. ESI Mail Pharmacy Serv., Inc., 103 S.W.3d 848 (Mo.App. E.D.2003). After reviewing our jurisdiction, we issued an order directing Claimant to show cause why this appeal should not be dismissed as untimely. Claimant did not file a response.
An untimely notice of appeal in an unemployment case deprives this Court of jurisdiction to entertain the appeal. Loeffler v. Shop N Save, 121 S.W.3d 261, 261 (Mo.App.E.D.2003). Even though Claimant's notice of appeal was only one day out of time, Section 288.210 fails to make any provision for late filing and does not recognize any exceptions for filing out of time. Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000). Our only recourse is to dismiss Claimant's appeal.
The appeal is dismissed for lack of jurisdiction.
LAWRENCE E. MOONEY, J., and GEORGE W. DRAPER III, J., concur.
NOTES
[1] All statutory references are to RSMo 2000, unless otherwise indicated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592489/ | 192 N.W.2d 753 (1971)
GROCERS WHOLESALE COOPERATIVE, INC., Appellee,
v.
NUSSBERGER TRUCKING COMPANY, Inc., et al., Appellants.
No. 54733.
Supreme Court of Iowa.
December 15, 1971.
*754 Cosson, Christianson, Hohnbaum & George, Des Moines, Brown, Dresser & Kinsey and David E. Funkhouser, Mason City, for appellants.
Dickinson, Throckmorton, Parker, Mannheimer & Raife and Dwight W. James, Des Moines, for appellee.
UHLENHOPP, Justice.
This appeal involves problems relating to admissibility of evidence and answers to special interrogatories, in an action growing out of a collision of two trucks.
Plaintiff owned the cargo in a truck headed north on the early morning of February 24, 1969, on United States Highway 69 in Wright County, Iowa. Defendant Nussberger owned a truck, operated by defendant Patovisti and leased for the trip to defendant Pre-Fab, headed south at the same time and place. For brevity we will refer to the vehicles as "plaintiff's truck" and "defendants' truck". Defendants' truck came across the line into the left lane and did not return to the right lane. The trucks collided. In the present action, plaintiff seeks to recover for damage to its cargo and for expense of cleanup. The driver of plaintiff's truck was killed. A claim for his death is the subject of another action.
Before the present trial, the discovery deposition of Patovisti was taken in the action relating to the death of plaintiff's driver. In that deposition Patovisti testified as to how the collision occurred, what he told a "state trooper" at the scene, and other matters concerning the collision. As to how the collision occurred, Patovisti testified in the deposition that immediately north of the place of collision he came upon a "black vehicle" which caused him to turn left into the other lane of traffic.
At the outset of the present trial, plaintiff called Patovisti as a witness. Patovisti did not testify the same as in his deposition. Instead, he testified that he did not swerve immediately before impact with plaintiff's truck and that he was in his own lane of traffic. By way of impeachment, plaintiff's attorney thereupon asked Patovisti if he testified on a prior occasionbut the question was interrupted by the request of defendants' attorney to take up a matter in the absence of the jury. With the jury absent, defendants' attorney objected that plaintiff's attorney was about to go into Patovisti's deposition in the other case. After argument by counsel, the trial court overruled the objection. When the jury was recalled, Patovisti testified that on a previous occasion he had stated under oath it was his claim there was a truck immediately north of the place where the accident occurred, parked at the west shoulder of the road, and this truck caused him to turn to the left and into the other lane of traffic. He remembered saying after the accident, "What happened, what happened?" He testified that he occasionally nodded his head when driving and that he told someone he might have dozed off.
Thereafter, plaintiff introduced additional evidence that the collision occurred on plaintiff's side of the highway and that Patovisti did not see plaintiff's truck before he hit italthough it was there to be seen. After plaintiff rested its case, defendants introduced evidence that their truck did indeed suddenly veer left into the pathway of plaintiff's truck but that a blowout caused by a metal bolt was later discovered to have occurred in their left front tire. The blowout tire was not very satisfactorily traced to defendants' truck by the evidence.
The trial court submitted for the jury's consideration three charges of negligence against Patovisti: failue to keep a proper lookout, failure to have control, and failure *755 to yield half of the traveled way by turning to the right. The trial court also submitted the question of sudden emergency in connection with defendants' contention that a blowout occurred in their tire.
The jury returned a verdict for plaintiff. In answer to special interrogatories, the jury found that Patovisti violated his duty to keep a proper lookout but that he did not violate his duty to have control or to yield half of the traveled way by turning to the right. Defendants appealed the case to this court.
Defendants make two contentions here: first, the trial court erroneously allowed plaintiff's attorney to question Patovisti about the previous deposition testimony, and second, the trial court erroneously submitted to the jury the charge of failure of Patovisti to keep a proper lookout.
I. Defendants contend that Patovisti could not be questioned about his testimony in the discovery deposition for two reasons: (a) the deposition was taken in another action and (b) the deposition testimony was privileged.
(a) In connection with the first reason, defendants rely on the following italicized portion of our rule on the use of depositions: "Any part of a deposition, so far as admissible under the rules of evidence, may be used upon the trial or at an interlocutory hearing or upon the hearing of a motion in the same action against any party who appeared when it was taken, or stipulated therefor, or had due notice thereof [in four specified situations, including impeachment]." Rule 144, Rules of Civil Procedure (italics added). Defendants contend that the discovery deposition was not taken "in the same action", but rather, in the death action.
Defendants are mistaken about the nature of rule 144. That rule is not an exclusionary rule of evidence. It is a permissive rule, setting out situations in which depositions are to be admitted into evidence. But the rule nowhere provides that depositions cannot be used in situations in which they would be admissible under other rules of evidence.
Prior inconsistent statements of a witness are admissible to impeach him, whether written or oral. Thus, a witness' prior inconsistent statements made in a deposition are admissible. 58 Am.Jur. Witnesses § 771 at 421-22, § 774 at 425; 98 C.J.S. Witnesses § 585 at p. 561, § 594(g) at pp. 579-581. And such statements are admissible even though the deposition was taken in another case. Kelso v. Independent Tank Co., 348 P.2d 855 (Okl.); Valley Land Office, Inc. v. O'Grady, 72 Wash. 2d 247, 432 P.2d 850.
Reason (a) of defendants is not tenable.
(b) Defendants' second reason is that the impeaching testimony was privileged under §§ 321.266 and 321.271, Code, 1971.
The former section requires both the driver in a collision like this one and the officer who investigates the collision to report the collision to the Iowa Department of Public Safety.
The latter section was changed in 1967. 62 G.A. ch. 276. The change is significant in view of prior decisions of this court. Section 321.271 provided at the time of this collision in 1969:
All accident reports filed by a driver of a vehicle involved in an accident as required under section 321.266 shall be in writing. The report shall be without prejudice to the individual so reporting and shall be for the confidential use of the department, except that upon the request of any person involved in the accident, his insurance company or its agent, or the attorney for such person, the department shall disclose the identity and address of the person involved in the accident. The written report filed with the department shall not be admissible in or used in evidence in any civil or criminal case arising out of the facts on which the report is based.
*756 All written reports filed by a law enforcement officer as required under section 321.266 shall be made available to any party to an accident, his insurance company or its agent, or his attorney on written request to the department of public safety and the payment of a fee of one dollar for each copy. (Italics added.)
Prior to 1967, however, the section read thus:
All accident reports shall be in writing and the written report shall be without prejudice to the individual so reporting and shall be for the confidential use of the department, except that upon the request of any person involved in an accident, or the attorney for such person, the department shall disclose the identity of the person involved in the accident and his address. A written report filed with the department shall not be admissible in or used in evidence in any civil case arising out of the facts on which the report is based. (Italics added.)
The section in its prior form, as we last quoted, dealt with all accident reports, that is, reports of drivers and of investigating officers. It made a written report inadmissible in evidence. Under the statute in that form, this court held, of course, that both the driver's and the officer's report were inadmissible. The court also held that statements by a driver to an investigating officer for the officer's use in making his report were likewise inadmissible. Meyer v. Schumacher, 160 N.W.2d 433 (Iowa). The extension of inadmissibility to such statements was held necessary in order to make the inadmissibility of the officer's report effective.
But the section in its form since 1967, which we first quoted, differentiates drivers' reports and investigating officers' reports. Drivers' reports are the subject of the first paragraph of the section, and that paragraph makes those written reports inadmissible. Investigating officers' reports are the subject of the second paragraph. That paragraph contains no provision on inadmissibility or confidentiality.
The legislature must have intended to change the law on this subject or it would not have thus rewritten the section. Giving effect to the plain language of the section as it has stood since 1967, we hold that the provision on inadmissibility applies only as to drivers and then only as to the written reports which are made to the department. Thus the section itself no longer makes the reports of investigating officers inadmissible. Nor does the section render inadmissible statements made by drivers to investigating officers to enable the officers to make their reports.
We have no problem as to retrospectivity here. The events in this case occurred after the change in the statute. Assuming the doubtful premise that Patovisti's testimony elicited in the presence of the jury related to statements he made to an investigating officer for the officer's report, such statements are not privileged under the amended statute. For decisions under statutes having somewhat similar provisions, see Rockwood v. Pierce, 235 Minn. 519, 51 N. W.2d 670; Brown & Root, Inc. v. Haddad, 142 Tex. 624, 180 S.W.2d 339.
Defendants' reason (b) is not well taken.
II. As to defendants' contention regarding submission of the specification on lookout, again two points are involved. Defendants argue (a) that lookout could not have been a proximate cause of the collision and (b) that the jury's answers to interrogatories are inconsistent with the verdict for plaintiff.
(a) The gist of defendants' first point is that the cause of the collision was Patovisti's failure to yield half of the traveled way by turning to the right, not his failure to keep a lookout. This point is largely factual.
Patovisti's failure to yield by turning to the right was the immediate cause of the collision, but why did he fail to yield *757 by turning right? Defendants contend that this was because of the blowout, not because of failure to maintain a lookout. But here defendants are encroaching upon the province of the jury. Evidence was introduced as to failure to keep a proper lookout and also as to the blowout. Neither issue was established as a matter of law. At the conclusion of the evidence, the trial court had before it these two contested issues, among others. The jury could find that Patovisti did not yield by turning right because he was not watching properly or because the tire blew out. The trial court had to submit those issues to the jury, and did so. As to the presence of a vehicle on the left side and the issue of lookout, see Schmitt v. Jenkins Truck Lines, Inc., 170 N.W.2d 632 (Iowa).
Defendants' point (a) is not meritorious.
(b) Defendants' second pointthe alleged inconsistency of the general verdict with the jury's special findingsis more difficult. While granting plaintiff a verdict, the jury found that plaintiff had established its charge of negligence as to improper lookout but had not established its charges of negligence as to lack of control and failure to yield half of the traveled way by turning right. Defendants think the findings are so irreconcilable with the verdict that the trial court was required to send the jury back for further deliberation or order a new trial. The trial court thought otherwise, saying, "Under all the record in this case, the court finds no inconsistency in the answers made to said interrogatories."
We think the provision defendants must rely on is this sentence in rule 206, R.C.P.: "If the answers [to special interrogatories] are consistent with each other, but any is inconsistent with the general verdict, the court may order judgment appropriate to the answers notwithstanding the verdict, or a new trial, or send the jury back for further deliberation." The essential question is whether the verdict for plaintiff here is inconsistent with the jury's answer that plaintiff did not establish Patovisti was negligent in failing to yield half of the traveled way by turning right.
We were faced with a somewhat similar problem in Berghammer v. Smith, 185 N. W.2d 226, 234 (Iowa). After stating the rule regarding irreconcilable conflicts, we said:
However, all reasonable presumptions are in favor of the general verdict.. . .
Since we must indulge every presumption in favor of the general verdict, we examine the evidence in its view most favorable to plaintiffs to see if it will sustain a finding of liability on the sole ground defendant failed to keep a proper lookout.
See also State v. Propps, 190 N.W.2d 408 (Iowa).
Will the evidence here sustain a verdict for plaintiff on lookout although the jury found that plaintiff did not establish negligence in failing to yield half of the traveled way by turning right? We are inclined to think so, although the question is close.
Patovisti was on the left side and did not turn right; no question exists about that. From that, defendants assume the jury accepted their evidence about blowout and emergency. But that assumption is not necessarily well taken. The jury may have rejected the blowout evidence and yet have found that plaintiff had not established its negligence charge based on failure to yield half of the traveled way by turning right. Failure so to yield, in itself, is prima facie evidence of negligence, not negligence per se. Bachelder v. Woodside, 233 Iowa 967, 9 N.W.2d 464. The collision occurred in a rural area at a point at which Patovisti was not required to travel on the right except when he was meeting vehicles or persons on horseback or when he was overtaken and passed by a vehicle. Code, 1971, §§ 321.298, 321.299; Despain v. Ballard, 218 Iowa 863, 256 N.W. 426. The jury could *758 find that Patovisti came upon a black vehicle and turned to the left around it, not observing plaintiff's oncoming truck as he ought to have done. Thus the jury may have concluded that Patovisti's essential negligence was failure timely to observe plaintiff's truck, and may have placed its verdict upon that basis.
Although we are not altogether free from doubt about this assigned error, in view of the rule that "all reasonable presumptions are in favor of the general verdict" and of our duty to examine the evidence "in its most favorable view" to the verdict, we are unwilling to hold the trial court erred in ruling an irreconcilable conflict did not exist.
Defendants' point (b) cannot be sustained.
Affirmed.
All Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592494/ | 453 So.2d 842 (1984)
Donald J. CARROW, M.D., Appellant,
v.
DEPARTMENT OF PROFESSIONAL REGULATION, Appellee.
No. AW-454.
District Court of Appeal of Florida, First District.
June 19, 1984.
As Corrected July 19, 1984.
Karen Coolman Amlong of Holmes & Amlong, Fort Lauderdale, for appellant.
Michael I. Schwartz, Gen. Counsel, and William M. Furlow, Atty., Dept. of Professional Regulation, Tallahassee, for appellee.
SMITH, Judge.
Carrow, a licensed medical doctor, petitions for review of a non-final order of the Department refusing to quash an administrative subpoena duces tecum for certain patient records. We deny Carrow's petition because he has failed to demonstrate grounds for immediate, preliminary review by this court. See Rule 9.100, Florida Rules of Appellate Procedure, and Section 120.68(1), Florida Statutes (1983).
In his petition, Carrow complains that the forced production of the records sought would violate his privilege against self-incrimination guaranteed by the United States and Florida Constitutions. Further, he contends that the Department has failed to comply with the requirements of Section 455.225, Florida Statutes (1983), governing the initiation of disciplinary investigations against licensees and thus he is excused from further compliance with Department directives. In particular, he urges that the Department is conducting an invalid investigation since it has failed to inform him of the nature of the complaint against him contrary to Subsection (1) of Section 455.225, which provides that "When an investigation of any person is undertaken, the department shall notify him of the investigation and inform him of the substance of any complaint filed against him."
Carrow relies on this court's decision in Sheppard v. Florida State Board of Dentistry, 369 So.2d 629 (Fla. 1st DCA 1979), in support of his contention that his patient records are privileged and protected by the Fifth Amendment.[1] In response, the Department *843 cites Section 455.241(1) and (2) and Section 458.331(1)(n), Florida Statutes (1983), and contends this case falls within the "required records" exception, The Florida Bar v. White, 384 So.2d 1266 (Fla. 1980); Dr. John Doe, M.D. v. United States, 711 F.2d 1187 (2nd Cir.1983). More importantly, the Department urges that this appeal is premature and that Carrow should be required to wait until the Department seeks enforcement of the subpoena in circuit court, if it does, to raise his claim of constitutional privilege. We agree.
Section 455.223, Florida Statutes (1983), provides that enforcement of Department subpoenas shall be as provided in Section 120.58, Florida Statutes, which in turn provides that enforcement of a subpoena by the agency is by petition to the circuit court. See Section 120.58(3), Florida Statutes (1983). We think that under the facts of this case, the circuit court would be the exclusive forum for enforcement proceedings regarding this administrative subpoena.[2]
Carrow's apprehension that without the court's immediate intervention he will be subjected to disciplinary proceedings for failure to comply with the subpoena pursuant to Section 458.331(1)(x) is unfounded. If he simply refused to comply, without more, he might well have cause for concern. However, Carrow clearly raised justiciable issues concerning the validity of the questioned subpoena duces tecum in his request to the agency under Section 120.58(2) to quash the subpoena, and the Department may not charge him by administrative complaint with failure to comply with the subpoena until it has first sought enforcement in the circuit court under Section 120.58(3), the court has ruled adversely to him, and he has failed to comply with the subpoena within a reasonable period of time thereafter. See The Florida Bar v. White, 384 So.2d at 1268. We agree with the Department's view that State ex rel Greenberg v. Florida State Board of Dentistry, 297 So.2d 628 (Fla. 1st DCA 1974), relied upon by appellant, is distinguishable, in that it involved the Board's attempt to subpoena a non-licensed, non-party witness, who could refuse to comply only under pain of being adjudged in contempt of court under a statute then existing.
We have also noted Carrow's argument that since the Department has failed to comply with Section 455.225(1), he should be excused from compliance with the subpoena. As an extension of this argument, Carrow urges this court to order that this present investigation be terminated because the Department has not proceeded in accordance with Section 455.225(1). We have determined that even if Carrow's allegation concerning failure to comply with Section 455.225(1) is true, this error cannot be considered jurisdictional in any sense and Carrow has not demonstrated a need for immediate non-final review at this time. Beckum v. State Department of Professional Regulation, Board of Optometry, 427 So.2d 276 (Fla. 1st DCA 1983). Should it subsequently be shown that this investigation was procedurally irregular, and that any irregularities were material and impaired the fairness of the proceedings, this court upon final review could vitiate the agency action and remand for new proceedings. Section 120.68(8), Florida Statutes (1983). In the meantime, should this investigation lead to a finding of probable cause by a probable cause panel of the Board of Medical Examiners, and an administrative hearing be requested, Carrow may urge to the appointed hearing officer that the administrative complaint should be dismissed for failure to comply with Section 455.225(1).
The petition for review of non-final administrative action is DENIED.
JOANOS and ZEHMER, JJ., concur.
NOTES
[1] We note, although the Department's brief fails to mention it, that after this court decided Sheppard in 1979, the Legislature repealed and re-enacted Chapter 458 adding the language in Section 458.331(1)(n) to the effect that physicians may be disciplined for failing to keep written medical records justifying the course of treatment of the patient including, but not limited to, patient histories, examination results and test results. See Section 458.007(1)(n), Ch. 79-302, Section 1. Section 458.007(1)(n) was renumbered as Section 458.331(1)(n) in the 1979 Florida Statutes.
[2] We note that Section 120.58 was amended by the 1984 legislature in Ch. 84-173, Section 3, and the amended statute became effective during the pendency of this appeal. However, we find nothing in these amendments, even if considered on this appeal, that would affect our disposition. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592678/ | 453 So.2d 558 (1984)
Elgin D. HILL
v.
COMMISSION ON ETHICS FOR PUBLIC EMPLOYEES.
No. 83-C-2611.
Supreme Court of Louisiana.
May 14, 1984.
Rehearing Denied June 14, 1984.
*559 Robert G. Pugh, Pugh & Pugh, Shreveport, for applicant.
R. Gray Sexton, Peter G. Wright, Baton Rouge, Commission on Ethics for Public Employees, for respondent.
WATSON, Justice.
Elgin D. Hill is a licensed cosmetologist and co-owner of a beauty salon, the R & E House of Beauty. She has served for the past twelve years as a member of the Louisiana Board of Cosmetology. In addition to serving on the state board, she is the only Louisiana member of the National Accredited Commission for the Cosmetology Arts and Sciences, an elective position, and has served on other national boards.
In Opinion No. 80-67, the Commission on Ethics for Public Employees directed Ms. Hill to either resign from the Louisiana Board of Cosmetology, or divest herself of her interest in the R & E House of Beauty. Upon her failure to accept one of those alternatives, it was ordered that she be removed from the board by the Governor. The court of appeal affirmed the decision of the Commission. 442 So.2d 592 (La.App. 1 Cir.1983). A writ was granted to review the order of the Commission and the judgment of the court of appeal. 444 So.2d 1217 (La.1984).
FACTS
Ms. Hill was appointed to the Louisiana Board of Cosmetology in 1972. At that time, she was a partner in a beauty school and a beauty salon. Since board members may not "... be connected directly or indirectly with the ownership of a school licensed in this state ...",[1] Ms. Hill divested herself of the school ownership in an exchange whereby her partner took over the school and Ms. Hill took over the beauty salon.
The members of the Board of Cosmetology include some at large members, and others like Ms. Hill who are appointed by the Governor to represent the congressional districts.[2] She is the member from the fourth congressional district, where her beauty salon is located.
The board employs no less than one inspector from each of the five public service commission districts,[3] and the board members representing congressional districts appoint inspectors with the approval of the Governor.[4] However, the inspectors are civil service employees of the state and beneficiaries of the protections offered by that status.[5] A board member has no authority to discharge an inspector.
In carrying out her duties, Ms. Hill has appointed an inspector, one E.J. Smithers, who to some extent works under her supervision. Although not Ms. Hill's personal choice, Smithers received the job because he had the highest score on the civil service examination. His primary duty is visiting beauty salons and completing inspection reports. These are brief documents which list only two categories of information concerning each "beauty shop" inspected, the first being proper registration and the second being sanitary conditions.
As summarized by Smithers, the inspector does the following:
*560 "I see that they have a booth operator's license current, a current cosmetology license; that they have wet and dry sterilizers at each station, that the floors are clean at each station; that their tools and roller implements are kept in sterile cabinets; that their dirty towels are in a covered container and their clean towels are in a closed container of sterile stuff." (Tr. 58)
Mr. Smithers, a licensed cosmetologist since 1962, testified that he inspects Ms. Hill's beauty salon about four or five times every two years; he has never received any complaints about that shop. While he inspects her salon, he indicated that it would be a simple matter for an inspector from a nearby district to substitute for him. It is customary for inspectors to work outside their districts.
Witnesses testified that Ms. Hill is universally regarded as an excellent board member; she discharges her duties thoroughly and efficiently; and there have never been any complaints to the board concerning Ms. Hill or her salon.
The Commission on Ethics, after holding a private hearing and then a public hearing at which five witnesses testified, made the following findings of fact:
"FINDINGS OF FACT
"1. Elgin Hill has served by gubernatorial appointment as a member of the Louisiana State Board of Cosmetology from the Fourth Congressional District since 1972.
"2. Since that time, and to date, the Respondent has continued to own a controlling individual interest in, to manage and operate a beauty salon, known as `R & E House of Beauty,' and in connection with the management and ownership of that salon has periodically applied to and has been granted by the Louisiana State Board of Cosmetology a Certificate of Registration.
"3. `R & E House of Beauty' is located at 1233 Milam Street in Shreveport, Louisiana within the Fourth Congressional District of the Louisiana State Board of Cosmetology.
"4. Additionally, since 1972, Respondent has personally practiced as a cosmetologist and in connection with that practice has applied to the Louisiana State Board of Cosmetology and has been granted a Certificate of Registration as a cosmetologist.
"5. Likewise, Respondent in her capacity as a licensed cosmetologist, operates a `booth' at the `R & E House of Beauty' and discharges her services within the jurisdiction of the Fourth Congressional District of the Louisiana State Board of Cosmetology.
"6. As a full-time salaried member of the Board of Cosmetology, Respondent is required to and indeed does maintain a `district office' and has selected as an office for the duties she enjoys as a member of the Board of Cosmetology a facility in the building she owns at the location housing the `R & E House of Beauty.'
"7. There is one inspector employed by the Board of Cosmetology who is responsible for inspections and enforcement of the rules and regulations of the Board of Cosmetology within the Fourth Congressional District. The inspector in question periodically inspects the `R & E House of Beauty' as well as the `booth' of the Respondent in order to insure compliance with pertinent regulations of the Board.
"8. The inspector is subject to general as well as direct supervision by the Board member serving from the Fourth Congressional District in which he discharges his duties, i.e., the Respondent.
"9. Additionally, the inspector's performance evaluations, applications for merit, step, and other wage increases as well as certifications for leave and attendance are all made by the Respondent.
"10. Though the Respondent frequently accompanies the inspector during his routine inspections, she does not accompany the inspector whenever he is inspecting the `R & E House of Beauty' or the *561 `booth' maintained by the Respondent at the `R & E House of Beauty' and has never been present in the beauty salon at the time the inspections were made." (Tr. 11-12)
The Commission on Ethics concluded that "... both the letter and spirit of the Code prohibits ..." Ms. Hill from serving. Although the Commission was hard-pressed to state precisely the nature of the violation, it apparently rested on two facts: that Ms. Hill has some supervisory authority over inspector Smithers; and the R & E House of Beauty is licensed by the Board of Cosmetology. The conclusion is summarized in the opinion of the Commission on Ethics as follows:
"Respondent, (1) by supervising the investigator who is responsible for the inspections of not only the `R & E House of Beauty,' but also the competitors of that establishment, (2) by periodically reviewing and approving the inspections and other activities of this inspector, (3) by having the responsibility for the review and approval or disapproval of the applications for registration submitted on behalf of not only the `R & E House of Beauty,' but by the Respondent, as well as by the competitors of the Respondent and of the `R & E House of Beauty,' (4) and generally, by her actions as an active member of the Board of Cosmetology responsible for the administration of the provisions of the Cosmetology Act, does not only factually, but by operation of law, `participate' in transactions in which both she and the `R & E House of Beauty' have a substantial economic interest." (Tr. 16)
ISSUES
The issues to be decided therefore are:
(1) Whether Ms. Hill's supervision of the inspector, while being a licensed cosmetologist and part-owner of the R & E House of Beauty, constitutes a violation of the Code of Governmental Ethics, LSA-R.S. 42:1101, et seq.
(2) Whether she has responsibility for review and approval of applications for registration by beauty salons, which would constitute a violation of the Code, considering her licensed and ownership status.
(3) Whether service on the Board, while being a registered cosmetologist and part-owner of the R & E House of Beauty, somehow violates the spirit of the Code.
SUPERVISION OF INSPECTOR
The short answer to the issue posed by Ms. Hill's supervision of the inspector is that there is no necessity for Smithers to inspect the R & E House of Beauty. Other inspectors from nearby districts can easily monitor the salon in which Ms. Hill has an economic interest. As to the inspector's duties concerning other salons, there is no indication that this creates any impropriety relating to Ms. Hill's position on the board. The evidence demonstrates the contrary: Ms. Hill and Smithers are dedicated and conscientious persons who carry out their duties with commendable zeal, integrity, and skill. Therefore, since there is no showing of a violation of the Code of Ethics with regard to the supervision of the inspector, the first issue does not form a basis for sanctions against Ms. Hill.
REGISTRATIONS OF THE SALON
The evidence in the record indicates that the R & E House of Beauty has been a licensed shop since 1955 when a Ms. Davis was issued her initial license for a five dollar fee. Thereafter, each year through 1982 the shop has been issued a renewal license, the only variation being that in 1965 the fee increased to ten dollars, in 1974 to fifteen dollars, and in 1980 to twenty dollars. There is a notation that Ms. Hill became a co-owner, although the date is not specified.[6]
*562 It is apparent that the renewal of the shop license, as well as Ms. Hill's license to practice cosmetology,[7] which is also reflected in the records of the board, is a routine and mechanical thing. There is no showing that the board is required to vote or otherwise exercise authority with respect to the renewal of shop licenses and cosmetologist licenses.
Therefore, by serving on the Board of Cosmetology, while holding a shop license and a cosmetologist license, relator does not violate of the Code of Ethics.
SPIRIT OF THE CODE
The final holding of the Commission on Ethics is that Ms. Hill's service on the Board of Cosmetology violates the spirit of the Code of Ethics. Regardless of whether such a violation would warrant removal, the various laws pertaining to administrative boards in the State of Louisiana do not support this holding of the Commission.
There is a substantial argument that the laws providing for the Board of Cosmetology require or at least authorize service on the board by a person who is a licensed cosmetologist and/or a shop owner. The statute itself, by providing that board members "shall have been" actively engaged for at least five years prior to their appointment as a cosmetologist or teacher[8] implies that practitioners are to serve on the board. The Commission contends the phrase means antecedent service. The court of appeal held that a board member might be a practicing beauty operator but concluded that it is "inevitable" a board member/shop owner would have a conflict of interest prohibiting service. 442 So.2d 592 at 595. That conclusion is not supported by the record.
Additionally, the law establishing the Board of Cosmetology prohibits ownership or interest in a beauty school. This is the singular prohibited activity; there is no specific prohibition in the statutes against being a cosmetologist or owning a salon. Thus, the law must be interpreted under the legal maxim inclusio unius est exclusio alterius.[9] In other words, by barring only beauty school owners from serving on the Board of Cosmetology, the legislature by implication allowed cosmetologists and the owners of beauty salons to serve.
As Judge Sartain stated when concurring in the Louisiana Milk Commission case:
"It is my belief that the principal reason why the Legislature decreed that three members of the Commission are required to be milk processors and one member a milk producer is that the Legislature deemed that these appointees would be possessed of certain expertise in the handling and production of milk. This does not, per se, create a conflict of interest." Louisiana Milk Commission v. Louisiana Commission on Governmental Ethics, 298 So.2d 285, 291 (La.App. 4 Cir.1974).
Substantiating and lending weight to this observation is the impressive compilation in relator's brief of the state boards and administrative bodies which mandate professional status as a qualification for appointment. For example, the State Board of Certified Public Accountants requires its members to be certified public accountants, LSA-R.S. 37:73; the State Board of Registration for Professional Engineers and Land Surveyors has similar requirements, LSA-R.S. 37:683 A.; the Louisiana State Board of Optometry Examiners, requires members to be registered optometrists who have practiced for seven years, LSA-R.S. 37:1042 A. In close parallel with the cosmetology board, the five members of the Board of Barber Examiners must be practical barbers who have followed the occupation of barbering for five years, LSA-R.S. 37:341 B. All of these board members have the duties of examining applicants, *563 issuing and renewing licenses and/or revoking licenses.
The Commission on Ethics attempts to distinguish the cosmetology board because the members are paid a salary rather than a per diem for attendance. This attempted distinction has no significance.[10]
The court of appeal's reliance on Glazer v. Commission on Ethics for Public Employees, 431 So.2d 752 (La.1983) is misplaced. While the cases are alike in that both records demonstrate no suggestion of impropriety and that both Glazer and Ms. Hill were and are highly ethical and dedicated people, the factual context is essentially different. Glazer's wholly owned corporation was engaged in multi-million dollar sales to companies closely regulated by the Mineral Board of which he was a voting member. The Commission on Ethics found that he had a real and substantial conflict of interest. 431 So.2d 752 at 755. It was not a situation like Ms. Hill's where the Commission found only a remote possibility of a conflict of interest which it could not pinpoint or document.
The findings and conclusions of the Commission are insufficient to support a violation of the Code of Ethics requiring Elgin Hill to resign.
CONCLUSION
Since the Commission on Ethics incorrectly concluded that Elgin D. Hill was in violation of the Code of Governmental Ethics, it is unnecessary to address certain constitutional questions suggested by counsel. The order that Ms. Hill either divest herself of her ownership interest in the R & E House of Beauty or resign from the Louisiana Board of Cosmetology is reversed and set aside as is the decision of the Court of Appeal affirming that order.
REVERSED.
DENNIS, J., dissents with reasons.
BLANCHE, J., dissents and assigns reasons.
DENNIS, Justice, dissenting.
I reluctantly dissent.
If we were free to base our decision on the wisdom of the statute or the equities of this particular case, I would gladly join the majority. However, under the code, it appears there is a conflict of interest. The board member in effect participated in approving her own applications for licenses. Thus, she participated in transactions between the board on which she serves and herself. Renewals of these licenses probably were "routine and mechanical thing[s]" as the majority says, but I do not believe the Code authorizes us to distinguish between transactions involving conflicts of interest on this basis. I reserve judgment, however, on the constitutional issue raised by relator which the majority does not reach and which I have not had an opportunity to examine fully.
BLANCHE, Justice, dissenting.
R.S. 42:1112 B (2) prohibits a public servant from participating in a "transaction" involving himself and the governmental entity of which he is a member. Relator's duties as a board member involve the licensing and inspection of her own private business over which she had jurisdiction.
The spirit and purpose of the Ethics Code is to insure that the public employees be independent and impartial so as to instill public confidence in the integrity of the government. With this stated purpose as a premise I would define the foregoing activity of relator as a "transaction" proscribed by the above statute.
I further agree that no specific instance of impropriety as a result of Ms. Hill's indirect supervision of her own establishment has been demonstrated. But this fact, while commendable, is not relevant to a determination of whether plaintiff violated the statutory prohibition against potential *564 conflicts of interest. Unlike other public employees, appointed board members do not have the freedom to disqualify themselves from participating in a transaction involving the governmental entity on which they serve and their own private economic interest. La. R.S. 42:1112(C). Instead, a potential board member ought to divest himself of his interests before assuming his governmental office. Therefore, the trial court's order requiring Ms. Hill to divest herself of her interest in the salon or resign was correct.
I respectfully dissent.
NOTES
[1] LSA-R.S. 37:493 B. provides:
"Board members, other than the executive secretary, shall have been actively engaged for at least five years prior to their appointment, in this state, in the activities described in the definition of `operator' and/or `teacher' as set forth in this part. The board members shall not all be graduates of the same school of the art, nor shall any board member be connected directly or indirectly with the ownership of a school licensed in this state."
[2] LSA-R.S. 37:493 A.
[3] LSA-R.S. 37:499.
[4] LSA-R.S. 37:493 D.
[5] LSA-R.S. 37:499 A.
[6] This information is taken from certified copies of the records of the Board of Cosmetology, Tr. 109-110.
[7] The Commission does not press the matter of Ms. Hill holding a personal license.
[8] LSA-R.S. 37:493 B.
[9] The inclusion of one is the exclusion of another. Black's Law Dictionary, Fifth Edition, West, St. Paul, C. 1979, p. 687.
[10] According to Joel Mumphrey, Chairman of the Cosmetology Board, the salary is not a living wage. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592681/ | 453 So.2d 1075 (1984)
Tyrone THOMAS
v.
STATE.
3 Div. 813.
Court of Criminal Appeals of Alabama.
March 20, 1984.
Rehearing Denied April 24, 1984.
Certiorari Denied July 13, 1984.
*1076 Joel S. Rogers, III, Clanton, for appellant.
Charles A. Graddick, Atty. Gen. and Susan McKinney, Asst. Atty. Gen., for appellee.
Alabama Supreme Court 83-819.
HUBERT TAYLOR, Judge.
Appellant, Tyrone Thomas, was convicted of felony possession of marijuana and sentenced to fifteen years in the penitentiary. The only issue raised on appeal is whether the trial court erred by not suppressing the marijuana found on Thomas and a statement he later made to police because of an illegal search and seizure. The facts of the case are summarized below.
Thomas was stopped by Officer Yates of the Montgomery Police Department for an improper headlight. When asked for a driver's license, Thomas said he did not have one. Yates then asked him to step out of the car so some identification could be obtained.
Yates then saw yellow envelopes in a cloth pouch in Thomas's pocket, which he immediately seized. Without looking in the envelopes, he placed Thomas under arrest, patted him down, and handcuffed him. Yates testified that he had never seen marijuana in plain view but had seen only the yellow envelopes. Thomas had not consented to any search, and he was not frisked until after the envelopes were pulled from his pocket. Additionally, *1077 Yates testified that prior to the seizure of the envelopes, Thomas was facing charges of "improper headlights" and "no driver's license" but was not arrested until after the seizure of the envelopes. Officer Yates was not in fear of his safety and did not believe Thomas's pocket contained a weapon. Finally, Yates testified that he had seen marijuana packaged in envelopes on other occasions.
The State contends that Thomas was under arrest at the time he stepped out of the car and that the seizure was the result of a search incident to a lawful arrest. This argument is without merit.
Since the officer had, in reality, only stopped the car and asked for identification, his actions up to that point can only be characterized as a limited investigatory stop or, in the words of Sly v. State, 387 So.2d 913 (Ala.Cr.App.1980), "a mere temporary detention." The court in that case, citing 61A C.J.S. Motor Vehicles § 593(1) (1970), goes on to say:
"[T]his stopping of a motorist by a police officer for a traffic offense does not constitute an arrest. `An arrest is to be distinguished from a mere temporary detention, and the stopping of a motorist for ... questioning or investigation after an apparent violation of such laws does not of itself constitute an arrest.'" 387 So.2d at 916.
Yates, by asking for identification, was still investigating the case and had not issued any citations prior to seizing the envelopes. He testified that Thomas was not under arrest until after the seizure; under those circumstances, Thomas was temporarily detained.
Even if Thomas had been properly arrested, which he was not, he could not properly be placed under a custodial arrest. See Morton v. State, 452 So.2d 1361 (Ala.Crim.App.1984); Daniels v. State, 416 So.2d 760 (Ala.Crim.App.1982); and § 32-1-4, Code of Alabama 1975. The search-incident-to-arrest exception to the warrant requirement arises only when there is a custodial arrest. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Fortunately, we live in a free society in which individuals are not usually subject to a custodial arrest for the failure to carry identity papers or driver's license, or failure to keep the bulbs in their headlights from wearing out. For the foregoing reasons, the search in the case sub judice cannot be justified as a search incident to a lawful arrest.
Neither can the search be justified as a "stop and frisk" under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967), since the frisk was after the arrest and the officer admitted that he did not believe Thomas was carrying a weapon. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1967).
The other possible justification for the search is the plain view exception. After analysis, however, this justification must also be rejected.
Yates never saw marijuana or anything that would reasonably indicate to him that Thomas was engaged in a criminal activity. The envelopes were inside a coat pocket with the flap pulled down. All Yates saw were the envelopes themselves.
The case of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1970), required that it be immediately apparent that an article seized under the plain view exception was contraband or associated with criminal activity. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), has partially repudiated the "immediately apparent" requirement of Coolidge. However, there still must be probable cause to believe that an article is associated with criminal activity before it can be seized under the plain view exception.
In Texas v. Brown, the appellant, after being stopped by police, very gradually pulled his hand out of his pocket. The police officer noticed that there was a balloon tied off at one end between the appellant's middle fingers which he let drop between the seats. While the appellant was looking in the glove compartment for an *1078 I.D., the officer noticed plastic vials, a white powdery substance, and an opened package of balloons. The officer testified that he knew from prior experiences that narcotics were frequently packaged in such a way, and that based on that past experience and what he saw in the glove compartment, he seized the balloon. The Supreme Court found sufficient probable cause for the seizure.
In the case sub judice, however, the facts do not supply the officer with any probable cause. Here the facts are simply that a few yellow envelopes could be seen in Thomas's pocket and Yates had previously seen marijuana packaged in yellow envelopes.
It is an accepted common practice for individuals to carry yellow envelopes in a coat pocket. The activity in question, without more, is completely innocuous. Marijuana can be placed, packaged, or stored in many things: shoe boxes, match boxes, paper bags, suitcases, gym bags, jewelry boxes, and purses, to list just a few. To affirm this case would be tantamount to condoning the arrest of any individual in possession of a container.
To uphold this case under the plain view doctrine would cause Fourth Amendment protection to approach the evaporation point. Why, we wonder, would there be less probable cause for the police to make an arrest under the following facts? Johnny's grandmother makes brownies for him on his birthday. After putting them in a bread basket, she puts them in her car and drives off on her way to Johnny's. Unknown to her, however, is the fact that one of her taillights is not working. She is pulled over by an officer experienced in the ways of marijuana users. Knowing that marijuana is often baked into brownies, he seizes the brownies, which are in plain view, and wrestles Johnny's grandmother to the ground.
Since we do not believe that type practice to be in the best interest of a free society, the judgment of the lower court is reversed and this cause remanded.
REVERSED AND REMANDED.
TYSON, HARRIS and SAM TAYLOR, JJ., concur;
BOWEN, P.J., concurs in result only. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592709/ | 453 So.2d 451 (1984)
Judith C. WOOD, Individually and As Mother and Natural Guardian of Jim-a-Lou Wood and Michael Wood, Her Minor Children, Appellant,
v.
FORTUNE INSURANCE CO., Appellee.
No. 84-13.
District Court of Appeal of Florida, Fourth District.
July 11, 1984.
Rehearing Denied August 17, 1984.
Roy W. Jordan, Jr., West Palm Beach, for appellant.
Roger J. Slaydon of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellee.
GLICKSTEIN, Judge.
This is an appeal by an insured from an order vacating a final summary judgment previously entered in her favor and against her insurer. We affirm.
There is a parallel between this case and Morgan v. Thomson, 427 So.2d 1134 (Fla. 5th DCA 1983), in that appellee here failed to respond to appellant's request for admissions, also failed to move for leave to file responses belatedly pursuant to Florida Rules of Civil Procedure 1.370 and suffered the entry of an adverse summary judgment. In Morgan our companion court held the defaulting party could not belatedly file responses without a motion for leave to do so, the absence of which was fatal. As Judge Cowart pointedly ends the opinion: "No motion, no relief, no error." Id. at 1135.
Here, appellee's course was identical to appellant's in Morgan. Responses were filed late, without any motion seeking permission to do so. Also filed simultaneously was an affidavit in opposition to the adversary's motion for summary judgment which spelled out facts diametrically opposed to admissions.
At that point the parallel between the cases ends. Appellant in Morgan immediately sought appellate relief. Appellee in the present case filed a motion to vacate the summary final judgment and attached the affidavit of appellee's counsel that he timely sent the requests to the insurer client and informed it of the necessity for timely response. Counsel had in place a tickler system that broke down. No tickler; no reminder; no response. Weeks later the lapse was discovered and responses were immediately filed. The trial court, on review of the motion and affidavit, granted the motion, with the result that the ultimate issue of fact in dispute will be resolved by the triers of fact.
Precedent strongly supports our not disturbing the trial judge's decision to have the matter resolved on its merits. Policy-wise, that is why the system was created initially. In addition, our companion court has suggested that the recognized test for *452 upsetting a trial judge's decision in so-called excusable neglect cases is that the decision amounted to a gross abuse of discretion. See Church v. Strickland, 382 So.2d 419 (Fla. 5th DCA 1980). Whether this was or was not excusable neglect is really not so important as the fact that we believe there was truly a judgment call; and that is what generally describes discretion. Similar fact patterns have been labeled as excusable neglect. In Broward County v. Perdue, 432 So.2d 742 (Fla. 4th DCA 1983), this court found such when a responsive pleading was late because a secretary clipped the summons and complaint to the wrong file. Similarly, in Florida Aviation Academy v. Charter Air Center, Inc., 449 So.2d 350 (Fla. 1st DCA 1984), the First District Court of Appeal overturned the trial court's refusal to set aside a default judgment, when the explanation for the neglect was that an inexperienced secretary had failed to calendar the time when an answer to the complaint had to be filed. We judges, lawyers, secretaries and others involved in the process are all here to serve the parties' rights and see that their remedies, as plaintiff or defendant, see the light of day. The trial judge's decision here is consistent with those goals. When the system breaks down and the merits are never reached, justice is seldom served, and the system simply inherits an aberration from its conceived purpose; namely, a new claim against the source of the breakdown.
It is true that for the system to work, timeliness is essential; nevertheless, the rules of civil procedure are flexible enough to expressly provide for late filing of responses. Tardy responses may be and have been excused. See Love v. Allis-Chalmers Corp., 362 So.2d 1037 (Fla. 4th DCA 1978) and Melody Tours, Inc. v. Granville Market Letter, Inc., 413 So.2d 450 (Fla. 5th DCA 1982).
This opinion is not to be construed as a license for indifference and inefficiency. We could have reversed and created a contest between the attorney and its client; but that does not seem appropriate here. Hopefully, the individual members of The Florida Bar will be constant in their efforts to run such a tight ship in their respective practices that these breakdowns can be reduced and ultimately eliminated.
WALDEN, J., concurs.
LETTS, J., concurs specially with opinion.
LETTS, Judge, concurring specially.
Based on all the facts in this case, I concur that the trial judge did not abuse his discretion. However, I do not agree that whether or not excusable neglect is present, is not so important. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592730/ | 922 F.Supp. 15 (1995)
Jyoti SHAH, Plaintiff,
v.
The UPJOHN COMPANY, Defendant.
No. 1:94-cv-783.
United States District Court, W.D. Michigan, Southern Division.
October 25, 1995.
*16 *17 J. Paul Janes, Gruel, Mills, Nims & Pylman, Grand Rapids, MI, Richard J. Howard, Dietrich, Zody, Howard & Vander Roest, Kalamazoo, MI, for plaintiff.
Craig H. Lubben, Miller, Johnson, Snell & Cummiskey, Kalamazoo, MI, for defendant.
OPINION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
MILES, Senior District Judge.
In this action filed under the Americans With Disabilities Act ("ADA"), plaintiff Jyoti Shah alleges that defendant The Upjohn Company ("Upjohn") violated that statute by failing to accommodate her through reassignment and by ultimately firing her from her employment as a research biochemist because she alleges she became allergic to her job. Upjohn has filed a motion for summary judgment, which plaintiff has opposed. For the following reasons, the court hereby GRANTS the Upjohn's motion and dismisses this action with prejudice.[1]
I
In February, 1980, Shah, a Kalamazoo, Michigan resident who holds a bachelor's degree in chemistry, was hired by Upjohn to work as a biochemistry assistant. In 1984, Shah was promoted to the position of biochemist. In 1987, she was again promoted, this time to the position of research biochemist. Although Shah's complaint alleges that this position "initially consisted of research and writing," Complaint, ¶ 7, she has not disputed that the position of research biochemist is a position which requires laboratory work. Shah Dep. at 143-44.
In June, 1989, Dr. Greg Szpunar became the Director of Drug Metabolism and obtained supervisory authority over Shah, who worked in this group. Complaint, ¶ 9. Shortly thereafter, according to Shah, her career at Upjohn began to falter. Plaintiff's Brief at 2. In August, 1989, after disagreeing with Szpunar over ratings which she received in a performance appraisal, Shah became upset and leveled tacit threats to leave the unit. Memo, 1989 Performance Appraisal (attached as exhibit to Plaintiff's Brief).[2]
In June, 1990, Shah underwent a routine physical examination at Upjohn's Occupational Health (hereinafter "OH") clinic. A blood test completed as part of the examination revealed an elevated level of eosinophils, known as eosinophilia (hereinafter "EOS"). Complaint, ¶ 10. According to Dr. Kenneth Rosenman of the Michigan State University School of Medicine, EOS may be defined as follows:
We have different types of white cells in our body. And one type of white cell is called an eosinophil. And so [EOS] is an increased number of that particular type of white cell. It's not cancer. Sometimes people think of white cells, they think of leukemia. This just refers to an increase in this type of cell that you typically see with allergies or exposure to certain parasites.
Rosenman Dep. at 9.
In July, 1990, after Shah's EOS was detected, Dr. Daniel Bouwman of Upjohn's OH clinic referred her to Dr. Marshall A. MacDonald, an allergist, for further evaluation. MacDonald saw Shah on July 3, 1990. On August 10, 1990, MacDonald reported to Bouwman that an allergic investigation "failed to show any reason for the itching and [EOS]." Bouwman Aff., Ex. 1. However, because Shah's EOS had disappeared during a four-week period in which she had apparently been out of the lab, MacDonald suggested that Shah avoid working with four specified chemicals which he described as "possible allergens." Id. With these restrictions in mind, Shah was released to return to *18 the laboratory. Bouwman also arranged for Upjohn's environmental services to check Shah's work area to make sure that her ventilating hood was functioning properly and to assess her work area to make sure exposure to chemicals was limited. Bouwman Aff., ¶ 8.
Shah alleges that upon returning to the laboratory, she again began to experience adverse health effects. Upjohn admits that by early 1991, Shah's EOS had returned. Bouwman then referred Shah to Dr. Raymond Lord, a hematologist, who evaluated Shah in February, 1991. At the time of Lord's examination, Shah's EOS was mild and asymptomatic, although she reported having experienced itching and fatigue in May, 1990. Lord Dep. at 6-7.[3] Lord sent a report to Bouwman in which he explained that he had "rul[ed] out any serious reason for the [EOS]" and that
The eosinophils are mature and would likely, therefore, be a secondary [EOS] to some environmental stimulus. This is not a harmful event in her case, and I do not see at this point any reason to change her lifestyle or occupation on this basis....
Bouwman Aff., Ex. 3. Lord's report also explained that
[M]any times [EOS] is secondary to a stimulus of which thorough investigation still does not show why the [EOS] is present. Also, in general, [EOS] is usually a benign course that does not cause long-term harmful sequelae.
Id. Lord noted that he had reassured Shah that her [EOS] "did not mean the beginning of leukemia or a lymphoma" and that she showed no evidence of either of these diseases. Id.
In September, 1991, Shah saw Bouwman in the OH clinic, complaining of fatigue and eye irritation. Bouwman decided to consult further with Lord. After reviewing Shah's blood work, Lord reported to Bouwman in October, 1991 that Shah had the impression that her [EOS] was due to her laboratory exposure; however, Lord stated that this view was "not too objective and has a lot of subjective interpretation" by Shah. Bouwman Aff., ¶ 13, and Ex. 4. Lord suggested that Shah be asked to participate in what amounted to a blind trial, whereby she would be asked to keep a diary of her energy level, symptoms, activities, and particular chemicals to which she was exposed. During this period, Shah's eosinophil count would be monitored without informing her of the results. Id., Ex. 4. Dr. Bouwman discussed this proposal with Shah, who said that she would let him know if it was workable for her. Bouwman Aff., ¶ 15.
Shah returned to see Lord again on March 31, 1992. This time, she described symptoms of nausea, vomiting, dizziness, headaches, skin rash, fatigue, and difficulty with coordination. Lord Dep. at 15. Shah alleges that after that visit, Lord recommended that she be assigned to work outside the laboratory. Complaint, ¶ 18. However, an April 13, 1992 letter written by Lord to Bouwman indicates that he recommended only that Shah be assigned to work outside the chemical laboratory. Bouwman Aff., Ex. 5. Although no allergen had been identified, Lord believed, based on her reports, that Shah's EOS was work-related. Id. at 41.
Bouwman saw Shah in the OH clinic on April 17, 1992. Shah admitted that she had not kept the diary which had been suggested by Lord five months earlier.[4] However, Bouwman nonetheless discussed Shah's situation with management and then decided to refer her to Dr. David Garabrant, a specialist in occupational medicine at the University of Michigan's School of Public Health and School of Medicine in Ann Arbor. Bouwman Aff., ¶ s 17-18.
Garabrant evaluated Shah on June 26, 1992. Although Shah alleges that he found a "temporal relationship" between her laboratory *19 exposure and her EOS, Complaint, ¶ 20, his report to Bouwman stated in more detail as follows:
The etiology of her [EOS] is not clear. While there is a temporal association between her periods in the lab and her elevated eosinophil counts there is no clear agent to which she reacts, and no agent which she can identify has been present during all the periods when she has had [EOS]. While I believe it is possible that her [EOS] is caused by something in the laboratory, it is also possible that this association is spurious. I cannot state with a reasonable degree of certainty that her [EOS] is caused by her work in the laboratory.
Bouwman Aff., Ex. 7. Garabrant further stated that "[t]he etiology of her subjective symptom complex remains to be determined[,]" id., and he referred her for a full neurologic evaluation and neurobehavioral assessment based on Shah's complaints of "vague symptoms" of central nervous dysfunction, such as dizziness, fatigue, and difficulty concentrating. Id., p. 5. Garabrant concluded, however, that if the neurologic evaluation "does not reveal any abnormal findings ... it would be appropriate to allow [Shah] to continue to work in the laboratory." Id.[5]
On July 14, 1992, Shah sent Bouwman an electronic mail message expressing her distrust of Garabrant for failing to communicate with her sufficiently. Shah also stated that she did not wish to return to the University of Michigan for a neurological or psychological examination, and that her own physician thought there were "many qualified doctors" locally who could perform these examinations. Bouwman Aff., Ex. 8. Shah finally complained of the "definite strain" involved in making the trip to Ann Arbor. Id. Bouwman responded with regret, and also, inter alia, asking that any recommendations of her private physician be made in writing. Id., Ex. 9. Shah was temporarily reassigned to work outside the laboratory until the company could determine whether her physical condition prevented her from working in that environment. Szpunar Aff., ¶ 4. She remained outside the lab, performing mostly clerical work, until July, 1993. Id., ¶ s 7, 12.
Shah did not keep the consultations scheduled by Garabrant nor did she complete follow-up testing with him, even though Szpunar, who was kept apprised of the situation, informed Shah in July, 1992 that her failure to do so would result in her return to the laboratory environment. Szpunar Aff., Ex. 1. Shah has conceded that she never underwent neurological or psychological testing. Shah Aff., ¶ 13. By spring, 1993, Upjohn's need for the clerical work being performed by Shah diminished, and Szpunar contacted the OH clinic to determine whether Shah could be returned to the laboratory. Szpunar Aff., ¶ 7. Ultimately, on May 11, 1993, Bouwman signed a release for Shah to return to her usual work, indicating that he could not formulate restrictions on Shah's performance of lab work.[6] Szpunar assigned Shah back to a laboratory effective July 1, 1993, offering her medical monitoring in order to facilitate her return. Id., ¶ 12.
However, upon being notified that she was being returned to the laboratory, Shah presented Szpunar with an "Accommodation Request Form" requesting that she be assigned to a non-laboratory setting. Shah also presented a note from Dr. Lord recommending that Shah be allowed to work outside the laboratory. Id, ¶ 13, 14, Ex. 6. By memo dated July 1, 1993, Shah was sent home, with pay, pending further medical evaluation. Id., ¶ 14, Ex. 7.
Shah sought out what she deems to be a "second opinion" from the Cleveland Clinic, where she was apparently evaluated by Dr. Mohamed Hussein on July 7, 1993.[7] At the *20 time of the examination, Shah was in no acute physical distress. Dr. Hussein's follow-up letter to Shah after the examination states, at one point, that Shah should "not return to the laboratory as continued exposure to allergins [sic] appear to be related to plasma cell dyscrasia."[8] However, Dr. Hussein performed no blood tests on Shah (at her request). Although his review of Shah's "available" records indicated that her "[EOS] and symptomatology appear to be related to work in the laboratory," he found all of Shah's past work-ups to be "unremarkable" based on his review of available records. Plaintiff's Brief, Ex. 34. Moreover, Dr. Hussein also recommended that Shah's eosinophil counts be evaluated for a three to six month period while remaining away from the laboratory, in order to confirm whether her [EOS] was related to chemical or environmental exposure. Id.
Shah met with Bouwman at the OH clinic on July 9, 1993. Bouwman believed that since Shah had never completed the University of Michigan evaluation, she should seek another consultation to determine the cause of her EOS and other symptoms, in order to assist in formulating appropriate guidelines and work restrictions. Bouwman Aff., ¶ 28. After this meeting, the relationship between Shah and Bouwman broke down, and Bouwman arranged for additional contacts with Shah to take place through Dr. Evan Kokales, Upjohn's Director of Medical Services. Id., ¶ 29. Nonetheless, Bouwman arranged for Shah to be evaluated by Dr. Kenneth Rosenman, a professor of medicine specializing in occupationally related health conditions at Michigan State University's College of Human Medicine. Id., ¶ 30.
Rosenman reviewed Shah's records and examined her on November 2, 1993. At the time she saw Rosenman, Shah had not worked in a laboratory for 18 months and was experiencing no watery eyes, no skin rash, no runny nose, no nausea, no vomiting, no headaches, no fatigue, and no weakness. Her physical examination was within normal limits. Kokales Aff., Ex. 2. Shah reported a history of occasional nausea at work in the mid-1980's, and a previous skin rash that had been relieved by steroid cream. Shah also reported that her other symptoms began in 1990. Id. Rosenman noted that Shah's history was "consistent with exposure to allergen(s) at work." Id. He believed that biological specimens were the most likely allergens. Id. However, he concluded his report to Bouwman as follows:
Your final question to me was do any of her conditions prohibit her from ever working in a laboratory again? My answer to this would be no. However, the patient is very much convinced that it would be harmful for her to ever work in a lab again. Compounding this is the fact that she states she has claustrophobia and she states she would be unable to wear any respirator including a positive air pressure hood. If I am correct that her allergic symptoms are secondary to the biological specimens, then she should be able to work in a lab with chemicals without those symptoms occurring. Certain changes that might ease her placement back into a lab that are not directly medical would include a new supervisor and the ability to do her work while seated.[9]
Id.
After reviewing Rosenman's report and consulting with Kokales, on January 12, 1994, *21 Szpunar notified Shah that she was to report to work on January 18, 1994 to discuss a new assignment. On January 18, 1994, Shah appeared at Upjohn with another "Accommodation Request Form" as well as another note from Dr. Lord. Kokales Aff., ¶ 7, Ex. 3. Shah again requested work outside the lab, and Dr. Lord's note stated, inter alia, that he recommended that Shah be allowed to work "in a setting in which the laboratory chemicals and biological agents are not within her environment." Id., Ex. 3. However, based on the consultations with Drs. Rosenman and Garabrant, and based on Dr. Lord's prior note of February 27, 1991 indicating that EOS is usually benign, Kokales determined that it was safe for Shah to continue working in the lab with continued monitoring of her condition if she reported illness. Kokales Aff., ¶ 8. Shah was informed that she would be assigned to work in the Biofluids Analytical Laboratory. Szpunar Aff., ¶ 21.
Shah returned to work on January 18, 1994. She met with Szpunar and then spent the rest of the day moving her belongings to the laboratory. Id. ¶ 22. She returned to work the next day. However, Shah has complained bitterly regarding her brief experience in the new position, alleging that she was forced to work next to someone else who was working with biofluids, that she was required to work near a noisy centrifuge, and that she was required to assemble laboratory equipment with which she was unfamiliar. Shah Aff., ¶ 17. Shah alleges that she began feeling ill by 10:00 a.m. on that day. Id., ¶ 19. Just after noon she reported to the OH clinic, complaining of ear pain and headaches. Kokales Aff., Ex. 4. Although no doctor was available, a nurse who examined her ear found it to be normal. Shah scheduled an appointment to see a doctor on January 21 and then, with the approval of her supervisor, Paul Bombardt, Shah went home. Szpunar Aff., ¶ 23; Shah Aff., ¶ 19.
That night, Szpunar called Shah at home and informed her that she was expected to return to work the following day. Szpunar Aff., ¶ 25. He also explained that if Shah was sick, she was required to go to the OH clinic for evaluation, and that she would not be excused from work unless OH confirmed that she could not perform her duties. Id. Nonetheless, on January 20, Shah did not report either to work or to the OH clinic. Id.; Shah Aff. ¶ 20. Szpunar then telephoned Shah at home and informed her that she was suspended without pay and that she should remain at home until contacted by the company.[10] Szpunar Aff., ¶ 26.
During her suspension from work, Shah saw her family physician, Dr. James Van Hare, on January 24, 1994. At that time, she showed symptoms of only allergic rhinitis; she did not complain of headaches, nausea, vomiting, or any other more serious symptoms. Van Hare Dep. at 15. Shah alleges that Van Hare noted that she was under "stress." However, at this time Van Hare merely wrote to Kokales and suggested that Shah be assigned to work in a non-laboratory setting. Plaintiff's Brief, Ex. 79.[11]
Shah was given what Upjohn has characterized as "one more chance" to continue her employment. Szpunar Aff., ¶ 27. In a letter dated January 28, 1994, he outlined the following conditions of her employment:
1. Tuesday, February 1, 1994 report to your assignment in Paul Bombardt's lab at 8:00 a.m.
2. Adhere to current and future management directions and expectations.
3. If you are ill and cannot report to work February 1, 1994 or any subsequent day, contact P. Bombardt and report *22 to [OH] for medical evaluation by 8:00 a.m.
4. If you become ill and cannot complete a normal work day, contact P. Bombardt and report to [OH] for medical evaluation and official release before leaving the work place.
Pay for short term, occasional absence will be discontinued after 120 hours.
These expectations are to be adhered to every work day; failure to do so will result in your termination from The Upjohn Company.
Szpunar Aff., Ex. 14. Kokales apparently concurred in these conditions, remaining unconvinced that the laboratory was causing Shah's purported symptoms and believing that the best way to determine the cause of the problem was to have her report to OH for confirmation of her objective symptoms, and, if necessary, an attempt could be made to identify the allergen based on materials to which she had been exposed. Kokales Aff., ¶ s 11, 12.
Shah alleges that after receiving the January 28, 1994 letter, her "stress" increased and she sought Dr. Van Hare's advice. On January 31, Van Hare wrote a note indicating that Shah was under "great stress related to the threatened loss of her job." Van Hare also wrote that Shah was scheduled to see a psychiatrist to evaluate her stress. However, he also stated that the only recommendation he could make was that Shah should be allowed to work in a non-laboratory setting. Plaintiff's Brief, Ex. 80. Shah delivered a copy of this letter to OH at 7:30 a.m. on February 1, 1994. Shah Aff., ¶ 22. She did not present herself for medical evaluation nor did she report to work. Kokales Aff., ¶ 13; Szpunar Aff., ¶ 28; Shah Aff., ¶ 22; Shah Dep. at 307. She instead telephoned her supervisor, telling him that she "could not risk my health following their directives to ignore the advice of the doctors." Shah Aff., ¶ 22.
A decision was then made to terminate Shah's employment. Unable to contact Shah at home to give her the news, Szpunar sent her a letter of termination dated February 3, 1994, specifying insubordination as the reason for her termination. Szpunar Aff., ¶ 29, Ex. 15.
Shah applied for several posted non-laboratory positions within Upjohn between July, 1993 and February 2, 1994. Plaintiff's Brief, Ex. "Job Postings." Needless to say, she was not offered any of these positions. Five months after her termination, Shah's EOS returned, suggesting that she was indeed reacting to something outside the laboratory. Lord Dep. at 27-28. However, Shah's symptoms, including headaches, runny nose, watery eyes, and earaches cleared up after she left Upjohn. Shah Dep. at 328-29.
Shah filed her complaint in this action on November 14, 1994. Her complaint includes federal claims under the ADA, 42 U.S.C. § 12101 et seq.; state law claims under Michigan's Handicappers' Civil Rights Act ("MHCRA"), M.C.L. § 37.1101 et seq.; and a state law claim for intentional infliction of emotional distress.
II
Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir.1988). In evaluating a motion for summary judgment, the court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). The party moving for summary judgment bears the burden of establishing the nonexistence of any genuine issue of material fact and may satisfy this burden by "`showing' that is, pointing out to the district court that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). While inferences drawn from the underlying facts must be viewed in the light most favorable *23 to the party opposing the motion, "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Only factual disputes which may have an effect on the outcome of a lawsuit under the applicable substantive law are "material." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.
III
The ADA provides in pertinent part that
No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
42 U.S.C. § 12112(a). Under the ADA, a disability is defined as
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2). "Substantially limits" means the person cannot perform the "major life activity" or is
Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same activity.
29 C.F.R. § 1630.2(j)(1)(ii). "Major life activities" must indeed be "major." These have been defined as
... functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. § 1630.2(i).
In determining whether an impairment is "substantially" limiting, the court "should" consider
(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the impairment; and
(iii) The permanent or long term impact, or the expected permanent or long term impact, of or resulting from the impairment.
29 C.F.R. § 1630.2(j)(2). In determining whether an individual is substantially limited in the major life activity of working, the following factors "may" also be considered:
(A) The geographical area to which the individual has reasonable access;
(B) The job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs); and/or
(C) The job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (broad range of jobs in various classes).
29 C.F.R. § 1630.2(j)(3)(ii). Therefore, work is included among the "major life activities" addressed in the ADA. However, in order to show that she is substantially limited in the major life activity of working, a plaintiff must prove that she is
significantly restricted in ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.
*24 Id., § 1630.2(j)(3)(i). Regulations promulgated under the ADA specifically allow employers to require medical examinations and/or make inquiries of employees, provided they are job-related and consistent with business necessity. 29 C.F.R. § 1630.14(c). Employers may also inquire into the ability of an employee to perform job-related functions. Id.
Similar to the ADA, the MHCRA provides that an employer shall not
Discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment, because of a handicap that is unrelated to the individual's ability to perform the duties of a particular job or position.
M.C.L. § 37.1202(1)(b). Also parallelling the ADA, the MHCRA defines a "handicap" as
(i) A determinable physical characteristic of an individual, which may result from disease, injury, congenital condition at birth, or functional disorder, if the characteristic:
(A) ... substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual's ability to perform the duties of a particular job or position or substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual's qualifications for employment or promotion.
M.C.L. § 37.1103(e).
In order to qualify for relief under the ADA, Shah must establish the following:
(1) that [s]he is a disabled person within the meaning of the ADA; (2) that [s]he is qualified, that is, with or without reasonable accommodation (which [s]he must describe), [s]he is able to perform the essential functions of the job; and (3) that the employer terminated [her] because of [her] disability.
White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir.1995) (footnote and citations omitted). "The burden is on the plaintiff to establish the existence of an impairment that substantially limits a major life activity as an element of the plaintiff's prima facie case." Jasany v. United States Postal Service, 755 F.2d 1244, 1249 (6th Cir.1985). Neither party in this case contends that the analysis under the two statutes at issue varies in material respects, and therefore the court will use the term "disability" or "disabled" as used under the ADA in analyzing the all of the statutory claims together.
In its motion, Upjohn principally challenges Shah's ability to establish that she suffers from a "disability" as that term is defined under the relevant law. According to Upjohn, Shah's alleged reaction to an unspecified allergen in its laboratory does not "substantially limit" a major life activity.[12]
In Jasany, 755 F.2d at 1250, a Rehabilitation Act case,[13] the plaintiff claimed that he had been discriminated against in being fired from his employment with the Postal Service because he suffered from a congenital eye condition strabismus (commonly known as cross eyes) which prevented him from being able to operate a mail sorting machine. The district court held that the plaintiff was a handicapped person because his eye condition caused him to develop headaches, eye strain, and excessive tearing when he operated the machine. However, the Sixth Circuit held that the plaintiff had failed to establish a prima facie case of handicap discrimination:
... [T]he parties stipulated that Jasany's condition had never had any effect whatsoever on any of his activities, including his past work history and ability to carry out other duties at the post office apart from operation of the [mail sorter]. Based upon this stipulation and in light of our analysis of the statutory definition, we find that the District Court erred as a *25 matter of law in finding that the [plaintiff] was a handicapped person within the meaning of 29 U.S.C. § 706(7).
755 F.2d at 1250 (footnote omitted).
Similarly, in Maulding v. Sullivan, 961 F.2d 694 (8th Cir.1992), cert. denied, 507 U.S. 910, 113 S.Ct. 1255, 122 L.Ed.2d 653 (1993), also a Rehabilitation Act case, the plaintiff was, like Shah, a chemist who was ultimately fired after she refused to work in a laboratory, claiming that she was allergic to certain chemicals. The district court found,[14] among other things, that the plaintiff had not shown that her sensitivity to chemicals substantially limited a major life activity. An Eighth Circuit panel affirmed, finding "no error in its conclusion that [plaintiff's] ailment would prevent her only from lab work, and that such a limitation does not substantially limit her employment as a whole." Id. at 698 (citing Forrisi v. Bowen, 794 F.2d 931, 934 (4th Cir.1986) and Jasany, 755 F.2d at 1248-49). Other courts have reached similar conclusions where the plaintiff claims to harbor some allergy or hypersensitivity to something in the defendant's workplace. See Huffman v. Ace Electric Co., 3 A.D.Cases 1347, 1994 WL 583113 (D.Kan.1994) (partial summary judgment granted to defendant on ADA claim, where plaintiff developed cough and claimed that hypersensitivity to unknown agents in her workplace prevented her from performing her job); James v. Runyon, 2 A.D.Cases 461, 1992 WL 382311 (E.D.Pa. 1992) (summary judgment granted to defendant in Rehabilitation Act case in which plaintiff claimed sensitivity to dust and insect bites prevented her from performing job for which she was hired), aff'd, 6 F.3d 779 (3d Cir.1993) (Table). See also McKay v. Toyota Motor Mfg., U.S.A., Inc., 878 F.Supp. 1012, 1015 (E.D.Ky.1995) (summary judgment granted to defendant, where plaintiff, who suffered from carpal tunnel syndrome, failed to show that she was substantially limited in any major life activity) and Bolton v. Scrivner, Inc., 836 F.Supp. 783 (W.D.Okla.1993), aff'd, 36 F.3d 939, 944 (10th Cir.1994) (summary judgment properly granted to defendant where plaintiff failed to present evidence addressing factors in 29 C.F.R. § 1630.2(j)(3)), cert. denied, ___ U.S. ___, 115 S.Ct. 1104, 130 L.Ed.2d 1071 (1995).
Shah argues that these authorities are distinguishable because she intends to present testimony at trial that "there are thousands of laboratory jobs in this community that [she] is disabled from working." Plaintiff's Brief at 19. Shah's statement is strange, for the undisputed evidence shows that Shah has not identified the source of her previous symptoms. Shah Dep. at 328. Although Shah appears to contend that the suspected allergen could not be identified without some difficulty, see Plaintiff's Brief at 14-15 ("Though every doctor who has seen Mrs. Shah agrees that there is probably an allergin in the laboratory which causes her symptoms, none have been able to isolate what the allergin [sic] is"), the undisputed evidence shows that she did not cooperate in blind testing by keeping a diary as suggested by Dr. Lord. Without knowing what, if anything, she is allergic to, there is no way of knowing whether the allergen is present in other laboratories or whether Shah's exposure to it in a laboratory setting could be controlled. Therefore, there is no actual evidence showing that Shah is disabled from performing work in other laboratories. Shah's bare, subjective assertions to the contrary simply do not qualify as evidence. More importantly, however, even if Shah were unable to work in all labs, Maulding holds that "such a limitation does not substantially limit her employment as a whole." 961 F.2d at 698.[15]
*26 Shah alternatively argues that her situation is distinguishable from Jasany because "that was a work-major-life activities case. We have a claim for non-work major life activities." Plaintiff's Brief at 19. Shah contends that she suffers "substantial limitation of major non-work life activities" because, according to her,
After her allergic reaction developed, Mrs. Shah had major difficulty living. As described in more detail in her affidavit, she lived daily with watery itchy eyes, skin rashes, running nose, headaches, inability to sleep, dizziness, nausea and forgetfulness.
Her rhinitis[16] caused breathing difficulty. This made it hard for her to sleep at night. So, she awoke drowsy and felt listless all day....
Id. at 16. Shah also contends that Dr. Hussein told her that "continuing to work in the lab might cause cancer," and that, while she was facing the loss of her job at Upjohn, she and her husband were the subject of an Internal Revenue Service tax evasion investigation. Id. at 16-17. Shah argues that these factors, combined, caused her a great deal of anxiety so that, by the time she was fired, she was in such a state of "near paralysis" that Dr. Van Hare had prescribed Prozac for her. Id.
Shah's affidavit does not indicate specifically when she began to suffer from her alleged physical symptoms, including "breathing problems." Shah Aff. at ¶ 8. The undisputed evidence, however, shows that in June 1990, when her eosinophil level was first found to be high during a regular annual exam, she was merely suffering from eye and nose irritation and was not even seeking treatment. Shah Dep. at 54. Shah's affidavit states that during an unspecified period thereafter, she was "suffering from some symptoms but I though they were just from a cold" hardly an indication of substantially limiting "breathing difficulty." Shah Aff. at ¶ 7. When Shah saw Dr. Lord on February 27, 1991, she was asymptomatic. Lord Dep. at 7. Shah did not report any more serious symptoms until March 31, 1992 when she told Dr. Lord that she was experiencing watery, itchy eyes, nausea, skin rashes, headaches, vomiting, dizziness, fatigue, and some lack of coordination of physical activity. Lord Dep. at 15; Shah Dep. at 104. On May 5, 1992, Upjohn removed Shah from the laboratory, and she performed office work until June, 1993. Id. at 108, 127. Because there was no more office work available, Upjohn sent Shah home with pay on July 1, 1993, Szpunar Aff. at ¶ 14, where she remained until she was reassigned to a laboratory position beginning on January 18, 1994. Id. at ¶ 22. Shah reported for work in the laboratory only on January 18 and part of January 19, 1994. Id. at ¶ 22-24. Shah left work early on January 19, 1994 complaining of a headache and ear pain, although her ear exam was normal. Kokales Aff. at ¶ 9, and Ex. 4.
Shah's rather vague affidavit describes no living activities in which she could not engage during any relevant time period. Indeed, the undisputed facts in this case show that during her employment with Upjohn, Shah's symptoms "got better" whenever she was out of the lab, e.g., Shah Aff. at ¶ 8, and that Shah's symptoms disappeared after she was terminated from Upjohn. Shah Dep. at 328-29. If Shah's alleged impairment is considered under the criteria set forth in 29 C.F.R. § 1630.2(j)(2), the facts *27 show that it fails to qualify as "substantially" limiting. Viewing the facts in the light most favorable to Shah, even her most severe symptoms were only present during a one-month period in 1992 before she was removed from the lab; her own affidavit fails to contradict the medical evidence in this regard. Thus, Shah's limitations were short-term in duration. Moreover, although Shah states that she was in a state of "near paralysis" due to various reasons (including the stress of an IRS investigation) by the time she was returned to the lab for less than two days in January, 1994, her own affidavit states that she continued to seek out other non-laboratory positions within Upjohn. Shah Aff. at ¶ 14. This is hardly an indication that her impairment(s) were severe. Finally, although Shah states that she was afraid, based on what she had been told by Dr. Hussein, that she would get cancer if she continued to work in the lab, there is no evidence that Shah ever had cancer. Fear of cancer does not qualify as a disability. Under the circumstances, the court concludes that no genuine factual issue exists that Shah did not suffer from a disability or handicap within the meaning of either the ADA or the MHCRA.
Because the court concludes that no genuine issue exists as to whether Shah is a disabled or handicapped person within the meaning of the relevant statutes, the court finds it unnecessary to address Upjohn's argument that Shah cannot show that she was terminated because of her disability because she has not disputed that she was fired for failing to comply with the requirements listed in Dr. Szpunar's January 28, 1994 letter. However, the court does note that Shah has conceded that she "didn't follow the directives of the January 28 letter literally." Plaintiff's Brief at 18. Although Shah dismisses the letter as a "set up" (Plaintiff's Brief at 13-14) and argues that "[s]he did not believe that she was being insubordinate," (Id. at 18), she has presented no evidence suggesting that insubordination was a pretext for discrimination on the basis of her alleged disability. Importantly, she has specifically contended that Dr. Szpunar's alleged "harassment" of her "stem[s] from his initial dislike of [her]," Shah Aff., ¶ 17, generated after she confronted him regarding her 1989 performance review. Shah Dep. at 346. After the confrontation, according to Shah, "he didn't like me." Id. Therefore, according to Shah's own evidence, Szpunar's alleged unfavorable treatment of her arises out of an incident which occurred months before her EOS was even detected.[17]
IV
Shah has also asserted a state law claim of intentional infliction of emotional distress. This claim is based on the same alleged factual scenario as the statutory claims: that after mid-1990, when Shah's EOS count was found to be elevated, Upjohn threatened Shah with termination if she did not return to the lab, where, according to Shah "injury was certain to occur[.]" Complaint, ¶ s 86-88.
Four elements are generally considered to be essential to a prima facie claim for intentional infliction of emotional distress: (1) extreme and outrageous conduct; (2) intent or recklessness; (3) causation; and (4) severe emotional distress. Roberts v. Auto-Owners Ins. Co., 422 Mich. 594, 602, 374 N.W.2d 905, 908 (1985). Liability may be found "`only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" *28 Id. (quoting Restatement Torts, 2d, § 46, comment d, pp. 72-73).
Upjohn argues that its conduct was not extreme and outrageous because it acted reasonably and honorably in dealing with Shah after her EOS was identified. According to Upjohn, the evidence shows that after Shah's June, 1990 regular exam revealed EOS, Upjohn sent Shah to some of the finest specialists in the country and followed their advice. The company also offered Shah protective measures, including special clothing, a ventilator hood, and respirator in an attempt to allow her to continue her work. In the end, Shah was told that she had only to report to occupational health if she felt too ill to work.
Shah's only response to Upjohn's arguments is to argue that her claim for intentional infliction of emotional distress is a jury question because "[i]f Mrs. Shah's evidence is believed by the jury, they may very well conclude that an award should be given[.]" Plaintiff's Brief at 24-25. However, given the "particularly strict standard" for establishing this tort, see Joumas v. Maryland Casualty Co., 698 F.Supp. 675, 679 (E.D.Mich.1988), the court concludes that the evidence is simply insufficient as a matter of law. Shah has presented evidence that she may have been allergic to something in Upjohn's lab. However, the undisputed evidence also shows that Upjohn attempted to discover the nature and source of Shah's EOS, and that it removed her from the lab for an extended period. Other evidence shows that Upjohn had received an opinion from Dr. Lord that EOS "is usually a benign course that does not cause long-term harmful sequelae." Bouwman Aff., Ex. 3. Although Shah argues that she was told at the Cleveland Clinic that she could get cancer from continued exposure to allergens, Shah's own evidence shows that the doctor who evaluated her at the clinic, Dr. Hussein, found Shah's condition to be "unremarkable" after an "extensive work-up" and "detailed examination." Plaintiff's Ex. 34. In view of Dr. Lord's prior opinion that EOS is usually benign, Upjohn had a basis upon which to disagree with the alleged possibility for development of cancer.
It should also be noted that Shah has not contested evidence showing that her job as a research biochemist included working in a laboratory, Shah Dep. at 143-44, and evidence showing that she did not fully cooperate with attempts to evaluate her condition, including a proposal for blind testing of her EOS levels and for a neurologic evaluation. The most damaging evidence against Upjohn is that it required Shah to return to a lab where biofluids were present even though Dr. Rosenman thought these might be the source of her allergy. However, even Dr. Rosenman has testified that it is "very common" for people to continue to work with allergens. Rosenman Dep. at 30. It is not sufficiently extreme and outrageous that Upjohn ultimately sought to require Shah to perform her job and to require confirmation when Shah claimed she was too ill to perform it.
V
For the reasons stated above, the court hereby GRANTS Upjohn's motion and dismisses this action in its entirety.[18]
So ordered.
NOTES
[1] Upjohn has requested oral argument on its motion for summary judgment. However, the court has considered the request and has determined that oral argument would not materially aid it in the resolution of the issues presented.
[2] Szpunar, who had only recently become Director of Drug Metabolism Research, did not personally observe Shah's performance during the preceding year. However, Shah had requested to meet with Szpunar because she was dissatisfied with the performance review conducted by another scientist to whom she reported.
[3] Lord's consultation notes state that Shah was having no headaches or difficulty with hearing; no chest pains, shortness of breath or cough; and no nausea, vomiting, or abdominal pains. Bouwman Aff., Ex. 3. His notes also state that Shah did not give any symptoms of allergic rhinitis, bronchitis, or asthma. Id.
[4] Shah states in her affidavit that she "had two blind blood tests." Shah Aff., ¶ 10. However, she has not disputed that she did not diary her symptoms, activities, or exposures.
[5] Garabrant personally saw no physical findings which indicated a neurologic disorder, and he found "no identifiable disease" to explain her EOS. Bouwman Aff., Ex. 7, p. 5.
[6] Shah had apparently complained that her clerical work, which included xeroxing, had caused her to have foot pain. Complaint, ¶ 25. Bouwman's release indicated that Shah should avoid prolonged standing and walking. Bouwman Aff., Ex. 11.
[7] It appears undisputed that Upjohn played no part in procuring the Cleveland Clinic evaluation by Dr. Hussein.
[8] Shah has provided neither an affidavit nor deposition testimony of Dr. Hussein, and it is unclear whether she even intends to call him as a witness. However, another of her physicians attempted to decipher Dr. Hussein's statement regarding plasma cell dyscrasia as follows:
There is a type of cancer, multiple myeloma, that involve the plasma cells. So he's not saying related to cancer per se, but sort of a what's the word I want to use? a possible precursor of cancer. It's a dyscrasia. It's a there are changes in functions and it's potentially a premalignant condition. I would strongly disagree with that.
* * * * * *
... That's like saying any patient who has ever come in an allergy office would potentially develop a premalignant cancer condition. Because everybody that sees an allergist not everybody, but a vast majority of them have [EOS]. This doesn't make sense to me, this statement, at all.
Rosenman Dep. at 40.
[9] It should be noted that Shah had had a past auto accident which caused her to have some back and foot pain. This was noted in Rosenman's report as having no bearing upon her allergy symptoms.
[10] Shah states that she was told not to contact anyone at the company. Shah Aff., ¶ 20. This is not a material issue.
[11] Shah's responsive brief erroneously suggests that Van Hare prescribed Prozac for her on January 24, 1994. However, his deposition indicates that he did not prescribe it until February 2, after he spoke with Shah on the telephone and found her to be depressed enough to start on an antidepressant. Van Hare Dep. at 20. In any event, Shah has not alleged that she was disabled as the result of a mental impairment, but rather as a result of a physical impairment, her EOS. Complaint, ¶ s 53, 61, 69, and 77.
[12] Upjohn does not appear to dispute that Shah's condition described by her as EOS and its alleged "associated adverse health effects" (Complaint, ¶ s 53, 61, 69, 77) is a physical impairment.
[13] Courts have generally used case law decided under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-797b, in resolving cases brought under the ADA. E.g., Valdez v. The Albuquerque Public Schools, 875 F.Supp. 740, 743 (D.N.M.1994); Thomas v. Davidson Academy, 846 F.Supp. 611, 617 (M.D.Tenn.1994).
[14] Maulding involved a judicial review of a decision of the Merit Systems Protection Board.
[15] Even Shah states that during her employment at Upjohn, she "had worked on many assignments outside the laboratory," consisting of approximately five years out of her 14-year employment. Shah Aff. at ¶ 15. Shah also admits that she sought reassignment to and applied for other non-laboratory positions at Upjohn. Id. at ¶ 14. This constitutes evidence that Shah believes herself to be able to perform work other than in laboratories and that she is therefore not disabled from the major life activity of work.
Shah cites Daugherty v. City of El Paso, 56 F.3d 695, 696, 698-99 (5th Cir.1995) for the proposition that Upjohn should have reasonably accommodated her by reassigning her to another position within the company. However, Daugherty is not on point, for at issue in that case was whether the plaintiff bus driver, who was diagnosed as an insulin-dependent diabetic, was a qualified individual with a disability, not whether he was disabled at all. The issue of reasonable accommodation, through reassignment or otherwise, does not arise if the plaintiff does not suffer from an impairment which "substantially limits one or more of the major life activities" as provided in 42 U.S.C. § 12102(2). Indeed, the court in Daugherty stated that because it found other issues in the case dispositive, "we pretermit the question of whether insulin-dependent diabetes ... constitutes a disability under the [ADA]." 56 F.3d at 697 (footnote omitted).
[16] "Rhinitis," or allergic rhinitis, was described by Dr. Rosenman as follows:
Allergic rhinitis shows those of those people who have it, they have a stuffy or runny nose. And they get that in response to some substance they're allergic to. So you're going to have a stuffed up nose or be blowing it or sneezing it all the time in reaction.
Rosenman Dep. at 19-20. Dr. Rosenman distinguished allergic rhinitis from asthma, noting that "asthma is potentially life-threatening. That's certainly not true of allergic rhinitis." Id. at 30.
[17] Shah has, somewhat inexplicably, attached to her brief an August, 1989 memo authored by Szpunar and directed to Shah's personnel file, in which he essentially accuses Shah of manipulating her supervisor into giving her a higher than deserved performance appraisal. In the memo, Szpunar states that he had a "heated" meeting with Shah discussing the evaluation. During the meeting Shah "overtly broke down and cried several times," and, "[t]hroughout the interview" made "tacit threats to leave the unit, or to carry an apparent appeal beyond [Szpunar's] level[.]" This memo, even when viewed in the light most favorable to Shah, at best merely suggests that Szpunar may have had a motive for treating Shah unfavorably because he did not like her, or that he may have disbelieved her subjective complaints (when they later arose) because he perceived that she merely wished to escape his supervision. However, the memo does not establish causation because Shah's alleged disability had not yet surfaced.
[18] Given the court's ruling, the court hereby vacates as moot the October 13, 1995 order issued by Magistrate Judge Joseph G. Scoville granting Shah's motion to compel discovery. The information which is the subject of that order is not material to the court's ruling on the issue of disability nor is it material to whether Upjohn's conduct was extreme and outrageous. Accordingly, if Upjohn has not yet complied with the order compelling discovery, it is no longer required to do so. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592736/ | 453 So.2d 724 (1984)
G.D. WEBB, d/b/a Webb Real Estate and Sales Agency
v.
Billy R. RENFROW; Virginia Renfrow; Romey L. Renfrow; Gladys B. Renfrow; C.B. International, Inc., a Corporation; and Southeast Pizza Huts, Inc.
82-1187.
Supreme Court of Alabama.
June 1, 1984.
*725 Douglas Corretti of Corretti & Newsom, Birmingham, for appellant.
John Richard Carrigan and Eleanor S. Gathany of Balch, Bingham, Baker, Ward, Smith, Bowman & Thagard, Birmingham, for appellees C.B. Intern., Inc. and Southeast Pizza Huts, Inc.
Thomas L. Foster, Birmingham, for appellees Billy R. Renfrow, et al.
BEATTY, Justice.
This is an appeal from a judgment for the defendants based upon a jury verdict in an action arising out of a real estate commission contract. We affirm.
Plaintiff, G.D. Webb, d/b/a Webb Real Estate and Sales Agency, brought this action against Billy R. Renfrow; Virginia Renfrow; Romey L. Renfrow; Gladys B. Renfrow; C.B. International, Inc., a corporation; and Southeast Pizza Huts, Inc., a corporation. He sought several forms of relief: the unpaid proceeds from a real estate commission agreement which was a part of a ground lease, money damages for work and labor done as broker for the Renfrows, punitive damages against all defendants for fraud and conspiracy to defraud him of his broker's commission, and a mandatory injunction ordering the corporate defendants to pay the rental payments directly to him for deduction of his commissions and forwarding of the balances to the lessors Renfrow.
By their answer, the Renfrows contended, inter alia, that plaintiff was not entitled to any damages or proceeds. Southeast Pizza Huts (Southeast) and C.B. International denied any liability.
Summary judgment motions of the Renfrows, Southeast, and C.B. International were denied. Jury trial ensued. After plaintiff and the Renfrows had introduced evidence, the two corporate defendants moved for a directed verdict. Following arguments, the trial court granted the motion for a direct verdict against the plaintiff's claims on fraud and conspiracy. Ultimately, the jury returned a verdict in favor of all the defendants and plaintiff appealed.
The only issue presented to us is whether or not the trial court erred in directing the verdict in favor of C.B. International and Southeast on the conspiracy to defraud and fraud claims.
*726 C.B. International is a management company which owns Southeast. The latter corporation is engaged in the day-to-day operation of Pizza Hut restaurants.
The action was an outgrowth of a business relationship between plaintiff and Gordon Elliott, president of C.B. International. Elliott is also president of Southeast. At plaintiff's motivation, plaintiff showed Elliott some potential sites for Pizza Huts in Jefferson County, and, as a result, Elliott became interested in real estate lots located in Gardendale, Leeds, and Hueytown. C.B. International eventually purchased a Hueytown tract and obtained leases for lots in Leeds and Gardendale. Plaintiff was the brokering agent in the transactions. The Gardendale tract is the one involved here.
Plaintiff secured a ground lease listing for the Gardendale property from its owners, the Renfrows. Negotiations between plaintiff and Elliott resulted in Elliott's tendering a proposed lease to plaintiff for submission to the lessors Renfrow. Elliott's letter to plaintiff explained one of the contingencies contained in the proposed lease concerning the existence of a sewer line:
"The sewer line is of course all important because the building could be complete and just sitting there waiting for sewer connection. We would not want to pay the cost of building plus the cost of rent for a business that can't open because of the location of the property."
The tendered lease contained the following provision:
"In the event the building permit cannot be secured on account of sewer lines not being in, or ground not passing percolation test, then this lease is null and void."
This lease was executed by Elliott for C.B. International and by the Renfrows on April 11, 1978. Attached to the lease was a commission agreement providing for rental payments of $550.00 monthly, payable to Webb Real Estate Agency for its deduction of $50.00 brokerage commission and forwarding of the $500.00 balance to the Renfrows. A bank check for $100 as earnest money, drawn by C.B. International, was delivered by plaintiff to the Renfrows.
It appears that in fact at the time of the lease no sewer line existed to service a building on the Gardendale lot. The Jefferson County public works department had surveyed the area in 1977 and initiated a sewer design, on paper, in April 1978. This design was completed in April 1980. Bids were taken, and work ultimately commenced on December 1, 1980. The sewer line was completed and accepted on August 28, 1981.
The record is unclear as to the exact time when funds were encumbered for beginning the sewer line, but it is clear that, for a year after the lease was executed and for some time thereafter, no sewer line existed to service the lot in question. It is also established that the Renfrows and C.B. International treated the lease as terminated because of the lack of sewer connection, with the result that the Renfrows returned the earnest money deposit to Elliott at his office in Kansas in August 1979. Thereafter, the Renfrows rented the lot to a mobile home dealer and later, sometime in 1980, placed a large wooden sign on the lot: "Commercial Property For Lease." After that, the Renfrows were in contact with a number of prospective tenants. However, the record does not disclose that the Renfrows initiated any contact with C.B. International or Elliott, or vice versa, after the return of the earnest money in 1979.
The controversy before us apparently springs from a new and separate lease of the lot in question made on June 3, 1981. This lease was executed between the Renfrows as lessors and Southeast. Mr. Tom Hrabovsky, a vice-president of Southeast, with offices in Birmingham, was in charge of Pizza Hut operations in Alabama, including new construction. He and one of his area managers, Dan Martin, noticed the sign on the lot, and Martin telephoned the number given on the sign. After that contact with the Renfrows, Hrabovsky began negotiating with the Renfrows concerning a lease of the property. Hrabovsky was *727 living in Memphis in 1978 and became area manager of Alabama in 1980. He testified that he did not know of the 1978 lease until this lawsuit was brought in 1982. Meanwhile, the sewer line was nearing completion. Hrabovsky negotiated a rent of $8,400.00 per year for the property, and obtained a lease from the Renfrows on those terms. The lease itself was executed on a form furnished by the home office of Southeast located at Pittsburgh, Kansas. That location is also the home office of C.B. International. In fact, the 1981 lease, while executed between the Renfrows and Southeast, bore at its head the title: "C. B. International, Inc., Ground Lease," and was executed by Gordon Elliott, as president of Southeast.
There is little doubt from the record that a close operating relationship existed between C.B. International and Southeast. Hrabovsky himself had been employed by C.B. International as early as 1976, and began employment with Southeast when the corporate structure was changed in 1978. The building permit for the structure, issued on August 11, 1981, was issued to "C. B. International." The customer response cards located in this Pizza Hut are addressed to "C. B. International." And it was brought out that both Elliott (who had negotiated the 1978 lease) and Hrabovsky had visited the site in 1981 prior to the time the 1981 lease was made. A "renewal" beer license for the Gardendale premises was issued in the name of C.B. International, Inc., by the Alabama Alcoholic Beverage Control Board in June 1981.
It bears repeating that the issue before us is not whether there was a breach of contract to pay a real estate commission, or whether Webb is entitled to recover damages for work and labor. Those issues were resolved by the jury adversely to plaintiff, and he has not made them an issue here. The only question before us is whether or not the trial court erred in granting the corporate defendants a directed verdict on the issues of fraud and conspiracy to defraud, i.e. whether there was any evidence of either or both requiring submission to the jury.
Actionable fraud in Alabama consists of (1) a false representation, (2) concerning a material existing fact, (3) reliance by plaintiff upon that false representation, and (4) damage to plaintiff as a proximate result. Code of 1975, § 6-5-101; International Resorts, Inc. v. Lambert, 350 So.2d 391 (Ala.1977). Fraud may also be committed by the suppression of a material fact which the party is under an obligation to communicate, either because of an obligation to communicate arising from a confidential relationship or from the particular circumstances. Code of 1975, § 6-5-102; Jim Short Ford Sales, Inc. v. Washington, 384 So.2d 83 (Ala.1980). A civil conspiracy is a combination between two or more persons to accomplish by concert an unlawful purpose or to accomplish by unlawful means a purpose not itself unlawful. Barber v. Stephenson, 260 Ala. 151, 69 So.2d 251 (1954). The wrong committed is the gist of the action. Snyder v. Faget, 295 Ala. 197, 326 So.2d 113 (1976).
Plaintiff maintains that there was some evidence of a conspiracy existing between the defendants to defraud Webb of his broker's commission. This evidence, he argues, is furnished by the memorandum of lease for recording purposes. That document was an agreement between the Renfrows and C.B. International, executed by Gordon Elliott on behalf of C.B. International. This agreement, according to plaintiff, creates an inference of a conspiracy to defraud the broker. Additionally, plaintiff points to the similarity of the 1981 lease with the 1978 lease. Except for the amount of the rental payments and the deletion of the commission agreement, plaintiff argues, the leases are substantially the same, and thus, he says, there is an inference that the parties conspired to make it appear that a third party executed the 1981 lease and not the party procured by Webb, the plaintiff. To conclude otherwise, says plaintiff, was contra to the authority of Foote v. Moore, 342 So.2d 906 (Ala.1977), and Robbins v. Crawford, 438 So.2d 759 (Ala.1983).
*728 We agree with the defendants that the facts in the instant case are distinguishable materially from those in the two cited cases.
In Foote, supra, the owners of the property listed for sale claimed that the commission contract with the broker had terminated before they effected a sale of the property to the buyer. The evidence, however, showed that the owners had continued negotiations with the same prospects introduced to them by the broker, and that the terms of the ultimate purchase and sale were substantially those initially discussed between the parties before the commission agreement had expired. This Court stated that a jury could have found that the parties were negotiating the sale while seller and broker were disputing the contract, and that therefore the sellers were guilty of bad faith. In the instant case, however, there was no evidence of continued negotiations in the interval between termination of the 1978 lease, which contained the "null and void" clause referring to sewer lines and percolation tests, and the execution of the 1981 lease.
Similarly, in Robbins, supra, the original sales contract between the seller on the one hand, and the buyers who were furnished by the broker, on the other hand, had terminated because the purchasers had conditioned their purchase upon the sale of their own property, and no such sale had occurred. The father of one of the buyers subsequently contracted to purchase the property, but on the day of closing the original purchasers bought the property "at the last minute." The evidence disclosed that the ultimate purchase price was approximately equal to the price originally agreed upon, less the real estate commission, and, moreover, following the sale, the seller became the purchaser's employee. There was also evidence from which the jury could have found that the purchasers had become financially able to buy the property because a prospect of their own had put up a binder. This evidence presented a conflict for the jury's resolution. Both of those cases were controlled by the following rule as stated in the jury charge from Foote, supra, 342 So.2d at 909:
"A broker who procures a prospect who is ready, willing and able to buy under the terms of the contract during the existence of the contract, is entitled to his commission, although the sale may not have been concluded during the term of the contract. However, the seller is not bound forever by the contract. And unless the broker has procured a purchaser who is ready, willing and able to buy under the terms of the contract and during the existence of the contract, or unless the sellers were guilty of bad faith or guilty of fraud in their subsequent negotiations with the broker's prospect, the broker would not be able to recover."
In this case, the claim of fraud fails for at least two reasons. For one reason, Webb has failed to identify any false representation of a material fact made to him by either of the defendants. Section 6-5-101, supra. For another, Webb has not shown that he acted in reliance upon any such misrepresentation. Indeed, he himself testified that he did nothing more in connection with leasing the Renfrows' property after he mailed the 1978 lease to C.B. International. Moreover, no suppression of material fact occurred in this case, § 6-5-102; nothing was shown to have required communication, nor was there established any confidential relationship between Webb and the Renfrows, or between Webb and Pizza Hut or C.B. International. Mr. Webb himself testified that his contract was with the Renfrows and that his commission was to come from them. That arrangement, for aught that appears from the record, was an arm's-length transaction.
Evidence of a conspiracy between Pizza Hut and C.B. International, or either or both, with the Renfrows is equally lacking. Webb concludes that conspiracy is shown by the fact that Elliott executed the 1978 lease as president of C.B. International and the 1981 lease as president of Pizza Huts, as if to disguise the 1981 transaction *729 as being between parties different from those in the 1978 lease. But both lease forms are identical. Both contemplated building a Pizza Hut. The 1981 lease's lessee, Pizza Huts, actually operated a Pizza Hut. Gordon Elliott executed the 1981 lease for Pizza Huts. Clearly, there can be no reasonable inference of disguise or concealment of the identity of the parties, nor any reasonable inference of illegal means or purpose in the conduct of Pizza Huts or C.B. International. Speculations of misconduct fall short of proof thereof. Nor did the Renfrows conceal anything from Webb. They, like C.B. International, treated the 1978 lease as "null and void" in 1979 when there was no sewer line nor any assurance of when one would be connected. Indeed, it would have been to the advantage of both Pizza Huts and C.B. International to maintain the 1978 lease, because both the rent and the commission would have been substantially lower. Instead, however, the Renfrows and C.B. International terminated the lease, and the Renfrows publicly advertised the property and rented it to others. No reasonable inference of concealment upon either side was established.
Finally, no evidence was adduced to dispute the testimony of Hrabovsky, whose contact with the Renfrows derived from noticing the sign placed by the Renfrows upon the lot. According to the record, Hrabovksy did not know of the 1978 lease. In short, plaintiff has not shown any fraudulent purpose on the part of Pizza Hut or C.B. International to interfere with or prevent Webb's operations on the terms under which he was to be paid a commission. Cf. Dancy v. Baker, 206 Ala. 236, 89 So. 590 (1921).
Because we have found that the trial court did not err in granting the directed verdict in favor of the corporate defendants, the order of the trial court must be, and it hereby is, affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592740/ | 19 So.3d 1191 (2009)
STATE of Louisiana
v.
Don O. JORDAN.
No. 09-KA-7.
Court of Appeal of Louisiana, Fifth Circuit.
June 23, 2009.
*1192 Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, Louisiana, for Plaintiff/Appellee.
Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
Don O. Jordan, Angola, Louisiana, In Proper Person, Defendant.
Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and MARC E. JOHNSON.
*1193 MARC E. JOHNSON, Judge.
Don O. Jordan (hereinafter referred to as "Defendant") filed a Pro-Se Supplemental Brief appealing his sentence of forty (40) years at hard labor. Additionally, Defendant's appellate counsel, Gwendolyn K. Brown, filed a brief, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, and a Motion to Withdraw as counsel of record. We affirm Defendant's conviction and sentence and grant the attorney's Motion to Withdraw as counsel of record.
On February 7, 2008, Defendant was charged with the second degree murder of Ashley Ruffin, which is in violation of Louisiana Revised Statute 14:30.1. Defendant entered a plea of not guilty at the arraignment. On April 7, 2008, Defendant filed an Omnibus Motion and Order for Pre-Trial Motions, which included standard discovery requests and a Motion to Suppress the confession, identification, and evidence obtained. The State filed a Notice of Intent to Use Evidence of Other Crimes.
On July 18, 2008, the trial court heard the Motion to Suppress and, at the same time, conducted a State v. Prieur, 277 So.2d 126 (La.1973) hearing. The trial court denied the Motion to Suppress and ruled that the Prieur evidence would be admissible at trial.
On July 28, 2008, the State amended the indictment to the lesser offense of manslaughter, a violation of Louisiana Revised Statute 14:31. Defendant withdrew his plea of not guilty to second degree murder and pleaded guilty to an amended charge of manslaughter on the same date. The State agreed that it would not pursue a habitual offender bill against Defendant. The trial court sentenced Defendant to forty (40) years at hard labor and ordered that the sentence be served concurrently with another sentence he was serving.
The trial court properly informed Defendant of the time delay for filing an appeal and for an application for post-conviction relief.
On appeal, Defendant alleges that his trial attorney led him to believe that he would be sentenced to thirty (30) years at hard labor, in exchange for his guilty plea. Additionally, his appellate attorney filed an Anders brief and a Motion to Withdraw, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, asserting that, after a thorough review of the trial court record, that there are no non-frivolous issues to raise on appeal.
Defendant asserts that the forty (40) year sentence imposed is not the sentence he was led to believe he would receive in exchange for his guilty plea. As a result, Defendant asserts that his sentence should be corrected to that of thirty (30) years because he alleges that trial counsel led him to believe he would receive that particular sentence.
Defendant further alleges that his plea of guilty was induced by coercion, intimidation and misinformation on the part of trial counsel who initially informed him of the thirty (30) year sentence and changed the sentence to forty (40) years minutes before the guilty plea hearing. Defendant asserts that he felt compelled not to inform the trial court or the State of his understanding of the sentence explained by trial counsel for fear that the State would not agree to the plea, or that the trial court would not accept the plea agreement. Defendant specifies that he is challenging the sentence and not the validity of the guilty plea.
*1194 A guilty plea normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and it precludes review of such defects by either appeal or post-conviction relief. State v. Raines, 00-1942 (La.App. 5 Cir. 5/30/01), 788 So.2d 630, 632. A guilty plea is constitutionally infirm when it is not entered freely and voluntarily, if the Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274(1969), colloquy was inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain, and that bargain is not kept. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1122. In such a case, the defendant has been denied due process of law in that the plea was not given freely and knowingly. State v. Dixon, 449 So.2d 463, 464 (La.1984).
On the "Defendant's Acknowledgement of Constitutional Rights and Waiver of Rights on Entry of a Plea of Guilty" form, Defendant circled "YES" and initialed to the following:
Your plea of guilty is your decision, and no one can force you to plead guilty. Pleading guilty must be a voluntary act and must be free of any vice or defect. Has anyone used force, coercion, intimidation, promise or reward to you or any member of your family for the purpose of making or forcing you to plead guilty?
Defendant states that he circled "YES" to indicate that his decision to plead guilty was voluntary but not free of any defect because of the use of trial counsel's promise of a thirty (30) year sentence. However, Defendant later wrote and initialed on the form that he understood that he would be sentence to a forty (40) year sentence for manslaughter if the trial court accepted his plea.
In addition to the Boykin colloquy, the judge explained to Defendant that she would sentence him to forty (40) years at hard labor. Defendant indicated that he understood that provision of his plea. And, Defendant was asked by the judge if anyone had coerced or intimidated him in order to induce him to plead guilty, which he replied "No, ma'am." Defendant did not object to the sentence at the trial court level, and he did not file a Motion to Reconsider Sentence. There is nothing in the trial court record to support Defendant's claim that he was initially promised a thirty (30) year sentence. Defendant did not submit any evidence of coercion in the Pro-Se Brief. Thus, he is not entitled to a reduction of his sentence.
Anders brief and Motion to Withdraw
In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. That request must, however, be accompanied by a brief referring to anything in the record that might arguable support the appeal. 386 U.S. at 744, 87 S.Ct. at 1400.
The Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. Jyles, 704 So.2d at 241. The Louisiana Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel "has cast an advocate's eye over the trial record and considered whether any ruling made by the trial court, subject to contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration." Id.
*1195 In evaluating an appeal for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. However, if the court finds any legal point arguable on the merits, it may deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel. Id.
Appellate counsel asserts that, after a detailed review of the record, she could find no non-frivolous issues for appeal. She mentions that the trial court properly advised Defendant of his constitutional rights to a jury trial and confrontation, and his privilege against self-incrimination prior to accepting his guilty plea. The judge explained to Defendant that he would be pleading guilty to a lesser charge of manslaughter, and that he would receive a forty (40) year sentence. Defendant acknowledged that he understood what the judge explained to him, and that he wished to waive his rights and plead guilty. Appellate counsel also notes that the trial court ascertained that Defendant was a 48-year-old high school graduate at the time of the guilty plea. In addition, appellate counsel acknowledges that Defendant did not preserve his right to appeal the trial court's pre-trial rulings under State v. Crosby, 338 So.2d 584 (La.1976). Appellate counsel further states that Defendant's sentence is within the statutory limits; and, defendant may not challenge a sentence to which he agreed as part of a plea bargain. La.C.Cr.P. art. 881.2(A)2.
Appellate counsel also asserts that she has complied with the provisions of Anders, and that she notified Defendant of his right to file a Pro-Se Supplemental Brief. Additionally, this Court sent Defendant a letter by certified mail informing him that an Anders brief had been filed and of his right to file a Pro-Se Supplemental Brief.
This Court conducted an independent review of the record, in accordance with the applicable standards set State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990). This Court adopted those standards in State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96) 676 So.2d 1108, 1110, 1111. That review should include an examination of:
(1) the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial states of the proceedings, the jury compensation and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal.
After this review, if the court agrees that the appeal is "wholly frivolous," it should affirm the defendant's conviction and sentence and allow appointed counsel to withdraw. State v. Wingerter, 05-697 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 665.
The bill of information was properly charged; a review of all minute entries was conducted to insure the defendant was present at all crucial states of the proceedings, and the sentence is legal; a review of all pleadings in the record was performed; and, a review of all transcripts to determine if any ruling provides an arguable basis for appeal. The independent review of the record supports appellate counsel's assertion that there are no non-frivolous *1196 issues to be raised on appeal. Since Defendant pleaded guilty to manslaughter, he waived all non-jurisdictional defects in the proceedings leading up to the guilty plea and is precluded from a review of such defects either by appeal or post-conviction relief. Wingerter at 664.
Attorney Brown's brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal. The independent review of the record supports her assertion. Thus, we find that appellate counsel has complied with all of the provisions to withdraw as counsel of record for Defendant. Thus, she is entitled to withdraw as counsel of record.
Accordingly, appellate counsel's Motion to Withdraw is granted, and Defendant's conviction and sentence are affirmed.
MOTION GRANTED; CONVICTION AND SENTENCE AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592748/ | 35 Mich. App. 115 (1971)
192 N.W.2d 372
PEOPLE
v.
RICHMOND
Docket No. 8691.
Michigan Court of Appeals.
Decided July 23, 1971.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and William Buhl, Prosecuting Attorney, for the people.
Wickett, Erickson & Beach (by John W. Mitzel), for defendant.
Before: R.B. BURNS, P.J., and FITZGERALD and J.H. GILLIS, JJ.
FITZGERALD, J.
Defendant was convicted of felonious driving by a jury in the Van Buren County Circuit Court pursuant to MCLA § 752.191 (Stat Ann 1954 Rev § 28.661) on September 18, 1969, and sentenced on November 3, 1969, to a term of 15 months to 2 years in prison. Defendant appeals as of right.
The accident giving rise to the offense in question occurred on May 30, 1968. The record reveals that on that date defendant and Timothy Sage were seen *117 by a gas station attendant at approximately 9 p.m. in the vicinity of the station, located near the Mattawan exit of highway I-94. They then proceeded toward Mattawan at a high rate of speed in a 35-mile-per-hour zone. Two state troopers patrolling traffic on the east-bound ramp of highway I-94 and the Mattawan exit, hearing tires squeal and seeing the Sage vehicle coming over an overpass nearby, gave chase. The troopers testified that the Sage vehicle, prior to the accident, was traveling at a speed of approximately 80 to 90 miles per hour. Approximately one mile from the point at which the troopers gave chase, the Sage vehicle struck another vehicle attempting to turn off the county road.
The troopers, upon arrival at the scene approximately half a minute after the crash, observed a passenger from the Sage vehicle, identified as Timothy Sage, staggering across the roadway and observed defendant pinned in the automobile. Defendant's feet were in the automobile while the trunk of his body was on the ground, his legs pinned in the vehicle by the position of the driver's door which was sprung.
Testimony at the trial of this case conflicted regarding the question of whether Sage or defendant was driving the Sage vehicle at the time of the accident. While defendant did not take the stand in his own behalf, Sage testified. His testimony indicated that defendant was driving the Sage vehicle with the permission of Sage. That testimony was corroborated by that of prosecution witness Manuel Cagle who stated that while the Sage vehicle was in the vicinity of the gas station, he saw the defendant behind the wheel of the vehicle as it departed for Mattawan.
Another prosecution witness, David Hiscock, owner of the vehicle struck by the Sage car, testified, *118 however, that after the accident, Sage was located in the driver's position and that Sage thereupon climbed over the console and exited from the vehicle's passenger side.
Defense witness William Cutler testified that prior to the accident he had observed the two men in the Sage vehicle at the gas station and that defendant, both upon arrival at and departure from the station, was located on the passenger side while complainant Sage did the driving.
On appeal, two issues are under consideration. The first issue stems from the trial court's refusal to permit defense counsel to impeach the prosecution's chief witness Sage to show the interest or bias of that witness. More precisely, when defense counsel asked Sage whether he had retained counsel to process a personal claim on the case being tried, an objection by the prosecutor thereto was sustained.
Later, out of the hearing of the jury, defense counsel again made an offer of proof that Sage had retained private counsel to institute and follow up on a personal injury action as a result of the accident in question. Counsel explained to the court that the proofs were offered to show prejudice on the part of complainant, affecting his testimony against defendant. The court ruled such testimony would be improper as impeachment on collateral matters and irrelevant.
Defendant claims that the trial court's refusal to allow the foregoing questioning was improper in that a full cross-examination as to interest or bias of a witness is essential to a fair trial and that, while the trial court instructed the jury that they might properly consider the witness' interest, if any, in the verdict, no opportunity was granted defense counsel to show such interest.
*119 He claims further that inasmuch as the proofs regarding guilt or innocence were very close, the denial of full cross-examination as to contemplated as well as commenced civil actions on the part of Sage is all the more meaningful and decisive in determining the outcome of the case.
In support of his position that the trial court's refusal to allow full cross-examination of Sage was erroneous, defendant relies upon People v. Field (1939), 290 Mich 173, which concerned cross-examination of the people's chief witness regarding settlement of a civil action which had been instituted against the defendant.
Defendant also relies upon People v. Drolet (1909), 157 Mich 90, which concerned cross-examination of a witness for the people regarding a pending suit instituted by that witness against defendant.
Both Drolet and Field hold that where civil actions have been commenced on the same matter as the action being tried, it is reversible error for the trial court to refuse to allow inquiry and argument regarding such connected action since the bias or interest of a witness is a proper subject of inquiry.
Neither case, nor cases cited therein, addresses itself to the precise issue we are concerned with here, which is the question of whether contemplated actions, and the retaining of private counsel to institute the same, may likewise be shown upon cross-examination where the contemplated civil action stems from the criminal action being tried.
While this issue remains undetermined in Michigan, Villaroman v. United States (1950), 87 App DC 240 (184 F2d 261), held that in an action against defendant for assault with a dangerous weapon, refusal to allow defendant to examine complainant as to a pending action for injuries arising from the alleged assault was deemed to be prejudicial error.
*120 In Villaroman, the United States Court of Appeals stated:
"Bias of a witness is always relevant. Therefore pendency of a civil action by a prosecuting witness seeking damages for an assault being tried in a criminal action is a proper subject on inquiry. Hughes v. State (1937), 212 Ind 577 (10 NE2d 629). * * * Even a contemplated suit by a complaining witness may be shown. State v. Decker (1912), 161 Mo App 396 (143 SW 544). (Emphasis supplied.) Expressing the underlying reasons supporting the rule, the court said:
`A wide range of cross-examination should be allowed to show the motive, interest, or animus of a witness. * * * The jury have the right both in civil and criminal cases to consider the interest which the witness may have in the result of the litigation.'"
The Court, in Decker, supra, stated in part:
"The rejection of such testimony does not necessarily result in a reversal in every instance. The case may have been made by other testimony of such force that the rejection of the testimony would be held immaterial error. But in this case the accusation is one easily made and as has well been said, hard to defend against, no matter how innocent a man may be. The only substantial testimony in support of the state's case was given by the prosecuting witness herself. The jury assessed the nominal fine of $1, and if the court had permitted the defendant to prove her motive for the prosecution, and that she contemplated and had arrangements made to sue defendant for damages predicated upon the facts testified to by her, we cannot say the verdict would not have been for the defendant."
In the case at hand, where there was strong conflicting testimony and where the prosecution relied *121 heavily upon Sage's testimony, the verdict could easily have been contrary, had defendant been allowed to cross-examine Sage as to a contemplated civil action and preparation therefor.
It is true that the scope of cross-examination of witnesses to show bias or interest rests in the sound discretion of the trial court and will not be reversed, absent a clear showing of abuse. King v. Daly (1965), 2 Mich App 120, 125. The test in that case was whether plaintiff was unduly or prejudicially restricted.
The instant record reveals that, on the basis of the foregoing authority, defendant was unduly restricted in the latitude of his cross-examination. Based on the close proofs in this case, it was prejudicial to restrict the latitude of his cross-examination.
Even in the absence of precedents dealing with contemplated suits, the rationale is the same as commenced suits. The same privilege of cross-examination concerning contemplated actions must be extended to the defendant to inform the jury of the same possible bias and prejudice on the part of a witness' testimony.
Because a reversal is mandated, it is unnecessary to pass upon defendant's claims as to whether the prosecution's evidence presented at trial carried the burden of proof beyond a reasonable doubt.
Reversed and remanded.
All concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592757/ | 192 N.W.2d 170 (1971)
FARMERS UNION GRAIN TERMINAL ASSOCIATION, a cooperative association, Plaintiff and Respondent,
v.
Walter BRIESE and Marvin Briese, Defendants and Appellants.
Civ. No. 8740.
Supreme Court of North Dakota.
November 16, 1971.
Rehearing Denied December 17, 1971.
*172 DePuy, Fair & O'Connor, Grafton, for defendant and appellant Walter Briese.
Letnes & Marshall, Grand Forks, for defendant and appellant Marvin Briese.
Degnan, McElroy, Lamb & Camrud, Grand Forks, for plaintiff and respondent.
TEIGEN, Justice.
This is a suit in tort to recover for property damage to the plaintiff's International truck-tractor and trailer unit (hereinafter GTA semi) resulting from its collision with a farm tractor owned by the defendant, Walter Briese, and operated by an employee of the defendant, Marvin Briese. The case was tried to a jury which returned a verdict in favor of the plaintiff and against both defendants in the amount of $19,388, and dismissed the counterclaim of the defendant, Walter Briese, for damages to his farm tractor.
The defendants joined in one notice of appeal. According to the notice of appeal, both defendants appeal from the judgment and from an order denying a new trial. The defendant, Marvin Briese, also appeals from an order denying his motion for judgment notwithstanding the verdict.
*173 Walter Briese did not move for judgment notwithstanding the verdict.
The written notice of entry of judgment was served on both defendants on December 23, 1969. The notice of appeal was served on August 11, 1970, more than ninety days after the notice of entry of judgment had been served. Thus the provisions of Section 28-27-04, N.D.C.C., which provide that an appeal from a judgment may be taken within ninety days after written notice thereof, limit the time for an appeal and have not been complied with. This statute is mandatory and jurisdictional. Where an appeal has not been taken within the statutory period, this court is without power to do more than dismiss the appeal. State v. Jacobson, 156 N.W.2d 70 (N.D.1968); C. & M., Inc. v. Northern Founders Insurance Co. of N. D., 124 N.W.2d 471 (N.D.1963). For this reason the appeal by both defendants from the judgment is dismissed.
The dismissal of the appeal from the judgment leaves for our determination the appeal of Marvin Briese from the order denying his motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, and the appeal of Walter Briese from the order denying his motion for a new trial.
We shall first consider the trial court's order denying Marvin Briese's motion for judgment notwithstanding the verdict. Upon appeal from such an order, our review is limited to the grounds which were assigned on the motion for a directed verdict. Linington v. McLean County, 161 N.W.2d 487 (N.D.1968); Kingdon v. Sybrant, 158 N.W.2d 863 (N.D.1968). On a review of an order denying a motion for judgment notwithstanding the verdict, we are limited to a consideration of the evidence. If the record is such that there is some issue of fact for the jury and the jury rendered a verdict thereon, then the motion for judgment notwithstanding the verdict should be denied. Pocta v. Kleppe Corporation, 154 N.W.2d 177 (N.D.1967); Nelson v. Scherling, 71 N.D. 337, 300 N.W. 803 (1941).
In considering the evidence on a motion for judgment notwithstanding the verdict, the evidence must be considered in the light most favorable to the one in whose favor the jury returned a verdict. Pocta v. Kleppe Corporation, supra; Linington v. McLean County, supra.
The motion for judgment notwithstanding the verdict admits the truth of all inferences and conclusions which can reasonably be drawn from the evidence and which are favorable to the party opposing the motion. A motion should not be granted where there is an issue for the jury to pass on. Bartholomay v. St. Thomas Lumber Company, 148 N.W.2d 278 (N. D.1966); Linington v. McLean County, 146 N.W.2d 45 (N.D.1966); Larson v. Meyer, 135 N.W.2d 145 (N.D.1965). Furthermore, on an appeal from an order denying a motion for judgment notwithstanding the verdict, the only grounds which will be considered will be those which are assigned on the motion for a directed verdict. Hanson v. Fledderman, 111 N.W.2d 401 (N.D.1961); Leach v. Kelsch, 106 N.W.2d 358 (N.D.1960).
We have carefully examined the court's rulings with reference to the motion for a directed verdict, which were made at the close of the presentation of all the evidence in the case, and have concluded that the defendant, Marvin Briese, would not have been entitled to a directed verdict at the close of the trial. For this reason we find the trial court did not commit error in denying Marvin Briese's motion for judgment notwithstanding the verdict.
We will next consider the defendants' respective motions for a new trial.
The salient facts in this case are that the plaintiff, Farmers Union Grain Terminal Association (hereinafter GTA), commenced this action against the defendants Walter and Marvin Briese to recover damages suffered by GTA as a result of *174 the alleged negligence of the defendants, including a negligent bailment by the defendant, Walter Briese, of his farm tractor to the defendant, Marvin Briese, which farm tractor, while being operated upon a highway by an employee of Marvin Briese, collided with the large GTA semi being operated by GTA's employee, Lloyd Frankl. The collision occurred in the intersection of a township road and U.S. Highway 81 in Pembina County, North Dakota, at about 5:55 p. m., on November 2, 1967. The time of sunset at this point was established as occurring at 11.63 minutes after 5 p. m. on the date of the collision. Both vehicles were completely demolished and Marvin Briese's employee, Clifford Nelson, was killed. It appears that the farm tractor operated by Clifford Nelson was owned by Walter Briese but had been loaned to his brother, Marvin Briese, on November 1, 1967. Marvin Briese had employed Clifford Nelson to operate the farm tractor to do some field work and, on the evening of November 2, 1967, after completion of the day's work, Clifford Nelson was in the process of driving the farm tractor from the field to the home of Marvin Briese, located in Glasston, North Dakota. Clifford Nelson, operating the farm tractor, was proceeding in an easterly direction on the township road. It was an inferior highway and a stop sign was in place at the intersection with U. S. Highway 81. Lloyd Frankl was operating the GTA semi on U. S. Highway 81 in a southerly direction. U. S. Highway 81 was a through highway. Both vehicles approached the intersection at about the same time. Neither vehicle stopped. The collision occurred within the intersection and resulted in the damages for which GTA makes claim in this action. The defendant, Walter Briese, in addition to answering the complaint of GTA, has counterclaimed for the loss of his farm tractor. The case was tried to a jury. The jury returned a verdict in favor of GTA and dismissed the counterclaim of Walter Briese.
The defendant, Marvin Briese, has specified a number of grounds in his motion for a new trial. He has argued only three issues, however, on this appeal from the order denying his motion. We will limit our decision to the issues argued to this court. These grounds are: (1) the evidence is not sufficient to sustain the verdict; (2) the court erred in sustaining an objection to a question propounded to Professor Adolph Lee to express his expert opinion; and (3) the court erred in instructing the jury on the doctrine of sudden emergency. We will consider these specifications in the order set forth above.
In support of his argument that the evidence is not sufficient to sustain the verdict, the defendant, Marvin Briese, argues that GTA failed to prove that Clifford Nelson, the employee of the defendant, Marvin Briese, was negligent or, if negligent, that his negligence was a proximate cause of the damages sustained by GTA; and, secondly, that the record establishes that Lloyd Frankl, the operator of the GTA semi, was contributorily negligent and that such contributory negligence was a proximate cause of the collision. In order to determine the question on appeal from an order denying the motion, we must consider the evidence in the light most favorable to the verdict, which, in this case, is in favor of the plaintiff. Tennyson v. Bandle, 181 N.W.2d 687 (N.D.1970); Leake v. Hagert, 175 N.W.2d 675 (N.D. 1970); Lembke v. Unke, 171 N.W.2d 837 (N.D.1969).
Thus in considering such specification of insufficiency of the evidence, the court will assume the truth of the version of the evidence which tends to support the jury's verdict. Grenz v. Werre, 129 N.W.2d 681 (N.D.1964).
Viewing the evidence in this light, we find the record establishes that Lloyd Frankl, employee of GTA, was operating its 1967 semi, loaded with seed wheat, in a southerly direction on U. S. Highway 81 *175 on November 2, 1967, at about 5:55 p. m., at a speed of 32 to 35 miles per hour, with the headlights on dim as it approached the intersection with the township road just south of the city of Glasston, North Dakota. When he was about forty feet from the intersection he saw the farm tractor being operated on the township road, which was a graveled road. The farm tractor was traveling in an easterly direction, without lights, as its front wheels entered upon the surface of the pavement which is a part of U. S. Highway 81. At that time the speed of the GTA semi was between 32 and 35 miles per hour and the speed of the farm tractor was between 8 and 10 miles per hour; that the farm tractor failed to stop at the stop sign before entering U. S. Highway 81; that the farm tractor was being driven in the middle of said township road; that both vehicles continued to move forward without reduced speed but that Lloyd Frankl, operating the GTA semi, had taken his foot from the accelerator but had no time in which to brake his vehicle and it struck the farm tractor broadside within the intersection. The impact caused the cab of the GTA semi to be torn loose from its moorings and propelled through the air. The total over-all loaded weight of the GTA semi was 73,000 pounds; the truck-tractor of the GTA semi was a 1967 model with about 10,000 miles on it and was in good mechanical condition. At the time of the collision the light conditions were between dusk and dark, the sun having set about 40 or 45 minutes earlier. Lloyd Frankl saw the farm tractor approaching from a distance of about forty feet but did not have sufficient time to apply his brakes. The posted speed limit on U. S. Highway 81 at the point where the collision occurred was 40 miles per hour. These facts will sustain a finding, on the part of the jury, that the operator of the farm tractor was negligent in that he failed to stop at the stop sign and to give right of way to the GTA semi and, further, that he was negligent in operating the farm tractor without lights on a public highway at night, which is contrary to the statute requiring all vehicles being operated on our highways one half hour after sunset to have lights burning.
The defendant, Marvin Briese, argues that the evidence establishes as a matter of law that the collision did not occur in the west half of the intersection, but that shortly before the collision Lloyd Frankl, the operator of the GTA semi, swerved sharply to the left and that the GTA semi struck the farm tractor in the east half of the intersection; that if the GTA semi had proceeded in its own lane of travel, being the west (southbound) lane of U. S. Highway 81, there would have been no collision. This claim is based on evidence introduced by the defendant, Marvin Briese, that the debris caused by the collision was all located in the east half of the intersection and, further, by certain claimed admissions of Lloyd Frankl made immediately following the collision. The appellant, Marvin Briese, argues that the action on the part of Lloyd Frankl in driving to the left constituted contributory negligence which proximately caused the collision, thus barring recovery. However, as a result of the introduction of evidence in an attempt to prove that Lloyd Frankl swerved his vehicle, the trial court instructed the jury on the doctrine of sudden emergency based upon the negligence of another person. Thus, whether the jury believed the testmony of Lloyd Frankl that he did not swerve the GTA semi, or whether it accepted the evidence of the defense that Lloyd Frankl did swerve the GTA semi to the left after being confronted by the sudden emergency created by the negligence of the operator of the farm tractor, the evidence, in either event, is, in our opinion, sufficient to sustain the verdict. Under the evidence and the instructions the jury could have concluded that Lloyd Frankl swerved but that, because of the emergency created by the negligence of the operator of the farm tractor, he was not held to the same degree of care and prudence as is ordinarily demanded of a person who has time for deliberation in the full exercise of judgment and, therefore, he was not guilty of contributory negligence, as the act of *176 swerving, under the circumstances, would be the act of an ordinarily prudent person under like circumstances.
Next, the appellant, Marvin Briese, specifies that the trial court erred in sustaining an objection to the following question propounded to Adolph O. Lee, a qualified expert in the fields of mechanical engineering, force, inertia, strength of materials and accident analysis:
"Q. All right. Mr. Lee, based upon that statement and based upon the photographs handed to you this morning, examination of all of those exhibits, your personal observation of the gouge marks, your measurements, and assuming that gouges and spread of oil, and their continuity up to either the farm tractor and semi truck, came to rest on east ditch south of the intersection, were caused by the momentum of the equipment, and its movement from upon highway 81 to place where it came to rest, do you have an opinion as to whether this is consistent with position of the farm tractor and semi truck coming together as shown in the south bound lane on highway number 81 and as shown on exhibit `H'."
The trial court sustained an objection to the question on the ground that the question calls for the witness, Lee, to pass upon the credibility of Lloyd Frankl's testimony. This matter, the trial court advised the attorneys, is for the jury.
Exhibit "H", referred to in the question, is a large scale drawing of the intersection. It was introduced in evidence by the defendant, Marvin Briese. On cross-examination of Lloyd Frankl, scale cutouts of the GTA semi and Walter Briese's farm tractor were, at the direction of defense counsel, placed upon Exhibit "H" by Lloyd Frankl. After placing these cutouts upon Exhibit "H", he was asked to outline them with a red pencil. In this manner he showed the position of the GTA semi at the point where, he testified, he first saw the farm tractor entering upon U. S. Highway 81. The farm tractor was outlined as straddling the center of the township road, with its front wheels up on the blacktop of U. S. Highway 81, and facing in an easterly direction. He was then asked to place the cutouts of the GTA semi and the farm tractor in the positions that these vehicles were in when the impact occurred. Having placed the cutouts in position, he was asked to outline them on Exhibit "H" in red pencil. This graphically showed that the impact, according to the testimony of Lloyd Frankl, occurred in the west, or southbound, lane of U. S. Highway 81 with the immediate point of impact in the northwest quadrant of the intersection.
Several defense witnesses preceded Adolph O. Lee on the witness stand and testified that, following the collision, they found debris and gouge or scrape marks upon the highway in the east half of U. S. Highway 81, within the intersection, and that these marks led to an area in the ditch on the east side of U. S. Highway 81 and south of County Highway 3 (the township road upon which the farm tractor was traveling becomes County Highway 3 on the east side of U. S. Highway 81) where the wrecked vehicles came to a stop after the collision. Prior to the time that the question set forth above was propounded to him, Adolph O. Lee testified that he had also examined the accident scene the day following the accident and that he had also examined the vehicles; that he had listened to the testimony of several witnesses during the trial, including the deposition of the state highway patrolman which was read into the record. The patrolman deposed that he had talked with GTA's driver, Lloyd Frankl, in the hospital shortly after the accident and that Mr. Frankl had told him that when he observed the farm tractor coming onto U. S. Highway 81 from the west that he, Frankl, had swung his semi to the left. This is the statement referred to in the question propounded to Mr. Lee.
On the basis of the evidence produced it is clear that the theory of the defense *177 was that the collision did not occur within the west half of the intersection, as testified by Lloyd Frankl, but that the collision occurred within the east half of the intersection and, although no offer of proof was made to advise the court of the answer that would be given by Mr. Lee to the question propounded to him, it is obvious that the attorney for the defendant expected the answer to be in the negative. In other words, it would be the opinion of the expert, Lee, that the impact area in relation to the intersection was not consistent with the impact area as shown by the facts testified to by Lloyd Frankl, orally or by the placement of the cutout vehicles on the intersectional diagram marked Exhibit "H". Thus the purpose of the question propounded was clearly to have the witness, Adolph O. Lee, pass upon the credibility of Frankl's testimony. This is admitted by the attorney for the defendant, Marvin Briese, in his brief. He states:
"Mr. Lee was not asked if he had an opinion as to how or in what manner the collision occurred. The question as to his opinion was addressed to his ability to determine any inconsistency between Frankl's testimony on the one hand, as opposed to all of the physical facts, photographs, location of debris, oil, etc., on the highway."
He argues that:
"Mr. Lee, by reason of his qualifications, was very competent to give voice to his opinion regarding the consistency of the evidence."
We feel that the question was tailored to test the credibility of the witness, Frankl, by an expert's opinion. This, we find, invades the province of the jury. This court held in Hunder v. Rindlaub, 61 N.D. 389, 237 N.W. 915 (as stated in the syllabus therein), as follows:
"Questions calling for expert opinions should be framed so as not to call upon the witness to determine controverted questions of fact, to pass upon the credibility of witnesses, or the preponderance of evidence."
In 31 Am.Jur.2d, Expert and Opinion Evidence, Section 41, it is stated:
"All courts agree that if there is any conflict between the witnesses as to the material facts on which an expert opinion is sought, or such facts are doubtful and remain to be found by the jury, the expert witness cannot, although he has heard the testimony, be asked to base his opinion on that testimony, because, to reach his conclusion, he would necessarily have to invade the province of the jury and pass on the credibility of witnesses and the weight of the evidence."
For these reasons we hold that the court did not err in overruling the objection to the question.
Lastly, Marvin Briese claims that the trial court erred when it instructed the jury on the doctrine of sudden emergency. He premises his claim of error on the argument that the plaintiff did not plead or prove that his driver was faced with a sudden emergency, nor that his driver took any steps to avoid a danger. On the contrary, he claims that the plaintiff's driver testified that as far as he could recall he proceeded on his proper side of the highway and that the collision occurred in the west half of the intersection.
The issue on this question arose from the answer of the defendant, Marvin Briese, in which he affirmatively pleaded contributory negligence as a defense. The allegation was general, but in support of the allegation the defendant, Marvin Briese, produced evidence of physical facts found at the accident scene from which the jury could find that the plaintiff's driver had driven the plaintiff's GTA semi to the left side of the centerline of U. S. Highway 81, and that the collision occurred in the east half of the intersection instead of in the west half thereof as indicated from the testimony of the plaintiff's driver. Thus there was a conflict in the evidence *178 relative to the place where the collision occurred. It is the contention of the defendant, Marvin Briese, that the evidence conclusively establishes that the collision occurred in the east half of the intersection and that the plaintiff's driver was negligent in driving the plaintiff's GTA semi on the wrong side of U. S. Highway 81; that this was negligence which was a proximate cause of the collision and, therefore, constitutes contributory negligence and bars recovery by the plaintiff.
The plaintiff argues that the evidence introduced at the trial will support a finding by the jury that its driver was driving the GTA semi, weighing 73,000 pounds, southerly on U. S. Highway 81 (a through highway) during the hours of darkness, in a lawful manner, and as he approached the intersection of U. S. Highway 81 with the township road (an inferior highway) he suddenly and unexpectedly was confronted with the farm tractor; that the farm tractor, without stopping and without lights, was proceeding to cross U. S. Highway 81, on which the plaintiff's driver was driving, from the inferior intersecting highway, and that the plaintiff's driver had no more than a few seconds' time in which to act; that sensing he could not brake in time, the plaintiff's driver took his foot off the accelerator and swerved the GTA semi from the southbound lane into the east, or northbound lane, in an effort to get out of the way and extricate himself from the peril, but he struck the farm tractor at a point somewhere in the east half of the intersection, being the northbound lane of U. S. Highway 81.
On this theory the plaintiff sought to invoke the emergency doctrine. The attorney for the plaintiff submitted two requested jury instructions on the doctrine. The trial court rejected both requests, stating, however, that an instruction would be given covering the requests in substance, and it used the suggested form of instruction as contained in the North Dakota Jury Instructions. There is no objection as to the form or content of the instruction. The contention is that it was error to give any instruction on the doctrine of sudden emergency for the reasons stated above.
The first question is: must the doctrine be pleaded to be invoked? We recognize that it is common practice where a defendant wishes to invoke the emergency doctrine to plead it as a defense in his answer. However, this practice does not establish that in order to invoke the doctrine it must be pleaded. We have here a situation where the issue on the question of whether the emergency doctrine should be included as a part of the instructions to the jury arises as a result of an averment by the defendant, Marvin Briese, in his answer to the plaintiff's complaint, and the evidence adduced at the trial. He has pleaded, in general terms, the affirmative defense of contributory negligence. Our rules of civil practice do not contemplate a responsive pleading to an answer. Our rules provide, however, that the affirmative defense of contributory negligence must be pleaded. Rule 8(c), N.D.R.Civ.P. A reply or other responsive pleading to an answer is not allowed under our rules unless ordered by the court. Rule 7(a), N.D.R.Civ.P. However, Rule 8(d), N.D.R.Civ.P., provides that averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided. In this case there was no responsive pleading to the answer of the defendant, Marvin Briese, averring the affirmative defense of contributory negligence. Therefore, the averment of the answer that the plaintiff's driver was contributorily negligent must be taken as denied or avoided without a responsive pleading. Where the evidence adduced to support the averment, taken together with all the other evidence adduced, fairly raises an issue under the sudden emergency rule, we hold it is proper to instruct the jury on the rule, although it was not pleaded.
There is a further reason why the doctrine of sudden emergency need not *179 be pleaded to be invoked. The emergency doctrine is not a defense. Rohde v. St. Louis Public Service Co., 249 S.W.2d 417 (Mo.1952); Robb v. Wallace, 371 S.W.2d 232 (Mo.1963); 61 C.J.S. Motor Vehicles § 460. A person invoking the emergency doctrine is not exonerated merely because of an emergency. The doctrine is simply a principle of law to be utilized in determining the issue of negligence where the actor is suddenly confronted with an emergency not of his own making or fault. Under such circumstances he is required only to exercise that degree of care which an ordinarily prudent person would exercise under similar circumstances. Accordingly, conduct, which under other circumstances would constitute negligence, may not amount to negligence even though he erred in his judgment in trying to extricate himself from a position of peril. In such case, the person who was confronted with the emergency is not, as a matter of law, to be denied recovery of damages on the ground of contributory negligence because he failed to take every precaution which he might have taken or because, in the light of subsequent events, he is shown to have chosen the wrong method of avoiding injury. He is not contributorily negligent if he acted as an ordinarily prudent person would act under like circumstances. Bauer v. Kruger, 114 N.W.2d 553 (N.D.1962); Gravseth v. Farmers Union Oil Company of Minot, 108 N.W.2d 785 (N.D.1961); Lostegaard v. Bauer, 78 N.D. 711, 51 N.W.2d 761 (1952). In short, the emergency doctrine is a rule of law properly invoked under proper circumstances to measure ordinary care. We find that the issues framed by the pleadings and the evidence adduced at the trial in this case raise the question and it was proper to give the instruction.
The farm tractor involved in the collision was owned by the defendant, Walter Briese. On November 1, 1967, he loaned it to his brother (the defendant, Marvin Briese) to do some field work on his land. Prior to the time that Marvin borrowed the tractor, it had been operated by Clifford Nelson. He was in Walter's employ during the morning of November 1 and, when the work was completed, Clifford Nelson took the tractor to Marvin's land where he continued to operate it, but in the service of Marvin. It is undisputed that from the time the tractor was borrowed by Marvin it was entirely in his control as Walter had no interest in the work being done with it nor was Walter to be compensated in any manner or amount for its use by Marvin, and Mr. Nelson became the employee of Marvin. At the end of the day the farm tractor was driven to the yard of Marvin Briese's home for the night. His home is located in Glasston. The following morning the tractor was driven back to the field to be used in cultivating Marvin's land. During the noon hour Marvin transported Clifford Nelson, the tractor operator, to his house in Glasston for lunch and returned him to the field after lunch. After the day's work in the field, Clifford Nelson was returning the farm tractor to Marvin Briese's yard in Glasston when the collision occurred. His route from the field to Marvin Briese's yard led to the township road, thence easterly to U. S. Highway 81, and thence north into Glasston. Clifford Nelson lost his life in the collision which occurred at the intersection of Highways 3 and 81, and the farm tractor was completely demolished. The plaintiff GTA joined the two brothers as defendants. Walter Briese, owner of the farm tractor, counterclaimed for its loss. The jury returned a verdict against both defendants and dismissed Walter's counterclaim.
Through his attorney Walter Briese moved for a directed verdict at the close of the plaintiff's case and again at the close of all the evidence. He also joined in the motion for a directed verdict or dismissal by Marvin Briese, through his attorney. The motions were denied. After judgment, Walter Briese moved for a new trial on the grounds of the insufficiency of the evidence to sustain the verdict against him and that the verdict against him was *180 against the law. The trial court denied the motion and Walter has appealed from the order denying his motion.
It was stipulated that a bailment existed between Walter and Marvin Briese. When Marvin Briese requested the use of Walter Briese's farm tractor, it was being used on land operated by Walter Briese which was located about five miles north of Glasston. On the morning of November 1, 1967, Mr. Nelson, who was operating the farm tractor, finished the work on Walter Briese's land and was then instructed, by Walter, to fill the tractor with fuel and take it to Marvin Briese's home in Glasston. This necessitated driving the tractor on U. S. Highway 81. Walter Briese testified that the farm tractor, during the week prior to this accident, was used on his land after dark. He testified that the operator's eyes would adapt to the darkness so that he could operate the farm tractor, without lights, until seven or eight o'clock at night. The land operated by Marvin Briese, upon which the farm tractor was used, was located about two and one-half miles west of Glasston. Marvin Briese's home was located in Glasston, his house facing on U. S. Highway 81 about three blocks north of the intersection where the collision occurred. Marvin Briese testified that some of his farm equipment was kept at his home and some was kept on his father's farm several miles out of town, but that his service facilities, including fuel and lubricating oil for his farm machinery, were located at his home in Glasston. He testified that the only practical way to drive the farm tractor from his home to his farmland west of Glasston was to drive on U. S. Highway 81 about three blocks south to the intersection where the collision occurred, and then to drive west about two and one-half miles on the township road to his land. It is not indicated that any servicing or fueling facilities for the farm tractor were located on the land site which was being worked with the farm tractor.
Walter Briese affirmatively testified that the lights on his farm tractor were not working and that he gave his brother, Marvin, specific instructions not to use the tractor on the highway at night. Marvin confirmed this admonition. He testified as follows:
"A. He stopped at my house and we and he did not even come in the house we talked in doorway and told me there was no lights on the tractor and not to run it at night.
"Q. You understood that instruction, at the time you received it?
"A. Yes."
On cross-examination he was asked:
"Q. Mr. Briese, you say you were told that there were no lights on it, that correct?
"A. Yes."
According to the uncontradicted testimony he was also told by Walter Briese that the condition could be repaired by replacing a fuse but he did not do so.
The statute governing the operation of farm tractors provides:
"Every farm tractor * * * when operated upon the highways of this state during the times * * * [from a half-hour after sunset to a half-hour before sunrise, Section 39-21-01, N.D.C.C.] shall be equipped * * * [with lamps as described therein, which, at the times specified in Section 39-21-01, N.D.C.C., shall be lighted]." Section 39-21-15, N.D.C.C.
Section 39-21-46(1), N.D.C.C., provides the scope and effect of the provisions of the chapter, and the penalty. It states:
"1. It is a misdemeanor for any person to drive or move or for the owner to *181 cause or knowingly permit to be driven or moved on any highway any vehicle or combination of vehicles which is in such unsafe condition as to endanger any person, or which does not contain those parts or is not at all times equipped with such lamps and other equipment in proper condition and adjustment as required in this chapter, or which is equipped in any manner in violation of this chapter, or for any person to do any act forbidden or fail to perform any act required under this chapter." [Emphasis added.]
Walter Briese argues that he did not knowingly permit Marvin to operate (through his employee) his farm tractor on the highway after dark, but had specifically prohibited it.
The above statute makes it a misdemeanor for an owner to cause or to knowingly permit to be driven or moved on any highway any vehicle which is not at all times equipped with such lamps, in proper condition and adjustment, as are required by statute. Walter Briese admits that the farm tractor was not equipped with lamps in proper condition and adjustment, as required by the statute, so as to allow it to be operated on a highway at night.
The trial court instructed the jury on the principles of law that a bailor, knowing of dangerous defects in his vehicle, may not permit another to operate such defective vehicle on the highways of this state, and that failure to perform or discharge this duty is negligence and the bailor is liable for such injuries and damages as are proximately caused by the defective condition of the vehicle; that, in order to hold him liable, it is not necessary that the bailor should have foreseen the exact manner in which the injury might occur, or that negligent acts on the part of the person entrusted with the bailed vehicle might also act as a concurring cause. In addition, it instructed on the statutory requirement pertaining to lights on a vehicle to permit it to be operated upon the highways of this state, and the requirement that vehicles, such as farm tractors, when operated at any time from a half-hour after sunset to a half-hour before sunrise, and at any other time when, due to insufficient light or unfavorable atmospheric conditions, persons or objects are not clearly discernible at a distance of 500 feet, shall have their lamps lighted. The jury was also instructed that it, and it alone, had the right to determine the credibility of the witnesses and the weight to be given to their testimony. Under the circumstances in this case the jury may not have believed the testimony that Walter Briese specifically instructed his brother, Marvin Briese, not to permit the farm tractor to be operated on the highways after dark and, on the basis of his own practice of operating the farm tractor until seven or eight o'clock at night, long after it became dark, and his knowledge that it would be operated upon the highways in driving it from his brother's fields to his brother's yard, located in the city of Glasston, for servicing and refueling, that his failure to perform his duty by loaning the farm tractor to his brother, which farm tractor he knew to be in a defective condition insofar as lights were concerned, constituted negligence which was a proximate cause of the collision. Larson v. Meyer, supra.
The trial court submitted special verdicts to the jury. It answered the following special verdict in the affirmative, finding the fact that there were no lights on the farm tractor which were operable was a defective condition which constituted a proximate cause of the collision.
"QUESTION NO. 1. Do you find from the evidence that at the time and place of the accident referred to in the testimony in this case that defendant Walter Briese negligently permitted use of his farm tractor by another and that the defective condition of the farm tractor was a proximate cause of the collision *182 resulting in damages to plaintiff's truck-tractor and trailer unit?
"Answer `yes' or `no'. ANSWER Yes.
"If `yes,' what was the defective condition?
ANSWER____
"There were no lights on the farm tractor which were operable."
The collision occurred at about 5:55 p. m. on November 2, 1967. Sunset on that day was established as occurring at 11.63 minutes after 5 p. m. Therefore, when the collision occurred, more than one-half hour after sunset, the lamps on the tractor should have been lighted.
In viewing the evidence in the light most favorable to the verdict, as we must in reviewing an order denying a motion for a new trial specifying the insufficiency of the evidence to sustain the verdict, or that it is against the law (Ternes v. Farmers Union Central Exchange, 144 N.W.2d 386 (N.D.1966)), we hold that the evidence is sufficient to justify the verdict of the jury against Walter Briese.
For the reasons set forth herein, the judgment, the order denying judgment notwithstanding the verdict, and the orders denying the motions for new trial are affirmed.
STRUTZ, C. J., and TEIGEN, ERICKSTAD, PAULSON and KNUDSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592763/ | 922 F.Supp. 1235 (1996)
UNITED STATES of America, Plaintiff,
v.
NBD BANK, N.A., Defendant.
Civil Action No. 95-40343.
United States District Court, E.D. Michigan, Southern Division.
April 4, 1996.
*1236 *1237 *1238 *1239 Mitchell J. Matorin, Tracy J. Whitaker, J. Christopher Kohn, Department of Justice, Civil Division, Washington, DC, for U.S.
Judy B. Calton, Honigman, Miller, Schwartz & Cohn, Detroit, MI, for NBD Bank N.A.
*1240 MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
GADOLA, District Judge.
This is a complex case in which the Government is trying to recover funds from NBD that were improperly diverted from a federally-backed mortgage program and then allegedly given to NBD in repayment of a loan. The Government has three claims: (1) constructive trust, (2) conversion, and (3) breach of contract. Both parties have moved for summary judgment on all three claims. A hearing was held in this matter on February 14, 1996. For the following reasons, this court will deny defendant's motion for summary judgment and partially grant plaintiff's motion for summary judgment.
I. Factual Background
A. The Federal Mortgage-Backed Securities Program
The federal government operates a mortgage-backed securities program, pursuant to 12 U.S.C. § 1721(g), under which it authorizes "issuers," who are private lenders, to issue securities backed by mortgages. The securities are guaranteed by the Government National Mortgage Association (hereinafter "GNMA"). Fidelity Guarantee Mortgage Corp. (hereinafter "Fidelity") was an issuer under this program.
Under the standard Guaranty Agreement between an issuer and GNMA, the issuer assigns to GNMA all equitable title in the mortgages it holds. The issuer retains only a bare legal title so that it may service these mortgages. The issuer collects the mortgage payments (which include payments for principle, interest, insurance, and taxes) and places them in various custodial accounts. Separate custodial accounts exist for principle and interest payments and insurance and tax payments. The issuer pays the money allocated to the principle and interest account to the investors who purchased securities from the issuer. The issuer pays the money in the tax and insurance account to various insurance companies and taxing agencies.
Since the securities are backed by the government, if the issuer cannot pay the proper amount of money to the investors, the government will pay any shortage of money. Thus, the investors are guaranteed a certain return on their investment.
Upon the default of the issuer, the GNMA takes the legal title to the mortgages (all equitable title to the mortgages already belongs to GNMA) and begins to service the mortgages itself. Further, all money held in the custodial accounts by the issuer goes to GNMA for proper disbursement. Insolvency or pending insolvency is a default under the standard Guaranty Agreement.
B. The Case At Bar
On November 12, 1980, GNMA approved Fidelity as an issuer in its mortgage-backed securities program. Fidelity serviced mortgages under this program until October 13, 1992. As part of this program, Fidelity established custodial accounts at NBD. One of the custodial accounts was for tax and insurance payments collected by Fidelity. This account ("the T & I account") was numbered 10973-03, and was the account from which funds were allegedly misdirected. Under §§ 4.13 & 7.03 of the Guaranty Agreement between GNMA and Fidelity, T & I funds could only be withdrawn for payments of taxes and insurance on the mortgages being serviced. Further, there was a letter agreement between NBD and Fidelity concerning the T & I account. This letter agreement provided: "In no instance shall the funds in the Escrow Custodial Account be used to offset funds which may have been advanced to, or on behalf of, the issuer by the custodian institution." This letter agreement and the signature cards for the T & I account authorized Mr. Jacobs (hereinafter "Jacobs"), Fidelity's president, to withdraw funds from the account.
In addition to the custodial accounts, Fidelity also had its corporate accounts at NBD. One of these accounts, acct. no. 11795-63, was the "operating account" for Fidelity. It was into this operating account that the funds from the T & I account were allegedly misdirected.
*1241 NBD had made significant loans to Fidelity. On November 15, 1990, NBD extended Fidelity a $4,500,000 line of credit. On August 12, 1991, this was reduced to $4,000,000 due to Fidelity's default on the first loan. NBD received security interests in Fidelity's bank accounts and various mortgages owned by Fidelity as collateral for these loans. Throughout 1991 and 1992, Fidelity's indebtedness to NBD ranged from approximately 2.7 to 4 million dollars. As Fidelity received income from the sale of mortgages, it would repay NBD the money it had borrowed for those mortgages and NBD would release the liens that it had on those mortgages and decrease the balance of Fidelity's indebtedness.
On September 28, 1992, Jacobs withdrew $225,000 from the T & I account by way of check made payable to Fidelity (not made payable to either an insurance company or a taxing agency). Jacobs then deposited this check in Fidelity's operating account at NBD. The $225,000 was mingled with other funds belonging to Fidelity. The operating account balance remained above $225,000 until October 9, 1992 when it fell to $64,033.52. On October 9, Fidelity paid $566,209.49 to NBD and $539,549.24 to various other entities from its operating account. It is not clear from the record if the money paid to NBD from the operating account was withdrawn before or after these other withdrawals on October 9, 1992. Between October 9, 1992 and October 13, 1992, the operating account balance rose to $73,876. The next debit to the operating account occurred on October 13, 1993, when the entire balance of the account was paid to NBD.
On October 13, 1992 Fidelity filed for bankruptcy under Chapter 11. On October 27, 1992, the bankruptcy was converted to a Chapter 7 bankruptcy. On October 5, 1994, the bankruptcy trustee sued NBD for, among other things, the $225,000 taken from the T & I account. This claim was settled, with the parties agreeing that these funds were not property of the estate. On November 8, 1994, GNMA sued the trustee for the $225,000 at issue here. On April 27, 1995, Jacobs was convicted of fraud. On July 20, 1995, GNMA moved to add NBD as a party to the bankruptcy proceeding. This motion was denied on August 14, 1995. Thus, on September 18, 1995, GNMA filed the present action against NBD to recover the T & I funds, asserting claims for constructive trust, conversion, and breach of contract. NBD and GNMA both move for summary judgment on all three claims.
II. Standard of Review
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." "A fact is `material' and precludes grant of summary judgment if proof of that fact would have [the] effect of establishing or refuting one of the essential elements of the cause of action or defense asserted by the parties, and would necessarily affect [the] application of appropriate principle[s] of law to the rights and obligations of the parties." Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984) (citation omitted). The court must view the evidence in a light most favorable to the nonmovant as well as draw all reasonable inferences in the nonmovant's favor. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir.1984).
The movant bears the burden of demonstrating the absence of all genuine issues of material fact. See Gregg v. Allen-Bradley Co., 801 F.2d 859, 861 (6th Cir.1986). This burden "may be discharged by `showing' that is, pointing out to the district court that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once the moving party discharges that burden, the burden shifts to the nonmoving party to set forth specific facts showing a genuine triable issue. Fed.R.Civ.P. 56(e); Gregg, 801 F.2d at 861.
To create a genuine issue of material fact, however, the nonmovant must do *1242 more than present some evidence on a disputed issue. As the United States Supreme Court stated in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986),
There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the [nonmovant's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted.
(Citations omitted). See Catrett, 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). The evidence itself need not be the sort admissible at trial. Ashbrook v. Block, 917 F.2d 918, 921 (6th Cir.1990). However, the evidence must be more than the nonmovant's own pleadings and affidavits. Id.
III. Analysis
A. Constructive Trust
Constructive trusts "may be imposed when property `has been obtained through fraud, misrepresentation, concealment, undue influence, ... or any other similar circumstances which render it unconscionable for the holder of the legal title to retain and enjoy the property.'" Kammer Asphalt Paving Co., Inc. v. East China Township Sch., 443 Mich. 176, 188, 504 N.W.2d 635 (1993) (citations omitted). See Restatement of Restitution § 160 (1936); V William F. Fratcher, Scott on Trusts § 462, at 304-06 (4th Ed.1989). A constructive trust is a legal fiction designed to prevent unjust enrichment. Kammer, 443 Mich. at 188, 504 N.W.2d 635. Funds that are subject to a constructive trust may not be recovered from a third party if (1) the funds cannot be traced to the third party or (2) the third party is a bona fide purchaser of the property, i.e., a purchaser for value and without notice of the misconduct that justified imposition of the constructive trust. See 76 Am.Jur.2d Trusts §§ 292-97, 311-20 (1992).
GNMA argues that the T & I funds are subject to a constructive trust because (1) Jacobs removed funds from the T & I account and deposited them in Fidelity's operating account; (2) the funds in the operating account were spent by Fidelity for its own purposes; and (3) under the Guaranty Agreement between GNMA and Fidelity, Fidelity did not have any equitable title in those funds equitable title had been assigned to GNMA. The record before the court conclusively supports these three premises. GNMA further argues that it can trace the wrongly diverted funds from the T & I account to NBD.
NBD argues that there can be no constructive trust, as a matter of law, because (1) under a Sixth Circuit case entitled In re Omegas, 16 F.3d 1443 (6th Cir.1994), a constructive trust may not be used to recover assets from a bankruptcy proceeding; (2) the funds cannot be traced from the T & I account to NBD; (3) NBD is a bona fide purchaser of the funds and therefore has a greater equitable interest than GNMA in the funds; and (4) GNMA's claims are barred because GNMA did not timely file a claim pursuant to M.C.L. § 440.4406(1). These arguments will be addressed in turn.
1. In re Omegas Group, Inc.
NBD first argues that a constructive trust may not be imposed because to do so would impermissibly take funds out of a bankruptcy estate. NBD relies on In re Omegas, 16 F.3d 1443 (6th Cir.1994). GNMA counters that the T & I funds never were a part of Fidelity's bankruptcy estate because equitable title to these funds never belonged to Fidelity. Therefore, according to GNMA, Omegas does not apply.
In Omegas, the Omegas Group went bankrupt. Just prior to bankruptcy, the Omegas Group received over $1,000,000 from a company called Datacomp, for the purchase of computers. The computers were never delivered. Datacomp claimed that it had been defrauded and that the funds it paid to Omegas were in a constructive trust for it and were not part of the bankruptcy estate.
The Sixth Circuit disagreed, holding that the funds were a part of the bankruptcy estate:
*1243 Because a constructive trust, unlike an express trust, is a remedy, it does not exist until a plaintiff obtains a judicial decision finding him to be entitled to a judgment "impressing" defendant's property or assets with a constructive trust. Therefore, a creditor's claim of entitlement to a constructive trust is not an "equitable interest" in the debtor's estate existing prepetition, excluded from the estate under § 541(d).
We do not address here property already impressed with a constructive trust by a court in a separate proceeding prepetition .... Nor do we address property that a state by statute has declared to be held in trust for particular purposes....
Id. at 1451.
The rationale behind this holding was that "each unsecured creditor desires to have his particular claim elevated above the others. Imposition of a constructive trust clearly thwarts the policy of ratable distribution...." Id. The court further supported its decision by noting that "[c]onstructive trusts are anathema to the equities of bankruptcy since they take from the estate, and thus directly from competing creditors, not from the offending debtor." Id. at 1452.
The present case can be distinguished from Omegas. To begin with, this is not a bankruptcy case. The funds being sought in this case are in the hands of NBD, not Fidelity's bankruptcy estate. The funds were transferred before the bankruptcy proceedings. Therefore, at the commencement of the bankruptcy proceedings, they were not assets of Fidelity. Thus, the rationale of the rule in Omegas clearly does not apply. If this court imposes a constructive trust over these funds, ratable distribution of the bankruptcy estate will not be affected because the funds are not being taken from the estate.
NBD itself argued that the funds were not a part of the estate when GNMA sought to join NBD to the bankruptcy action. In a letter to GNMA, NBD stated: "[A]dding NBD as a defendant to the [bankruptcy] proceeding would vexatiously multiply proceedings because the Bankruptcy Court ... does not have subject matter jurisdiction over what is essentially a dispute between two creditors of the debtor that arose prepetition independently of the bankruptcy case." Also, as part of the settlement agreement between NBD and the bankruptcy trustee, NBD agreed that the funds were not in the estate. Thus, it seems that NBD has hoisted itself on its own petard and is in a poor position to argue that Omegas, a bankruptcy case about funds within a bankruptcy estate, applies to the present action.
Omegas can also be distinguished from the present case because, unlike Datacomp in Omegas, GNMA contractually had equitable title to the funds prepetition, regardless of whether a constructive trust was later imposed by a court. Fidelity created an express trust when it entered the mortgage-backed securities program. Fidelity assigned equitable title to the funds in the T & I account to GNMA before it went bankrupt. Thus, Omegas does not apply because Omegas is expressly limited to cases in which the plaintiff has no equitable interest in the funds, other than an allegation of a constructive trust, prior to the initiation of bankruptcy proceedings.
Accordingly, a constructive trust may be imposed here, if otherwise warranted. Omegas does not preclude the imposition of a constructive trust in the present case.[1]
2. Tracing the Funds
GNMA contends that the T & I funds are easily traced into NBD's hands under the intermediate balance rule. The intermediate balance rule is founded on two key principles. First, when a trustee commingles trust funds and personal funds, any funds removed from the commingled account are presumed to be personal funds. In other words, funds held in trust will remain in a commingled account for as long as possible. National Bank v. Insurance Co., 104 U.S. 54, 26 L.Ed. 693 (1881). Second, "where one has deposited trust funds in his individual bank account, and the mingled fund is at any time depleted, the trust fund is thereby dissipated, *1244 and cannot be treated as reappearing in sums subsequently deposited to the credit of the same account." Schuyler v. Littlefield, 232 U.S. 707, 34 S.Ct. 466, 58 L.Ed. 806 (1914). In other words, funds deposited into a commingled account are not generally treated as trust funds.[2] Combining these two principles leads to the conclusion that the beneficiary of a constructive trust may not retrieve more from a commingled account than the lowest balance of the account recorded at any time after the trust funds have been mingled.[3]
The Fidelity operating account's balance went to zero on October 13, 1992, after the T & I funds had been placed there. GNMA argues that Fidelity's payments to NBD on October 9 and 13 caused the balance in the operating account to become zero. Thus, GNMA argues that under the intermediate balance rule, the payments on October 9, 1992 and October 13, 1992 are presumed to include the funds wrongly taken from the T & I account.
NBD argues that funds can never be traced to third parties from a commingled account. In other words, NBD argues that once the balance of Fidelity's operating account became zero, after the T & I money had been placed there, the T & I funds were lost forever and cannot be traced. The intermediate balance rule does not require this, however. The intermediate balance rule only states that once the commingled account balance becomes zero, the trustee cannot recover funds that are later deposited in that account. It says nothing about tracing funds out of a commingled account to third parties. See 76 Am.Jur.2d Trusts § 307 (1992) ("[I]f the entire commingled fund or account is completely withdrawn, the trust funds are dissipated and lost unless they can be further traced and identified.").
In the present case, some of the misdirected $225,000 can be conclusively traced to NBD. When the T & I funds were placed in the operating account, they were assumed to stay in that account as long as possible. Thus, the T & I funds were the last funds to be removed from the operating account immediately before the account balance went to zero on October 13, 1992. On October 9, 1992, the account balance fell to $64,033.52. This $64,033.52 is presumed to be T & I money. The next debit to that account was $73,876,[4] paid to NBD, which emptied the operating account. Thus, the $64,033.52 that is presumed to be T & I funds in the operating account on October 9, 1992 was paid to NBD on October 13, 1992. GNMA has successfully traced this $64,033.52 in misdirected T & I funds to NBD.
The above discussion does not resolve GNMA's claim for the remainder of the misdirected T & I money, $160,966.48.[5] On October 9, 1992, $160,966.48 of the T & I money was removed from the operating account. When the balance fell below $225,000 on October 9 to $64,033.52, the last $160,966.48 to leave the account on that day is presumed to be from the T & I account. Even though $566,209.49 was paid to NBD on October 9, 1992, the record does not disclose when during the day that money was paid to NBD.[6] On October 9, 1992, $539,549.24 *1245 was paid out of the operating account to entities other than NBD. There is no way of knowing, based on the current record, whether the last $160,966.48 to leave the operating account on October 9, 1992 went to NBD or someone else. Therefore, GNMA has not yet traced any of that $160,966.48 to NBD.
3. NBD's Equitable Right to the Funds
Even though a portion of the T & I funds have been traced to NBD from the operating account, those funds may only be recovered under a theory of constructive trust if NBD has not acquired greater equitable right to the funds, i.e., if NBD is not a bona fide purchaser for value and without notice (hereinafter "BFP").
NBD argues that it is a BFP because it released collateral based upon the receipt of these loan payments by Fidelity. NBD also asserts that it had no notice that the funds used to pay it were from the T & I account.
GNMA argues that NBD knowingly took the risk that the funds it accepted were trust funds because it knew: (1) that the T & I account was a custodial account; (2) that Jacobs wrote a check on the T & I account, made out to Fidelity, and deposited it in Fidelity's operating account at NBD; (3) that the relevant loan repayments came from that operating account. Accordingly, GNMA argues that NBD could not possibly have acquired a greater equitable right to the T & I funds in its possession.
This court agrees with GNMA's reasoning. NBD knew that the T & I account held money in trust. Further, NBD knew that money had been transferred from the T & I account to Fidelity's operating account. While that, standing alone, may not have been enough to impose liability on NBD,[7] NBD is not held liable because it allowed T & I funds to be deposited in the operating account. Nor is NBD held liable because it allowed money to be paid from the operating account to others. NBD is liable because it accepted funds from the operating account after T & I funds had been placed in that account. This court holds that when NBD accepted funds from the operating account in satisfaction of Fidelity's debt to NBD, NBD took the risk that those funds were actually misdirected trust funds from the T & I account. NBD cannot now assert an equitable right to those funds paramount to that of the beneficiary of the constructive trust created by the misdirection of the funds. In short, NBD must return the trust money traced to it.
The weight of authority holds that "where a deposit of fiduciary funds is made in the fiduciary's personal account, and he subsequently pays a personal debt to the bank by a check drawn on that account," the bank is liable "to the extent that the trust funds so deposited in the trustee's personal account are used in paying the depositor's debt to the bank." IV Fratcher, Scott on Trusts § 324.4 at 269.
[W]here the bank takes, in payment of a depositor's personal debt, a check against his personal account, ... knowing that trust funds have been mingled with personal funds in that account, ... [the] bank must make good to the trust, to the extent that payment of the depositor's debt in fact depletes trust funds in the account. While it has no knowledge that it is receiving trust funds, it does know of the presence of trust funds in the account, and this factor is deemed enough to bar it from deriving a direct advantage through what is shown later to have been a diversion of trust funds. It has no equity equal to that of the real owner.
Aetna Casualty & Surety Co. v. Catskill Nat'l Bank & Trust Co., 102 F.2d 527, 530 (2d Cir.1939) (emphasis added). See also, Fidelity & Deposit Co. of Maryland v. Highland Trust & Savings Bank, 44 F.2d 697, 698 (6th Cir.1930) (holding that bank is put on *1246 inquiry notice to ascertain whether it is receiving trust funds when it accepts repayment of a loan from a commingled account; if bank received trust funds, it must return funds because it has no equity in funds equal to that of the trust beneficiary); Maryland Casualty Co. v. City Nat'l Bank, 29 F.2d 662, 664 (6th Cir.1928) (same holding); United States Fidelity & Guaranty Co. v. Union Bank & Trust Co., 228 F. 448, 451 (6th Cir.1915) (same holding); IV Fratcher, Scott on Trusts § 324.4, at 269 n. 5.
Further support for this holding is found in Blair v. Trafco Products, Inc., 142 Mich. App. 349, 369 N.W.2d 900 (1985). In Trafco, a bank had effected a setoff against a commingled account in order to recover funds owed by the trustee to the bank. The court, in conformity with Portage Aluminum Co. v. Kentwood Nat'l Bank, 106 Mich.App. 290, 307 N.W.2d 761 (1981), held that the bank was under no obligation, prior to effecting the setoff, to inquire as to whether the trustee was breaching his duty. In other words, the mere fact that the trustee had transferred trust funds into his personal account was not enough, standing alone, for the bank to infer that the trustee had violated his fiduciary duty. Nonetheless, the court held that the bank must return the funds to the trust beneficiary because the money did not belong to the trustee, but rather to the trust beneficiary. Id. at 355, 307 N.W.2d 761. As between the bank and the trust beneficiary, the trust beneficiary had greater rights to the trust money.
Similarly, any money traced from the T & I account to NBD does not belong to NBD, but rather to GNMA, the trust beneficiary. Merely by accepting the T & I funds in repayment of a loan and releasing the collateral for the loan, NBD did not attain a right to the T & I funds greater than that of the trust beneficiary. This is true even if one assumes that NBD was unaware that it actually received T & I funds.
4. Application of M.C.L. § 440.4406
NBD argues that GNMA may not successfully assert any of its claims against NBD because it did not comply with the notice requirement of M.C.L. § 440.4406. M.C.L. § 440.4406 provides, in pertinent part:
(6) Without regard to care or lack of care of either the customer or the bank, a customer who does not within 1 year after the [bank] statement or items are made available to the customer ... discover and report his or her unauthorized signature on or any alteration on the item is precluded from asserting against the bank the unauthorized signature or alteration.
This is not a statute of limitations, but rather a notice requirement that must be met before bringing a claim against a bank. Siecinski v. First State Bank, 209 Mich.App. 459, 464, 531 N.W.2d 768 (1995). It is undisputed that GNMA did not notify NBD of the unauthorized transfer of funds from the T & I account to Fidelity's operating account within one year of the transfer.
Assuming this statute applies to the case at bar,[8] it is preempted by GNMA's enabling statute, 12 U.S.C. § 1721(g), which provides, in part:
[W]ith respect to any issue of guaranteed securities, in the event of default [of the issuer] and pursuant otherwise to the terms of the contract, the mortgages that constitute such trust or pool [of mortgages against which the guaranteed securities are issued] shall become the absolute property of the Association subject only to the unsatisfied rights of the holders of the securities based on and backed by such trust or pool. No state ... law ... shall preclude or limit the exercise by the Association of ... its ownership rights ... in the mortgages ....
There is federal preemption when a federal law expressly preempts state law. Hillsborough County v. Automated Medical Lab, Inc., 471 U.S. 707, 712-13, 105 S.Ct. 2371, 2374-75, 85 L.Ed.2d 714 (1985). 12 U.S.C. *1247 § 1721(g) expressly preempts state law that limits the exercise by GNMA of its ownership rights in mortgages that it controls because of a default of the issuer. First, this court must determine whether GNMA's ownership rights in the mortgages include the right to collect funds paid by mortgagors for the payment of taxes and insurance on the mortgages. Second, this court must determine whether M.C.L. § 440.4406 limits these ownership rights.
NBD first argues that GNMA does not have ownership rights to those portions of the mortgage payments earmarked for the payment of taxes and interest. NBD cites no case law or legislative history in support of this argument. The language of the statute itself makes no such distinction. The statute simply preempts state law limiting GNMA's "ownership rights ... in the mortgages." 12 U.S.C. § 1721(g). Accordingly, the statute is of little help in defining the scope of GNMA's ownership rights in the mortgages.
The statute does refer to the Guaranty Agreement, however. 12 U.S.C. § 1721(g) provides that the mortgages become the absolute property of GNMA "pursuant ... to the terms of the contract." The relevant portions of the Code of Federal Regulations also provide that the transactions relating to the issue and guaranty of these mortgage-backed securities are governed by the Guaranty Agreement between the parties. See, e.g., 24 C.F.R. § 390.1 (1989). Thus, the Guaranty Agreement defines the scope of GNMA's ownership rights in the mortgages.
Section 3.01 of the standard Guaranty Agreement between Fidelity and GNMA mandates that Fidelity transfer to GNMA the "right, title, and interest of [Fidelity] in and to the mortgages...." This right is defined to include "all interest, principal, and other payments made on or with respect to such mortgages on and after the effective date of this agreement." When Fidelity defaulted, GNMA, pursuant to 12 U.S.C. § 1721(g), took legal title[9] to the mortgages from Fidelity and became responsible for servicing those mortgages. The Guaranty Agreement clearly provides that GNMA's ownership rights in the mortgages, at that time, included the right and responsibility to collect and distribute mortgage payments earmarked for the payment of taxes and insurance. Further, GNMA had the right to all such funds that Fidelity had collected. Therefore, the most reasonable interpretation of 12 U.S.C. § 1721(g), in light of the federal regulations and the Guaranty Agreement, is that GNMA's ownership rights in the mortgages extend to all mortgage payments, including payments earmarked for taxes and insurance. Accordingly, this court holds that GNMA's "ownership rights" in the mortgages, as used in 12 U.S.C. § 1721(g), include the right to collect those portions of the mortgage payments earmarked for taxes and insurance.
Additionally, NBD notes that GNMA's ownership rights, protected by federal preemption under 12 U.S.C. § 1721(g), did not exist at the time that Fidelity, through Jacobs, removed the funds at issue from the T & I account. From that premise, NBD concludes that federal preemption does not apply to GNMA's attempts to recover these funds. Not surprisingly, NBD again cites no case law in support of its argument.
It is true that GNMA's ownership rights under 12 U.S.C. § 1721(g) did not arise until Fidelity defaulted, which was after the T & I funds were misdirected. Nonetheless, once the default did occur, GNMA gained all ownership rights in the mortgages. GNMA presently has those ownership rights which, as discussed previously, include the right to all mortgage payments collected by Fidelity after the date of the Guaranty Agreement. The T & I funds at issue are mortgage payments collected by Fidelity after the date of the Guaranty Agreement. Therefore, GNMA may now assert the preemption provision of § 1721(g) to protect its present ownership rights in the T & I funds. It does not matter that those funds were misdirected before Fidelity's default occurred.
Having held that GNMA currently has ownership rights to the misdirected T & I funds, this court now must determine if M.C.L. § 440.4406 would impermissibly limit *1248 the assertion of those rights. Assuming that it applies to the present situation, M.C.L. § 440.4406 clearly would limit the assertion by GNMA of its ownership rights to the misdirected T & I funds. According to NBD, it would totally bar the assertion of those rights by GNMA. Therefore, to the extent that it applies to this action, M.C.L. § 440.4406 is preempted by 12 U.S.C. § 1721(g) and the Supremacy Clause of the Constitution. M.C.L. § 440.4406 may not bar GNMA's present claims.
5. Conclusion
GNMA has proven that Fidelity, through Jacobs, misdirected T & I funds and that those funds are properly subject to a constructive trust for which GNMA is the beneficiary. GNMA can only trace $64,033.52 of the misdirected funds to NBD, however. There is a material question of fact concerning whether NBD is in possession of the rest of the funds. Therefore, GNMA is entitled to judgment as a matter of law with respect to $64,033.52 of the misdirected funds.
B. Conversion
GNMA also asserts a claim against NBD for conversion, based upon NBD's possession of T & I funds. "Conversion is any distinct act of dominion wrongfully exerted over another's personal property in denial of or inconsistent with his rights therein." Thoma v. Tracy Motor Sales, Inc., 360 Mich. 434, 438, 104 N.W.2d 360 (1960) (citation omitted). Generally, good faith is not a defense to conversion; it can be committed unwittingly. Citizens Ins. Co. of America v. Delcamp Truck Center, Inc., 178 Mich.App. 570, 444 N.W.2d 210 (1989).
NBD argues that under the UCC, it may not be liable for conversion, as a matter of law, because it acted in a commercially reasonable manner. NBD relies on the version of M.C.L. § 440.3419 applicable to this case, which provides in part:
(3) Subject to the provisions of this act concerning restrictive indorsements a representative, including a depositary or collecting bank, who has in good faith and in accordance with the reasonable commercial standards applicable to the business of such representative dealt with an instrument or its proceeds on behalf of one who was not the true owner is not liable in conversion or otherwise to the true owner beyond the amount of any proceeds remaining in his hands.
M.C.L. § 440.3419 (1964) (emphasis added). Even if this provision applied to NBD, it does not bar recovery of trust funds that are in NBD's possession. Those are the only funds that GNMA is attempting to retrieve. GNMA's conversion claim is based upon NBD's possession of the T & I funds, not the fact that it processed checks that diverted the T & I funds to other sources. Accordingly, M.C.L. § 440.3419 provides no shield for NBD.
NBD also asserts that it is not liable for conversion because it has since acquired superior equities in the funds. This issue was addressed previously in this opinion. This court holds that NBD, under the circumstances of this case, did not, as a matter of law, obtain equities superior to those of GNMA in the T & I funds.[10]
Lastly, NBD argues that it is not liable because there can be no conversion for money or other fungible items. This argument also fails. The law is clear that an "action will lie for the conversion [of money], *1249 where there is an obligation to keep intact or deliver the specific money in question, and where such money can be identified." Garras v. Bekiares, 315 Mich. 141, 149, 23 N.W.2d 239 (1946). There was an obligation to keep the T & I funds intact, i.e., separate from other funds. Further, as discussed above, GNMA can trace $64,033.52 of the T & I money into NBD's hands. The general rule that money cannot be converted does not bar GNMA's conversion claim under the circumstances of this case. The T & I funds were subject to conversion.
GNMA has proven, as a matter of law, that NBD is in possession of $64,033.52 from the T & I account. Further, GNMA has shown that it has greater equitable title to that money. Accordingly, GNMA is entitled to summary judgment on its conversion claim in the amount of $64,033.52.
C. Breach of Contract
GNMA's breach of contract claim is based on the Letter Agreement between NBD and Fidelity, of which GNMA is a third party beneficiary.[11] The Letter Agreement provides, in part:
In no instance shall the funds in the Escrow Custodial Account be used to offset funds which may have been advanced to, or on behalf of, the issuer by the custodian institution.
GNMA asserts that this contract was breached when NBD allowed Fidelity to repay Fidelity's indebtedness to NBD with funds that can be traced back to the T & I account. The funds were not taken directly from the T & I account, but rather were first transferred to operating account.
NBD argues that the contract was not breached because (1) NBD received its funds from the operating account, not the T & I account, and (2) the T & I funds were not used to "offset" funds loaned to Fidelity.
The first argument is without merit. The contract prohibits a setoff using the "funds in the Escrow Custodial [T & I] Account." NBD argues that the contract cannot be breached if NBD did not receive payment directly from the T & I account. In other words, NBD believes that it was only prohibited under the contract from accepting the T & I funds while the funds were in the T & I account. Having accepted the T & I funds after they had been misdirected, NBD argues that it did not violate the contract. This is too limited a view of the contract. The contract prohibits the use by NBD of the T & I funds. This is true even if the funds are first transferred to an intermediary account. Otherwise, the contract would be ridiculously easy to avoid and provide little, if any, protection for the trust funds.
NBD's second argument also fails. NBD asserts that it did not effect a "setoff" under its internal procedures. Nonetheless, funds from the T & I account were given to NBD in repayment of a loan from NBD to Fidelity. A setoff occurs when two entities that owe money to each other apply their mutual debts against each other. The Supreme Court has stated that a setoff requires (1) a decision to effect a setoff, (2) some action accomplishing a setoff, and (3) a recording of the setoff. Citizens Bank of Maryland v. Strumpf, ___ U.S. ___, ___, 116 S.Ct. 286, 289, 133 L.Ed.2d 258 (1995). To perform a setoff, an entity must intend to permanently reduce the amount of debt owed to it. Id.
In the present case, there has been a setoff. NBD decided to accept the funds from Fidelity as repayment of debt. NBD did accept those funds and reduced Fidelity's debt by the amount of the payment. This reduction in debt was recorded by NBD and appears in NBD's account statements. Further, NBD released the collateral for those loans when it accepted the funds from Fidelity. This also demonstrates NBD's intent to permanently reduce Fidelity's debt to NBD. Although NBD may not have effected a setoff as defined by NBD, a setoff was effected as defined by the Supreme Court. To the extent that the funds from the T & I account *1250 were received by NBD as repayment for NBD's loans to Fidelity, the Letter Agreement was violated.
Therefore, GNMA is entitled to partial summary judgment with respect to the breach of contract claim and should receive $64,033.52, the amount NBD received that can be traced from the T & I account. NBD is not entitled to summary judgment on this claim.
D. Conclusion
NBD's motions for summary judgment on all three claims will be denied. GNMA's motion for summary judgment on all three claims will be granted in part. A partial judgment in the amount of $64,033.52 will be entered in favor of GNMA. The only issue remaining for trial is whether the rest of the misdirected T & I funds may be traced to NBD. GNMA is entitled, as a matter of law, to any further amounts of T & I money that it can trace to NBD.
ORDER
Therefore, it is hereby ORDERED that NBD's motion for summary judgment be DENIED. It is hereby FURTHER ORDERED that GNMA's motion for summary judgment be GRANTED IN PART. Partial judgment in favor of GNMA will be entered in the amount of $64,033.52. SO ORDERED.
PARTIAL JUDGMENT
This action having come before the Court, Honorable Paul V. Gadola, District Judge, presiding, and the issues having been duly considered and a decision having been duly rendered,
IT IS ORDERED AND ADJUDGED that plaintiff is meritorious on all of its claims and that defendant pay to plaintiff $64,033.52.
It is further ORDERED that the clerk serve a copy of this partial judgment by United States mail on counsel for plaintiff and on counsel for defendant.
NOTES
[1] Various other arguments are raised by GNMA as to why Omegas should not apply. In light of the above discussion, these arguments need not be addressed.
[2] A possible exception to this principle may occur when subsequent deposits are intended to replace depleted trust funds. See 76 Am.Jur.2d Trusts § 307 (1992). This exception does not apply to the present case, however.
[3] An example helps to illustrate this: Assume a fiduciary commingles $5,000 of trust money with $5,000 of personal money in his personal account. $5,000 is then withdrawn from the account. The $5,000 remaining in the account is presumed to be the trust money.
Assume an additional $2,500 is withdrawn. Assume that later, $2,500 is placed in the account, bringing the balance back up to $5,000. Now, only $2,500 of the $5,000 in the account is presumed to be trust funds. The trustee cannot recover more than $2,500 from the commingled account because $2,500 is the lowest balance of the commingled account recorded after the mingling of the funds.
[4] A small amount of money was deposited into Fidelity's operating account in between October 9 and October 13. Under the intermediate balance rule, this money is not presumed to be T & I money.
[5] $225,000 - $64,033.52 = $160,966.48.
[6] GNMA argues that since the payments to NBD are listed last on the records provided to the court, those payments must have been the last payments of the day. The payments, however, are arranged by the amount of the payment. The payments to NBD are last on the list because they are the largest payments to any one entity for that day. Accordingly, this court may not assume that the payment to NBD was the last payment drawn on the commingled account on October 9, 1992.
[7] See Columbia Land Co. v. Empson, 305 Mich. 220, 228, 9 N.W.2d 452 (1943); Portage Aluminum Co. v. Kentwood Nat'l Bank, 106 Mich.App. 290, 295-97, 307 N.W.2d 761 (1981).
[8] It is possible that the statute does not apply to situations in which a trust beneficiary is bringing suit against a bank to recover trust funds improperly paid to the bank by the trustee/depositor. This court need not address that issue because the statute, if applicable, would be preempted.
[9] Under the Guaranty Agreement, GNMA already had equitable title to the mortgages.
[10] On this point NBD relies on In re Williams Bros. Asphalt Paving Co., 59 B.R. 71 (1986). In Williams, the bankruptcy judge held that a bank who unknowingly received trust funds from a trustee in repayment of the trustee's loans could keep those funds, in spite of their status as trust funds. The court held that the bank could not be charged with knowledge of the status of the funds and had acquired greater equity in the funds.
In Williams, however, there was never an express trust fund account at the defendant bank from which the funds at issue were transferred. Williams would apply to this case if NBD had no knowledge that the T & I account contained trust funds. However, NBD was aware that the T & I account contained trust funds, was aware that those funds had been transferred to Fidelity's operating account, and was aware that it received repayment of its loans from Fidelity's operating account. Under those circumstances, NBD must return the funds. See, e.g., Fidelity & Deposit Co. of Maryland v. Highland Trust & Savings Bank, 44 F.2d 697, 698 (6th Cir.1930).
[11] NBD does not dispute that GNMA is a third party beneficiary to the letter agreement. GNMA, who owned equitable title to all of the mortgage payments involved in this case, is a third party beneficiary to the contract between Fidelity and NBD because the contract is designed to protect those mortgage payments. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592780/ | 453 So.2d 1160 (1984)
David A. GIBSON and State Farm Mutual Automobile Insurance Company, Appellants,
v.
Nancy B. TROXEL, et al., Appellees.
Nos. 83-115, 83-594.
District Court of Appeal of Florida, Fourth District.
July 18, 1984.
Rehearing Denied September 7, 1984.
*1161 Charles B. Green, Jr., of Dickman & Green, and Nancy Little Hoffman, P.A., Fort Lauderdale, for appellants.
Montgomery, Lytal, Reiter, Denney & Searcy, P.A., and Barbara J. Compiani of Edna L. Caruso, P.A., West Palm Beach, for appellees.
DOWNEY, Judge.
David Gibson and State Farm Insurance Company, defendants in a personal injury action arising out of a motor vehicle accident, seek review of (1) an order taxing costs and awarding an attorney's fee to the plaintiffs' lawyers and (2) an order denying their motion to enter judgment on a jury verdict in their favor.
Nancy Troxel and her husband sued Gibson and State Farm for damages arising out of an accident that occurred on March 7, 1978. They also sought damages in the same complaint against William Butcher and Allstate Insurance Company for injuries sustained in a second accident occurring July 3, 1980. At the commencement of the trial the jury was advised that plaintiffs had voluntarily dismissed Butcher and Allstate from the case. Gibson and State Farm admitted responsibility for the accident and a verdict was directed for plaintiffs on liability. The case went to the jury on the question of damages including whether Nancy Troxel had sustained a permanent injury that would meet the no fault threshold.
During closing argument, defendants' counsel suggested to the jury that the plaintiffs had been adequately compensated for their damages by Butcher and Allstate. He also stated that plaintiffs made no claim for medical bills because they were paid by their own carrier. Plaintiffs' counsel objected to each of those comments, requested a curative instruction, which was given, and expressly stated on each occasion that he did not want a mistrial. After the jury had retired, it sent to *1162 the court a question that had to do with plaintiffs' evidence concerning permanent injury. The jury retired again and shortly made it known they had reached a verdict. However, before the verdict was announced plaintiffs moved for a mistrial because of the earlier comments of defense counsel, and the court granted the motion. After the court granted the motion for mistrial, the jury was brought back to the courtroom, and a verdict was handed to the court. Thereupon, defense counsel asked the court to proffer the verdict. Plaintiffs' counsel objected to such a proffer on the ground that the declaration of mistrial made any verdict moot. The circuit court responded that, if this court reversed the decision to declare a mistrial on the grounds that it was error to grant a mistrial, then the publishing of the verdict would avert a retrial. The court then read the verdict and announced it; it was favorable to the defendants.
Thereafter, the defendants moved for entry of judgment on the verdict, and the plaintiffs moved to tax costs and impose sanctions against the defendants. The circuit court entered an order that (a) taxed $1350 in costs against defendants payable to the Court Administrator to cover the time of the clerk, judge, and jury wasted by causing a mistrial, (b) taxed $344 in court costs payable to the plaintiffs, and (c) imposed sanctions against the defendants "for attorneys' fees as a result of the misconduct involving defense counsel's closing argument, in the amount of $5,000.00 payable to [plaintiffs' counsel]." That order is the subject of Case No. 83-115. At a subsequent hearing the court denied the motion for judgment upon the verdict, which order the defendants seek to have reviewed in Case No. 83-594.
After oral argument this court requested counsel to file supplemental briefs on the question of our jurisdiction to review the order denying the motion for judgment on the verdict. Having given full consideration to that question, we hold the order is not subject to appeal because it requires a determination of the validity of the order granting a mistrial, an order that is not subject to appellate review. Gore v. Hansen, 59 So.2d 538, 40 A.L.R.2d 1281 (Fla. 1952). Esneault v. Waterman Steamship Corporation, 449 F.2d 1296 (5th Cir.1971); Martinez v. Winner, 548 F. Supp. 278, 309 (D.Colo. 1982).
The defendants contend that A & P Bakery Supply & Equip. Co. v. H. Hexter & Son, Inc., 149 So.2d 883 (Fla. 3d DCA 1963), is authority for reviewing an order of mistrial. However, that reliance is misplaced because in A & P the jury returned a verdict which the court refused to accept. The court thereafter ordered a mistrial. On appeal the district court held the order reviewable because though labeled an order granting a mistrial, it was, in fact, an order granting a new trial. The latter is presently reviewable pursuant to Florida Appellate Rule 9.110(a)(3) while the former is not reviewable. Another case defendants rely upon to demonstrate jurisdiction is State ex rel. Sebers v. McNulty, 326 So.2d 17 (Fla. 1975). There, a motion for mistrial was made during the trial, but the judge reserved ruling. After the trial was over the court held argument on the reserved motion and granted a new trial. The Supreme Court held that when made (during trial) the motion was properly labeled a motion for mistrial. However, at the time the court ruled (post trial) it was properly a motion for new trial. Thus, it is apparent that, where a court grants a mistrial and orders a new trial prior to rendition of a verdict, the order is not reviewable; whereas, when the order is rendered after verdict, it is the equivalent of an order granting a new trial which is reviewable pursuant to Rule 9.110(a)(3). We hold that when the court granted plaintiffs' motion for a mistrial the trial was concluded and the jury verdict received after that order was a nullity. Thus, there was nothing upon which to enter judgment.
Turning now to the order assessing costs, we hold there was no basis upon which to assess any costs at this particular stage of the proceedings, nor is there any basis for assessing attorney's fees. This order was apparently entered as a sanction against Gibson and State Farm because the *1163 court felt their counsel was responsible for causing the mistrial after the court had expended several days of time and efforts of the court system. Accordingly, the court assessed $1350 for the expenses of the system, i.e., the time of the clerk, judge, and jury. The other $344 was for ordinary assessable court costs payable to the plaintiffs. The assessment of an attorney's fee for plaintiffs' attorney was also part of the sanction. Court costs are assessable only as provided by statute and then only at the termination of the case. Sears Roebuck & Co. v. Richardson, 343 So.2d 678 (Fla. 1st DCA 1977). There is no authority to assess costs to reimburse the system. State v. JLP, 435 So.2d 392 (Fla. 5th DCA 1983). Similarly, attorney's fees may be awarded only when provided for by agreement, by statute, or for creating a fund, unless they are accorded as a fine or sanction for indirect contempt, Miller v. Colonial Baking Co. of Alabama, 402 So.2d 1365 (Fla. 1st DCA 1981). No such finding is made here.
In view of the foregoing, the order dated December 16, 1982, assessing costs is reversed. The appeal from the order dated February 24, 1983, is dismissed.
LETTS and HERSEY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592811/ | 19 So.3d 989 (2009)
CARDENAS
v.
STATE.
No. 2D08-3541.
District Court of Appeal of Florida, Second District.
August 14, 2009.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592798/ | 453 So.2d 1171 (1984)
METROPOLITAN DADE COUNTY, Appellant,
v.
Minnie COX, Appellee.
No. 83-2687.
District Court of Appeal of Florida, Third District.
August 7, 1984.
*1172 Robert A. Ginsburg, County Atty., and Thomas W. Logue, Asst. County Atty., for appellant.
Gary E. Garbis, Miami, for appellee.
Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
SCHWARTZ, Chief Judge.
Dade County appeals from a $50,000 judgment reduced from a $60,000 jury verdict under Sec. 768.28(5), Fla. Stat. (1981). The recovery was based upon findings that the plaintiff, who had slipped and fallen in an accumulation of water in a Jackson Memorial Hospital corridor caused by a backed-up drain, had sustained $100,000 in damages and was 40% comparatively negligent. The only point which deserves discussion is the claim that the fact that the county "admitted liability" leaving the contributory-comparative negligence issue for jury determination rendered it erroneous for the trial court to have admitted an internal memorandum from the chairman of the hospital's safety committee indicating that it had been on actual notice of the defective condition for some time prior to Ms. Cox's accident and that there had been at least one previous fall at the area in question.[1] We reject this argument and affirm.
While the county correctly contends that evidence concerning liability is irrelevant and prejudicial when, as in the decisions it cites, Barton v. Miami Transit Company, 42 So.2d 849 (Fla. 1949); Neering v. Johnson, 390 So.2d 742, 743 (Fla. 4th DCA 1980); and School Board of Palm *1173 Beach County v. Taylor, 365 So.2d 1044 (Fla. 4th DCA 1978), the defendant admits entire responsibility for the accident and only the amount of damages remains to be decided, this rule had no application whatever when, as here, the jury must determine the percentage, that is the relative extent of each party's negligence under the comparative negligence doctrine. The fact-finders' task in such a case is to determine
such proportion of the entire damages plaintiff sustained as the Defendant's negligence bears to the combined negligence of both the Plaintiff and the Defendant.
Hoffman v. Jones, 280 So.2d 431, 438 (Fla. 1973); see Insurance Company of North America v. Pasakarnis, 425 So.2d 1141, 1143, n. 4 (Fla. 4th DCA 1982) (Schwartz, A.J., dissenting), approved in Insurance Company of North America v. Pasakarnis, 451 So.2d 447 (Fla. 1984). Obviously, this cannot be done without complete information as to the quantity, quality, nature and degree of the defendant's conduct so that the jury knows just what to "compare" with its assessment of the plaintiff's. In this case, by entering the so-called admission of liability, the defendant below essentially conceded only that it was 1% responsible for the plaintiff's injuries. When the issue of the relative percentages thus remains virtually entirely open and depends upon the extent of the county's own negligence, it surely cannot insist that it does not matter that it knew of, but ignored the condition which caused the accident.
In like manner, it could not be contended that by admitting liability in an intersection accident while claiming that the plaintiff was comparatively negligent in exceeding the speed limit, the defendant could preclude, as "irrelevant," testimony that he had run a stop sign at 90 miles per hour while blind drunk. That was the exact holding in Amend v. Bell, 89 Wash.2d 124, 570 P.2d 138 (1977), where the court said:
The critical matter then is whether all of the evidence of the defendant's conduct is admissible on the issue of comparative negligence when a defendant admits that one of his acts was a proximate cause of the injury, but claims plaintiff's negligence was also a proximate cause. Specifically in this case, can plaintiff introduce evidence of alleged intoxication and speed when defendant admits that his failure to yield the right of way was a proximate cause of the collision and plaintiff's injuries?
The essential question is whether, in a comparative negligence setting, a defendant can shield his total alleged acts of negligence from the jury by admitting to one act of negligence while exposing all of the blameworthy conduct of the plaintiff. We think not.
Comparative negligence means comparison. The trier of fact compares the negligence of plaintiff and defendant. Fault is compared to fault. Thus to determine the negligence of the parties, the trier of the facts must hear the totality of fault. Failure to yield the right of way may be a proximate cause of a collision, but how much more responsibility for the injury was attributable to the defendant who might have been intoxicated or speeding. If we have comparative negligence, we must look at all of the proximate causes of the collision and its consequent injuries.
570 P.2d at 142.
The general law on the subject is summarized in the leading and remarkably similar case of Sears v. Southern Pacific Company, 313 F.2d 498 (9th Cir.1963), decided under the Federal Employers' Liability Act, which embodies a comparative negligence rule identical to Florida's. See St. Pierre v. Public Gas Co., 423 So.2d 949 (Fla. 3d DCA 1982) (applying FELA-Jones Act authority to resolve Florida comparative negligence issue). In Sears, the trial court excluded from evidence a "notice letter," like the one in this case, concerning the area in which the plaintiff was injured. On his appeal from an allegedly inadequate verdict, the railroad countered that the ruling was harmless. The court disagreed. It stated that
*1174 counsel was careful to state that the purpose of the letter was simply to show that the defendant had knowledge of the alleged hazard from and after the date it received the letter. So limited, the exhibit should have been admitted. See 6 Wigmore, Evidence, § 1789 at 235 (3d ed. 1940).
Defendant, however, contends that any adverse effect the ruling may have had on plaintiff's case was cured by the court's instructions. Defendant points out that although its knowledge, actual or constructive, of the peril was a material fact essential to the existence of negligence ... the court completely ignored this issue and flatly told the jury that defendant had the duty to provide plaintiff with a reasonably safe place to work. Defendant's contention would have merit if this case were governed by common law rules, for under them relative negligence by either party is immaterial, and any causal negligence of the plaintiff operates to bar his recovery. But this case is prosecuted under the FELA and section 3 of that Act expressly provides that a plaintiff's contributory negligence is no bar "but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to [him]."
* * * * * *
Katila v. Baltimore & O.R.R., 104 F.2d 842 (6th Cir.1939) affords a concrete illustration of the effect of the doctrine of comparative negligence in an action prosecuted under the provisions of the FELA. From that opinion it appears plaintiff had prevailed in the trial court but nevertheless appealed, assigning as error the court's failure to instruct the jury on two of the four separate acts of negligence charged against defendant. The Court of Appeals reversed, saying that ordinarily:
"[W]hen negligence of a defendant is established compensation is based not upon the gravity of the fault or the number of faults that led to the injury, but is measured by the loss suffered, damages in the usual case being compensatory and not punitive. But once there is introduced into the law, as here, the doctrine of comparative negligence, and a jury permitted to reduce damages in proportion as the plaintiff's negligence bears to total negligence, then there may not be adequate assay of total negligence unless all negligence supported by evidence is given consideration." Id. at 843.
* * * * * *
Does Section 3 of the FELA, in referring to "amount of negligence," relate only to the quantity of a party's negligence, or does it relate also to its quality?
Norfolk & Western Railway v. Earnest, supra, seems to contemplate the latter. The Court did not state that a plaintiff is entitled to receive a share of the damages based on the amount of the injury caused by the negligence of the defendant, but stated in effect that the plaintiff is entitled to a share of the damages based upon the amount of the defendant's negligence as it compares to the negligence of both parties. Id. 229 U.S. 114 at 122, 33 S.Ct. [654] at 657 [57 L.Ed. 1096 (1913)]. In thus placing emphasis on comparative fault, rather than comparative contribution, the Supreme Court apparently regarded as important all circumstances tending to characterize the fault of the parties. The Sixth Circuit, in commenting on the Earnest case, has so held. In New York, C. & St. L.R.R. v. Niebel, 214 F. 952 (6th Cir., 1914) ..., the court said
"It does not follow that rule C-14 and testimony of its meaning in practice are wholly inadmissible because its violation was neither declared upon as negligence nor could operate to justify wholly plaintiff's conduct. Under the rule of comparative negligence, the jury is entitled to consider all the circumstances which characterize the negligence of either party and which tend to fix the quantity and quality of that negligence in its relation to the sum total of the negligence of both *1175 parties. Even though the negligence of either party clearly appears, all circumstances of aggravation or of mitigation must be considered; and in view of some of the evidence found in the record regarding the proper practice under this rule, it cannot be said as a matter of law that its nonobservance could have no effect in lessening the quantum of [decedent's] fault... ."
We share the view of the Sixth Circuit that no fair appraisal of the fault of the party can be made unless all incidents of an act of negligence, as well as the act itself, are presented to the jury for its consideration. [e.s.] [footnotes omitted]
313 F.2d at 501-503. Accord, e.g., Murphy v. National Railroad Passenger Corp., 547 F.2d 816, 818 (4th Cir.1977); Hval v. Southern Pacific Transportation Co., 39 Or. App. 479, 592 P.2d 1046 (1979); Mole & Wilson, A Study of Comparative Negligence (pts. 1-2), 17 Corn. L.Q. 333, 604 (1932); Philbrick, Loss Apportionment in Negligence Cases (pts. 1-2), 99 U.Pa.L.Rev. 572, 766 (1951); Prosser, Comparative Negligence, 51 Mich.L.Rev. 465 (1943); Turk, Comparative Negligence on the March (pts. 1-2), 28 Chi-Kent L.Rev. 189, 304 (1951).
The other points raised are devoid of merit.
Affirmed.
NOTES
[1] On appeal, the county alternatively argues that an allegedly inflammatory portion should have been deleted from the memorandum and that the exhibit was not properly authenticated under Sec. 90.803, Fla. Stat. (1981). Since these contentions were not made below, we do not consider them here. Tabasky v. Dreyfuss, 350 So.2d 520 (Fla. 3d DCA 1977); Sears v. Southern Pacific Co., infra, 313 F.2d at 54, n. 2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592875/ | 53 Wis.2d 390 (1972)
192 N.W.2d 892
STATE, Respondent,
v.
GURNOE and others, Appellants.[*]
STATE, Respondent,
v.
CONNORS and others, Appellants.[*]
Nos. State 92, 95.
Supreme Court of Wisconsin.
Argued December 1, 1971.
Decided January 6, 1972.
*395 For the appellants there was a brief by Joseph F. Preloznik and Charles W. Wheeler, both of Madison, and oral argument by Mr. Wheeler.
For the respondent the cause was argued by Priscilla MacDougall, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
WILKIE, J.
A brief history of the Lake Superior Chippewa is necessary to our consideration of the important issues presented by these cases.[1]
*396 History of the Lake Superior Chippewa.
The Chippewa originally lived on the northeast coast of the United States. They were gradually driven westward by the powerful Iroquois and Six Nations tribes of New York and Canada. The tribe settled in the northern part of what is now the state of Wisconsin, on the Apostle Islands. While living on the islands the tribe subsisted by fishing and agriculture. As the Sioux moved further west from Wisconsin in the mid-seventeenth century the Chippewa gradually left the islands, settling around Lake Superior and the Mississippi, and dividing into several bands, of which the Lake Superior Chippewa is but one.
The Lake Superior band, also known as the Ke-chegum-me-win-in-e-wug, or Great Lake men, settled in what now is northern Michigan, Wisconsin, and Minnesota. They lived primarily on the fish in Lake Superior. The report of the Commissioner of Indian Affairs in 1850 concludes:
"The Lake Shore Chippewas have an inexhaustible resource in the fish, which plentifully abounds in the waters of the lake. They are naturally well disposed towards the whites, docile and harmless."[2]
By the treaties of St. Peters[3] in 1837, and La Pointe[4] in 1842, the Indians ceded their Wisconsin lands to the United States government. In exchange, Article 5 of the 1837 treaty guaranteed the Chippewa hunting and fishing rights on ceded lands "during the pleasure of the President of the United States." The provisions of the 1842 treaty gave the Chippewa their hunting rights on ceded lands "until required to remove by the President of the United States."
*397 On February 6, 1850, President Zachary Taylor invoked the power granted by the 1842 treaty and by executive order directed all of the Chippewa to remove themselves to unceded lands. Despite this order the Chippewa continued to reside in the northernmost part of the State of Wisconsin and to fish in Lake Superior.
Then, on February 27, 1854, in response to the presidential order of 1850, the Wisconsin legislature memorialized Congress as follows:[5]
"MEMORIAL to the President and Congress of the United States, relative to the Chippewa Indians of Lake Superior.
"To His Excellency the President of the United States, and to the Senate and House of Representatives in Congress assembled:
"The Memorial of the Legislature of the State of Wisconsin respectfully represents:
"That the inhabitants of the counties of La Pointe and Douglass have nearly unanimously signed a petition showing to your memorialists, that the Chippewa Indians in the region of Lake Superior are a peaceable, quiet, and inoffensive people, rapidly improving in the arts and sciences: that they acquire their living by hunting, fishing, manufacturing maple sugar, and agricultural pursuits: that many of them have intermarried with the white inhabitants, and are becoming generally anxious to become educated and adopt the habits of the `white man.'
"Your memorialists would therefore pray His Excellency, the President of the United States, to rescind the orders heretofore given for the removal of said Indians, and that such orders may be given in the premises, as shall secure the payment to said Indians, of their annuities at La Pointe, in La Pointe county on Lake Superior, that being the most feasible point therefor.
"And your memorialists also pray that the Senate and House of Representatives in Congress assembled will pass such laws as may be requisite to carry into effect such design and orders; and to encourage the permanent settlement of those Indians as shall adopt the habits of the citizens of the United States.
*398 "And your memorialists firmly believing that justice and humanity require that such action should be had in the premises, will ever pray, etc.
"Approved, February 27, 1854."
On September 30, 1854, President Franklin Pierce signed the treaty under which appellants presently claim their rights.[6] Article 2 of this treaty established reservations for the La Pointe (Bad River) band and Ontonagon (Red Cliff) band. The 1854 treaty represents a fundamental change in federal policy toward the Chippewa inasmuch as it sanctioned their remaining in Wisconsin instead of removal to the unceded lands.
Issues.
Several issues must be considered on this appeal:
1. Does state law or federal treaty govern whether the Indians are granted fishing rights?
2. Does the 1854 treaty between the United States and the Lake Superior Chippewa grant any fishing rights?
3. Did the presidential order of 1850 revoke the Indians' fishing rights so that they could not be granted in the 1854 treaty?
4. If there are any fishing rights, do such rights include the right to fish Lake Superior?
5. If there are any fishing rights granted by the treaty, what is the state's power to regulate fishing activities by the Indians?
Provisions of the treaty govern.
Prior to 1953 the states had no jurisdiction over crimes occurring on Indian lands. In that year Congress enacted Public Law 280, codified as 18 U. S. C., sec. 1162, entitled "State Jurisdiction over offenses committed by or against Indians in the Indian country." This statute *399 generally gives the state jurisdiction over crimes committed on Indian reservations. Par. (b) of this statute, however, provides:
"(b) Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof."
Therefore, it is clear that this statute does not affect any treaty rights.
Even before the statute, however, the Supreme Court of the United States made clear in Missouri v. Holland[7] that under the supremacy clause of the constitution, federal treaty law prevails over state law. Thus an interpretation of the 1854 treaty is required on these appeals.
Does the 1854 treaty grant fishing rights at all?
Unlike the 1837 and 1842 treaties, the treaty of 1854 contains no express grant of hunting and fishing rights to the Bad River or Red Cliff bands except to give the Bad River band limited fishing rights near Madeline Island, an area not involved in the present appeals. Appellants rely on the following language in Article 2 of the treaty as the basis for their fishing rights:
"The United States agree to set apart and withhold from sale, for the use of the Chippewas of Lake Superior, *400 the following described tracts of land. . . ." (Emphasis added.)
The precise question is whether "for the use of" includes the fishing rights asserted by appellants. The circuit court found that the treaty did extend such rights. We agree.
In arguing that the treaty does not grant the Chippewa fishing rights, the attorney general advances several rules for the interpretation of treaties. The first, based upon Guaranty Trust Co. v. United States,[8] is that treaties should be construed so as not to override state laws. Guaranty Trust was dealing with quite a different situation than the present case, construing a treaty entered into between the United States and Russia. Contrary to the attorney general's assertion, this rule has not been applied to Indian treaties by the federal supreme court.[9] On the other hand, as will be noted below, the court has developed a set of rules specifically relating to Indian treaties. The supreme court has narrowly construed and limited the application of Guaranty Trust.[10] It would also seem logical that the effect of a treaty between the United States and Indians who have aboriginal ties to land presently making up the United States raises completely different problems than a treaty between the United States and a foreign sovereign which has no ties to the state, as was the case in Guaranty Trust. We conclude that in view of the limited construction given to Guaranty Trust by the United States Supreme Court and in view of the further *401 fact that it is not the rule applied in Indian treaty cases, it is not the rule to be followed in the present case.
A second rule advanced by the state for the interpretation of Indian treaties is that such treaties should not be construed by the court so as to meet alleged injustices, thus "rewriting" the terms of the treaty. This rule has been applied by the Supreme Court of the United States in cases in which the Indians were seeking money damages for the alleged forfeiture of tribal lands to the United States.[11] In such cases, results adverse to the Indians were reached only after an examination of the history and negotiations leading up to the treaty. This is consistent with a basic rule of treaty interpretation that a court will look "beyond its written words to the negotiations and diplomatic correspondence of the contracting parties relating to the subject matter, and to their own practical construction of it."[12] Thus the rule that treaties cannot be expanded beyond their terms is to be applied only after deciding what those terms are. It is notable, too, that this rule has been applied in cases in which the Indians are seeking damages from the federal government, but has not been invoked when considering the Indians' claim to hunting and fishing rights. In Menominee Tribe v. United States,[13] for example, the Supreme Court interpreted the language in another 1854 treaty "to be held as Indian lands are held" to include the right to hunt and fish regardless of Wisconsin law. This was the precise position taken by this court in State v. Sanapaw.[14]
*402 The attorney general finally argues that under the doctrine of express mention-implied exclusion, no fishing rights other than those expressly granted are extended by the 1854 treaty. It is argued that other Indian treaties, not involved in these cases, do give other tribes specific grants of hunting and fishing rights, while the 1854 treaty does not grant such rights (other than those directly associated with Madeline Island). It is further pointed out that in view of the express provision for fishing in an area near Madeline Island, no other fishing rights are to be implied. The circuit court carefully considered this argument and concluded that there was no consistent phraseology in Indian treaties covering hunting and fishing rights. As we have noted, treaties which do not specifically grant hunting and fishing rights have been interpreted to extend such rights by both this court[15] and the Supreme Court of the United States.[16] The proper rule as expressed long ago is to look to the intentions of the framers of the treaty:[17]
". . . The intention of the framers of the treaty, must be collected from a view of the whole instrument, and from the words made use of by them to express their intention, or from probable or rational conjectures. If the words express the meaning of the parties plainly, distinctly, and perfectly, there ought to be no other means of interpretation; but if the words are obscure, or ambiguous, or imperfect, recourse must be had to other means of interpretation, and in these three cases, we must collect the meaning from the words, or from probable or rational conjectures, or from both." (Original emphasis omitted.) *403 Once the intention of the parties to the treaty has been ascertained, no rules of construction would authorize a different interpretation of the treaty.[18] Thus, here too it is necessary to ascertain the intent of the parties to the treaty.
Appellants argue that Indian treaties are to be liberally construed in favor of the Indians and that ambiguities or uncertainties are to be resolved in favor of the tribe's position. It is apparent from reading the cases cited by appellants[19] that this rule, too, is only to enable the court to determine what the intent of the parties was. The rule advanced by appellants is invoked only when it is of assistance in determining the intent of the parties in view of the history and negotiations between the federal government and the Indians.
We conclude that the basic rule for interpreting Indian treaties is to determine what was the intent of the parties. To determine that intent we must review the history of the tribe and the negotiations of the parties. To this end we are aided by a very recent (1971) opinion of the Michigan Supreme Court in People v. Jondreau,[20] a case interpreting this same treaty as it affects the Chippewa's right to fish on the Keweenaw Bay on Lake Superior. In Jondreau the court concluded:[21]
"The substance of the right to fish must have included the right to fish on the Keweenaw Bay. For the L'Anse bank of Chippewa Indians, the fishing right on the Keweenaw Bay was clearly a valuable right. Any other construction of the treaty would make the right granted by the treaty without substance. The Indians did not *404 have knowledge of the laws concerning municipal boundaries or sovereignty disputes between the Federal and State governments. Since they were living on land bordering the Keweenaw Bay, as `an unlettered people' they would assume that the right to fish meant the right to fish on the Keweenaw Bay."
This is consistent with the interpretation given the treaty between the Menominee Indians and the United States. In State v. Sanapaw[22] this court said:
"It would seem unlikely that the Menominees would have knowingly relinquished their special fishing and hunting rights which they enjoyed on their own lands, and have accepted in exchange other lands with respect to which such rights did not extend. They undoubtedly believed that these rights were guaranteed to them when these other lands were ceded to them 'to be held as Indian lands are held.' Construing this ambiguous provision of the 1854 treaty favorably to the Menominees, we determine that they enjoyed the same exclusive hunting rights free from the restrictions of the state's game laws over the ceded lands, which comprised the Menominee Indian Reservation, as they had enjoyed over the lands ceded to the United States by the 1848 treaty."
The attorney general correctly points out that in Jondreau the Michigan Supreme Court was construing a portion of the 1854 treaty not involved in these appeals and that the history of the Menominee tribe is different from that of the Lake Superior Chippewa.
Nevertheless, one important consideration here is that the history of the Chippewa reveals an uninterrupted history of fishing on Lake Superior. They have occupied the land in what is now Bayfield and Ashland counties for more than 300 years. It is also clear that after the treaty was entered into the Indians continued their reliance upon Lake Superior. In his 1861 report, the Indian agent in Bayfield observed:
*405 "This reserve being located on the lake, where there is an abundance of fish the entire year, and being under the immediate supervision of the agent, the Indians who are located thereon are the most comfortable of any within this agency."[23]
As late as 1891, the Indian agent in Ashland, when discussing the activities of the members of the Red Cliff band, noted:
". . . The waters of the lake yield a bountiful supply of excellent fish and the surplus catch and all other surplus products find a ready market in the city of Bayfield. In capturing fish both gill nets and pound nets are employed. The natives own a small fleet of sailboats, and in navigating their little craft they display the confidence and skill of experienced sailors."[24]
In view of the more than 300 years of fishing the lake, and considering the activities of the bands after the treaty was enacted, we have no doubt but that it was the intention of the parties to the treaty for the Chippewa to retain fishing rights within the 1854 agreement. Anything that this court said in State v. Johnson,[25] the first case in which this court interpreted the 1854 Chippewa treaty, which is inconsistent with the interpretation here is overruled.
The effect of the presidential order of 1850.
The state argues that when President Taylor invoked the power given him under the 1837 and 1842 treaties to order the Chippewa removed from the ceded lands, this abrogated whatever fishing rights the Indians might have had. This assertion fails for several reasons. First, the provision in the 1854 treaty granting fishing rights *406 and establishing reservations conflicts directly with the provisions of the earlier treaties providing for removal of the Chippewa to unceded lands from their land in Wisconsin. It is a standard rule of construction that when two statutes are manifestly in conflict the earlier statutes will be repealed by implication and the last one enacted will be controlling.[26] It seems reasonable that this rule should be applied to the present treaties, especially here when the treaty of 1854 represents a fundamental change in the government's policy toward the Lake Superior Chippewa. Prior to this treaty the policy was to remove the Indians to their unceded land; by this treaty the policy is reversed and directly states a policy of establishing reservations. Thus the policy of removal and the accompanying presidential power of removal were terminated by the 1854 treaty. The 1854 treaty governs the present relationship between the parties.
As a second, related proposition, the president's power to issue the executive order relied upon by respondent must stem either from an Act of Congress or from the constitution.[27] Here the authorization was extended by the 1837 and 1842 treaties, but was revoked by the 1854 treaty establishing the reservations and granting fishing rights on Lake Superior. Thus, in 1854 the Congress was free to allow the Chippewa to fish in Lake Superior without violating the executive order of 1850.
A third, and what is unquestionably a more basic response to the state's argument, is that the executive order does not revoke the fishing rights because it was never effective. This is not a situation in which the Indians stopped fishing in Lake Superior, moved from *407 the area, and then returned under the protection of a new treaty. In the case of the Lake Superior Chippewa, they have been fishing in Lake Superior continually since the sixteenth or seventeenth century. While President Taylor ordered the Indians removed, the Chippewa continued to fish in Lake Superior and reside in the northernmost part of the state of Wisconsin. The Memorial passed by the Wisconsin legislature in 1854 recognizes the Chippewa as a people who acquired their living by hunting, fishing, and agriculture.[28] There is no indication that the executive order of 1850 had any effect whatsoever, except to motivate the people of Wisconsin to pass the Memorial referred to above.
In view of the fundamental change in policy marked by the 1854 treaty, the rights granted in that treaty, and the fact that the order of 1850 did not result in an actual revocation of fishing rights, we conclude that the 1850 executive order has no effect upon the rights granted by the 1854 treaty.
Does the right to fish include the right to fish in Lake Superior?
The trial court determined that although the 1854 treaty did grant the Indians the right to fish, such right did not extend to the waters of Lake Superior. It ruled that such right did extend to the waters within the reservation. Since the alleged violations apparently occurred on Lake Superior, and not on the reservation, we are not concerned on these appeals with the extent of the appellants' fishing rights within the reservation.
In concluding that the fishing rights did not extend to the waters of Lake Superior, the trial court reasoned that since Wisconsin was admitted to the Union in 1848, in 1854 the federal government did not have the power to give the Chippewa fishing rights in Lake Superior *408 because the lake was under the jurisdiction of the state. We disagree.
The enabling act which created the state of Wisconsin is an Act of Congress which can be superseded by a treaty.[29] Even though Wisconsin was created by 1848 legislation, Congress still had the power which it exercised in the 1854 treaty to convey fishing rights to the Chippewa.
In Menominee Tribe v. United States,[30] the same argument was made that the federal government could not extend to the Indians what the state of Wisconsin owned. The United States Supreme Court rejected this proposition:
"If any hiatus in title to the reservation lands in question occurred between 1848 and 1854, any jurisdiction that the State may have acquired over those would not have survived the Treaty of 1854. The Treaty of Wolf River was, under Article VI of the Constitution, the `supreme law of the land,' and the exercise of rights on reservation lands guaranteed to the tribe by the Federal Government would not be subject to state regulation, at least in absence of a cession by Congress. Cf. Ward v. Race Horse, 163 U. S. 504, 514. In this connection it should be noted that in 1853 the Wisconsin Legislature consented to the establishment of the Menominee Reservation subsequently confirmed by the 1854 Treaty (1853 Wis. Jt. Res., c I), an action which can be fairly construed as a disclaimer of any jurisdiction the State may have possessed."
We find no valid distinction and none is asserted for holding that the Indians may fish in reservation waters but not on the waters of Lake Superior, their traditional fishing ground. On this issue the Michigan case of Jondreau[31] is directly in point. In that case it was pointed out that the Chippewa would never have consented *409 to such a provision in their treaty because of the long ties between the tribe and Lake Superior. The court said that the Indians "would assume that the right to fish meant the right to fish [in Lake Superior]."[32]
In deciding whether the fishing rights granted by the treaty include fishing rights in Lake Superior, again the intent of the parties is important. The precise question of adjacent waters to an Indian reservation was reached by the United States Supreme Court in Alaska Pacific Fisheries v. United States.[33] In that case it was concluded that the fishing rights extended to the adjacent waters for the following reason:
". . . The Indians could not sustain themselves from the use of the upland alone. The use of the adjacent fishing grounds was equally essential. Without this the colony could not prosper in that location. The Indians naturally looked on the fishing grounds as part of the islands and proceeded on that theory in soliciting the reservation. They had done much for themselves and were striving to do more. Evidently Congress intended to conform its action to their situation and needs."
The same circumstances apply here. Whether the right to fish in Lake Superior is denominated "off-reservation rights" or interpreted to be inherent rights under the treaty, the result is the samethe Chippewa are entitled to the right to fish Lake Superior.
The Memorial of 1854 is also important because, as noted in the cited portion of the Menominee decision, such a memorial may be construed as a disclaimer by the state of jurisdiction over the lands or waters involved. There is nothing to suggest, as the attorney general argues, that this Memorial was intended to limit the Chippewa's rights to fish in Lake Superior.
We conclude, therefore, that the fishing rights granted by the 1854 treaty do extend to Lake Superior.
*410 What power does the state possess to limit the exercise of fishing rights?
Even though the 1854 treaty granted the Chippewa the right to continue fishing in Lake Superior, such a grant of rights does not foreclose the state from exercising police power to control fishing in Lake Superior even by Indians who claim fishing rights under that treaty. In United States v. Winans[34] and Tulee v. Washington,[35] the supreme court held that even when the Indians were fishing pursuant to certain treaty rights, the state could exercise its power to preserve fish and game within its jurisdiction. Although it is true that in Winans and Tulee the treaty right conferred to the Indians was common with the rights of other citizens of the state, in Kake Village v. Egan,[36] the court extended the Tulee rule to off-reservation fishing of Indians granted exclusive treaty rights. "Exclusive" means treaty rights accruing only to Indians. Appellants do not claim the right to fish Lake Superior "exclusive" of non-Indians. We conclude that on remand the state should be given the opportunity to prove that the regulations allegedly violated by appellants are "reasonable and necessary" for the preservation of fish in the state of Wisconsin.[37] The state must show that the regulations which it seeks to enforce against the Chippewa are reasonable and necessary to prevent a substantial depletion of the fish supply.
On remand the state should also have the opportunity to show that these regulations, as applied to appellants, are necessary in the exercise of other valid police powers. *411 The circuit court suggested, for example, that the regulations relating to the marking and placement of gill nets might be required to protect boaters on Lake Superior. Under the rule of Winans, Tulee, Kake and Puyallup, such an interest would be valid.
A further consideration in determining whether the acts allegedly committed by appellants were protected by the 1854 treaty is whether the manner and location of fishing in the present cases is consistent with the type of fishing done by the Chippewa in 1854. Even if fishing rights are granted by treaty, those rights do not allow the Indians to fish however and wherever they like. As pertinent here, the treaty grants extend to the waters of Lake Superior as were used by the Chippewa at the time the treaty was agreed to, those waters being primarily adjacent to the Red Cliff and Bad River reservations. The methods of gathering such fish must also reasonably conform to the aboriginal methods and should not be extended to modern methods not intended by the 1854 treaty.
By the Court.Orders reversed and causes remanded for further proceedings consistent with this opinion.
HALLOWS, C. J. (concurring).
I concur with the majority opinion except for the take-back provisions on the exercise of the Indians' fishing rights. First, the majority opinion states to the Indians you have your historic and traditional fishing rights, but the state of Wisconsin "who did not grant you those rights in the first place" is going to regulate them. The regulation of the Indians' rights to fish could reduce them to the status of privileges of the white inhabitants of Wisconsin. I cannot agree that the needs of the white inhabitants of Wisconsin must determine the extent of the Indians' fishing rights. Nor can I agree that the methods of fishing by the Indians must be by aboriginal methods. *412 The Indians should be allowed a spinning rod as well as a bone hook or a spear.
The following memorandum was filed March 2, 1972.
PER CURIAM (on motion for rehearing).
The final sentence of the opinion is modified to read as follows:
"Such fishing must also reasonably conform to those types and methods of gathering fish employed by the Chippewa at the time of the 1854 treaty or to such modern types and methods as are reasonably consistent with those used at the time of the treaty."
The motion for rehearing is denied without costs.
NOTES
[*] Motion for rehearing denied, without costs, on March 2, 1972.
[1] History taken from 1850 Report of the Commissioner of Indian Affairs, 51-54.
[2] Id. at pages 53, 54.
[3] 7 United States Statutes at Large (Indian Treaties), p. 536, signed July 29, 1837, proclaimed June 15, 1838.
[4] 7 United States Statutes at Large (Indian Treaties), p. 591, signed October 4, 1842, proclaimed March 23, 1843.
[5] Laws of 1854, Memorial No. 8, pp. 156, 157.
[6] 10 United States Statutes at Large, p. 1109, signed and proclaimed September 30, 1854.
[7] (1920), 252 U. S. 416, 40 Sup. Ct. 382, 64 L. Ed. 641.
[8] (1938), 304 U. S. 126, 143, 58 Sup. Ct. 785, 82 L. Ed. 1224.
[9] While the Washington Supreme Court did apply the rules annunciated in non-Indian treaty cases to rights asserted under an Indian treaty in State v. McCoy (1963), 63 Wash. 2d 421, 387 Pac. 2d 942, it is apparent from a reading of that case that the court applied these rules only to determine the intent of the parties at the time the treaty was entered into.
[10] E. g., United States v. John Hancock Mut. Ins. Co. (1960), 364 U. S. 301, 308, 81 Sup. Ct. 1, 5 L. Ed. 2d 1.
[11] Choctaw Nation v. United States (1943), 318 U. S. 423, 63 Sup. Ct. 672, 87 L. Ed. 877; Shoshone Indians v. United States (1945), 324 U. S. 335, 65 Sup. Ct. 690, 89 L. Ed. 985.
[12] Factor v. Laubenheimer (1933), 290 U. S. 276, 294, 295, 54 Sup. Ct. 191, 78 L. Ed. 315.
[13] (1968), 391 U. S. 404, 406, 88 Sup. Ct. 1705, 20 L. Ed. 2d 697.
[14] (1963), 21 Wis. 2d 377, 124 N. W. 2d 41.
[15] Id.
[16] Menominee Tribe v. United States, supra, footnote 13; Winters v. United States (1908), 207 U. S. 564, 28 Sup. Ct. 207, 52 L. Ed. 340.
[17] Ware v. Hylton (1796), 3 U. S. (3 Dallas) 199, 239, 240, 1 L. Ed. 568.
[18] Society for the Propagation of the Gospel in Foreign Parts v. Town of New Haven (1823), 21 U. S. (8 Wheat.) 464, 490, 5 L. Ed. 662.
[19] Jones v. Meehan (1899), 175 U. S. 1, 20 Sup. Ct. 1, 44 L. Ed. 49; United States v. Winams (1905), 198 U. S. 371, 25 Sup. Ct. 662, 49 L. Ed. 1089; Winters v. United States, supra, footnote 16.
[20] (1971), 384 Mich. 539, 185 N. W. 2d 375.
[21] Id. at 185 N. W. 2d 378.
[22] Supra, footnote 14, at page 383.
[23] Report of the Commissioner of Indian Affairs, 1861, p. 74.
[24] 1 Report of the Commissioner of Indian Affairs, 1891, p. 468.
[25] (1933), 212 Wis. 301, 249 N. W. 284.
[26] Union Cemetery v. Milwaukee (1961), 13 Wis. 2d 64, 71, 108 N. W. 2d 180; Estate of Frederick (1945), 247 Wis. 268, 271, 19 N. W. 2d 248.
[27] Youngstown Co. v. Sawyer (1952), 343 U. S. 579, 585, 72 Sup. Ct. 863, 96 L. Ed. 1153.
[28] Supra, footnote 5, at page 157.
[29] Ward v. Race Horse (1896), 163 U. S. 504, 511, 16 Sup. Ct. 1076, 41 L. Ed. 244.
[30] Supra, footnote 13, at pages 412, 413, note 12.
[31] Supra, footnote 20.
[32] Jondreau, footnote 20, supra, at page 378.
[33] (1918), 248 U. S. 78, 89, 39 Sup. Ct. 40, 63 L. Ed. 138.
[34] Supra, footnote 19, at page 383.
[35] (1942), 315 U. S. 681, 684, 62 Sup. Ct. 862, 86 L. Ed. 1115.
[36] (1962), 369 U. S. 60, 75, 82 Sup. Ct. 562, 7 L. Ed. 2d 573; see also: Kennedy v. Becker (1916), 241 U. S. 556, 562, 563, 36 Sup. Ct. 705, 60 L. Ed. 1166.
[37] Puyallup Tribe v. Department of Game (1968), 391 U. S. 392, 398, 399, 88 Sup. Ct. 1725, 20 L. Ed. 2d 689. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592891/ | 53 Wis.2d 500 (1972)
192 N.W.2d 844
ESTATE OF VELK: VELK and others, Appellants,
v.
LEWANDOWSKI and another, Respondents.
No. 181.
Supreme Court of Wisconsin.
Argued December 2, 1971.
Decided January 4, 1972.
*503 For the appellants there were briefs by Ben Lewis of Milwaukee, for Leonard Velk and Harry Velk, and by Walther, Halling & Conmey of Milwaukee, for John Rozanski, Margaret Rozanski, Barbara Wahlen, James Rozanski, and Elizabeth Rozanski, attorneys, and David L. Walther and F. M. Van Hecke, both of Milwaukee, of counsel, and oral argument by Mr. Lewis and Mr. David L. Walther.
*504 For the respondents there was a brief and oral argument by Mark M. Camp of Wauwatosa.
BEILFUSS, J.
The issue is whether the two conclusive findings of the trial court, namely, that the testator did not lack testamentary capacity and that the will was not the result of undue influence are against the great weight and clear preponderance of the evidence. The objectors claim that a presumption that the testator lacked testamentary capacity arises from the facts and that this presumption has not been rebutted or overcome; they also claim a fiduciary relationship existed between the testator and Martha Lewandowski which gave rise to an inference of undue influence.
The objectors contend that Joe Velk lacked testamentary capacity on March 6, 1970, because he was suffering from arteriosclerotic cerebral vascular disease. Objectors base this contention on the testimony of Dr. Deardorff, who first diagnosed Joe Velk's condition in August of 1964, when Joe Velk was suffering from intermittent confusion, loss of memory and persistent headaches. He examined Joe Velk again in October and December of 1964, but did not see him thereafter. Dr. Deardorff testified that Joe Velk's condition could deteriorate over the next few years and that deterioration was probable but not certain.
However, this court has ruled that the test is whether the testator has testamentary capacity at the time of making his will, even in situations where the testator has suffered periods of incapacity and is suffering from common infirmities of old age, including arteriosclerosis. Estate of Phillips (1961), 15 Wis. 2d 226, 112 N. W. 2d 591.
The proponents of the will introduced other testimony that demonstrated that Joe Velk possessed testamentary capacity at the time of executing his will. This evidence *505 supports the trial court's finding of testamentary capacity and overcame a presumption to the contrary if the evidence was sufficient to raise such presumption.
Dr. Piero Gasparri, who had examined testator in September, 1964, and also in 1967, examined testator on January 15 and February 25, 1970. Aside from Joe Velk's medical problems, Dr. Gasparri found that Joe Velk was well oriented, alert and in full possession of his faculties.
Dr. Chris Christopher examined Joe Velk at home on March 15 and March 24, 1970. He also saw him daily from March 29 through April 3, 1970, the day before testator's death. Dr. Christopher found Joe Velk to be well oriented, alert and free from mental difficulties.
On March 6, 1970, when testator's will was executed, Attorney Kenneth Berger, who drafted Joe Velk's will, believed Joe Velk had testamentary capacity. Berger testified:
"I am aware of the fact that it is possible for a person to have a lucid interval and be not competent at other times but, in my conversation with Joe Velk on that day, he knew where his property was, he knew who his children were, he knew almost to the penny the amount of the mortgage that remained on the Pulaski Street property, and we discussed between ourselves the wisdom of whether or not he should dispose of this, discharge that mortgage and clear up that debt because I pointed out to him that what he was paying in the way of interest and what he was earning in the way of interest was substantially the same, and he probably would be better off if he had it free of debt. And one of the reasons why this will contains the language that it does is because he said we should think about that; we better put that in the will."
Objectors advance many facts that in themselves might support an inference that Joe Velk lacked testamentary capacity at some prior time, but none of those facts related to the period of time directly before, during or *506 after the time that Joe Velk executed his will. The testimony of Dr. Gasparri, Dr. Christopher, and that of Attorney Berger readily supports the finding that Joe Velk had testamentary capacity on March 6, 1970. It is necessary only that the testator have capacity at that time. Estate of Phillips, supra; Estate of O'Loughlin (1971), 50 Wis. 2d 143, 183 N. W. 2d 133; Estate of Fuller (1957), 275 Wis. 1, 81 N. W. 2d 64.
Attorney Berger, as cited above from the record, concluded that Joe Velk understood the nature, the extent, and the state of affairs of his property. They talked for over an hour about the will. These facts fulfill the basic elements of the testamentary capacity test. Estate of O'Loughlin, supra, at page 146; Will of Wicker (1961), 15 Wis. 2d 86, 112 N. W. 2d 137.
The trial court's finding that Joe Velk had testamentary capacity on March 6, 1970, is not against the great weight and clear preponderance of the evidence and must be affirmed. In fact, the evidence advanced by the proponents of the will positively demonstrates that Joe Velk had testamentary capacity on March 6, 1970. The presumption of testamentary incapacity was never raised and therefore the proponents of the will did not have to rebut any such presumption.
The trial court found that Joe Velk was not susceptible to undue influence. The court also found that neither Martha nor Gerry Lewandowski were disposed to exercise undue influence over Joe Velk, and that no coveted result, "whatever that may have been, obviously was not obtained."
The finding by the trial court that no undue influence was exercised in the execution of a will, will be sustained by this court unless the finding is against the great weight and clear preponderance of the evidence. Will of Cooper (1965), 28 Wis. 2d 391, 137 N. W. 2d 93; Estate of Steffke (1970), 48 Wis. 2d 45, 179 N. W. 2d *507 846. It is the nature of undue influence that the proof of it rests primarily upon circumstantial evidence. Will of Cooper, supra, at page 394; Will of Freitag (1960), 9 Wis. 2d 315, 101 N. W. 2d 108.
The appellants argue that Martha Lewandowski was in a fiduciary relationship with Joe Velk and, as such, a presumption of undue influence arose, and that this presumption, coupled with the other circumstances, creates an inference of undue influence. Estate of Komarr (1970), 46 Wis. 2d 230, 175 N. W. 2d 473. Therefore, appellants argue, the proponents of the will had the duty of rebutting the presumption. Further, the proponents failed to meet that duty. Respondents-proponents, of course, deny that Martha Lewandowski was in a fiduciary relationship with Joe Velk.
In Estate of Steffke, supra, at page 51, this court stated:
"But it is also claimed Mrs. Lane stood in a confidential relationship to Steffke and such relationship, plus being a beneficiary, raise a presumption of undue influence. This contention is a misreading of the Will of Cooper, supra, and the Will of Faulks, supra. The basis for the undue influence presumption lies in the ease in which a confidant can dictate the contents and control or influence the drafting of such a will either as the draftsman or in procuring the drafting. . . . If one is not the actual draftsman or the procurer of the drafting, the relationship must be such that the testator depends upon the advice of the confidant in relation to the subject matter of the will. . . ."
In the instant case, Martha Lewandowski testified that she contacted Attorney Berger about the matter of the $1,500 debt owed to Joe Velk by her son Gerry. This testimony is corroborated by the testimony of Attorney Berger. Berger further stated that in the course of his conversation with Joe Velk on the morning of March 6, 1970, he was the person who first brought *508 up the subject of making a will to forgive Gerry Lewandowski's debt. Berger stated that he and Joe Velk then further discussed the testamentary disposition of Joe Velk's property. Berger requested that Martha and Gerry Lewandowski leave the room before he and Joe Velk discussed the will.
In view of the evidence and the test for the raising of a presumption of undue influence, as given in Estate of Steffke, supra, and Estate of Komarr, supra, the presumption of undue influence does not arise in this case unless the testator has relied on the advice of the confidant in relation to the subject of the will. However, Berger and Velk specifically excluded Martha and Gerry Lewandowski from the hour-long conversation in which the will was being discussed for the first time. Martha Lewandowski testified, and the trial court found, that she did not read the will until March 30, 1970, the day after Joe Velk was hospitalized. Upon these facts no presumption of undue influence arises in this case, and certainly no inference of undue influence was established as a matter of law.
Appellants must show, therefore, that the trial court's determination that no undue influence was exerted by Martha and Gerry Lewandowski was against the great weight and clear preponderance of the evidence.
An objector must establish four elements in order to void a will for undue influence. Estate of McGonigal (1970), 46 Wis. 2d 205, 208, 209, 174 N. W. 2d 256; Estate of Brehmer (1969), 41 Wis. 2d 349, 351, 164 N. W. 2d 318. The four elements are:
"`Susceptibilitya person who is susceptible of being unduly influenced by the person charged with exercising undue influence.
"`Opportunitythe opportunity of the person charged to exercise such influence on the susceptible person to procure the improper favor.
"`Dispositiona disposition on the part of the party charged to influence unduly such susceptible person for *509 the purpose of procuring an improper favor either for himself or another.
"`Coveted Resulta result caused by, or the effect of, such undue influence. . . .'" 46 Wis. at pages 208, 209.
The court in Brehmer, supra, also stated that when three of the four elements have been established by the required proof, only slight evidence as to the fourth element is necessary to move its existence. Estate of Brehmer, supra, at page 352; Will of Freitag, supra, at page 318.
A. Susceptibility.
The record shows that Joe Velk was a strong-willed man who was "very tight with the buck." He executed his own financial affairs from the day he was in full possession of his mental faculties until the time of his death. The record shows that in October, 1967, he met a childhood friend, Catherine Zasada, whom he asked to become his housekeeper because Martha was not home enough to suit him. This meeting indicates that Joe Velk was not overly susceptible to Martha's influence.
Martha also testified that she did everything that Joe Velk told her to do. He prepared a list of tasks every morning which Martha was to perform. He did his own banking, handled the cash, and generally carried out his own financial transactions. She did the housework, obtained tradesmen, cleaned vacated apartments. No evidence contradicted this testimony. The trial court could very well believe that Joe Velk was never susceptible to undue influence, as the record amply discloses that Joe Velk was an independent and self-willed man. The trial court's finding of nonsusceptibility is not against the great weight and clear preponderance of the evidence.
B. Opportunity.
Since Martha Lewandowski lived alone with Joe Velk for well over four years there is no doubt that had Joe Velk been susceptible to undue influence she had the *510 opportunity to influence him even though she was not present when Joe Velk executed his will. Estate of McGonigal, supra, at page 214.
C. Disposition.
The trial court found that neither Martha nor Gerry Lewandowski had the disposition to unduly influence Joe Velk. This court, in Estate of McGonigal, supra, at page 214, defined such a disposition in the following way:
". . . Disposition to unduly influence means more than a desire to obtain a share of an estate. `. . . It implies a willingness to do something wrong or unfair, and grasping or overreaching characteristics.'"
The record shows that neither Martha nor Gerry Lewandowski thought of bringing Berger to Joe Velk's home for the purpose of drafting a new will. All three persons testified that the sole reason for Berger's visit to Joe Velk was to discuss the $1,500 owed by Gerry Lewandowski to Joe Velk. Berger initiated the discussion about the drafting and execution of a will. Prior to this meeting Berger had been doing at least some legal work for Joe Velk for approximately two years. Martha Lewandowski did not play any role in the drafting or the execution of the will. Gerry Lewandowski testified that Berger "was like a clam" about his and Joe Velk's discussion on the morning of March 6, 1970. There is no evidence to show that Martha Lewandowski discussed the making of a will before Berger and Joe Velk discussed its terms. The trial court found that Martha Lewandowski learned of the will only after its execution and she did not learn of its provisions until Easter Monday, 1970. Estate of McGonigal, supra; Will of Grosse (1932), 208 Wis. 473, 243 N. W. 465. When asked about what she thought of her bequest she bluntly replied that she thought she deserved more. The trial court also found that Gerry Lewandowski's testimony *511 indicated that he was unlikely to influence anyone, especially Joe Velk, who was a strong-minded, independent person.
The appellants-objectors assert that Martha Lewandowski raised the rents on Joe Velk's rental property. There is no evidence to show that she, on her own accord, raised the rents. In fact, such an allegation is inconsistent with Joe Velk's tight-fisted control over his financial matters. Since Joe Velk received the rent increases it is difficult to ascertain precisely what benefit Martha Lewandowski obtained from the rent increases.
The evidence shows that Joe Velk was much more likely to control and dispose Martha Lewandowski than she was able to control or dispose him. She worked for Joe Velk for more than four years without receiving any pay. She might have wished to influence him but quite clearly she was unable to do so. The trial court's finding is not against the great weight and clear preponderance of the evidence.
D. Coveted Result.
The appellants-objectors contend the will is unnatural in four ways: (1) The forgiveness of Gerry Lewandowski's $1,500; (2) the $500 bequest to St. Barbara's Church; (3) the exclusion of Clara's children from the will; and (4) the bequest of the use of the South 33rd Street residence to Martha Lewandowski for her life time, coupled with the bequest of the net income from the rental property on Pulaski Street for the rest of her life.
If a will is unnatural a suspicion is raised that undue influence existed and operated in the drafting and execution of the will. Will of Behm (1925), 187 Wis. 10, 203 N. W. 718. However, whether a will is unnatural depends upon the circumstances of each case. Will of Dobson (1951), 258 Wis. 587, 46 N. W. 2d 758.
*512 The appellants argue that as to the question of whether the will was unnatural, the terms of a prior will are relevant. Will of Stanley (1937), 226 Wis. 354, 276 N. W. 353.In 1955 (some fifteen years before), an Attorney Erasmus drafted a will for Joe Velk which distributed his estate equally to Joe Velk's three children. Under the terms of this will, if one of the three children had predeceased him the child's share would have been distributed to the child's issue. Attorney Erasmus did not know whether Joe Velk ever executed the will nor was there other proof that he did.
The 1970 will in question omitted Clara's children altogether. Appellants argue that this is unnatural because Joe Velk loved Clara's five children, especially Margaret. Yet this fact does not directly bear upon what Martha Lewandowski coveted and received. Clara's children are all adults and married or otherwise self-supporting. Further, the trial court specifically acknowledged that under sec. 238.11, Stats., these grandchildren may have enforceable rights to a share of the estate if this omission was not intentional.
Martha received the residence for use in her lifetime and the net income from a gross income of $7,600 per year. Her son received a forgiveness of a $1,500 debt on a note on which he had paid nothing for at least seven years and which might not have been legally collectible. Neither of these bequests is so munificent that they can be labeled as unnatural and as a coveted result. The bequest to Martha makes it appear that Joe Velk was attempting to provide for her welfare for the rest of her life in return for her uncompensated care of him for several years. The record does not disclose what the net income would be, but after taxes, repairs and other costs the net income gives Martha Lewandowski a moderate income for the rest of her life. (Her life expectancy was calculated at 8.97 years.) The *513 properties revert upon her death to the estate, and Joe Velk's children will then receive the rest of the estate.
Joe Velk left an estate worth over $100,000. He left $500 for masses to be said for the repose of his soul. As respondents argue, a man advanced in years might very well forego his quarrel with the church and hasten to prepare himself for a Maker heretofore neglected. At any rate, $500 is not an excessive amount when the total value of the estate is considered.
The trial court's finding that no coveted result was attained is not against the great weight and clear preponderance of the evidence.
The findings that the testator had testamentary capacity at the time the will was drawn and that the evidence does not establish that the will was a product of undue influence are not against the great weight and clear preponderance of the evidence. The order admitting the will to probate should be affirmed.
By the Court.Order affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592983/ | 19 So.3d 821 (2009)
ILLINOIS CENTRAL RAILROAD COMPANY, Appellant
v.
Edwin L. BROUSSARD, Appellee.
No. 2007-CA-01010-COA.
Court of Appeals of Mississippi.
October 20, 2009.
*822 Glenn F. Beckham, Harris Frederick Powers, Greenwood, attorneys for appellant.
William S. Guy, McComb, C.E. Sorey, attorneys for appellee.
EN BANC.
MODIFIED OPINION ON MOTION FOR REHEARING
LEE, P.J., for the Court.
¶ 1. The motion for rehearing is granted. The original opinion is withdrawn, and this opinion is substituted in its place.
¶ 2. This appeal arises from the dismissal of the plaintiff's personal-injury lawsuit. The case was dismissed after the circuit court was notified that the plaintiff was deceased at the time the lawsuit was filed by the plaintiff's attorneys. Illinois Central Railroad Company ("Illinois Central"), the defendant in the case, now appeals the circuit court's denial of its request for attorneys' fees. We find no error and affirm.
FACTS
¶ 3. On April 12, 2006, a complaint was filed in the Warren County Circuit Court on behalf of Edwin L. Broussard. The complaint alleged claims for personal injuries as a result of Broussard's exposure to asbestos while he was an employee of Illinois Central. In response, Illinois Central filed an answer, along with its requests for discovery. Illinois Central later filed a motion to compel after its requests for discovery went unanswered.
¶ 4. After conducting an independent investigation, Illinois Central discovered that Broussard was deceased at the time the lawsuit was filed. Broussard died on August 3, 2004, which was approximately one year and eight months before the complaint was filed on April 12, 2006.
¶ 5. On April 27, 2007, Illinois Central filed a motion to dismiss and a motion for attorneys' fees and expenses under Rule 11 of the Mississippi Rules of Civil Procedure and the Litigation Accountability Act of 1988 ("the Act"), Mississippi Code Annotated section 11-55-1 to -15 (Rev.2002). On May 2, 2007, Broussard's attorneys filed a motion to withdraw as counsel and cited Broussard's failure to respond to mail correspondence and to phone calls as the grounds for the motion.
¶ 6. The circuit court granted Illinois Central's motion to dismiss; however, Illinois *823 Central's request for attorneys' fees was denied because the circuit court determined that the plaintiff's attorneys were not guilty of "the type of egregious conduct required by the Act and Rule 11 so as to warrant the assessment of attorney[s'] fees and expenses." It is from that denial of attorneys' fees that Illinois Central now appeals.
¶ 7. Illinois Central argues on appeal that: (1) the filing of a lawsuit in the name of a plaintiff who had died a year and eight months before the filing of the lawsuit was in error and requires the assessment of sanctions under Rule 11 and the Act; (2) the circuit court failed to apply the proper standard required when considering an award of attorneys' fees; and (3) the circuit court erred in finding facts based on insufficient evidence to deny the motion for attorneys' fees and expenses. Finding no error, we affirm.
STANDARD OF REVIEW
¶ 8. Illinois Central contends that whether to impose sanctions under the Act and Rule 11 is a question of law that should be reviewed under a de novo standard of review, citing In re Estate of Ladner v. Ladner, 909 So.2d 1051, 1055 (¶ 15) (Miss.2004) as authority. However, we find that the supreme court has clearly stated that the proper standard of review for this issue is an abuse-of-discretion standard. Rule 11 states, and the Act has been interpreted to state, that the decision to award sanctions is within the discretion of the trial court. Miss.Code Ann. § 11-55-5 (Rev.2002); M.R.C.P. 11(b); Choctaw, Inc. v. Campbell-Cherry-Harrison-Davis and Dove, 965 So.2d 1041, 1045 n. 6 (Miss.2007). In Choctaw, Inc., the supreme court held that "[a]n extensive number of cases state that the proper standard of review regarding the imposition of sanctions is abuse of discretion." Choctaw, Inc., 965 So.2d at 1045 n. 6. The supreme court further stated: "When reviewing a decision regarding the imposition of sanctions pursuant to the Litigation Accountability Act, this Court is limited to a consideration of whether the trial court abused its discretion." Id. Accordingly, we conclude that abuse of discretion is the appropriate standard of review.
DISCUSSION
¶ 9 Illinois Central argues that the circuit court erred in denying its request for sanctions against counsel for Broussard because the filing of a claim on behalf of a deceased person is frivolous.
¶ 10 Both Rule 11 and the Litigation Accountability Act authorize an award of attorneys' fees and expenses as a sanction for certain filings. According to Rule 11(b), the court may order expenses or attorneys' fees "[i]f any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or delay ...." M.R.C.P. 11(b). Similarly, the Act states in part:
in any civil action commenced or appealed in any court of record in this state, the court shall award ... reasonable attorney's fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action ... that is without substantial justification, or that the action, or any claim or defense asserted, was interposed for delay or harassment....
Miss.Code Ann. § 11-55-5(1).
¶ 11. The Act defines a claim brought "without substantial justification" to be one that is "frivolous, groundless in fact or in law, or vexatious, as determined by the court." Miss.Code Ann. § 11-55-3(a) (Rev.2002). This Court uses the same *824 test to determine whether a filing is frivolous under both Rule 11 and the Act. Leaf River Forest Prods., Inc. v. Deakle, 661 So.2d 188, 197 (Miss.1995). A claim is frivolous when "objectively speaking, the pleader or movant has no hope of success." Id. at 195 (citation omitted).
¶ 12. In ruling on the issue of attorneys' fees, the circuit court gave the following explanation:
I'm going to dismiss the action, but I'm not going to hold them accountable under 11-55-5 and assess attorney[s'] fees because this action was an action arisingit's not like they just were contacted by Mr. Broussard and didn't do anything. This action was originally filed while he was alive in Hinds County. It was one of those mass lawsuits, and then it was at some point dismissed, and they had to re-file within a certain time limit and re-file in all the appropriate jurisdictions 175 cases. And re-filing it and then him dying in the interim between all of this going on, the Court does not see the type of egregious conduct that would be warranted underparticularly under Section [11-55-7](i), the extent to which reasonable effort was made. I think their efforts were reasonable in trying to get this matterbecause if they waited too long to search all this out, then they'd run into a statute of limitations problem. And then they did contactI believe in some of the pleadings you say they contacted you last November [to say] that they could not reach him. They filed it in April and then contacted you, saying, we can't find the fella. So they filed the lawsuit and tried to follow up on it, and I don't see the type of egregious conduct that would warrant sanctions under 11-55-5 in this particular action. He was alive when it was originally filed. The Court dismissed it and told themgave them a year to re-file 175 cases. And then during all of that they filed it to protect him and then tried to find thetried to find him and couldn't find him after it was filed and notified you they couldn't find him then, soand you found out he was dead....
¶ 13 We agree that the filing of a claim for a deceased person is frivolous because the claim has no hope of success. However, Rule 11 states, and the Act has been interpreted to state, that the decision to award sanctions is within the discretion of the trial court. M.R.C.P. 11(b); Choctaw, Inc., 965 So.2d at 1045 n. 6. We find that the trial court was within its discretion to deny sanctions. As the circuit court judge stated in his order, "[Broussard's counsel] filed lawsuit and tried to follow up on it, and I don't see the type of egregious conduct that would warrant sanctions under 11-55-5 in this particular action. He was alive when it was originally filed." Further, no assertion has been made that counsel for Broussard filed this action without substantial justification or for delay or harassment, which would warrant sanctions under the Act. Broussard's counsel, unable to contact Broussard, pursued the lawsuit on Broussard's behalf in order to avoid being barred by the statute of limitations. Therefore, we find that the circuit court did not abuse its discretion by denying an award of attorneys' fees and expenses. This issue is without merit.
¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR. ROBERTS, J., CONCURS WITH SEPARATE *825 WRITTEN OPINION JOINED BY GRIFFIS AND CARLTON, JJ. MAXWELL, J., NOT PARTICIPATING.
ROBERTS, J., concurring:
¶ 15. I concur with the majority that the grant of rehearing is appropriate and that the judgment of the trial court should be affirmed. The majority has given a suitable account of the facts in the instant case, so they will not be reiterated here. Since I joined the majority in our original opinion to reverse, I write separately to explain briefly why I have now concluded that the trial judge was correct when he considered whether Edwin Broussard's counsel's actions were egregious and when he denied Illinois Central Railroad Company's motion seeking attorneys' fees.
¶ 16. In our prior decision, the majority focused solely on the frivolity of Broussard's suit because it was discovered that Broussard died one year and eight months before the complaint was filed. At first blush, filing a personal injury suit for a plaintiff who died twenty months earlier appears to be sanctionable. Undoubtedly, the suit was frivolous in the sense that the plaintiff's counsel had no hope of success, but after further consideration and research of both Mississippi state and federal case law, I do not believe that the intent, knowledge, diligence, or lack of diligence of a party or his counsel can be dissociated from other factual circumstances when determining whether sanctions are appropriate.
¶ 17. In Thomas v. Capital Security Services, Inc., 836 F.2d 866, 876-81 (5th Cir.1988), the United States Fifth Circuit Court of Appeals rendered a thorough opinion discussing the purposes of the 1983 amendments to Rule 11 of the Federal Rules of Civil Procedure, the appropriate standard of review for violations, a trial judge's duty when violations are found, and under what type of circumstances are sanctions appropriate.[1]Thomas clearly states that the purpose of Rule 11 sanctions are to thwart frivolous litigation[2] and check abuses in the signing of pleadings. Id. at 870, 874. The pivotal point in time to assess a party's or attorney's actions is the instant when the signature is placed upon the document. Id. at 874. And, compliance under Rule 11 is an objective, not subjective, standard of reasonableness under the circumstances. Id. at 873 (citation omitted). Additionally, Rule 11 imposes affirmative duties, which an attorney or litigant certifies he has complied with, when he or she signs a pleading, motion, or document. Id. at 873-74. These duties are: (1) the attorney has conducted reasonable inquiry into the facts supporting the claim; (2) the attorney has conducted reasonable research into the law, so that the legal document embodies existing legal principles or a good-faith argument for the pleading or motion; and (3) that the motion is not made for the purposes of delay, harassment, or increasing the costs of litigation. Id. at 874. Along with the objective *826 standard of reasonableness and the affirmative duties imposed upon an attorney, the Thomas court recognized that the court considering sanctions "should consider the state of mind of the attorney when the pleading or other paper was signed" when determining the severity of sanctions. Id. at 875 (citation and internal quotation omitted). In other words, it is improper to consider the merit of the document in isolation of the intent or diligence of the pleader.
¶ 18. In the recent case of Jowers v. BOC Group, Inc., 608 F.Supp.2d 724 (S.D.Miss.2009), the United States District Court for the Southern District of Mississippi thoroughly analyzed Mississippi case law pertaining to an award of attorney's fees. In Jowers, the district court stated that "it appears the rule in Mississippi is that the proof necessary to justify a fee award is tantamount to and coextensive with the proof necessary to obtain punitive damages." Id. at 780. It is well-settled law that "[p]unitive damages are only appropriate in the most egregious cases so as to discourage similar conduct and should only be awarded in cases where the actions are extreme." Warren v. Derivaux, 996 So.2d 729, 738(¶ 28) (Miss.2008) (citation omitted). In light of these authorities, it is clear that a mere mistake, based upon an objectively reasonable belief, is insufficient to warrant sanctions even when that mistake inadvertently results in a frivolous pleading.
¶ 19. The Mississippi Supreme Court case Bean v. Broussard, 587 So.2d 908 (Miss.1991) is analogous to the instant case. In Bean, a Mississippi attorney was contacted by an attorney from Louisiana who told him that he had been retained several months earlier to file a medical malpractice suit. Id. at 910. The Louisiana attorney assured Bean, the Mississippi attorney, that he had investigated the facts of the case, and he also assured Bean that the case was meritorious. Id. The statute of limitations was set to expire the next day, so in order to avoid the claim being procedurally barred, Bean filed suit based upon the Louisiana attorney's representations without any independent investigation. Id. After depositions were conducted, Bean realized the case was without merit, and he sought to withdraw as counsel. Id. at 910-11. The defendant requested that the court impose Rule 11 sanctions upon Bean arguing that he signed a frivolous complaint for the purpose of delay. Id. at 911. The trial court granted a monetary sanction. Id. However, the supreme court reversed and remanded, stating that: "While it [was] true that the complaint was filed when it was filed in an effort to toll the statute of limitations[,] mere `delay' was not the objective. The objective was to preserve or[,] more accurately[,] to assert what could be objectively viewed as a viable cause of action." Id. at 913. In Bean, the supreme court did not look solely at the frivolity of the complaint, but it considered Bean's rationale and objective belief in bringing the claim, as well as Bean's desire to preserve his client's cause of action. The instant case involves the same type of situation.
¶ 20. I do not suggest that a plaintiff or his or her attorney is given a free pass to be dilatory in his or her efforts to confirm that the pleadings he or she files have merit just because his or her subjective intent is to bring a meritorious claim or to survive a statute of limitations. After all, they have the affirmative duty of reasonable inquiry into the facts and law of the case. However, that fact does not vitiate the plaintiff's or their attorney's objectively *827 reasonable belief at the time of the filing. It is apparent, Broussard's attorney was faced with a dilemma or a "Morton's Fork" situation.[3] As stated by the majority, Broussard's attorney was faced with refiling a voluminous amount of claims within one year, due to changes in the law. Just as in Bean, Broussard's attorney had the duty to ensure that his client's claim was not lost due to the expiration of the statute of limitations, as well as making sure that the claims were meritorious. Broussard's attorney risked legal malpractice, if he allowed the statute of limitations to run, or risked sanctions if he later found that circumstances had arisen which would render the pleading frivolous. Indeed, either possibility was an unfavorable choice.
¶ 21. Given that it is undisputed that the claim had merit when it was originally filed, it was objectively reasonable for Broussard's attorney to think that the claim was still viable at the subsequent filing less than a year later. Although the record is rather scant, it appears that Broussard's attorney was diligent in trying to locate Broussard. Both parties agree that it was after Broussard's attorney sought to withdraw, due to his inability to contact his client to respond to pending discovery, that it was discovered that Broussard was deceased. Certainly, it would have been better if Broussard's attorney, rather than Illinois Central's attorney, had thought to contact the Mississippi Department of Health and Vital Statistics to verify whether Broussard had died, but I agree with the trial judge and cannot find that decision, or the lack thereof, to be negligent to the extent of establishing egregious behavior. Even Illinois Central's attorney acknowledged that he did not research and discover that Broussard had died until Broussard's attorney asked him to agree to a dismissal of the action.
¶ 22. At the motions hearing, Illinois Central's attorney stated that he was not accusing Broussard's counsel of "doing anything intentional." However, he stated that his client had unnecessarily incurred attorney's fees, and he thought that his client was entitled to its money back. Incurring fees alone is insufficient to warrant Rule 11 sanctions. Whether sanctions are viewed as a cost-shifting mechanism or compensation for opposing parties injured by frivolous or vexatious litigation, it is important to remember that the imposition of sanctions pursuant to Rule 11 is meant to deter an attorney from violating the rule. Thomas, 836 F.2d at 877 (citing Donaldson v. Clark, 819 F.2d 1551, 1556 (11th Cir.1987)). "Sanctions should also be educational and rehabilitative in character and, as such, tailored to the particular wrong." Id. Though I admit this is a close case, after further review of the case law, record, unique facts in the instant case, and upon mature reflection, I must conclude that the trial judge did not abuse his discretion in determining that sanctions were unnecessary to deter Broussard's attorney from violating Rule 11 or Mississippi Code Annotated section 11-55-5 (Rev. 2002), nor did he err in finding that sanctions *828 were inappropriate because Broussard's attorney lacked egregious behavior.
GRIFFIS AND CARLTON, JJ., JOIN THIS OPINION.
NOTES
[1] The supreme court routinely looks to federal case law for guidance in construing the Mississippi Rules of Civil Procedure because they were patterned after the Federal Rules of Civil Procedure. MS Comp Choice, SIF v. Clark, Scott & Streetman, 981 So.2d 955, 959(¶ 13) (Miss.2008) (citations omitted).
[2] Many courts have recognized that the purpose of Rule 11 sanctions is to streamline the litigation process by discouraging the use of dilatory or abusive tactics, such as the filing of frivolous claims or defenses or the use of pleadings to harass or delay. See Kathleen M. Dorr, Annotation, Comment NoteGeneral Principles Regarding Imposition of Sanctions Under Rule 11, Federal Rules of Civil Procedure, 95 A.L.R. Fed. 107 (1989); Thomas, 836 F.2d at 870, 874; Davis v. Veslan Enterprises, 765 F.2d 494, 500 (5th Cir.1985).
[3] The expression, "Morton's Fork" originates from a policy of tax collection devised by John Morton, Lord Chancellor of England in 1487, under the rule of Henry VII. His approach was that if a subject lived a life of luxury, then clearly he spent a lot of money and, therefore, had sufficient income to spare for the king. However, if the subject lived frugally, and did not display signs of wealth, then apparently he had substantial savings and could then afford to give it to the king. These arguments were the two prongs of the fork and regardless of whether the subject was rich or poor, he did not have a favorable choice. http://www.britannica.com/ EBchecked/topic/393253/Mortons-Fork. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645243/ | 994 So.2d 1124 (2007)
Rodney J. GREENE, Petitioner,
v.
The STATE of Florida, Respondent.
No. 3D07-729.
District Court of Appeal of Florida, Third District.
December 19, 2007.
Rodney J. Greene, in proper person.
Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for respondent.
Before WELLS and LAGOA, JJ., and SCHWARTZ, Senior Judge.
PER CURIAM.
This is an application for habeas corpus relief based on alleged ineffective assistance of appellate counsel in Greene v. State, 900 So.2d 565 (Fla. 3d DCA 2005) (table), review dismissed, 903 So.2d 189 (Fla.2005) (table). After careful review of each of the petitioner's contentions, we conclude that none has merit.
Petition denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592779/ | 19 So.3d 459 (2009)
STATE of Louisiana
v.
Wilbert MARCELIN.
In re Meghan Garvey.
No. 2009-KD-1825.
Supreme Court of Louisiana.
October 16, 2009.
*460 PER CURIAM.[1]
This matter arises out of the conviction for direct contempt of court of Meghan Garvey on August 5, 2009, during the perpetuation deposition of a witness in a capital murder trial. Immediately prior to the deposition, the State had filed a Motion in Limine requesting the trial court bar any testimony of the deponent's criminal history. The trial court partially granted the Motion in Limine, allowing questions concerning the witness' felony conviction, but barring questions about misdemeanor convictions. The defense objected to the ruling.[2]
During the deposition, Ms. Garvey asked the question, "[W]ere you . . . ever involved in prostitution?" Following the sustaining of the State's objection, the trial judge ordered the attorneys to step outside, at which time the trial judge found Ms. Garvey in direct contempt of court for asking about misdemeanor convictions. The next day, August 6, 2009, the trial court confirmed the finding of direct contempt and ordered Ms. Garvey to spend twenty-four hours in the Parish Prison and to pay a one hundred dollar fine.
Ms. Garvey asked for a stay of execution, which was denied. She then sought a writ of certiorari to the court of appeal regarding the conviction and for a stay of execution, both of which were denied. This Court granted a stay of execution and now grants the writ of certiorari.
The crime of direct contempt of court is controlled by the Code of Criminal Procedure in the following article:
Art. 21. Direct contempt
A direct contempt of court is one committed in the immediate view and presence of the court and of which it has personal knowledge; or, a contumacious failure to comply with a subpoena, summons or order to appear in court, proof of service of which appears of record; or, a contumacious failure to comply with an order sequestering a witness.
A direct contempt includes, but is not limited to, any of the following acts:
(1) Contumacious failure, after notice, to appear for arraignment or trial on the day fixed therefor;
(2) Contumacious failure to comply with a subpoena or summons to appear in court, proof of service of which appears of record;
*461 (3) Contumacious violation of an order excluding, separating, or sequestering a witness;
(4) Refusal to take the oath or affirmation as a witness, or refusal of a witness to answer a nonincriminating question when ordered to do so by the court;
(5) Contumacious, insolent, or disorderly behavior toward the judge or an attorney or other officer of the court, tending to interrupt or interfere with the business of the court or to impair its dignity or respect for its authority;
(6) Breach of the peace, boisterous conduct, or violent disturbance tending to interrupt or interfere with the business of the court or to impair its dignity or respect for its authority;
(7) Use of insulting, abusive, or discourteous language by an attorney or other person in open court, or in a motion, plea, brief, or other document, filed with the court, in irrelevant criticism of another attorney or of a judge or officer of the court;
(8) Violation of a rule of the court adopted to maintain order and decorum in the court room; or
(9) Contumacious failure to attend court as a member of a jury venire or to serve as a juror after being accepted as such when proof of service of the subpoena appears of record.
The trial judge, in the per curiam ordered by this Court, stated that he had found Ms. Garvey to be in direct contempt of court for violating the trial court's order barring questioning of the witness regarding misdemeanor convictions. Our review of the transcript confirms that the trial judge's order specifically barred questioning concerning misdemeanor convictions. Ms. Garvey did not ask about misdemeanor convictions, but, instead, asked whether the witness had ever been involved in prostitution. While the misdemeanor convictions may or may not have involved prostitution, the question did not concern convictions, but, rather, only pertained to conduct.[3] Ms. Garvey did not violate the order because she did not inquire about misdemeanor convictions, but instead inquired about substantive behavior going to her theory of the case and to bias, interest, and corruption.
As the record does not support a conviction for direct contempt of court, the judgment of the trial court convicting Ms. Garvey of direct contempt of court is reversed.
REVERSED.
NOTES
[1] Judge Benjamin Jones, of the Fourth Judicial District Court, assigned as Justice Pro Tempore, participating in the decision.
[2] The propriety of that ruling is not before the Court.
[3] The misdemeanor crimes for which the witness was convicted do not appear in the record before this Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592781/ | 35 Mich. App. 308 (1971)
192 N.W.2d 261
JOSLIN
v.
GRAND TRUNK WESTERN RAILROAD COMPANY
Docket No. 10627.
Michigan Court of Appeals.
Decided July 27, 1971.
Thomas L. Gadola, for plaintiff.
Earl C. Opperthauser, for defendant.
Before: McGREGOR, P.J., and BRONSON and O'HARA,[*] JJ.
Leave to appeal applied for.
BRONSON, J.
This is a negligence action brought under the wrongful death act by the plaintiff administrator for the death of his wife, the driver of a motor vehicle who was killed when the motor vehicle she was driving was struck by defendant's train at *311 a railroad crossing on June 9, 1967, in the City of Fenton. The jury awarded plaintiff damages in the amount of $48,000. Defendant appeals from the trial court's denial of its motion for a judgment notwithstanding the verdict and the denial of defendant's motion for a new trial.
The instant case was tried and the jury verdict rendered prior to the Michigan Supreme Court's decision in Breckon v. Franklin Fuel Co. (1970), 383 Mich 251. The trial court's instruction to the jury, based upon Wycko v. Gnodtke (1960), 361 Mich 331, and Currie v. Fiting (1965), 375 Mich 440, made reference to recovery for loss of companionship. Defendant, in its motion for a new trial, informed the court that its instruction regarding pecuniary loss was inconsistent with Breckon insofar as it would permit damages to be awarded for loss of companionship. The trial court denied defendant's motions, but ruled that if its instruction on damages constituted error in view of Breckon, defendant could be granted a new trial as to damages only, unless plaintiff accepted a remittitur of 10% of the verdict. Plaintiff accepted the remittitur.
On appeal defendant contends that: (a) The trial court erred by ordering a remittitur; (b) the case must be reversed in view of Breckon; (c) the trial court erred by not finding plaintiff guilty of contributory negligence as a matter of law; and (d) the trial court erred by permitting plaintiff's witness to testify as to prior accidents at the subject crossing. With defendant's allegations (a) and (b) we agree; with defendant's allegations (c) and (d) we disagree.
The trial judge instructed the jury that they could award damages for loss of companionship. This instruction was erroneous. Breckon v. Franklin Fuel Co., supra; Benson v. Watson (1970), 26 Mich *312 App 142, reversed on other grounds (1971), 384 Mich 804; Haupt v. Yale Rubber Co. (1970), 29 Mich App 225. Although the Breckon decision was rendered subsequent to the verdict in the instant case, the Court in Breckon held that recovery for loss of companionship had never been authorized under the wrongful death act. Defendant has preserved the issue on appeal by timely objection at trial. See Benson v. Watson (1971), 384 Mich 804. Therefore, the holding in Breckon is applicable and controlling in the instant case.
We are unaware of any method which would permit the trial court to determine what portion of this general verdict was based upon loss of companionship. We must hold that the trial court erred by requiring the 10% remittitur.
Defendant's next allegation of error is that plaintiff violated MCLA § 257.667 (Stat Ann 1968 Rev § 9.2367) and therefore was contributorily negligent as a matter of law. The statute provides, in part:
"Sec. 667. (a) Whenever any person driving a vehicle approaches a railroad grade crossing under any of the following circumstances the driver shall stop within 50 feet but not less than 15 feet from the nearest rail of the railroad, and shall not proceed until he can do so safely:
"(1) A clearly visible electric or mechanical signal device gives warning of the immediate approach of a railroad train.
"(2) A crossing gate is lowered or a human flagman gives or continues to give a signal of the approach or passage of a railroad train.
"(3) A railroad train approaching within approximately 1,500 feet of the highway crossing gives a signal audible from such distance and the train, by reason of its speed or nearness to such crossing, is an immediate hazard.
*313 "(4) An approaching railroad train is plainly visible and is in hazardous proximity to the crossing."
Plaintiff contends that there was no statutory negligence as a matter of law because the evidence created a factual question as to whether the signal was audible under subsection (3); the electrical device clearly visible under subsection (1); and the train plainly visible under subsection (4).
We do not believe it is necessary to set forth the testimony to illustrate the factual questions presented. Basically, defendant called witnesses who had been in near proximity to the accident. Although none of the witnesses approached the crossing in the same direction as the decedent, their collective testimony revealed that the electrical device was seen, the whistle heard, and the approaching train observed.
Plaintiff relied primarily on two expert witnesses and photographic exhibits of the area. One expert testified to the effect on audibility of competing sounds, the presence of buildings, and the distance from the source of the sound. Another expert, an employee of the Michigan Public Service Commission, testified as to the inadequacy of a whistle as a warning to the motoring public at this crossing because of the downtown location and the amount of noise produced by vehicular traffic. Evidence concerning the visibility of the signal device and the train itself were brought forth by the expert testimony and the photographic exhibits of the crossing. The expert testified concerning such matters as how the candlepower distribution curve affects the visibility of a light at any given point and the visibility of light based upon wattage of the bulb. The expert witness had examined the subject crossing following the accident. He observed the location of the signal *314 device as well as the background scenery and the dimensions of the street. It was this witness's opinion that the signal device would have provided minimal visibility. The photographic exhibits illustrated that vision of the train could have been impaired by billboards and surrounding buildings.
We are satisfied, after reviewing the transcript, that sufficient conflicting testimony was presented to create a factual question which was properly submitted to the jury.
Defendant's final allegation of error relates to the trial court's ruling which permitted testimony regarding prior accidents at the subject crossing. The evidence was admissible under the principle announced in Freed v. Simon (1963), 370 Mich 473. See, also, Emery v. Chesapeake & O.R. Co. (1964), 372 Mich 663.
For the reasons stated, the case is remanded to the trial court for a new trial, limited to the question of damages only.
McGREGOR, P.J., concurred.
O'HARA, J. (for reversal and a limited new trial).
This tragic death moves the judicial instinct to find some basis upon which to affirm the awarded damages.
I can find evidence of negligence upon the part of the rail carrier more than sufficient upon which to sustain recovery.
I find no basis for an order of remittitur in any amount. If the railroad is liable, it is liable for the whole jury award. Indeed, if anything, the amount of the verdict was surprisingly modest in view of the proof of damages.
However, I have searched the record diligently and I find no basis for allowing the issue of defendant's *315 pleaded defense of contributory negligence to go to the jury. If this defense is still viable in this state, it was established in this case as a matter of law.
As trenchantly asked upon oral argument by counsel for the defendant, "Upon what testimony does plaintiff rely to create a question of fact as to the audibility of the whistle within the mandated statutory distance of 1,500 feet?"[1] Assuming its audibility however, this does not establish the proximate causality of that contributory negligence.
I would reverse and remand for a new trial with instructions to charge the jury that plaintiff's decedent was guilty of negligence as a matter of law in failing to stop, as statutorily required, upon the railroad having given an audible signal at least 1,500 feet from the highway crossing.
So far as I can learn by diligent research, and research assistance, what I now propose has not yet been done in our state. But I know of no reason why it can't be done.
Upon retrial, I would limit the issue before a new jury to the question of whether or not decedent's negligence in violating the statute was a proximate cause of death. If the jury finds it was, the verdict awarding damages must be set aside. If the jury finds the negligence was not proximately causal, I *316 would reinstate the verdict and the damages in their entirety, and authorize plaintiff to tax costs of all courts.
NOTES
[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
[1] MCLA § 257.667 (Stat Ann 1968 Rev § 9.2367). Railroad grade crossings.
"Sec. 667. (a) Whenever any person driving a vehicle approaches a railroad grade crossing under any of the following circumstances the driver shall stop within 50 feet but not less than 15 feet from the nearest rail of the railroad, and shall not proceed until he can do so safely:
* * *
"(3) A railroad train approaching within approximately 1,500 feet of the highway crossing gives a signal audible from such a distance and the train, by reason of its speed or nearness to such crossing, is an immediate hazard." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592783/ | 19 So.3d 1211 (2009)
Donna AUBERT
v.
DEPARTMENT OF POLICE.
No. 2009-CA-0288.
Court of Appeal of Louisiana, Fourth Circuit.
August 26, 2009.
*1213 Kenneth M. Plaisance, New Orleans, LA, for Donna Aubert.
Victor L. Papai, Jr., Assistant City Attorney, Colby C. May, Senior Law Clerk, Nolan P. Lambert, Chief Deputy City Attorney, Penya Moses-Fields, City Attorney, New Orleans, LA, for Department of Police.
Court composed of Judges MAX N. TOBIAS, JR., DAVID S. GORBATY, and PAUL A. BONIN.
PAUL A. BONIN, Judge.
Donna Aubert appeals the decision of the New Orleans Civil Service Commission upholding her termination as a police officer. For the reasons which follow, we affirm.
I. Background Facts
When Hurricane Katrina struck New Orleans on August 29, 2005, Ms. Aubert was employed as a police officer in the New Orleans Police Department. She was assigned to the Seventh District under the command of Captain Robert Bardy. Unable to report to the district's headquarters immediately following the storm, she initially reported to Methodist Hospital, which was situated in the district's territory. For a day or two she assisted medical professionals in often futile efforts to sustain the lives of patients stranded in the facility. Upon the evacuation of the hospital, she relocated to Crystal Palace reception hall, which had become the refuge of the district.
*1214 A large contingent of the district's officers were located at the Crystal Palace. Some of the officers were accompanied by family members, some of whom were elderly or infants. One of the officers, Abreace Daniels, became concerned that the civilians and some of the female officers, including Ms. Aubert, were becoming emotionally distressed. Officer Daniels felt that they needed time and a place to refresh themselves. He communicated his concerns to Captain Bardy.
On September 1, 2005, while Captain Bardy was away for a meeting with the Superintendent of Police, Officer Daniels apparently organized a convoy of vehicles to take the Seventh District officers and family members from the Crystal Palace. Ms. Aubert was one of the passengers. Captain Bardy serendipitously encountered the convoy near the Crescent City Connection bridge.
Captain Bardy and Officer Daniels do not agree about the exchange which occurred between them during the encounter. Captain Bardy contends that he urged the district's officers to return to duty at the Crystal Palace and that many of them did so. With respect to those who would not, the captain relented to permit them to continue on to the Fourth District headquarters located across the Mississippi River, which was fully functioning with water, electricity, and telephones. After refreshing themselves and making efforts to contact relatives, the officers were to return to the Crystal Palace.
Officer Daniels contends that Captain Bardy authorized him to continue with the convoy to Baton Rouge, where he headed. There was trouble with a vehicle which prevented the officers from returning to the Crystal Palace until the following day. All the male officers and most of the female officers in the convoy returned to the Crystal Palace on September 2, 2005. Ms. Aubert did not return with them. She took a flight from Baton Rouge to Maryland where she remained with relatives for a couple of weeks until she went to Tunica, Mississippi. Some time in late September or early October she returned to her home in Uptown New Orleans, which was not damaged in the storm. She never reported back in person to the Crystal Palace or to the subsequent command post for the district.
After Captain Bardy listed Ms. Aubert as unaccounted for among the ranks of his district, the Superintendent of Police, as the appointing authority, terminated her as a police officer due to her unwillingness to perform the duties of a police officer.
II. Civil Service Proceedings Below
Ms. Aubert did not receive the ordinary pre-termination hearing afforded to employees in the classified civil service before she was notified of her termination in writing by the superintendent. Ms. Aubert did timely appeal her termination by the superintendent to the New Orleans Civil Service Commission. The commission assigned the matter to a referee before whom testimony and documentary evidence were adduced on March 29, 2006. Initially, the commission ruled in favor of Ms. Aubert because she had not received a pre-termination hearing.
The Appointing Authority appealed that decision and, in an en banc decision in consolidated cases presenting the same issue, we reversed the commission. Reed v. Department of Police, 06-1498, 06-1500, 06-1647, 07-0171, 07-0360, 07-0361, 07-0364, 07-0366, 07-0367, 07-0368, 07-0796, 07-0797 (La.App. 4 Cir. 10/10/07), 967 So.2d 606. In Reed we remanded the matter to the commission with instructions to reopen the case in order to allow Ms. Aubert to adduce evidence of any prejudice to her case related to the delay and to submit additional evidence. A subsequent *1215 hearing was held on May 29, 2008, at which Ms. Aubert waived her appearance and provided no additional evidence. On December 4, 2008, three members of the commission, constituting a requisite quorum, in a written decision denied Ms. Aubert's appeal. From that decision Ms. Aubert has appealed to this court.
III. Assignments of Error and Opposing Contentions Thereto
Ms. Aubert assigns as errors: the Commission's failure to reinstate her because there was no evidence that she was unwilling or unable to perform her job satisfactorily or that she abandoned her position; the Appointing Authority's failure to state clearly a lawful cause in its disciplinary termination letter of October 24, 2005; the Appointing Authority's erroneous reliance on Civil Service rules, instead of its own regulations, to discipline and terminate Ms. Aubert; the Commission's failure to rule that the Appointing Authority is estopped from disciplining Ms. Aubert twice (i.e., imposing both a 30-day suspension and termination) for a single alleged violation of duty under the rules of the Appointing Authority; the Commission's erroneously upholding the excessive discipline of the Appointing Authority; and the Appointing Authority and Commission's violation of Ms. Aubert's rights under the Equal Protection Clause of the state and federal constitutions by not affording her a pre-termination hearing while affording other civil service employees a pre-termination hearing.
The Appointing Authority contends that this court cannot modify or reverse the decision of the Commission absent a showing that its decision was arbitrary, capricious or characterized by an abuse of discretion, when no rational basis exists for the action taken. Russell v. Mosquito Control Bd., 06-0346 (La.App. 4 Cir. 9/27/06), 941 So.2d 634; Mendoza v. Dept. of Police, 08-0062 (La.App. 4 Cir. 8/20/08), 991 So.2d 1155. It contends that Ms. Aubert did not deny that she abandoned her post during the post-hurricane crisis in the city, establishing legal cause for her discipline and the denial of her appeal of her termination. And the Appointing Authority argues that the due process Ms. Aubert complains of is a flexible standard, and the emergency situation that existed during the hurricane outweighed the normal scheduling of a pre-termination hearing. The opportunity to be heard in a meaningful manner and at a meaningful time meets the criteria of due process, within the parameters of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484(1972) (stating that the concept of due process is characterized by "[i]ts flexibility . . . in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure").
IV. Employee Rights Under Civil Service Procedure
"No person who has gained permanent status in the classified . . . city service shall be subjected to disciplinary action except for cause expressed in writing." La. Const., art. X, § 8(A); La. Const., art. X, § 1(B). New Orleans police officers are included in the protection guaranteed by this provision. Walters v. Dept. of Police of New Orleans, 454 So.2d 106, 112 (La.1984).[1] "Legal cause exists whenever an employee's conduct impairs the efficiency of the public service in which the employee is engaged." Cittadino v. *1216 Dept. of Police, 558 So.2d 1311, 1315 (La. App. 4th Cir.1990).
The U.S. Supreme Court considers this type of tenured civil service employment to be a property right which is protected by the Due Process Clause of the U.S. Constitution. The Supreme Court in Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), held:
The essential requirements of due process. . . are notice and an opportunity to respond. . . . The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story.
Further, the Loudermill Court explained: "the point is straightforward: the Due Process Clause provides that certain substantive rights life, liberty, and property cannot be deprived except pursuant to constitutionally adequate procedures . . . the right to due process `is conferred not by legislative grace but constitutional guarantee.' [citation omitted]." Id. at 541, 105 S.Ct. 1487.
It is a basic precept of our system of justice, fair play, and due process that one accusedof a crime, an administrative breach of conduct or code violation, or a civil tortbe given notice of that which he or she is alleged to have done or failed to have done. Thus our jurisprudence has required that written notice be given to a public employee. See La. Const., art. X, § 8; Williams v. Dept. of Property Mgmt., 02-1407, p. 2 (La.App. 4 Cir. 4/16/03), 846 So.2d 102, 104; Riggins v. Dept. of Sanitation, 617 So.2d 112 (La.App. 4th Cir.1993). In Webb v. Dept. of Safety & Permits, 543 So.2d 582 (La.App. 4th Cir.1989), we held that "notice of the charges should fully describe the conduct complained of . . . to enable the employee to fully answer and prepare a defense." More recently, in Williams the City terminated the plaintiff, a city motor vehicle examiner, on the basis of her alleged alteration of her time card for Friday, April 13, 2001. This incident was the only matter discussed at her pre-termination hearing. After the hearing, two other incidents of payroll fraud were discovered, and Williams was terminated. The termination letter listed three separate occasions of payroll fraud. We stated:
Since the Department of Property Management used these other two incidents of payroll fraud to reach its decision to terminate plaintiff's employment, the plaintiff was entitled to notice of these additional charges and an opportunity to present a defense in regards[sic] to these additional charges. The requirements of La. Const. Art. 10 § 8 and Loudermill were not met.
Id. at p. 5, 846 So.2d 102 at 105.
The Civil Service Commission ("Commission") has the exclusive power and authority to hear and decide all removal and disciplinary cases. La. Const., art. X, § 12; Pope v. New Orleans Police Dept., 04-1888, p. 5 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 4. The Commission has a duty to decide independently from the facts presented whether the Appointing Authority has good or lawful cause for taking disciplinary action and, if so, whether the punishment is commensurate with the dereliction of duty. Walters v. Department of Police of New Orleans, 454 So.2d 106 (La.1984). "The Commission should give heightened regard to the appointing authorities that serve as special guardians of the public safety and operate as quasimilitary institutions where strict discipline is imperative." Whitaker v. New Orleans Police Dept., 03-0512, p. 4 (La.App. 4 Cir. 9/17/03), 863 So.2d 572, 575.
*1217 Before the Commission, "the burden of proof on appeal, as to the facts, shall be on the appointing authority." La. Const., art. X, § 8(A) (emphasis added); Walters, supra, at 112-13. "The appointing authority must prove by a preponderance of the evidence the occurrence of the complained of activity and that the conduct impaired the efficient operation of the public service. Newman v. Dept. of Fire, 425 So.2d 753, 754 (La.1983); Cittadino, 558 So.2d at 1315 (La.App. 4 Cir.1990)." Barquet v. Dept. of Welfare, 620 So.2d 501, 505 (La.App. 4th Cir.1993) (emphasis added); Cure v. Dept. of Police, 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094, citing Marziale v. Dept. of Police, 06-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767.
The Commission assigned the appeal to its referee in accordance with established procedure: "[The Commission] may appoint a referee to take testimony, with subpoena power and power to administer oaths to witnesses." La. Const., art. X, § 12(B).
After reviewing the transcript of the hearing testimony and all documentary evidence, the Commission issued a written report on December 4, 2008, which concluded:
It is not credible that Capt. Bardy gave permission to his subordinates to leave their posts for an indefinite period of time. Capt. Bardy's testimony that he gave his subordinates permission to go to the Fourth District Police Station to make telephone calls, and check on their families is more credible. Based upon the foregoing, the Appointing Authority has established by a preponderance of the evidence that it terminated the Appellant for cause, and the appeal is DENIED.
V. Standard of Appellate Review
The appellate court must apply the clearly-wrong or manifest-error standard with regard to factual findings made by the Commission. Russell v. Mosquito Control Bd., 06-0346 (La.App. 4 Cir. 9/27/06), 941 So.2d 634. Absent a showing that the Commission's decision was arbitrary, capricious or characterized by an abuse of discretion, this court should not disturb the decision of the Commission. Mendoza v. Dept. of Police, 08-0062, p. (La.App. 4 Cir. 8/20/08), 991 So.2d 1155, 1163. A determination is arbitrary or capricious only when there is no rational basis for the action taken. Id.
The Commission's decision is subject to appellate review on any question of law or fact, determining if its order was arbitrary, capricious, or characterized by an abuse of discretion. La. Const., art. X, § 12(B); Barquet, 620 So.2d at 505; Cure, 07-0166 at p. 2, 964 So.2d at 1095; Walters, 454 So.2d at 114. When there is no rational basis for the Civil Service Commission's action, its decision is arbitrary and capricious. Bannister v. Dept. of Streets, 95-0404, p. 8 (La.1/16/96), 666 So.2d 641, 647.
The judicial review function in a matter appealed from a civil service commission is "multifaceted," Walters, 454 So.2d at 113-14:
In reviewing the commission's procedural decisions and interpretations of law performs its traditional plenary functions of insuring procedural rectitude and reviewing questions of law. Due concern both for the intention of the constitution and for the boundaries between the functions of the commission and of the court, however, demands that a reviewing court exercise other aspects of its review function with more circumspection. In reviewing the commission's findings of fact, the court should not reverse or modify such a finding unless *1218 it is clearly wrong or manifestly erroneous. In judging the commission's exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, the court should not modify the commission's order unless it is arbitrary, capricious, or characterized by abuse of discretion. R.S. 49:964; Save Ourselves, Inc. v. The La. Environmental Control Comm., 452 So.2d 1152 (La.1984); Weyerhaeuser Co. v. Costle, 590 F.2d 1011 (D.C.Cir.1978); K. Davis, Administrative Law (1982 Supp.) at 536 et seq.
In reviewing the Commission's findings of fact, the appellate court should not reverse or modify a finding unless it is clearly wrong or manifestly erroneous. Walters, 454 So.2d at 113.
VI. Review of the Factual Findings
Because Ms. Aubert did not deny that she left her duty post, and she presented no new evidence to the Commission, we confirm the factual findings of the Commission after its review of the transcript and all evidence before it, particularly inasmuch as the Commission believed the testimony of Capt. Bardy was credible. Ms. Aubert justified her absence on the basis that Captain Bardy had given her and other officers under his command permission to leave their police duties indefinitely despite a catastrophe of epic proportions. Captain Bardy denied that he granted such permission. The commission made a factual determination on this central issue in favor of the appointing authority and against Ms. Aubert. We have reviewed this factual determination under the manifest error standard. In Adams v. Department of Police, 08-0468 (La.App. 4 Cir. 2/12/09), 7 So.3d 763, 765, we stated:
The Commission's decision is subject to review on any question of law or fact upon appeal. La. Const. art. X, § 12. This court applies the manifest error standard of review to the Commission's findings of fact . . . In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this Court should not modify the Commission's order unless it was arbitrary, capricious, or characterized by an abuse of discretion. . . . if there is no rational basis for the Commission's action.
See also Banks v. New Orleans Aviation Board, 08-0065, p. 7 (La.App. 4 Cir. 7/9/08), 989 So.2d 819, 823 (stating that "the review of procedural decisions and questions of law falls within this court's traditional plenary function. As such, we are not limited to abuse of discretion or arbitrary and capricious standards of review in these instances"); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).
Not a single witness who testified on Ms. Aubert's behalf supports her contention that Captain Bardy authorized her to leave indefinitely. While Officer Daniels disputed Captain Bardy's testimony that the convoy was only permitted to travel to the Fourth District station for the limited purposes of using its facilities, at no time does he contend that indefinite leave was granted to any Seventh District officer. In fact, Officer Daniels and most of the other officers in the convoy planned to return the same day to the Crystal Palace. Only because of unexpected vehicle troubles was their return delayed by one day.
Lieutenant Kim Williams contacted friends from the district to encourage them to return to duty. Among those friends was Ms. Aubert, who in those contacts offered excuses to her friend the Lieutenant why she would not return to duty immediately. Although she claimed she had permission to be absent, she expressed *1219 acquiescence to the idea that she would be suspended for 30 days or that she possibly was already under suspension. Oddly, despite returning to her home in New Orleans, Ms. Aubert never personally sought out a meeting with Captain Bardy or any other of her superior officers. She took no steps for her return to duty until she received written notice that she had been terminated. This was at least ten days after the time that any 30-day suspension would have expired.
With respect to Ms. Aubert's argument that her unwillingness to perform the duties of a police officer does not prejudice the efficiency of the public service, we need not dwell too long. Clearly Captain Bardy was desperate for his subordinate officers to return to their posts. The willful abandonment by Ms. Aubert on September 1, 2005, and her ongoing willful refusal to return to New Orleans and to her police duties indisputably impairs the efficient operation of the police department. We conclude that the Commission's finding that Captain Bardy's testimony is credible is not manifestly erroneous. From that finding, it is clear that Ms. Aubert deserted the city, her commander, and the majority of her fellow officers in the Seventh District.
VII. Due Process Argument of Ms. Aubert
We consider the due process argument Ms. Aubert raises as the pivotal issue before the Commission and this court. We addressed this specific issue in the Reed case, and that ruling is dispositive in holding that the unique circumstances of post-Katrina New Orleans and the maintenance of the police presence and discipline in working to control the decimated city made acceptable NOPD's provisions for due process. Our law is now clear that the post-Katrina hearing which took place after, rather than before, the appellant's deprivation of her job was sufficient during the extraordinary circumstances of the disaster-struck city. Although not referenced in the Appointing Authority's brief, this court's decision in Reed v. Department of Police, 06-1498, supra, is dispositive of Ms. Aubert's due process contentions. We stated:
We hold that Hurricane Katrina, with its effects upon the city of New Orleans and its government, was an extraordinary event such that the NOPD could discipline the officers without a pre-termination hearing. We further hold that, under these unique circumstances, a post-termination hearing, which allows the accused officer an opportunity to present all relevant evidence he/she would have introduced at a pre-termination hearing to overturn the NOPD's decision, satisfies the due process requirements of both the United States and Louisiana Constitutions.
Reed, p. 4, 967 So.2d at 610. See Marks v. New Orleans Police Dept., 06-0575 (La.11/29/06), 943 So.2d 1028 (wherein Justice Wiemer discusses the parameters of due process and legislatively created governance of civil servants, particularly law enforcement personnel). As the U.S. Supreme Court stated in Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18, (1976): "[T]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." We have recognized that there is no bright-line rule for prejudicial delay, See Bovia v. Dept. of Police, 08-0710, p. 5 (La.App. 4 Cir. 1/7/09), 2 So.3d 1159, 1162.
Ms. Aubert did not supplement the record before the Commission when she had an opportunity. Accordingly, the Commission's review of the evidence and the record, and its findings as to the credibility of *1220 Capt. Robert Bardy and Lt. Kim Williams had a rational basis, and were not arbitrary, capricious, or characterized by an abuse of discretion. We affirm the decision of the Commission.
AFFIRMED
NOTES
[1] See also La. Const., art. X, § 1(B). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2586869/ | 240 P.3d 1141 (2010)
237 Or. App. 274
STATE
v.
IRELAND.
A140818
Court of Appeals of Oregon.
September 15, 2010.
Affirmed without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592805/ | 35 Mich. App. 193 (1971)
192 N.W.2d 345
PEOPLE
v.
NEUMANN
Docket No. 9580.
Michigan Court of Appeals.
Decided July 26, 1971.
*194 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, Donald A. Kuebler, Chief Assistant Prosecuting Attorney, and James Dillard, Assistant Prosecuting Attorney, for the people.
William J. Hayes, for defendant on appeal.
Before: LESINSKI, C.J., and BRONSON and DANHOF, JJ.
LESINSKI, C.J.
Defendant was originally charged with the second-degree murder of his wife and was convicted of manslaughter by a jury in the subsequent trial. MCLA § 750.317 (Stat Ann 1954 Rev § 28.549); MCLA § 750.321 (Stat Ann 1954 Rev § 28.553). Defendant appeals to this Court by leave granted.
Defendant interposed an insanity defense at trial and presently assigns as error two instructions. The trial court instructed the jury four times as to the burden of proof when an insanity defense is presented. Two of the charges are essentially correct. However, the trial court charged as follows:
"Since sanity is the normal state of humanity, it is presumed that the accused was sane until that presumption is overcome by evidence. The proof of insanity at the time of committing the act is to be as clear and satisfactory, in order to acquit the defendant on grounds of insanity, as proof of committing the act ought to be in order to find a sane man guilty. The proof, in other words, is equal. Where it is admitted or clearly proved that the defendant committed the act but he has insisted that he was *195 insane, and the evidence leaves the question of insanity in doubt, you are to find against the defendant, Mr. Neumann; that is, that he was sane."
At another instance in the charge, the trial court instructed the jury with almost identical language:
"Since sanity is the normal state of humanity, it is presumed that the accused or the defendant was sane until that presumption is overcome by evidence. The proof of insanity at the time of committing the act is to be clear and satisfying in order to acquit the defendant on grounds of insanity, just as proof of committing the act ought to be in order to find a sane man guilty. Where it is admitted or clearly proved that the defendant committed the act, but it is insisted that he was insane, and the evidence leaves the question of insanity in doubt, you are to find against the defendant, that is, that he was sane."
It is our opinion that the quoted charges erroneously conveyed to the jury the impression that defendant must establish his defense beyond a reasonable doubt. Such is not the law. When a defendant introduces any evidence of insanity at the time of the offense, the people must prove beyond a reasonable doubt that defendant was sane when he committed a crime, just as they must prove every other element of the crime. People v. Garbutt (1868), 17 Mich 9; People v. Eggleston (1915), 186 Mich 510; People v. Krugman (1966), 377 Mich 559; People v. Geiger (1968), 10 Mich App 339. See, also, People v. Woody (1968), 380 Mich 332.
The prosecution on appeal concedes the charges to be erroneous, but maintains that the error is not reversible since the instruction as a whole contained instructions which correctly state the law and thus the error was cured. However, when several instructions are imparted to the jury, some proper and some incorrect, the jury is presumed to have *196 followed the erroneous, absent repudiation of the questionable charges by the court. People v. Eggleston, supra; People v. Burkard (1967), 374 Mich 430.
Furthermore, the people point out that defendant failed to register timely objection to the charges and, as such, the error may not be said to have been preserved. GCR 1963, 516.2; People v. Jefferson (1969), 18 Mich App 9. An exception to this general principle has been carved out, however, when injection of the error works a "manifest injustice". Hunt v. Deming (1965), 375 Mich 581; People v. Leonard E. Smith (1968), 15 Mich App 173; People v. Bell (1969), 19 Mich App 257. Usually, instructional error will not occasion such "manifest injustice" unless the incorrect instruction pertains to a basic and controlling issue in the case. In the case at bar, the erroneous charges dealt with the burden of proof with respect to insanity. Any misstatement of the law on this point would be directed to the very essence of the case.
Reversed and remanded.
All concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592806/ | 453 So.2d 1003 (1984)
STATE of Louisiana
v.
Roy GARAY.
No. KA-1746.
Court of Appeal of Louisiana, Fourth Circuit.
July 3, 1984.
Rehearing Denied August 24, 1984.
*1004 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Susan Scott Hunt, E. Sue Bernie, Asst. Dist. Attys., New Orleans, for plaintiff-appellee.
George G. Angelus, New Orleans, for defendant-appellant.
Before GULOTTA, SCHOTT and WILLIAMS, JJ.
WILLIAMS, Judge.
Defendant, Roy Garay, was charged with the violation of La.R.S. 14:81, indecent behavior with a juvenile. After a bench trial, defendant was convicted as charged. Defendant was sentenced to serve three years, six months in the custody of the Department of Corrections. Defendant appeals his conviction, and we affirm.
To fulfill a course requirement for his studies in Early Childhood Education at Delgado Community College, defendant began doing volunteer work at St. Vincent's Infant Home in New Orleans. He began on February 28, 1983, and, for three weeks, worked at St. Vincent's on Mondays, Wednesdays and Fridays from 3:00 A.M. to 7:00 P.M. His duties were to assist the day care workers, primarily in general play activities, in Nursery Five, the nursery to which the victim, 5 year old Brenda, was assigned. Defendant was dismissed on March 21, 1981, because of suspected sexual improprieties with the victim, and because it had been discovered that defendant had been convicted of simple robbery and was on parole.
The state called as witnesses, the victim and three child care workers and a social worker from St. Vincent's, while the defense called defendant and defendant's mother.
*1005 Mary Dixon, a child care worker, testified that defendant spent an inappropriate amount of time at the nursery with Brenda, neglecting the other children, and that she expressed her concern over this to her supervisor, Dorothy Springs. Ms. Dixon testified that defendant spent a great deal of time holding Brenda on his lap. He did not hold her on his knees, but rather, sat her up close to him with her back against his chest, "close enough up to him so that she could rest her back against her chest, not leaning back." Ms. Dixon had told defendant not to let Brenda sit on his lap.
Irma York, another child care worker, testified that she frequently saw defendant holding Brenda on his lap with her back facing up to his stomach. She had reported her concern over this behavior to her supervisor, Dorothy Springs, four or five times.
Ms. York also testified that she found defendant and Brenda alone in the nursery bathroom three times. The first time, she had noticed that Brenda was not with the other children. Defendant had told Ms. York that he was going to take a break to have a cigarette. Ms. York went to the bathroom and found defendant seated on a children's shaver chair with his back to Brenda, who was standing over him, combing his hair. This occurred in the middle of March. The second time, Ms. York noticed that Brenda was missing and went to look for her in the bathroom. She found her alone with defendant in the bathroom, again combing defendant's hair. Defendant had not told Ms. York that he was going on a break. The third time, defendant had told Ms. York twice that he was going to go smoke a cigarette in the bathroom. As Brenda had told Ms. York that she had to use the bathroom, Ms. York sent Sonya Johnson, another child care worker, into the bathroom to check. She saw Sonya come out of the bathroom with defendant and Brenda. Ms. York also reported one of these incidents to her supervisor.
Ms. York stated that she never saw defendant off alone with any child other than Brenda, nor had she ever seen defendant in the bathroom having his hair combed by any other child.
Sonya Johnson, a child care worker, testified that defendant spent more time with Brenda than with any of the other children, and that Brenda sat on defendant's lap frequently. Ms. Johnson felt that the way defendant held Brenda on his lap, straddling him, was improper, and that a male volunteer should know better, especially with a child of Brenda's age.
Ms. Johnson saw defendant and Brenda alone in the bathroom one time. Ms. York had asked her to look for Brenda in the bathroom. When Ms. Johnson shut the nursery door behind her, defendant came out of the bathroom, looked at her, and went back in. When Ms. Johnson reported this to Ms. York, Ms. York sent her back into the bathroom. The bathroom door was closed. Brenda was inside, standing on a face bowl combing defendant's hair. She was wearing her sleeping apparel, a pajama top and underpants.
Brenda testified that defendant "put his thing up in me" five times. Each time she would be in the bathroom with defendant alone, wearing her sleeping apparel. She would comb defendant's hair, and then defendant would pull her underwear down on her legs. In her own words, Brenda explained that defendant would be behind her, and would put his "thing" up in her on the bottom of her behind, and it would hurt. She later agreed that a "thing" was a penis.
Brenda testified that she was sure that Sonya Johnson witnessed one such incident in the bathroom because Brenda heard someone coming and heard someone lean over the sink to look into the bathroom. Brenda said that Ms. Johnson went and told Irma. Brenda testified that the first person she told was Cheryl George, and that Dorothy Springs was present in the office at the time.
Because Cheryl George, a social worker and the coordinator of volunteers, did not work in the nurseries she did not have the opportunity to observe Brenda and defendant together. Ms. George brought Brenda *1006 and Ms. Springs into her office because she had heard that child care workers had heard Brenda making vague statements about defendant, and that "the workers never really sat down with her and asked her about it." Ms. George asked Brenda if defendant did something to her, and Brenda replied that defendant had taken her into the bathroom and put his thing in her, "down there."
Ms. George testified that she had told defendant during her interview that he was not to be left alone with an individual child.
Defendant testified that Brenda would seek him out and insist he hold her, pushing the other children away, and that she would become angry when he would not hold her. Defendant said that other children enjoyed combing his hair, both in the nursery and in the bathroom, where he always kept the door partially open. Defendant said that he got no sexual gratification from having Brenda sit on his lap and could not understand someone enjoying sex with children. Defendant said that he was never told it was improper to be in the bathroom along with Brenda or to let her sit on his lap.
Defendant stated that Brenda was lying to the court and that most of what the St. Vincent's workers testified was untruthful as well.
Defendant's mother testified that defendant was part of a large family and had never had problems with the young children in the family, and that defendant had various girlfriends.
On appeal, defendant alleges trial court error in: (1) denying defendant the opportunity for an independent psychiatric examination of the victim; (2) allowing hearsay testimony from Dorothy Springs (Cheryl George); and (3) convicting defendant, because the essential elements of the offense were not proved beyond a reasonable doubt.
ASSIGNMENT OF ERROR NO. 1:
Defendant moved for an independent psychiatric examination of Brenda by a licensed psychiatrist of defendant's choosing, asserting that this was the only way to determine whether Brenda's perception of the alleged events was not actually confused with prior sexual abuse by her natural father or suspected sexual abuse suffered in her foster home. This motion was refused, while defendant's alternative request, for access to all medical, psychiatric and social history reports of the victim from St. Vincent's, was granted on August 1, 1983.
On appeal, defendant contends that his constitutional rights to present an effective defense and to confront the witnesses against him were prejudiced by the trial court's denial of an independent psychiatric examination of Brenda. We disagree. Defendant was granted his alternative request. He received all records from St. Vincent's eighteen days before the trial. He was provided an opportunity to question Brenda regarding her ability to distinguish between prior sexual abuse and the present case when her competency to testify was considered immediately prior to the commencement of defendant's trial. The trial court carefully evaluated Brenda and concluded that she was a competent witness. That judgment deserves great weight. State v. Francis, 337 So.2d 487 (La.1976). Brenda's trial testimony demonstrated a clear recollection of the factual details of the recent incidents with defendant. See State v. Nails, 255 La. 1070, 234 So.2d 184 (1970). This recollection was distinct from that of experiences she had earlier in her home situations. Additionally, defendant was afforded the channel of cross-examination to further test the clarity of Brenda's recollection.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2:
Defendant contends that Cheryl George's testimony concerning a statement made to her by Brenda should have been excluded because it did not come under the hearsay exception allowing admission of early out-of-court statements of a child-victim of sex offense. Defendant asserts that as Ms. George herself stated that she had called *1007 Brenda into her office because rumors created by vague statements by Brenda had been circulating among the child care workers, Brenda's statement to Ms. George cannot be considered a "first complaint." Defendant further asserts that according to the Associated Catholic Charities' Preliminary Incident Report, made a part of the record, four to six days lapsed before Brenda's statement to Ms. George, and further, Ms. George stated in an interview included in the report that Dorothy Springs had informed her of "a specific allegation" on the afternoon of March 22, 1983.
An exception to the general rule of inadmissibility of hearsay, La.R.S. 15:434, exists for res gestae, defined as "events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive, and spontaneous words and acts of the participants, and not the words of the participants when narrating the events." La.R.S. 15:447. The Louisiana Supreme Court has repeatedly interpreted this provision to admit the original complaint of a young child when the particular facts and circumstances of the case indicate that it was a product of a shocking episode and not a fabrication. The original complaint of the young child is the statement made at the first reasonable opportunity under the particular facts and circumstances of the case. State v. Prestridge, 399 So.2d 564 (La.1981); State v. Adams, 394 So.2d 1204 (La.1981); State v. Hatcher, 372 So.2d 1024 (La.1979); State v. Noble, 342 So.2d 170 (La.1977); State v. Pace, 301 So.2d 323 (La.1974). The four year old victim in Noble was raped by her mother's live-in boyfriend while her mother was away. Evidently her mother did not take notice of or denied what had happened and it was the victim's great-grandmother, who came to babysit two days later, who noticed the victim was bleeding profusely from the vaginal area and elicited the victim's statement. The court admitted the statement as it was "the four year old child's first opportunity to discuss the crime with a person whom she loved and trusted outside the atmosphere of her home where the accused had been living with her mother for several months." 342 So.2d at 173. The six year old victim in Pace was raped by a relative of her babysitter. The court considered that because "the victim was under the influence of the 24 year old defendant or persons closely related to him from the time of the occurrence until she returned home," 301 So.2d at 326, the statement made at her first opportunity to speak with her parents when she arrived home was admissible. In Adams, the five year old victim was asked by an adult woman, some ten hours after her rape, who had done it to her. The victim's statement identifying her stepfather was admitted because the court considered it made at the first opportunity the child had to speak with a friendly adult. The ten year old victim in Prestridge, raped by her mother's lover with her mother's approval, refused to answer her babysitter's questions about the incident, which the babysitter had partially overheard, and retired to bed. The following morning, upon the babysitter's prompting, the victim admitted she had been raped by Prestridge. The court admitted the statement.
A very young child raped by an adult standing in the position of parent, caretaker or friend cannot be expected to immediately come forward with a complete and exact report of the event. The courts have recognized that the child may be unable to speak about the incident until she considers herself safely in the presence of a compassionate adult whom she can trust. Because the child has no clear understanding of what has been done to her, her "original complaint" often consists of responses to the questioning of a patient, persistent adult who draws the child's story from her.
Brenda apparently attempted to vaguely relate, either to her nurserymates or to the adults caring for her, defendant's sexually molesting her. The adults who heard her intimations and failed to take the time to reassure her, listen patiently, and help her draw out an account to the best of her five year old ability were clearly at fault. Their failure to take action, however, *1008 should not render inadmissible Brenda's statement to Ms. George, the first adult who actually took Brenda aside, reassured the child, and told Brenda that she wanted to hear what she had to say. We feel that Brenda's statement to Ms. George was made at the first reasonable opportunity under the particular facts and circumstances of the case, and was, therefore, properly admitted.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 3:
Defendant argues that the evidence was insufficient to support the verdict. The statute, La.R.S. 14:81, reads in pertinent part:
Indecent behavior with juveniles is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person.
Upon viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have concluded that defendant, at 26 years of age, committed a lewd or lascivious act upon the person of/or in the presence of five year old Brenda with the intent of arousing or gratifying the sexual desires of either person. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Edwards, 400 So.2d 1370 (La.1981). We further find that, assuming every fact to be proved that the circumstantial evidence presented in this case tends to prove every reasonable hypotheses of innocence is excluded. La.R.S. 15:438; State v. Wright, 445 So.2d 1198 (La.1984).
This assignment of error is without merit.
For the foregoing reasons, the conviction and sentence of defendant is AFFIRMED.
AFFIRMED.
SCHOTT, Judge concurring:
The majority correctly states the principle that the original complaint of a child, when the facts indicate that it was the product of a shocking episode and not a fabrication and when the statement was made at the first reasonable opportunity available to the child to speak to someone she trusted, is admissible under the res gestae exception to the hearsay rule. R.S. 15:447; State v. Prestridge, 399 So.2d 564 (La.1981); State v. Adams, 394 So.2d 1204 (La.1981); State v. Noble, 342 So.2d 170 (La.1977); State v. Pace, 301 So.2d 323 (La.1974). In State v. Anderson, 450 So.2d 684 (La.App. 4th Cir.1984) we found the statement of a nine year old girl to a social worker was inadmissible. The worker had removed the child from the defendant's home two days previously, placed the child in a foster home, and called the child two days later "to see how the situation was going" when the statement was made. We concluded that the state failed to prove that this was the child's first reasonable opportunity to make a complaint or that the complaint was the product of a shocking episode.
In the instant case the record is unclear as to the time lapse between the crime and the statement. Defendant worked at the home only a few hours each day so that the child had numerous opportunities to make her complaint. She knew several of the adult workers on a first name basis and was apparently close enough to them to confide in them on a spontaneous basis. She made her statement at a point considerably removed in time from the crime in an investigative setting where Ms. George called her in to question her about the rumors circulating at the home concerning defendant's conduct with the child. The statement was not the product of a shocking episode in the sense that it was a spontaneous declaration made while the child was in a state of shock soon after the occurrence of the episode. These facts stand in sharp contrast with those of State v. Noble, supra, as well as the other cases cited by the majority.
*1009 However, I reach the same result as the majority because I am convinced beyond a reasonable doubt that Ms. George's statement did not contribute to the trial judge's conclusion of defendant's guilt. Unlike State v. Banks, 439 So.2d 407 (La.1983) and State v. Anderson, supra, this case was tried to a judge, not a jury. Here the trial judge conducted a competency hearing before the trial and decided the child was competent to testify. He had to conclude that she knew what she was saying and could distinguish between right and wrong so as to tell the truth on the witness stand. The child testified without equivocation as to the crime and the corroborating circumstantial evidence of defendant's guilt was overwhelming. The conclusion is inescapable that had the trial judge not believed the child he would have acquitted the defendant. He had to consider Ms. George's testimony of what the child told her to be merely cumulative of the other evidence.
I concur in the result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592815/ | 35 Mich. App. 260 (1971)
192 N.W.2d 384
TOWNSHIP OF HARING
v.
CITY OF CADILLAC
Docket No. 9947.
Michigan Court of Appeals.
Decided July 27, 1971.
*261 Charles H. Miltner, for plaintiff.
Edward W. Ten Houten, for defendant City of Cadillac.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Jerome Maslowski and Russell E. Prins, Assistants Attorney General, for intervening Commission of Natural Resources.
Before: R.B. BURNS, P.J., and HOLBROOK and LEVIN, JJ.
R.B. BURNS, P.J.
Plaintiff township initiated this action to enjoin defendant city from using state-owned land, located within the township, for garbage and refuse disposal. Plaintiff claims the city would be violating the township's zoning ordinance which prohibits the storage of garbage except by the township or its agents.[1]
Defendant City of Cadillac was given permission to use the state-owned land in question for landfill purposes by the Department of Natural Resources.[2] There is no dispute as to facts and the only question for resolution is the effect of the state use permit vis-a-vis the township zoning ordinance. The trial judge granted plaintiff's motion for summary judgment *262 and enjoined the City of Cadillac from using the state land for dumping purposes.
As a general rule townships do not have the authority to enact zoning ordinances affecting property owned by the state. State Highway Commissioner v. Redford Township (1966), 4 Mich App 223. However, in this case we are not concerned with the state's use of its land but with the City of Cadillac's use of land in Haring Township owned by the state. Powers delegated to the Department of Natural Resources by the state were transferred from other administrative commissions. The duties imposed upon the Department of Natural Resources by MCLA 1971 Cum Supp § 299.3 (Stat Ann 1971 Cum Supp § 13.3) are:
"The department of conservation[3] shall protect and conserve the natural resources of the state of Michigan; provide and develop facilities for outdoor recreation; prevent the destruction of timber and other forest growth by fire or otherwise; promote the reforesting of forest lands belonging to the state; prevent and guard against the pollution of lakes and streams within the state, and enforce all laws provided for that purpose with all authority granted by law, and foster and encourage the protecting and propogation of game and fish."
The Legislature did not mandate the issuance of dump permits by the department. The policy of the department regarding sanitary land disposal is set forth in the policy manual, Forestry Division, Michigan Department of Natural Resources, § IV, Use and Occupancy of State Land:
"2. Dump Permit (R-4044)
"The Department of Conservation, recognizing the need for keeping land and road sides as free *263 from rubbish and debris as possible, may issue dump ground permits to public agencies only for use of State-owned forest lands for dump ground purposes. * * *
"The Department of Natural Resources will not enforce Act 87, Public Acts of 1965, which is administered by the Department of Public Health, but the permittee is required to obtain a license and comply with the act and the regulations concerned therewith."
PA 1965, No 87, MCLA § 325.292 (Stat Ann 1969 Rev § 14.435 [2]) states:
"Nor will this act relieve the applicant for license to operate a disposal area from obtaining a license from a local governing body when required or relieve the person owning or operating a disposal area from responsibility for securing proper zoning permits or complying with all applicable local ordinances."
The statute of the State of Michigan and the rules promulgated by the Department of Natural Resources mandate compliance with local ordinances.
Affirmed. No costs, a public question.
All concurred.
NOTES
[1] The township ordinance also prohibits any use or occupancy of land without prior certification by the township building inspector.
[2] This state agency has supervisory power over the land in question. MCLA § 299.1 et seq. (Stat Ann 1967 Rev § 13.1 et seq.).
[3] Department of Natural Resources (PA 1968, No 353). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592829/ | 35 Mich. App. 273 (1971)
192 N.W.2d 265
GENDERNALIK
v.
REDFORD TOWNSHIP
Docket No. 10220.
Michigan Court of Appeals.
Decided July 27, 1971.
*274 Harty, Austin & Jones, for plaintiffs.
Honigman, Miller, Schwartz & Cohn (by Norman Hyman), for intervening defendant Boraks.
Reid, Gilmore & Reid, for intervening defendants Nacker and Hawthorne.
Before: LEVIN, P.J., and QUINN and V.J. BRENNAN, JJ.
Leave to appeal denied, 386 Mich 754.
QUINN, J.
This appeal is from an order denying a motion for new trial.
August 23, 1968, Paul Boraks petitioned the Redford Township Planning Commission for the rezoning of Glenhurst Golf Course from single residential classification to multiple residential, general commercial, and professional service classification. The commission held a public hearing on this petition May 8, 1969, at which the township's planning consultant expressed the opinion that the proposed rezoning would not result in a sound land use pattern and was not in accord with master plan studies.
The township planning commission submitted the petition and zoning maps to the county planning commission. At the May 21, 1969, meeting of that commission, its director submitted a report which indicated that the township's planning consultant approved the proposed zoning change. Copies of this report were distributed to persons attending the meeting which included Paul Boraks and Horace Engler, Redford Township Director of Public Services. After discussion, the county planning commission recommended, with one dissenting vote, that the township planning commission approve the proposed zoning change with four suggestions not pertinent to present decision.
*275 Thereafter the Redford Township board held a public hearing on the proposed zoning change at which plaintiffs voiced their opposition. June 23, 1969, the township board amended the zoning ordinance by a vote of four to three to accomplish the proposed rezoning. July 22, 1969, plaintiffs filed the present action for an injunction and to have the amended ordinance declared invalid because of the misrepresentation to the county planning commission that the township's planning consultant endorsed the proposed rezoning.
Following trial, the judge found a deliberate misrepresentation of a material fact attributable to the township which vitiated the hearing and decision of the county planning commission, and that this constituted a fatal defect in the process of amending the zoning ordinance. Judgment entered declaring the amendment invalid.
Thereafter intervening defendants were permitted to intervene and they moved for a new trial. After extensive briefing by intervening defendants and plaintiffs, the trial judge filed an expanded opinion denying the motion for new trial in which he stated:
"This court did not and does not find that the majority of the members of the township board, who enacted the amendatory ordinance, were induced to cast their votes by a fraudulent representation made to them. This court did not and does not find that the majority of the township board were induced to cast their affirmative votes by the recommendation of the county planning commission. This court simply finds that a deficiency exists, regarding one of the procedural steps which is essential for the valid enactment or amendment of a zoning ordinance. There is lacking in this case a substantially regular proceeding before the county *276 planning commission. Such a proceeding is required as a condition precedent to the valid amendment of a township zoning ordinance. There was a procedural irregularity as has been noted, in that a material part of the file of the county planning commission was missing at the time its director prepared and made his presentation to the commission. There was another procedural irregularity in that a material fact was falsely represented. The incomplete file together with the misrepresentation combined to materially misinform the commission."
The order appealed from entered following this opinion.
Our de novo review of this record discloses a fact we deem to be dispositive of this appeal and which obviates discussion of the various issues raised on appeal. There is no proof in this record that the claimed misrepresentation or the missing part of the file induced or affected the action of the county planning commission in recommending approval of the proposed zoning change. Without that proof, the record does not support the trial judge's finding that, "there is lacking in this case a substantially regular proceeding before the county planning commission", which is the basic holding of his opinion.
Due to an inadequate record, the trial judge declined to rule on plaintiffs' claim that the amended ordinance was invalid for unreasonableness. Since we reverse for a new trial, we decline at this time to express ourselves on this question.
Reversed and remanded for a new trial.
All concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592836/ | 34 Mich. App. 499 (1971)
192 N.W.2d 126
CONTINENTAL INSURANCE COMPANY
v.
B & B EDUCATOR SALES, INC.
Docket No. 10237.
Michigan Court of Appeals.
Decided June 24, 1971.
Sheldon & Sheldon, for plaintiff.
Smith & Brooker, P.C. (by Webster Cook), for defendant.
Before: R.B. BURNS, P.J., and FITZGERALD and J.H. GILLIS, JJ.
Leave to appeal denied, 386 Mich 753.
R.B. BURNS, P.J.
On October 14, 1969, six days prior to expiration of the statute of limitations, plaintiff filed a complaint and summons against defendant corporation.[1] On October 16, 1969, copies of the complaint and summons were served upon one of the defendant's employees by a deputy sheriff. The defectiveness of this service of process upon defendant corporation is not disputed.[2]
Plaintiff argues that the statute of limitations was tolled for a 90-day period despite defective service of process. Plaintiff relies on the 90-day freezing provision of MCLA § 600.5856(3) (Stat Ann 1962 Rev § 27A.5856[3]) which applies when "the complaint is filed and a copy of the summons and complaint *502 in good faith, are placed in the hands of an officer for immediate service". Plaintiff then adds that since jurisdiction was "otherwise acquired" over defendant within the 90-day grace period the statute of limitations was permanently tolled in accordance with MCLA § 600.5856(2) (Stat Ann 1962 Rev § 27A.5856[2]). Plaintiff contends that jurisdiction was "otherwise acquired" because of defendant's failure to object to defective service of process in its first "responsive pleading". GRC 1963, 116.2 provides for a waiver of jurisdictional defects unless the issue is raised in the "responsive pleading or motion first filed".
We cannot agree with plaintiff's assertion that defense counsel's filing of a general appearance and his demand for a jury trial constituted a "responsive pleading or motion first filed".[3] One purpose of GCR 116's enactment was to eliminate the necessity of filing a special appearance when attacking jurisdiction.
"No longer will it be necessary for such a motion [lack of jurisdiction] to be heard on special appearance, as the demand may be made in ordinary motion or in the responsive pleading, whichever is first filed." 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 324, Committee Notes.
Neither do we accept plaintiff's view that defendant's demand for a jury trial was a "responsive pleading or motion" pursuant to GCR 116.2. Neither the demand for a jury trial nor the general appearance infringed upon 116's ambition to "avoid needless trials upon the merits"[4] and these actions cannot be considered as "responsive" to plaintiff's *503 complaint. A preliminary motion to be responsive within the meaning of GCR 116 must attack the opposite party's pleadings.[5] Defense counsel's letter to plaintiff's counsel requesting additional time to prepare a defense likewise does not address itself to plaintiff's complaint.
Unlike the other affirmative defenses contained in GRC 116 which are waived only when asserted later than the first "responsive pleading," the jurisdictional defenses are waived if not presented in the first preliminary motion attacking the pleadings on other grounds.[6]
Defendant's motion for a summary judgment on the grounds that plaintiff had "failed to state a claim" upon which relief could be granted (GCR 1963, 117.2[1]) was the first responsive motion attacking plaintiff's pleadings, and since the jurisdictional question was raised subsequent to this motion, it was waived. However, the date on which this motion was filed, which was also the date on which jurisdiction was "otherwise acquired", was beyond the 90-day grace period.[7] The six days that remained on the claim when the statute of limitations was first tolled had also expired since the limitation statute began running again due to termination of the 90-day grace period.[8]
*504 It is plaintiff's assertion that in addition to waiving jurisdictional defects, the defendant waived its time-bar defense by filing the summary judgment motion. The time-bar defense along with the defective process question was raised in a subsequent motion for an accelerated judgment by defendant. Analysis of GCR 116 and the phrase "responsive pleading" persuades this Court that a summary judgment motion is not considered a "responsive pleading".
GCR 1963, 116.2 itself distinguishes "responsive pleadings" from "responsive motions"; thus a responsive summary judgment motion is not equated with a "responsive pleading". The motion-pleading distinction was also noted by the rule's promulgators:
"Therefore, the failure to include all such defenses in a motion filed before pleading under this rule would preclude the defending party from asserting such omitted defenses by motion but would not prohibit their being asserted in his responsive pleading." 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 324 of Committee Notes.[9]
Commentary on the meaning of "responsive pleading" as used in GCR 1963, 118 also notes the distinction between summary judgments and responsive pleadings. See 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 413 of Authors' Comments. It is also interesting to note that Federal case law is consistent with this view.[10]
*505 We need not discuss the question as to whether defendant was required to consolidate his two motions, pursuant to GCR 116.2, since the statute of limitations was also presented in defendant's first responsive pleading (its answer filed on August 7, 1970).
Finally, plaintiff claims that the defendant by participating in a series of activities during this time, waived the jurisdictional defect and is estopped from the jurisdictional defense.
The plaintiff did not raise the estoppel theory in the trial court. A party cannot raise on appeal an issue he failed to raise in the trial court. Gustin v. Ziem (1939), 289 Mich 219.
Affirmed. Costs to defendant.
All concurred.
NOTES
[1] The personal and property injury claim accrued on October 20, 1966; by virtue of MCLA § 600.5805(7) (Stat Ann 1962 Rev § 27A.5805[7]) it was scheduled to expire on October 20, 1969.
[2] GCR 1963, 105.4, does not recognize service upon a corporation employee as adequate notice to the corporation. Defendant's employee was neither an officer nor an authorized service-receiving agent. See GCR 1963, 105.4(1).
[3] The general appearance and jury trial demand were both filed on November 20, 1969.
[4] 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), rule 116, p 337 of Authors' Comments.
[5] Id. p 338: "If a preliminary motion attacking the pleading on some other ground has been filed, and the jurisdictional question is not included in that motion, it has been waived and cannot thereafter be asserted in the answer or by any other means."
[6] The Committee Notes make this point quite clear:
"The rule [116] goes a step further than present procedure in that a claim of lack of jurisdiction over person or property must be asserted in the first filed responsive pleading or motion." 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), rule 116, p 324 of Committee Notes. (Emphasis supplied.)
[7] The summary judgment request was filed on April 13, 1970, approximately five months after plaintiff's complaint was filed.
[8] See Committee Comment associated with MCLA § 600.5856 (Stat Ann 1962 Rev § 27A.5856).
[9] See, also, 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 337, under Authors' Comments where it is stated:
"* * * this defense [jurisdictional] must be raised in the first response to the pleading, whether that response is in the form of a motion or a responsive pleading."
[10] See 37A Words & Phrases, Responsive Pleading (1971 Cum Supp), pp 10, 11. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592848/ | 53 Wis.2d 452 (1972)
192 N.W.2d 869
STATE, Respondent,
v.
BURGHER, Appellant.
No. State 27.
Supreme Court of Wisconsin.
Argued December 1, 1971.
Decided January 4, 1972.
*453 For the appellant there was a brief and oral argument by Charles M. Constantine of Racine.
For the respondent the cause was argued by Robert D. Martinson, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
BEILFUSS, J.
The issue presented is whether the sentences imposed are excessive.
Sec. 940.205, Stats. 1969, provides:
"Battery to peace officers; firemen. Whoever causes bodily harm to a peace officer, as defined in s. 939.22 *454 (22), or fireman, acting in his official capacity and the person knows or has reason to know that the victim is a peace officer or fireman, by an act done with intent to cause bodily harm to the peace officer or fireman, without consent of the person so injured, may be imprisoned not more than 2 years."
About 10 p. m., November 10, 1968, the police of the city of Racine were called to intercede in a family quarrel. Two police officers responded. The defendant resisted or at least resented the police efforts. There is a dispute as to whether "Mace" was used and who used it. In any event, the police officers radioed for additional assistance and the defendant fled from the scene.
In response to the call for help, Robert Holton, a motorcycle policeman in the vicinity, proceeded to the scene. When he arrived he saw the defendant emerge from between two nearby houses. In one hand the defendant was carrying a garbage can lid as a shield. In the other hand he was carrying a heavy logging chain which he was whirling around his head. The defendant charged at Officer Holton who then rushed to his motorcycle to call for additional police assistance. The defendant shouted, "You're going to need all the help you can get, you son of a bitch," and hit Officer Holton in the lower back with the chain.
In about two minutes two more squad cars had arrived at the scene. The defendant rushed to the squad cars' doors and swung the chain to prevent the officers from getting out of the cars. One officer, James McCaske, did get out. The defendant threw the chain at McCaske and hit him in the groin area. McCaske fell to the ground and was in severe pain. He did, however, get up and pursue the defendant, and the defendant was apprehended and subdued.
Both officers were taken to a local hospital for examinations; both were injured somewhat but not seriously and were released the same night.
*455 On November 11, 1968, the defendant was arrested and charged with two separate violations of sec. 940.205, Stats. The defendant was released upon bond and subsequently a preliminary hearing was conducted and defendant was bound over for trial. At the arraignment on June 16, 1969, he pleaded not guilty and not guilty by reason of insanity.
On April 1, 1970, the defendant appeared with counsel, withdrew his previous pleas and entered pleas of guilty to both charges. He was sentenced to two consecutive eighteen month terms as set forth above.
Sec. 940.205, Stats., "Battery to peace officers; firemen," provides for a penalty of not to exceed two years. The section is of recent origin[1] and basically changed the offense from a misdemeanor to a felony.
The defendant contends the sentences were excessive. In support of this position he argues that the court abused its discretion in imposing consecutive sentences and not giving sufficient weight to the presentence report which recommends probation.
In State v. Tuttle (1963), 21 Wis. 2d 147, 151, 124 N. W. 2d 9, we stated:
"This court, however, has statutory power to reverse and to direct the entry of a proper judgment when it appears from the record that it is probable that justice has for any reason miscarried. We consider that we have the power to review sentences to determine whether an abuse of discretion clearly appears, and to remand for resentencing or to modify a sentence. . . ."
This rule has been confirmed in subsequent cases: State v. Schilz (1971), 50 Wis. 2d 395, 184 N. W. 2d 134; McCleary v. State (1971), 49 Wis. 2d 263, 182 N. W. 2d 512, and cases cited therein.
Tuttle, supra, at pages 150, 151, also declared that this court would be reluctant to interfere with the trial *456 court's determination in fixing the length of sentence. This has been the rule enunciated in later cases. McCleary v. State, supra; Hanneman v. State (1971), 50 Wis. 2d 689, 184 N. W. 2d 896.
In McCleary, we announced that the trial court must state its reasons for imposing particular sentences. However, the absence of such reasons in the record does not necessarily constitute an abuse of discretion, especially in cases where the sentence was imposed prior to the date of the McCleary decision,[2] which is the situation in the instant case. State v. Morales (1971), 51 Wis. 2d 650, 187 N. W. 2d 841.
When the trial court passed sentence on the defendant in this case on April 27, 1970, it considered two factors in imposing the sentences. The court stated:
". . . However, he left the area and came back with a logging chain and a garbage can cover swinging this logging chain over his head striking Office Holton and striking Officer McCaske with that chain. . . . Now police officers aren't to be something that when they become officers and put on a blue uniform that they are open targets to be pounced, pummeled, abused, sworn at. . . . But in this case there was no mitigating circumstances. He left the area, he went and got the garbage can cover, he went and got the logging chain and he came back at the officers, as the aggressor. And this court is not going to tolerate that sort of conduct on the public, against the police officers. I know the probation department recommended probation, but I don't agree with it. . . ."
The reasons stated by the trial court are sufficient to justify the sentences imposed.
At the hearing on August 24, 1970, for reconsideration and modification of the sentences, the court further said:
". . . But the court cannot delegate its responsibility of sentencing to the Department of Health and Social Services. There is no one the court can turn to except *457 its own conscience. And the court has examined this case and examined it since this sentencing, and it examined it fully on the day of the sentencing, but the decision must be based upon the totality of the circumstances of what happened, the character of the defendant, his past record, statements that he made and during the incident at the time that he attacked Sgt. Holton. And this was not one event, there was a time lapse, a time lapse of one officer, Officer Barlement coming and bringing the squad car behind the motorcycle, and later the squad car of Dyess and McCaske arriving. . . ."
Again, these reasons are sufficient to demonstrate the court's reasons for imposing the consecutive eighteen-month sentences.
It is true, as the defendant argues, that the presentence report may be taken into consideration by the trial court before sentence is passed. State v. Schilz, supra; State v. Cole (1971), 50 Wis. 2d 449, 184 N. W. 2d 75. However, the trial court should exercise its discretion on the whole record, including the presentence report. State v. Cole, supra; Embry v. State (1970), 46 Wis. 2d 151, 174 N. W. 2d 521.
The court specifically stated that it felt that there were no mitigating circumstances and that the crime was a violent one. Both of these factors heavily influenced the decision. The trial court also specifically stated that it did not agree with the recommendation of probation by the department of health & social services. To do so in this case for the reasons given was not an abuse of discretion.
In the instant case the record demonstrates that the length of the sentences, the fact that they were consecutive, and without probation, do not constitute an abuse of discretion by the trial court. The defendant could have seriously hurt or killed both of these officers by striking them with the heavy logging chain. There was at least a two-minute interval after the defendant struck Holton and before he hurled the logging chain at McCaske. That *458 was enough time to allow defendant to control himself, which he did not do. The court was justified in considering it two assaults rather than one. Therefore the imposition of two eighteen-month sentences, to be served consecutively, although close to the maximum sentences possible, was justified by the violence of two separate acts by defendant.
By the Court.Judgment affirmed.
NOTES
[1] 41 West's Wisconsin Statutes Annot. (1971 Pocket Part), p. 34, Laws of 1967, ch. 216, sec. 2, effective December 9, 1967.
[2] January 5, 1971. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304557/ | CROWNOVER, J.
The original bill in this cause was filed by W. J. Culwell against his son, G. PI. Culwell, and his son’s divorced wife, Dorothy PI. Culwell, to have the complainant’s title declared to. *392a tract of land, and for specific performance of a parol contract of sale of said land to bim from G.1 TI. Culwell, and to have a lien on said land for alimony in favor of Dorothy H. Culwell cancelled and removed as a cloud upon bis title.
Non-resident’s publication was bad for G. PI. Culwell. He did not answer, and pro confesso was entered against bim. Tbis gave tbe court jurisdiction. Roberts v. Frogge, 149 Tenn., 181, 258 S. W., 782; Ray v. Haag, 1 Tenn. Ch. App., 249; Anderson v. Stribling, 160 Tenn., 453, 26 S. W. (2d), 131; Gibson’s Suits in Chancery (4 Ed.), sec. 196.
Dorothy H. Culwell answered and denied that a parol contract for tbe sale of tbe land bad been made and undertook to plead the statute of frauds.
Tbe Chancellor found and decreed that tbe complainant, W. J. Culwell, and wife, sold tbe property in question to their son, G. H. Culwell, in 1920, for $1,200, for which notes were executed, and that nothing was ever paid on said notes; that in 1924 G. H. Culwell sold tbe land back to tbe complainant in consideration of tbe cancellation of the purchase money notes, surrendered to W. J. Culwell tbe deed by which tbe land bad been conveyed to bim and also possession of tbe land, and agreed to execute a deed reconveying tbe land, but failed to do so; that tbe plea of tbe statute of frauds filed by Dorothy PI. Culwell was not available to her; that W. J. Cul-well bad perfected title to said land by seven years’ adverse possession; that tbe lien heretofore decreed on said land to Dorothy PI. Culwell was null and void; that W. J. Culwell was not estopped to assert bis rights in said land; and be decreed that tbe parol contract of sale of tbe land be specifically performed and tbe lien of defendant be cancelled.
Tbe defendant, Dorothy PI. Culwell, excepted to said decree and appealed to tbis Court and has assigned errors, which are, in substance, as follows:
(1) Tbe Chancellor erred in finding and decreeing that W. J. Cul-well purchased tbe land in controversy by parol agreement.
. (2) Tbe Chancellor erred in bolding that defendant Dorothy H. Culwell could not plead tbe statute of frauds.
■ (3) Tbe Chancellor erred in bolding that complainant bad title to tbe land by more than seven years’ adverse possession.
(4) Tbe Chancellor erred in bolding that tbe Chancery Court of Cheatham County had jurisdiction to set aside a decree of another court awarding alimony, and in declaring the lien void.
(5) Tbe Chancellor erred in failing to hold that the complainant was estopped to attack tbe decree for alimony.
■ W. J. Culwell owned about seven hundred acres of land in Cheat-ham County. His son, G. H. Culwell, was married (to a former wife), had four children, and lived on one of his farms as a tenant-farmer. *393'In February, 1920, be sold tbis little farm, containing 60 acres, tbe land involved in tbis suit, to bis son for tbe consideration of $1,20Q, for which G. H. Culwell executed bis notes.
In November, 1924, nothing bad been paid on tbe purchase price. Taxes since 1920 bad been paid by W. J. Culwell. G. H. Culwell made a parol contract with bis father to sell tbe farm back to him in consideration of tbe cancellation of the purchase money notes, and promised to execute a deed reconveying it, but did not do so.
He sold all bis farming equipment and implements and went to Nashville to live. ~W. J. Culwell took possession of tbe farm and has occupied it, paid taxes, etc., ever since.
In 1925 G. H. Culwell arranged with bis then wife to procure a divorce from him. In tbe divorce decree she was allowed $5 per week alimony. He paid to her tbe sum of $15 and has paid no more.
In 1936 be married Dorothy H. Culwell, tbe defendant, and they lived together less than sixty days.
■ On November 1, 1937, she filed her petition for divorce in tbe Circuit Court of Davidson County. G. H. Culwell bad become a resident of Florida. In tbe petition she asked that attachment issue against tbis land in Cheatham County. Attachment was issued to tbe Sheriff of Cheatham County and levied, and publication was made for G. H. Culwell. Personal service of process was not had. In her divorce decree she was given $1,000 alimony and $100 attorney’s fee, and a lien was declared on said land for tbe payment of same.
On May 28, 1938, she filed a bill in tbe Chancery Court of Cheat-ham County to enforce said lien, which suit is now pending.
G. H. Culwell has since written his father that he would execute a deed conveying this property to him as soon as he got the money to pay a notary public for taking the acknowledgment.
1 and 2. The preponderance of the evidence is that G. H. Culwell entered into a parol contract with "W. J. Culwell to sell the farm back to him in consideration of the cancellation of the purchase money notes and promised to execute a deed conveying same, and is willing to execute a deed, and do.es not want the farm.
As G. H. Culwell did not plead the statute of frauds as a defense, W. J. Culwell is therefore entitled to a decree for specific performance of the parol contract. Gibson County Bank v. Shatz, 12 Tenn. App., 281; Sneed v. Bradley, 36 Tenn. (4 Sneed), 301, 304, 305; Gibson’s Suits in Chancery (4 Ed.), sec. 330.
■ Dorothy H. Culwell could not plead the statute of frauds, as it cannot be pleaded by a third party (Aiken v. Galyon-Crumley Lbr. Co., 1 Tenn. App., 702) or a creditor. Roberts v. Francis, 49 Tenn. (2 Heisk.), 127, 135; Sneed v. Bradley, 36 Tenn. (4 Sneed), 301.
A creditor cannot set up the statute of frauds to prevent the execution, by his debtor, of an oral executory contract which *394the latter is willing to perform, or to avoid an oral contract executed by the debtor. 27 C. J.., 307, sec. 393; Roberts v. Francis, 49 Tenn. (2 Heisk.), 127, 135; Sneed v. Bradley, 36 Tenn. (4 Sneed), 301.
Hence the first and second assignments of errors are overruled.
3. The Chancellor erred in decreeing that W. J. Culwell had perfected title to the land by seven years’ adverse possession, under a parol gift, and the appellant’s third assignment of error must be sustained. Seven years’ adverse possession without color of title only bars the right of the owner to recover possession and does not give the party holding adversely the right to have title decreed in him. Gaylor v. Gaylor, 1 Tenn. App., 645; Code, sec. 8584.
4. The Chancellor was correct in holding that said lien for alimony was null and void and not binding upon the complainant, as the court had no jurisdiction to render a money decree without personal service, or without a legal attachment of property.
An attachment on the real property of a non-resident must issue from the court of the county where the property is located, and an attachment from any other county is void. Tennessee Procedure by Higgins & Crownover, secs. 118, 119; French v. Buffatt, 161 Tenn., 500, 33 S. W. (2d), 92.
Code, sec. 8642, is as follows:
‘ ‘ In actions commenced by the attachment of property without personal service of process, and in cases where the suit is brought to obtain possession of personal property, or to enforce a lien or trust deed or mortgage, or where it relates to real property, the attachment may be sued out or suit brought in any county where the real property, or any portion of it, lies, or where any part of the personal property may be found.”
This section must be strictly construed. N. C. Blanchard Co. v. Doak, 167 Tenn., 385, 70 S. W. (2d), 21.
“A writ of attachment cannot be sued out to attach property in a foreign county, unless there is an attachment of property within the county where the suit is brought, or personal service on defendant within the county to give the court jurisdiction.” 6 C. J., 96, sec. 136.
“In the case of nonresident defendants, statutes very generally require attachment proceedings to be brought in any county in which the property of defendant may be found, and in the absence of a permissive statute, a court of the county where a cause of action arises cannot issue an attachment writ where defendant is a nonresident and his only property in the state is situated in another county.” 7 C. J. S., Attachment, page 267, section 98b.
“Under Rem. & Bal. Code Wash.,.section 204, which requires attachment suits against land to be brought in the county where the land or some part thereof is situated, in an attachment suit brought *395in a county other than that in which the land is situated, against a nonresident defendant who is not personally served with process, the court acquires no jurisdiction over either the person or subject-matter.” Wright v. Ankeny, D. C., 217 F. 988.
It follows, therefore, that the attachment of the land in Cheatham County in the divorce case was void and the lien declared in that decree is void.
It is insisted that the statute provides that divorce bills must be filed in the county where the separation occurred, etc., and that the courts of Cheatham County had no jurisdiction of the divorce suit. This is true so far as the divorce suit is concerned (Gibson’s Suits in Chancery (4 Ed.), sec. 1090), but it does not follow that a suit for alimony has to be filed in Davidson County. A suit for alimony is not necessarily related to divorce suit, and separate suit may be maintained. Toncray v. Toncray, 123 Tenn., 476, 494, 131 S. W., 977, 34 L. R. A. (N. S.), 1106, Ann. Cas., 1912C, 284; Cureton v. Cureton, 117 Tenn., 103, 96 S. W., 608. Such suit for alimony could have been instituted in Cheatham County and the land attached there, had the defendant G. H. Culwell held the title.
The inherent power of the Chancery Court to declare a lien upon property in certain cases upon nonresident publication without attachment, as laid down in the case of Roberts v. Frogge, 149 Tenn., 181, 258 S. W., 782, does not apply in a case of this kind where the court has not acquired jurisdiction.
5. The Chancellor was correct in holding that the wife was not entitled to alimony out of this land, as it belonged to W. J. Culwell.
The doctrine of alimony is based upon the common-law obligation of the husband to support the wife, which is not removed by her asking for or obtaining a divorce for his misconduct. Toncray v. Toncray, 123 Tenn., 476, 131 S. W., 977, 34 L. R. A. (N. S.), 1106, Ann. Cas., 1912C, 284.
The claim for alimony is not a debt, and the claims of existing creditors are not affected by the claim for alimony. Powell v. Warren, 2 Shannon Cas., 144; White v. Bates, 89 Tenn., 570, 15 S. W., 651.
A wife is entitled to alimony only out of the property of her husband, and her rights are affected by his title. She can stand no higher than he does. It follows that a decree for alimony giving her a lien on property to which her husband had no title, is not valid, regardless of whether the property was impounded.
6. It is insisted that the Chancery Court in Cheatham County has no jurisdiction to set aside a decree of the Circuit Court of Davidson County for alimony. This is true so far as the decree allowing alimony is concerned. Smith v. Johnson, 2 Heisk., 225. *396But this is not true in so far as the lieu of the decree affects the property of strangers. Powell v. Warren, 2 Shannon Cas., 144.
It was held originally that the Chancery Court had no jurisdiction to enjoin judgments of other courts, but the jurisdiction of the Chancery Court has been greatly extended within the past few years, and now an independent bill may be filed to set aside judgments and decrees of other courts or the same court for fraud, accident, or mistake, or where the court had no jurisdiction of the person or subject-matter, or where the decree is beyond the scope of the pleadings. Clemmons v. Haynes, 3 Tenn. App., 20, 26; Shannon’s Code, Notes 4 to 9 under sec. 6255. And now a third party, whose property is affected by a decree for alimony, who was not made a party to that proceeding, may file a bill in the Chancery Court to enjoin the alimony decree in so far as it affects his rights in the property. Gibson’s Suits in Chancery (4 Ed.), sec. 814, subsec. 2 (3); Bell v. Williams, 1 Head, 229; Grader v. Coltart, 3 Shannon Cas., 562.
It results that this assignment of error must be overruled.
7. The fifth assignment of error, as to estoppel, must be overruled because there was no evidence that Dorothy H. Culwell was misled to her damage in any manner.
W. J. Culwell testified that he said to her: “I understand that you have filed against George for alimony. I said I have heard that, and there has been some talk about you were going to make an attachment on the place or something like that. I said it is like this, that place is mine. I showed her the notes and deed. I said you can see the notes and deed, there never was a dollar paid on it and he turned it back to me, that is what I said.” This is not denied by Mrs. Dorothy Culwell, and is enough to put her on notice of his title.
However, the question of estoppel is immaterial, as she has acquired no rights or lien on the property.
All the material assignments of errors having been overruled, the decree of the Chancellor will be affirmed, with the exception that a decree will be entered in this Court divesting the title to said land out of G. TI. Culwell and vesting the same in W. J. Culwell, instead of decreeing specific, performance, as personal service of process was not had on G. TI. Culwell. The lien for alimony on said land is declared void and a cloud on the title, and is removed as such, and the suit to enforce the same is perpetually enjoined.
The costs of the cause including the costs of the appeal are decreed against Dorothy IT. Culwell and G. IT. Culwell.
Faw, P. J., and Felts, J., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2586664/ | 226 P.3d 718 (2010)
233 Or. App. 621
STATE
v.
MILLER.
A139671
Court of Appeals of Oregon.
February 17, 2010.
Affirmed without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/774545/ | 261 F.3d 731 (8th Cir. 2001)
UNITED STATES OF AMERICA, APPELLEE,v.APRIL D. LEBRUN, APPELLANT.
No. 01-1448
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
Submitted: June 12, 2001Filed: August 15, 2001
Appeal from the United States District Court for the Western District of Missouri.
Before Morris Sheppard Arnold and Richard S. Arnold, Circuit Judges, and Tunheim,1 District Judge.
Morris Sheppard Arnold, Circuit Judge.
1
April D. Lebrun was convicted of possessing methamphetamine with the intent to distribute it, see 21 U.S.C. § 841(a)(1), after Officer Rex Scism of the Missouri Highway Patrol found the drug in her vehicle during a routine traffic stop. Ms. Lebrun moved to suppress the drug evidence, asserting that Officer Scism violated her Fourth Amendment rights when, on the basis of his suspicions, he detained her vehicle for the purpose of allowing a drug dog to sniff it. The district court2 rejected her argument and concluded that the search was proper.
2
Ms. Lebrun now appeals, maintaining that the district court erred when it determined that Officer Scism's search of her vehicle was proper and refused to suppress the drug evidence produced by that search. We affirm the judgment of the district court.
3
Ms. Lebrun does not contest the validity of the initial traffic stop. Instead, she challenges the validity of Officer Scism's subsequent decision to detain her vehicle until a drug dog could be brought to the scene. We review the district court's factual findings under the clearly erroneous standard and its conclusion as to whether a violation of the Fourth Amendment has occurred de novo. See United States v. Garcia, 23 F.3d 1331, 1334 (8th Cir. 1994).
4
A law enforcement officer is allowed to make a limited seizure of individuals suspected of criminal activity if he or she has "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21 (1968). To determine whether facts known to an officer permit the requisite degree of suspicion to justify a so-called Terry stop, the totality of the circumstances must be considered. See United States v. Sokolow, 490 U.S. 1, 8 (1989); United States v. Hawthorne, 982 F.2d 1186, 1189 (8th Cir. 1992). An officer never has a sufficient basis to order a seizure if he is acting on merely an "inchoate and unparticularized suspicion or 'hunch.'" See Terry, 392 U.S. at 27.
5
At the time of the traffic stop, Ms. Lebrun and another individual were passengers in a vehicle that Ms. Lebrun had rented; Steven Krebbs was the driver. While Officer Scism conducted the traffic stop and prepared a warning citation to Mr. Krebbs, he asked all three of the occupants of the vehicle some routine questions about their travel plan and the purpose of their trip, and received vague and confused answers from them. Officer Scism also noticed that they were all unusually nervous: Mr. Krebbs was sweating profusely even though the temperature was cold, Ms. Lebrun fidgeted and kept moving around in her seat, and the other passenger would not make eye contact with the officer and her hands trembled excessively. Last, Officer Scism saw that there were drink containers, food wrappers, a cellular telephone, a road atlas, pillows, and blankets in Ms. Lebrun's vehicle. From this, Officer Scism concluded that the occupants of the car were traveling without making any stops, a common practice, he testified, among drug traffickers.
6
Based on these facts, we believe that Officer Scism had a sufficient basis upon which to form a particularized suspicion of criminal activity. We are aware that some of the things that Officer Scism observed, such as the food wrappers and a cellular phone in Ms. Lebrun's vehicle, are consistent with innocent travel. We are also mindful, however, that innocent facts, when considered together, can give rise to a reasonable suspicion. See Sokolow, 490 U.S. at 9-10. This is especially true when we view the totality of the circumstances through the perspective of an experienced law enforcement officer trained in crime detection and acquainted with the behavior of criminals. See United States v. Wallraff, 705 F.2d 980, 988 (8th Cir. 1983). In this case, Officer Scism's thirteen years of experience as a law enforcement officer cannot be lightly disregarded in determining whether he had a reasonable suspicion to conduct the seizure. Cf. United States v. Neumann, 183 F.3d 753, 756 (8th Cir. 1999).
7
Ms. Lebrun's effort to bring her case within the rule of United States v. Beck, 140 F.3d 1129 (8th Cir. 1998), a case in which we held that seized evidence should have been suppressed, fails for a number of reasons. First, although it is true that the defendant in Beck appeared nervous when he was confronted by the police, see 140 F.3d at 1132, in this case Ms. Lebrun and her associates were exceptionally nervous when they were stopped by Officer Scism and they became only more agitated when he started to ask them questions. Furthermore, unlike the defendant in Beck, here the vehicle's occupants provided conflicting and inconsistent answers to Officer Scism about the details of their trip. Finally, when we evaluate Officer Scism's observations about the suspicious conduct of the occupants of the car, we give weight to his extensive experience as a veteran law enforcement officer familiar with drug trafficking, a matter not adverted to in Beck.
8
Ms. Lebrun also maintains that Officer Scism detained her too long while he was waiting for the drug dog to arrive, and that he asked her inappropriate questions during the traffic stop. We find no merit in these arguments.
9
The district judge found that the dog arrived at the scene of the traffic stop approximately twenty minutes after Officer Scism requested assistance, and this finding is not clearly erroneous. As the Supreme Court has held, there is "no rigid time limitation on Terry stops." United States v. Sharpe, 470 U.S. 675, 685 (1985). Whether a seizure by the police should be deemed unconstitutional because it lasted too long depends, in part, on the amount of time that is required to effect a legitimate law enforcement purpose. See United States v. Bloomfield, 40 F.3d 910, 917 (8th Cir. 1994) (en banc), cert. denied, 514 U.S. 1113 (1995). We observe that the police cannot reasonably be expected to have dogs available for every police officer at every moment, see id., and we do not think that the length of the detention in this case was excessive given Officer Scism's legitimate need to call for a drug dog. We also do not believe that the routine questions, rehearsed above, that Officer Scism asked after he stopped Ms. Lebrun's vehicle amounted to an unreasonable investigation. See United States v. Munroe, 143 F.3d 1113, 1115-16 (8th Cir. 1998); see also United States v. Weaver, 966 F.2d 391, 393 (8th Cir. 1992), cert. denied, 506 U.S. 1040 (1992).
10
For the reasons indicated, we affirm the judgment of the district court.
11
TUNHEIM, District Judge, dissenting.
12
I respectfully dissent. I would have reversed the district court's decision and suppressed the drug evidence uncovered during Officer Schism's search of the vehicle.
13
In my opinion, this case is controlled by the Court's earlier decision in United States v. Beck, 140 F.3d 1129 (8 th Cir. 1998). In Beck, the Court concluded that the following circumstances did not create reasonable articulable suspicion: (1) Beck was driving a rental car which had been rented by an absent third party; (2) the car was licensed in California and was stopped in Arkansas; (3) there was fast food trash on the floor; (4) there was no visible luggage in the passenger compartment; (5) Beck's nervous demeanor; (6) Beck's trip from a source state to a drug demand state; and (7) the officer's disbelief of Beck's explanation for the trip. Beck, 140 F.3d at 1137.
14
The majority attempts to distinguish Beck on the grounds that the passengers in the car were "unusually" and "exceptionally" nervous and that they provided Officer Schism with vague and confused answers regarding the details surrounding their trip. I am troubled by the Court's reliance on such an imprecise standard as the relative nervousness of the passengers to distinguish Beck. There is little doubt that a vast majority of travelers stopped by law enforcement officers are nervous to some degree. It also seems beyond dispute that individuals manifest that nervousness in different ways. The majority's attempt to distinguish Beck on the basis of the passengers' "unusually nervous" or "exceptionally nervous" behavior leaves law enforcement officers with little guidance as to what constitutes reasonable articulable suspicion, and district courts with a standard that is very difficult to apply.
15
In addition, it is certainly not unusual for any vehicle on the road to contain food wrappers, a cellular phone, a road atlas, a pillow and a blanket. Indeed, many might argue that prudent travelers should carry most, if not all, of these items in their vehicle. Moreover, the "vague and confused" answers of the passengers do not persuade me that this case is distinguishable from Beck. The driver of the vehicle told Officer Schism that the passengers were on their way back to Indiana after having taken a five-year-old child, whom he referred to as defendant's "cousin," back to the child's parents' home in Hutchinson, Kansas. The driver explained to Schism that the child had been staying with them in Indiana over the holidays. Later, defendant told Officer Schism that she and the others had taken the child, her "old man's nephew," back to Kansas after the child had stayed with them for a few days. The only apparent "confusion" in the two stories was the fact that defendant could not name the particular city in Kansas where they had dropped the child off.
16
The initial stop by Officer Schism in this case was proper. However, once he issued the warning for speeding and returned the driver's license and rental papers for the vehicle to the driver, the stop was complete. United States v. $404,905 in U.S. Currency, 182 F.3d 643, 648-49 (8th Cir. 1999); Beck, 140 F.3d at 1135. After that point, the officer's questions about searching the vehicle were consensual until defendant was told that the vehicle would be subjected to a dog sniff. At that time, the Court must inquire as to whether Officer Schism had reasonable articulable suspicion to detain the passengers while waiting for the canine unit.
17
The facts, when viewed in totality, do not rise to the level of reasonable suspicion, but in my opinion are consistent with the behavior of most innocent travelers. While law enforcement officers certainly should be permitted to rely on their experience and expertise in detecting criminal behavior, there is a point at which "experience" becomes only an "unparticularized suspicion or 'hunch.'" Terry v. Ohio, 392 U.S. 1, 27 (1968). I believe this case is one of those situations in which that line has been crossed.
NOTES:
1
The Honorable John R. Tunheim, United States District Judge for the District of Minnesota, sitting by designation.
2
The Honorable Scott O. Wright, United States District Judge for the Western District of Missouri, adopting the report and recommendation of the Honorable William A. Knox, United States Magistrate Judge for the Western District of Missouri. See 28 U.S.C. § 636(b)(1)(B). | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1592921/ | 35 Mich. App. 199 (1971)
192 N.W.2d 319
CORLEY
v.
LOGAN
Docket No. 9589.
Michigan Court of Appeals.
Decided July 26, 1971.
Bellinson & Doctoroff (Ronald D. Feldman, of counsel), for plaintiff.
Plunkett, Cooney, Rutt & Peacock (by Charles F. McGorisk), for defendant Logan.
Vandeveer, Doelle, Garzia, Tonkin & Kerr (by John M. Heaphy), for defendant Miller.
Before: V.J. BRENNAN, P.J., and J.H. GILLIS and T.M. BURNS, JJ.
T.M. BURNS, J.
One 1963 automobile accident has fostered three lawsuits with three appeals and now three opinions involving well over a dozen attorneys to say nothing of time and expense. Still, Henry Corley, plaintiff here, alleges injury and damages, yet uncompensated, on which claim he deserves to *201 be heard. This present action is one for malpractice against two of his attorneys.
Plaintiff's initial cause in Wayne County Circuit Court, against the driver of an automobile which he claimed struck and injured him, was listed on the no-progress docket on September 30, 1966, after a year of inaction. On October 10, 1966, James F. Logan, the attorney for plaintiff at that time and a defendant here, filed a "ready for pre-trial certificate" thereby preventing dismissal of the action. However, a motion to strike said "certificate" and to dismiss said cause for lack of progress was made by counsel representing the driver in that litigation. Prior to any ruling on the motion, on March 28, 1967, Sheldon L. Miller, attorney and defendant here, filed an appearance in the matter on behalf of plaintiff. A substitution of attorneys for plaintiff was then executed and entered on the record at a later date. On August 25, 1967, the lower court invalidated the "ready for pre-trial certificate" after determining it to be a forgery and ordered dismissal of the cause for no progress.
A motion to reinstate, filed on September 1, 1967, by attorney Miller, was finally denied on November 10, 1967, after numerous adjournments and apparent failures by Miller to appear on plaintiff's behalf. That dismissal and denial to reinstate was affirmed by this Court in Corley v. Krawczak (1969), 16 Mich App 176.
Plaintiff's attempts to reinstitute his action against the driver failed when the lower court granted summary judgment to the driver on the grounds that the first dismissal was an adjudication on the merits barring any subsequent action. We approved that judgment in Corley v. Krawczak (1971), 34 Mich App 472.
*202 Having lost any opportunity to obtain relief from the allegedly negligent driver, plaintiff commenced this litigation against attorneys Logan and Miller claiming that their conduct amounted to malpractice which prevented the possibility of his recovery for the injuries and damages sustained in the accident. From a circuit court grant of summary judgment in favor of defendants, this appeal ensues.
MCLA § 600.2912 (Stat Ann 1962 Rev § 27A.2912) provides for a civil action for malpractice against persons holding themselves out to be a member of a state-licensed profession. MCLA § 600.5805[3] (Stat Ann 1962 Rev § 27A.5805[3]) limits the period for beginning such action to two years. MCLA § 600.5838 (Stat Ann 1962 Rev § 27A.5838) governs when the action begins to run by specifying that:
"A claim based on malpractice of a person who is, or holds himself out to be, a member of a state licensed profession accrues at the time that person discontinues treating or otherwise serving the plaintiff in a professional or pseudo-professional capacity as to the matters out of which the claim for malpractice arose."
In addition, however, MCLA § 600.5855 (Stat Ann 1962 Rev § 27A.5855) provides:
"If a person who is or may be liable for any claim fraudulently conceals the existence of the claim or the identity of any person who is liable for the claim from the knowledge of the person entitled to sue on this claim, the action may be commenced at any time within 2 years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the claim or the identity of the person who is liable for the claim, although the action would otherwise be barred by the period of limitations."
*203 In this action, plaintiff alleged that defendants were guilty of malpractice in failing properly to represent his interest. Defendant Logan answered and defended on the basis that he discontinued services for plaintiff on September 9, 1967, the date that the substitution of attorneys was entered, and that this action brought on November 6, 1969, was instituted beyond two years and is, therefore, barred by the statute of limitations. (See MCLA § 600. 5838, supra.) However, if plaintiff can prove that defendant Logan, by his conduct in filing an improper "ready for pre-trial certificate", fraudulently concealed his potential liability to plaintiff, then this action "may be commenced at any time within two years after the [plaintiff] * * * discovers or should have discovered, the existence of the claim * * *" for malpractice. (See MCLA § 600.5855, supra.) It is evident that there are factual issues here which need to be resolved by the trier of fact, and, as to defendant Logan, the matter was not ripe for summary judgment. See International Union United Automobile Workers of America, A.F.L., v. Wood (1953), 337 Mich 8; County of Saginaw v. Kent (1920), 209 Mich 160; Groendal v. Westrate (1912), 171 Mich 92.
Defendant Miller, who did not claim that the statute of limitations barred plaintiff's action as to him, moved for summary judgment on the grounds that plaintiff suffered no prejudice by the original order of dismissal entered on November 10, 1967. Unfortunately, as we stated above, that dismissal was most prejudicial as it allowed for the operation of the doctrine of res judicata so as to bar plaintiff's subsequent litigation against the driver. See Corley v. Krawczak (1971), 34 Mich App 472. Therefore, such a defense was insufficient basis to allow for a grant of summary judgment to Miller. Whether *204 or not plaintiff's claims against Miller support an action for malpractice is again a question for the trier of fact.
Therefore, we reverse this matter and remand for further proceedings consistent with this opinion. In view of our disposition of the issues as to defendant Logan, we need not, at this time, address ourselves to plaintiff's contention that the six-year statute of limitations for contracts, MCLA § 600. 5807 (Stat Ann 1962 Rev § 27A.5807), is applicable.
Reversed and remanded. Costs to appellant.
All concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592928/ | 53 Wis.2d 345 (1972)
192 N.W.2d 880
KRUEGER, Plaintiff in error,
v.
STATE, Defendant in error.
No. State 113.
Supreme Court of Wisconsin.
Argued November 30, 1971.
Decided January 4, 1972.
*349 For the plaintiff in error there was a brief by Niebler & Niebler, attorneys, and George N. Kotsonis of counsel, all of Menomonee Falls, and oral argument by Mr. Kotsonis.
For the defendant in error the cause was argued by Richard J. Boyd, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
HEFFERNAN, J.
We are satisfied that the defendant did not have the right to a change of judge upon the filing of the affidavit of prejudice following the remand to the trial court. Section 956.03 (1), Stats. 1967, provides for the circumstances under which there may be a change of judge. The statute provides in part, "In felony cases the motion shall be made within 20 days after his arraignment and before the case is called for trial." It is clear that the motion was not timely, and a *350 change of judge at this juncture was not a matter of right.
Defendant also argues that there should be a change of judge in a criminal trial at any time or at any state of the proceedings when actual prejudice of the judge is observed or if the trial judge's refusal to disqualify himself will sanction a procedure that is inherently lacking in procedural due process. We need not in this case reach the proposition so asserted by the defendant, for it is clear that there was no showing of actual prejudice by the trial judge, and in fact there was no attempt to show actual prejudice. Rather, the defendant asserts that, where a trial judge has once made a determination contrary to the defendant's interests, it would be inherently prejudicial to countenance a procedure wherein a trial judge would make a new determination on substantially the same facts and where he might be called upon to reverse his own prior decision. We are satisfied that that is not the law. Our judicial system is predicated upon the premise that trial judges will make their determinations on the basis of the facts before them and will not be motivated by pride of prior decision, to which they will adhere contrary to the facts and law as revealed in a subsequent proceeding.
A similar problem was dealt with in State v. Carter (1966), 33 Wis. 2d 80, 146 N. W. 2d 466. In that case, the record was returned to the trial judge to determine under proper standards the admissibility of a confession which had been allowed in evidence in the original trial. An affidavit of prejudice on the ground that the trial judge could not determine the matter fairly because he had already ruled on the matter was filed and denied. On appeal to this court, we stated that it was not error for a trial judge to hear supplemental evidence in the face of an affidavit of prejudice. We said at pages 87, 88:
"While we do not hold that in no instance should the original trial judge refuse to disqualify himself as a *351 matter of proper judicial discretion, we are of the opinion that unless it can be clearly shown that the trial court has demonstrated a prejudice toward the defendant the original trial judge should, where possible, conduct the supplemental proceeding to determine the voluntariness of a confession."
We conclude that the same reasoning is applicable here. While, in some instances, a judge in the exercise of judicial discretion should disqualify himself if the question of prejudice is raised, it is apparent that there was no reasonable showing of any prejudice whatsoever on the part of Judge STEFFES in the instant case. There were no facts that would lead this court to conclude that he abused his discretion in refusing to disqualify himself. On the contrary, there is every evidence of record that Judge STEFFES went to great length to assure that the hearing on the remand was fairly and properly held. The defendant was given every opportunity to assert his claims.
It should be pointed out that the recently enacted post-conviction remedy statute, sec. 974.06, Stats. (Laws of 1969), specifically requires a convicting court to review its own proceedings, judgment, and sentence. It is apparent that the legislature did not find any inherent lack of due process in a procedure where a trial judge was obligated to review allegations that he had erred in the original trial.
In the instant case, there was no showing of prejudice, and we are satisfied there was none. In the exercise of discretion, the trial judge properly refused the motion for a change of judge.
At the time the pleas of guilty were taken in 1965, this court followed the rule of State v. Strickland (1965), 27 Wis. 2d 623, 135 N. W. 2d 295. Under that rule, it was assumed that, where the defendant is represented by competent counsel and pleads guilty, he has been advised of his constitutional rights and that his plea constitutes a *352 waiver of any objections to the procedure prior to arraignment. We said in State v. Biastock (1969), 42 Wis. 2d 525, 532, 167 N. W. 2d 231:
". . . defendant waived objections to alleged violations of his constitutional rights occurring prior to his plea even though such violations were a direct cause of the entry of the guilty plea."
We said further in Biastock, supra, at pages 532, 533:
"Defendant was represented by counsel in the trial court. Therefore, in the absence of proof to the contrary, it must be assumed that counsel advised the defendant of all possible defenses."
More recently, the United States Supreme Court said in McMann v. Richardson (1970), 397 U. S. 759, 770, 90 Sup. Ct. 1441, 25 L. Ed. 2d 763:
"In our view a defendant's plea of guilty based on reasonably competent advice is an intelligent plea not open to attack on the ground that counsel may have misjudged the admissibility of the defendant's confession."
In the instant case, the trial court chose not to rest its decision on the defendant's possible waiver of his constitutional rights by the pleas of guilty and went directly to the merits of the question of whether the defendant had been coerced into giving an involuntary statement.
The record shows that the defendant as arrested with a companion in an alleyway at approximately 2:30 a. m. on March 14, 1965. He was intoxicated, and he was arrested on that charge. The validity of this original arrest is not raised.
After he was arrested he was searched, and he was found to have in his pocket a metal object about three and one-half inches long and about half an inch in diameter. He was not then informed of his constitutional rights, inasmuch as the arrest and the original trial of *353 the case were prior to the mandate of the United States Supreme Court in Miranda v. Arizona (1966), 384 U. S. 436, 86 Sup. Ct. 1602, 16 L. Ed. 2d 694.
After the metal object was found, the defendant was considered to be a burglary suspect, because similar tools had been used in recent burglaries that involved breaking store windows. The defendant was questioned at the station house at approximately 2:50 a. m. for five or ten minutes. He was again questioned for about half an hour at about 4 a. m. He made no incriminating statements. He admitted that he was carrying the metal object, but said it was for self-defense and that he carried it for no felonious purpose. He was questioned at 9 a. m., and the report shows that he was uncooperative and refused to answer any questions.
The record shows an entry at 1:30 p. m.:
"Subject's fingerprints found on glass at scene of Waldheim Furn. att burg and also found on tool used in burglary of Jensen Jeweler window smash on 2-19-65. Prints identified by Asst Supt H. Jennrich and sufficient for prosecution."
The defendant was questioned again at 4:30 p. m. on March 14. This interrogation lasted approximately one hour. It is conceded that prior to this interrogation defendant was fully informed of his constitutional rights to remain silent and to have a lawyer. After so informing him, the officers told him that they had secured fingerprints connecting him with certain burglaries and burglary attempts. There was police testimony that he was not intensively questioned.
The interrogation room was a small room, about 10 by 12 feet, with a 12-foot ceiling. There were windows in the room. One of the detectives testified that he gave the defendant coffee. One of the detectives was six feet three inches in height and weighed 225 pounds. The other was five feet 11 inches in height and weighed 180 pounds. *354 The defendant was five feet two inches in height and weighed 150 pounds. One of the detectives testified that, prior to the interrogation and after being warned of his constitutional rights, the defendant was permitted to make a phone call. According to the police testimony, this permission was granted prior to further interrogation.
When confronted with the fact that his fingerprints had been found at the scene of a burglary and at an attempted burglary, Krueger confessed to the burglary of the Jensen's Jewelers store on February 20, 1965, and Stone's Jewelers store on February 25, 1965. He also admitted breaking the glass at the Waldheim's Furniture store on March 13, 1965, at approximately 10 p. m. He showed a cut on his hand which was of very recent origin and which defendant said was an injury he sustained when attempting to break the glass at Waldheim's.
The defendant took the stand and stated that he was questioned three or four times, although in his motion to withdraw the pleas of guilty, he stated that he was interrogated continuously by teams of detectives for twenty-five hours. On the stand, he stated that he was questioned for seventeen to eighteen hours. He denied being informed of his constitutional rights prior to the time he confessed. He did not claim that he was sleepy or groggy at the time he was interrogated, but he claimed he did not understand what he was doing either at the time of interrogation or when he pleaded guilty. He claimed that he was not allowed to make a phone call until after the confession.
After hearing the testimony, Judge STEFFES made detailed findings that the confession was made by the defendant:
". . . completely freely, voluntarily and understandingly, without any constitutional contamination, and with the full prior knowledge of and advice as to his constitutional rights."
*355 In so ruling, Judge STEFFES relied upon the "totality-of-the-circumstances" rule. The "totality-of-the-circumstances" rule was considered in Phillips v. State (1966), 29 Wis. 2d 521, 528, 139 N. W. 2d 41. We said:
"`Although the rule of voluntariness is easy to state, the determination of what is a voluntary confession in a given fact situation may be difficult. In evaluating the facts for such purpose, the principle adopted by the United States supreme court is to consider the "totality of the circumstances"all the facts surrounding the making of the confession. Fikes v. Alabama (1957), 352 U. S. 191, 77 Sup. Ct. 281, 1 L. Ed. (2d) 246.'
"The individual factors affecting voluntariness and contributing to the totality of the circumstances include denial of rights, questioning, threats, status of accused, nature of coercion, second confession, special techniques and previous experience with police. Defender Newsletter, Vol. II, No. 5, Sept. 1965. The process of determining voluntariness is one of weighing the circumstances of the police pressure against the power of resistance of the person confessing. What is overpowering to a weak mind or a first offender may be ineffectual against an experienced criminal. Stein v. New York (1953), 346 U. S. 156, 185, 73 Sup. Ct. 1077, 97 L. Ed. 1522."
In considering the totality of the circumstances, the trial judge pointed out that the facts in the defendant's motion were grossly in error, that he could not have been interrogated continuously for twenty-five hours as alleged, since the confession was elicited only fourteen hours after he was taken into custody. He also pointed out that the statement of the accused that he had been interrogated for seventeen hours was contrary to the undisputed facts. He concluded that, at the most, defendant was interrogated for a total perior of three hours and then only intermittently.
The question is basically one of credibility, and the trial judge chose to disbelieve the exaggerated statements of the defendant. In the "totality of the circumstance," *356 the confession was not obtained from the defendant under conditions where his free will was over-borne by the tactics of the police or the coercive atmosphere of the station house.
On appeal, the defendant places great weight on the psychological coerciveness of the information given to him that his fingerprints appeared on tools used in previous burglaries. While we have no doubt, from a review of the record, that the confession was impelled by the disclosure of the fingerprint evidence, this does not constitute the utilization of overwhelming mental force or psychology by the police officers. A similar situation was referred to in Phillips v. State, supra, page 530, wherein this court, in discussing the facts in Culombe v. Connecticut (1961), 367 U. S. 568, 575, 81 Sup. Ct. 1860, 6 L. Ed. 2d 1037, stated:
"The statements of the police respecting the fingerprints on the package of cigarettes while accusatorial in nature did not constitute such a threat as to control and coerce the mind of the defendant and render the confession involuntary. One must distinguish between motivation and a compelling overpowering mental force."
No doubt, the disclosure of the fingerprint evidence motivated the confession. It cannot be said, however, on the basis of the facts in the instant case, that, as a consequence, the confession then elicited was coerced or involuntary.
As in Phillips, the question here of the voluntariness of the confession turns primarily on the credibility of the witnesses. On the basis of the testimony at the hearing, the trial judge properly concluded that the confession was not coerced and that the defendant had therefore not been denied any constitutional rights which had in turn induced involuntary pleas of guilty.
The defendant raises an additional point not relating to the fact that the confession was allegedly coerced. *357 Rather, he claims that at 1:30 p. m., as the police record shows, there was sufficient evidence on the basis of the fingerprint examination to have forthwith charged the defendant with burglary. He therefore contends that the interrogation at 4:30 p. m. was to secure a "sew-up" confession; and, as a consequence, the subsequent pleas were induced by an illegal confession. It should be pointed out that the rule against "sew-up" confessions, as set forth in Phillips v. State, supra, was determined not to be retroactive in State v. Carter, supra, page 97. Moreover, Phillips points out that the "sew-up" confession is based on the McNabb-Mallory rule, which is concerned not with voluntariness, but rather rests upon the superintending power of the United States Supreme Court to curtail the illegal detention of a defendant when he has not been promptly brought before a committing magistrate. It becomes applicable when a defendant is held without charge for an unreasonable length of time. A "sew-up" confession which is obtained during such period of illegal detention can be excluded whether voluntary or not. It is essentially a court rule to supervise police conduct.
No contention is made in this case that the defendant was held for an unreasonable length of time. A confession does not become inadmissible as a "sew-up" confession merely because the state, prior to the confession, had information sufficient to sustain a charge. The question revolves solely on the point whether the delay was inordinate and the detention illegal. Neither of those factors is argued on this appeal.
We are satisfied that the confession was not coerced and the guilty pleas were the product of a voluntary and intelligent choice of the defendant. Under these circumstances, the defendant failed to meet the burden of proof to show that under State v. Reppin (1967), 35 *358 Wis. 2d 377, 151 N. W. 2d 9, the confession should be set aside and the guilty pleas withdrawn to correct a manifest injustice.
By the Court.Order affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592935/ | 192 N.W.2d 705 (1971)
CITY OF WINNER, South Dakota, Respondent,
v.
Don LINEBACK, d/b/a Don-Aire Flying Service, Appellant.
Don LINEBACK, d/b/a Don-Aire Flying Service, Appellant,
v.
CITY OF WINNER, South Dakota, Respondent.
Nos. 10659, 10745.
Supreme Court of South Dakota.
December 16, 1971.
*707 Charles Rick Johnson, of Johnson & Johnson, Gregory, for appellant.
John Simpson, Winner, for respondent.
WOLLMAN, Judge (on reassignment).
This consolidated appeal involves a forcible entry and detainer suit brought by the City of Winner, South Dakota, (City) against Don Lineback, doing business as Don-Aire Flying Service (Lineback) and a declaratory judgment action brought by Lineback against the city. Lineback appeals from judgments entered in favor of the city in both actions.
On June 28, 1967 Lineback presented a written application to the members of the Winner city council for permission to lease from the city for a charge comparable to that charged other operators a portion of land on the Winner Municipal Airport on which to place a commercial flying operations hangar and service area.
A committee was authorized by the city council to go with Lineback for the purpose of selecting a site on which Lineback could build. This apparently was done the next day and thereafter Lineback constructed a hangar on the site approved by the committee. He also installed gas tanks and moved a trailer house next to the hangar for use as an office. No written lease was ever executed by Lineback and the city and the record does not reveal that the city council ever took any formal action to enter into a lease with Lineback. Lineback had no permission from the city to place the trailer house on the airport nor did he have any lease for the property occupied by the trailer house.
On July 17, 1967 Lineback's application for a water tap at his hangar site was unanimously approved by the city council. This was later referred to in the proceedings as an "outlaw" water tap inasmuch as it was not within the city limits. A dispute arose over the gas tanks and the trailer house and the city attorney notified Lineback by letter on July 26, 1967 to remove them from the airport. Lineback was also advised that he was to refrain from selling petroleum products on the airport property.
On December 12, 1967 the city council adopted Ordinance No. 369 which adopted regulations governing the use of the municipal airport and which charged the Zoning Board of Adjustment with the duty of maintaining, operating and controlling the airport. The Board of Adjustment was also given the responsibility of zoning the airport. Pursuant to the provisions of this ordinance, the city council adopted a resolution on January 15, 1968 establishing fees for commercial aeronautical operations at the airport. This resolution also reserved to the city the exclusive right to sell gasoline, oil, and other lubricants at the airport. Lineback was asked by the city to enter into a written lease and a fixed base operator's agreement based upon the rentals established in Ordinance 363 adopted August 21, 1967 and the fees established by the *708 resolution of January 15, 1968. Lineback refused to enter into these agreements and did not pay the rentals or fees whereupon the city brought an action for forcible entry and detainer in June of 1968.
The trial court held that inasmuch as Lineback did not have a lease with the city for the portion of the airport occupied by his hangar but had received permission to construct a hangar on the particular site, Lineback's legal interest in the land occupied by his hangar was that of a tenant at will, which tenancy could be terminated by the city.
The court held that the city was entitled to recover the sum of $51 damages and rent on the hangar area. The court also held that Lineback would be entitled to use the portion of the airport occupied by his hangar and gas tanks upon his executing and delivering a lease to the city and paying the rental due thereunder. The judgment provided that the city was entitled to immediate possession of that portion of the municipal airport occupied by defendant's trailer house. The judgment was then stayed pending an appeal.
Lineback then brought a declaratory judgment action seeking a determination of his rights, status and legal relations with the city under the provisions of Ordinance No. 369 and the resolution of January 15, 1968. The city's cross complaint asked for (1) judgment against Lineback in the amount of $1,200 for the fees allegedly due from Lineback from and after January 15, 1968, (2) for a permanent injunction enjoining Lineback from operating a commercial flying service until such time as he complied with all of the ordinances, regulations and resolutions of the city and (3) for a permanent injunction enjoining Lineback from making commercial sales of gasoline and oil products at the municipal airport.
The trial court found that the fees established for commercial use at the airport by the resolution adopted on January 15, 1968 were reasonable and that they applied to Lineback's commercial flying operations at the airport. The court held that the regulations established by Ordinance No. 369 applied to Lineback. The court also held that the city had the power to retain the exclusive right to the commercial sale of gasoline at the airport. Judgment was entered against Lineback in favor of the city in the amount of $1,100 for the commercial fees due from Lineback from and after January 15, 1968. The judgment also permanently enjoined Lineback from commercially selling gasoline at the municipal airport.
Lineback's first contention on appeal is that Ordinance 369 gives the city arbitrary, undefined and unconstitutional powers to punish him criminally or dispossess him of his investment. Lineback characterizes Ordinance 369 as a "lengthy hodge-podge of zoning jargon" which gives the city's Zoning Board of Adjustment total and unrestrained control over all activities at the airport. He also argues that because the federal government has taken complete and national sovereignty of the air space of the United States, 49 U.S.C.A. § 1508, and is authorized to regulate and control municipal airports which have used federal aid in their development, such as the Winner Municipal Airport, 49 U.S.C.A. §§ 1348-1350, Ordinance 369 is void to the extent that it attempts to regulate his interstate business.
SDCL 50-7-2 gives the governing body of a city power and jurisdiction to "* * * acquire, establish, construct, own, control, lease, equip, improve, maintain, operate, and regulate airports or landing fields * * *". SDCL 50-7-13 empowers the governing body of a city to create by ordinance a board whose sole purpose shall be to improve, regulate and supervise the operation and management of their facilities.
SDCL 50-7-14 provides that:
"The governing body of a city, town, or county may adopt regulations and establish fees or charges for the use of such airport or landing field, or may authorize *709 an officer, board, or body of such city, town, or county having jurisdiction to adopt such regulations and establish such fees or charges, subject, however, to the approval of such governing body before they shall take effect."
In our opinion there is nothing in Ordinance 369 which attempts to supersede or which conflicts with any rule, regulation or requirement of the Federal Aviation Administration. Rather, the ordinance is drafted in such a manner as to conform with the requirements, recommendations, rules and regulations of the Federal Aviation Administration and the State Aeronautics Commission. The federal government has not excluded the existence of areas of proper airport regulation by local authorities. Aircraft Owners and Pilots Association v. Port Authority of New York, D.C., 305 F.Supp. 93. We believe that the ordinance complies with the requirements of SDCL 50-10-6 which requires municipal zoning and height limitations to conform to the standards of any agency of the federal government which may be concerned with the fostering of civil aeronautics.
The ordinance thus does not give unrestrained, undefined powers to the Board of Adjustment or to the city. Rather, a fair reading of the ordinance leads to the conclusion that it was enacted for the purpose of insuring the safe, efficient use of the municipal airport in conformance with the standards of the Federal Aviation Administration and the South Dakota State Aeronautics Commission. See SDCL 50-10. We will not invalidate the ordinance merely because it instructs the Board of Adjustment to adopt rules, regulations and restrictions which conform to those adopted by federal and state agencies.
Lineback challenges section 17 of Ordinance 369 on the ground that it allows the Zoning Board of Adjustment to adopt rules and regulations which shall be in full force and effect upon the filing of copies with the City Auditor, whereas SDCL 50-7-14 requires that such rules must be approved by the governing body of the city beforethey shall take effect. There is merit in this contention. Lineback, however, has not directed our attention to any rules and regulations which have not been approved by the city. We will not strike down the entire ordinance because of the possibility that at some future time the Zoning Board of Adjustment and the city will not comply with statutory requirements.
Lineback next contends that he had an existing use to which Ordinance 369 does not apply because it was passed some five months after he had constructed his commercial area and started to do business. Section 2(3) of Ordinance 369 defines a nonconforming use as:
"* * * any structure, tree or use of land which does not conform to regulations prescribed in this Ordinance or an Amendment thereto, as of the effective date of such regulations."
Section 6 of the ordinance states that:
"The regulations herein prescribed in this said Ordinance shall not be construed to require the removal, lowering, or other change or alteration of any structure or tree not conforming to the regulations as of the effective date hereof, or otherwise interfere with the continuance of any non-conforming use. Nothing herein contained shall require any change in the construction, alteration, or intended use of any structure, the construction or alteration of which was begun prior to the effective date of this Ordinance, and is diligently prosecuted and completed within two years thereof."
The trial court construed Ordinance 369 as dealing with two distinct subjects, sections 3 to 11 relating to zoning as that *710 term is normally used, with the remaining sections relating to regulations governing the use of the airport. The trial court held that section 6 of the ordinance applies only to the zoning portion of the ordinance as it relates to structures and trees and not to the parts of the ordinance which establish regulations governing the use of the airport.
We agree with the trial court's analysis of the ordinance. We also agree with the city's contention that Lineback's operation at the airport prior to the time of the passage of Ordinance 369 was a conforming use in that Lineback was operating a commercial flying service in conformity with the purposes for which the property was dedicated to the use of the public as a whole for aviation purposes. It does not appear from the record that Lineback's hangar and gas tanks do not conform with the height limits and use restrictions set forth in the ordinance.
As we have stated above, the overall purpose of Ordinance 369 is to insure the safe, efficient operation of the Winner Municipal Airport. The city does not contend that Lineback's use of land at the airport is in conflict with any of the zoning regulations contained in Ordinance 369. The imposition of fees for the use of the airport for commercial flying services as set forth in the resolution of January 15, 1968, does not in our opinion constitute a restriction on Lineback's intended use of the structures which he erected at the airport. Carrying Lineback's argument to its limit, the city could never impose fees upon any commercial operator who was in business prior to the date the fees were adopted. We do not believe that any private operator can acquire such an interest in land owned, controlled and occupied by a city as a public airport under the provisions of SDCL 50-7 that will prohibit a city from imposing fees for the continued private use of the airport for commercial flying purposes.
Lineback next contends that by making a large, permanent investment at the airport in the way of the hangar and supporting facilities in reliance upon the action of the city in approving a spot where he could erect the hangar, he acquired property rights in his hangar and business that he could not be deprived of without due process of law or by a prospective zoning ordinance.
The trial court found that there was no lease between Lineback and the city and that therefore Lineback was a tenant at will. We believe that this finding is amply supported by the evidence. The city is not attempting to dispossess Lineback of his investment or property rights in his hangar and supporting facilities. The city has tendered a lease to Lineback contingent upon his paying the rental and fees. We find nothing in the record to support a finding that the city ratified any agreement with Lineback whereby he acquired property rights at the airport which would prohibit the city from imposing commercial fees upon him. Likewise, we find nothing in the record to justify applying the doctrine of estoppel against the city. City of Rapid City v. Hoogterp, S.D., 179 N.W.2d 15.
Because the land in question is held by the city for public use, Lineback could gain no right, interest or privilege to use the land as against the city. Resnick v. City of Fort Madison, Iowa, 145 N.W.2d 11. One who deals with a municipality is charged with the knowledge of the nature of its duties and the extent of its powers. Rhodes v. City of Aberdeen, 74 S.D. 179, 50 N.W.2d 215.
Lineback contends that the fees established under Ordinance 369 are unreasonable and discriminatory and therefore cannot be applied to him. He contends that the effect of the fees is to make it impossible for him to operate his commercial flying business competitively.
*711 The trial court found that the fees established in the resolution of January 15, 1968 were reasonable. This finding is supported by evidence that the Federal Aviation Administration had approved as reasonable for the Winner airport fees which were substantially higher than the fees actually established by the resolution.
A member of the Winner Zoning Board of Adjustment testified that in the fall of 1967 shortcomings in the management of the city airport were brought to the attention of the Board. The Board was charged with the responsibility of preparing an ordinance which would provide for the improved management and control of the airport so that the airport would make better progress in the future. The Board drafted the proposed fee schedules, fixed base operator's agreement, lease forms and management agreements which were submitted to the Federal Aviation Administration and the State Aeronautics Commission. All fees and rentals to be charged were to be used for the support, maintenance and eventual improvement of the airport.
We believe that there is sufficient evidence in the record to support the trial court's finding that the fees were not unreasonable and we cannot say that such finding is clearly erroneous. SDCL 15-6-52(a); In re Estate of Hobelsberger, S.D., 181 N.W.2d 455. When an ordinance is passed relating to a matter which is within the legislative power of a municipality, all presumptions are in favor of its validity, constitutionality and reasonableness. City of Sioux Falls v. Kadinger, 75 S.D. 86, 59 N.W.2d 631; 56 Am.Jur.2d, Municipal Corporations, § 382, p. 420. The courts will not interfere with the exercise of discretion by a city's governing board unless the action is clearly unreasonable and arbitrary. Erickson v. City of Sioux Falls, 70 S.D. 40, 14 N.W.2d 89.
On September 11, 1968, the city signed an airport management agreement with one Virgil J. Chase whereby Chase agreed to act as manager of the Winner airport for a salary of $300 per month. Prior to this the city had compensated its airport manager by leasing a portion of the airport to him for $1.00 per year in return for his management services. Lineback claims that under the new management contract the manager has duties almost identical to those of the old lease agreement and is also obligated to furnish good, prompt and efficient services adequate to meet all of the demands for services at the airport. The net effect of this, argues Lineback, is to subsidize his competition and to put him at a severe competitive disadvantage.
It is within the authority of the city to enter into such airport management agreements as it sees fit. It is not for this court to judge the wisdom of the city's decision in agreeing to pay its airport manager $300 per month. Erickson v. City of Sioux Falls, supra. So long as the fees authorized by the resolution of January 15, 1968 are applied to all who come within the purview of the fee schedule, we cannot say that the fee schedule is discriminatory.
Finally, Lineback contends that the city did not properly acquire the exclusive rights to sell fuel at the airport.
A municipality which has used federal funds in the improvement of its airport is prohibited from granting exclusive rights for the sale of gasoline and oil at the airport to an individual. 49 U.SC.A. § 1349. The Federal Aviation Administration does, however, permit a city to retain the exclusive rights to the sale of gasoline and oil at the airport.
SDCL 50-7-12 states that:
"The governing body of a city, town or county which has established an airport or landing field and acquired, leased, or set apart real property for such purpose may construct, improve, equip, maintain, and operate the same and shall have authority to lease or sublet such property for airport purposes. The expenses of *712 such construction, improvement, equipment, maintenance, and operation shall be a city, town, or county charge as the case may be."
We believe that the legislative grant of the authority to operate an airport carries with it the incidental grant of authority to a municipality to carry on the sale of gasoline and oil at the airport through its duly employed manager. We think it would be too narrow a reading of the statute to hold that the power to operate an airport does not carry with it the exclusive right to sell gasoline and oil at the airport. Rehurek v. Rapid City, 65 S. D. 542, 275 N.W. 859.
Lineback contends that the city could not legally reserve the power to sell gasoline and oil by resolution. SDCL 9-19-1 defines "resolution" as:
"* * * any determination, decision, or direction of the governing body of a municipality of a special or temporary character for the purpose of initiating, effecting, or carrying out its administrative duties and functions under the laws and ordinances governing the municipality."
SDCL 9-19-8 provides that a resolution shall be recorded at length in the minutes of the meeting at which it is passed and shall be published in full as part of the minutes. Every resolution takes effect on the twentieth day after publication unless suspended by operation of a referendum. SDCL 9-19-13. We hold that it was within the power of the city to reserve to itself the exclusive rights to the sale of gasoline, oil and other lubricants and that this right was properly exercised through the adoption of the resolution of January 15, 1968.
The judgments in both cases are affirmed.
BIEGELMEIER, P. J., and HANSON and WINANS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592938/ | 53 Wis.2d 441 (1972)
192 N.W.2d 861
BOWERS, Plaintiff in error,
v.
STATE, Defendant in error.
No. State 73.
Supreme Court of Wisconsin.
Argued December 1, 1971.
Decided January 4, 1972.
*442 For the plaintiff in error there were briefs and oral argument by James H. McDermott, state public defender.
For the defendant in error the cause was argued by George B. Schwahn, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
ROBERT W. HANSEN, J.
The defendant was found guilty of selling marijuana for smoking purposes. He does not deny that he sold the marijuana. Instead he contends that the evidence did not establish, beyond a reasonable doubt, that the marijuana he sold was sold for smoking purposes. The state's evidence as to the purpose of the sale falls into three categories: (1) The circumstances surrounding the sale; (2) the testimony of the arresting officer; and (3) testimony given by the defendant.
1. Surrounding circumstances.
An inference reasonably drawn from the total conversation and total circumstances surrounding the sale of marijuana can support a finding by the trier of fact *443 that the sale was for smoking purposes.[1] Here the sale of a single packet of marijuana for $5 was made in the men's room of a Milwaukee tavern. The police officer who made the purchase, acting then as an undercover agent, testified he met the defendant through a third person intermediary who identified defendant as a seller of marijuana. The officer and the intermediary went to the tavern. The defendant walked in and came over to them. The go-between introduced the police officer to the defendant as "Tip" and said, "He wants to cop a nickel bag" or "He wants a cop."[2] The three then walked into the men's room of the tavern. The defendant asked the officer how many "bags" he wanted. The officer stated he wanted "one nickel bag." Defendant removed four or five white sealed envelopes or packets from his pocket. He handed one to the officer, and returned the others to his pocket. The officer then gave him $5 and told the defendant not to "burn" him.[3] The envelope handed the officer was 2¼ inches by 3½ inches in size. It contained a green crushed substance, established to be marijuana.
These circumstances and this conversation are at least as solid a foundation for a reasonable inference that the marijuana was sold for smoking purposes as were the circumstances and conversation surrounding the sale in the Greene Case.[4]
*444 2. Officer's testimony.
At the trial, as to the purpose for which the sale was made, the police officer who made the purchase testified: "Mr. Bowers told me that it was good grass, and that if I didn't believe him I could smoke some right there in the men's room." This direct testimony of the arresting officer as to the sale being for smoking purposes is attacked because no mention of such statement is noted in the officer's logbook entry on the incident, nor was such statement testified to by the officer at the preliminary hearing. The logbook entry was a synopsis or summary of the incident, not necessarily a verbatim reporting of all that was said or a complete account of all that took place. The statement's absence from the logbook entry goes to credibility, perhaps, but not to admissibility. It may weaken, but it does not destroy believability. At the preliminary hearing, the arresting officer appeared as a witness, required and entitled only to answer responsively questions asked. The officer was asked at the preliminary hearing: "Did the defendant make any statements to you concerning the nature of this weed?" He responded by asking that the question be repeated. When it was repeated, it was rephrased to ask: "Did the defendant tell you what you were buying?" The officer answered: "He said it was pot, sir."[5] The answer given appears fully responsive to the question as asked. As a witness, the officer *445 was neither obliged nor permitted to do more than answer questions asked. In fact, nonresponsive statements by a witness are not encouraged, and may be stricken from the record.[6] If more was wanted by way of answers, more should have been asked by way of questions. The officer's testimony, if believed, as it was, by the trier of fact, amply supports the finding that the sale of marijuana was for smoking purposes.
3. Testimony by defendant.
Additionally, the defendant's own testimony clearly indicated the purpose of the sale here involved. The defendant testified that, when he asked the officer what he wanted, the officer responded by putting his index finger and middle finger to his mouth in a gesture that simulated the act of smoking. On motions after judgment, the trial court referred to this pantomimic reference in these words: ". . . when Mr. Bowers was on the stand he corroborated the fact that Officer Marshall attempted to purchase marijuana from him for smoking purposes. Because Mr. Bowers said, when he interrogated Marshall about what he [Marshall] wanted, he said that Marshall illustrated to him that he wanted marijuana for smoking purposes. He didn't say it in those words. But he did put his hand to his mouth, his index and adjoining fingers, in a motion that customarily indicates a smoking circumstance. . . ." The defendant's gesture is corroborative, but, more than that, standing alone, a sufficient basis for drawing an entirely reasonable inference that the sale of marijuana was for smoking purposes.
Any one of the three categories: (1) The surrounding circumstances; (2) the officer's testimony as to the statement made by defendant; and (3) the defendant's testimoney *446 as to the gesture made by the officer, would support a finding that the sale of marijuana in this case was for smoking purposes. All three, considered together, make it the only reasonable conclusion as to the purpose of the sale of marijuana by the defendant to the police officer.
By the Court.Judgment and order affirmed.
NOTES
[1] See: State v. Greene (1968), 40 Wis. 2d 88, 94, 161 N. W. 2d 239.
[2] Eugene E. Landy, The Underground Dictionary (1971), published by Simon & Schuster, defining "bag" as a "packet of narcotics," "nickel bag" as a "five-dollar bag of any drug," "cop" as "buy or otherwise obtain drugs." (pages 28, 139, 57)
[3] Id. at page 42, defining "burn" as to "accept money and give no drug in return."
[4] State v. Greene, supra, upholding conviction of sale of marijuana for smoking purposes, states at page 94: "Although there is some dispute as to the detailed circumstances surrounding the heavy user of marijuana," and "pot party" as "a party where people smoke pot."
sale there is evidence that at one gasoline station Greene told the police officer to whom he eventually made the sale that Greene could get the stuff, meaning marijuana; that the officer went to another gasoline station at Greene's request; that Greene showed up at that station and asked the officer if he had the money; the officer replied, 'Yes, have you got the stuff?'; and that thereupon Greene in exchange for $10 handed the police officer a folded newspaper containing the marijuana. A majority of the court agrees with the trial court that all reasonable inferences point to a sale that was made for 'smoking purposes.' . . ."
[5] Eugene E. Landy, The Underground Dictionary, supra, at page 153, defining "pot" as "marijuana," "pothead" as an "habitual
[6] See: Cupps v. State (1904), 120 Wis. 504, 519, 520, 97 N. W. 210, 98 N. W. 546. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592953/ | 192 N.W.2d 186 (1971)
STATE of Minnesota ex rel. Randall LaMERE, et al., Appellants,
v.
Jack YOUNG, individually, and as Warden of Minnesota State Prison, Respondent,
John E. Jansen, Jr., as County Attorney for County of Washington, State of Minnesota, Respondent.
No. 42695.
Supreme Court of Minnesota.
November 12, 1971.
*187 Legal Rights Center, Inc., Douglas Hall and David P. Murrin, Minneapolis, for appellants.
Warren Spannaus, Atty. Gen., John M. Mason, Sol. Gen., Theodore N. May, Sp. Asst. Atty. Gen., St. Paul, for Young.
John E. Jansen, Jr., pro se.
Heard and considered en banc.
OPINION
PER CURIAM.
Appeal from an order granting a motion to dismiss contempt proceedings. Petitioners are inmates of the State Prison at Stillwater. Respondents are Jack Young, warden of the State Prison, and John E. Jansen, Jr., county attorney of Washington County, in which the prison is situated.
These proceedings, instituted in 1970, are based on an alleged violation by Warden Young of an order of the court issued March 7, 1967, in a different action, by which the then warden, Ralph H. Tahash, was ordered not to use chemical mace in inflicting corporal punishment upon the inmate involved in that proceeding. Petitioners contend that mace was used upon them by their custodians in August 1969 and that, as a result of such action, the warden should be punished for contempt because the acts of his subordinates in 1969 were in violation of the 1967 order which affected the prior warden.
Both the order in the previous action against Warden Tahash and the order dismissing the proceedings against Warden Young were issued by the same court. In his memorandum in the latter action, the trial court observed that "no Summons and Complaint, verified petition or writ has been filed or served in the instant matter and accordingly there is nothing before the Court over which we now have jurisdiction." With respect to the applicability of the 1967 order, the court expressed the view that its order in the prior action was "based on the facts of that case alone and is not an absolute prohibition against the use of chemicals or tear gas in the maintaining of order and discipline at the Minnesota State Prison."
Because the proceedings before us are not appropriate to secure the relief demanded, it is not necessary to discuss the merits of the case. If petitioners have, in fact, sustained damage or have been denied rights, the law affords a proper remedy which they may pursue. It is sufficient to say that the parties to this proceeding are not the same as those involved in the prior action. It is our view that contempt proceedings under Minn.St. 588.01, subd. 3(3), are not appropriate when based upon violation of a prior order of the court in an entirely different action between different parties. Kean v. Bailey, 82 F.Supp. 260 (D.Minn.1949), affirmed, 179 F.2d 888 (8 Cir. 1950).
It is also contended that the trial court erred in denying appointment of petitioners' attorney as a special prosecutor to prosecute the proposed contempt action. This point may be disposed of by noting that we have held that the private attorney of one of the parties to the proceedings out of which the alleged contempt arose has no status which authorizes him to prosecute, and since the offense is one against the state, prosecution should be conducted by an attorney for the state. Peterson v. Peterson, 278 Minn. 275, 153 N.W.2d 825 (1967).
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592966/ | 192 N.W.2d 93 (1971)
STATE of Minnesota, DEPARTMENT OF PUBLIC SAFETY, Appellant,
v.
Phillip Earl HOUSE, Respondent.
No. 42908.
Supreme Court of Minnesota.
November 19, 1971.
*94 Warren Spannaus, Atty. Gen., James M. Kelley, Asst. Atty. Gen., Frederick S. Suhler, Jr., Sp. Asst. Atty. Gen., St. Paul, for appellant.
Clinton W. Wyant, Aitkin, for respondent.
Heard before KNUTSON, C.J., and MURPHY, OTIS, ROGOSHESKE, and HACHEY, JJ.
OPINION
MURPHY, Justice.
The State of Minnesota, Department of Public Safety, appeals from an order of the Aitkin County probate court, municipal court division, dismissing with prejudice proceedings for revocation of a driver's license pursuant to Minn.St. 169.123, subd. 6. The court dismissed the proceedings on the asserted ground that defendant had entered a plea of guilty in a prosecution of the criminal phase of the matter (careless driving and disorderly conduct) pursuant to an agreement with the county attorney that civil sanctions, by way of revocation of license, would be waived.
The details of the asserted plea-bargaining arrangement do not clearly appear from the record. Assuming, however, that there was an actual agreement, as the trial court indicates, that the plea was received on condition that there would be no proceedings to revoke the license, we hold that such agreement and approval thereof by the court is without force or effect. A hearing pursuant to § 169.123, subd. 6, is civil rather than criminal in nature. State, Department of Highways v. Normandin, 284 Minn. 24, 169 N.W.2d 222 (1969). The ultimate disposition of any criminal charge placed against an individual prior to his refusal to permit chemical testing does not dispose of the proceedings under § 169.123, subd. 6. We have held that acquittal of the criminal charge of driving under the influence of alcohol does not, as a matter of law, render a driver's arrest unlawful and thus dispose of the charge under the implied-consent law. State, Department of Highways v. Styrbicki, 284 Minn. 18, 169 N.W.2d 225 (1969); State, Department of Highways v. Olsen, 284 Minn. 22, 169 N.W.2d 227 (1969).
The criminal and civil proceedings growing out of the alleged operation of a motor vehicle while under the influence of alcohol are related only to the extent that they *95 both generally grow out of the same set of facts. However, the parties to the proceedings are not the same. The criminal proceeding is brought by the State of Minnesota against the individual charged. In that proceeding the state is represented by the county attorney, whose duties are made clear by Minn.St. 388.05. That statute says that the county attorney shall represent the county in all cases in which the county is a party, advise county officers, and handle all criminal matters within the county. No authority is given for the county attorney to deal with civil cases in which the state, rather than the county, is a party. The attorney general, by Minn. St. 8.06, is empowered to act as the attorney for all state officers, boards, and commissions, and that includes the Department of Public Safety. When requested by the attorney general, the county attorney shall act in behalf of such officials. § 8.06. But no request was made here, and, consequently, no authority was given to the county attorney to drop the implied-consent charge in behalf of the Department of Public Safety. In proceedings pursuant to § 169.123, subd. 6, the commissioner of public safety, individually, is a party, and the hearing relates to the exercise of his statutory duties. His attorney for this purpose is the attorney general and not the county attorney. § 8.06.
The state has no quarrel with the proposition that the county attorney must use his best judgment in disposing of cases for which he has the responsibility of prosecution. As we have already indicated, in the absence of specific authorization, this responsibility does not extend to civil matters in which the county is not a party. We accordingly hold that the county attorney acted beyond his authority in attempting to bargain for dismissal of these proceedings, the responsibility for which is vested in the commissioner of public safety. § 169.123, subd. 6.
The order is accordingly reversed and the case remanded for further hearing as provided by § 169.123, subd. 6. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592970/ | 192 N.W.2d 155 (1971)
187 Neb. 498
STATE of Nebraska, Appellee,
v.
Lynn M. MOORE, Appellant.
No. 37979.
Supreme Court of Nebraska.
December 3, 1971.
*156 Frank E. Piccolo, North Platte, for appellant.
Clarence A. H. Meyer, Atty. Gen., James J. Duggan, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C. J., and SPENCER, BOSLAUGH, SMITH, McCOWAN, NEWTON and CLINTON, JJ.
SMITH, Justice.
A jury found Lynn M. Moore guilty in a criminal prosecution for issuance of a no account check. On appeal for error he assigns admission in evidence of two other checks issued by him.
Moore issued the check described in the information upon First Security Bank of Sutherland for $153 on July 5, 1969. He had maintained an account there only from November 1949 to March 1951 when his credit balance fell to nothing.
One of the other checks was issued by Moore on the First Security Bank for $12.35 on January 1, 1968. The second check, exhibit 7, was drawn by him on that bank for $15 on December 30, 1967. The bank's rejection slip on exhibit 7 indicated insufficient funds by a mark on the slip but with a handwritten notation "N.P. St.".
Evidence of a crime like the one charged against an accused is admissible if it tends to prove a particular criminal intent which is necessary to constitute the crime charged. State v. Mayes, 183 Neb. 165, 159 N.W.2d 203 (1968). Whether such other crimes are too remote is determinable by the exercise of judicial discretion, the limits of discretion being set by the facts of each case. State v. Rich, 183 Neb. 128, 158 N.W.2d 533 (1968); United States v. Corry, 183 F.2d 155 (2d Cir., 1950).
"To prove Intent, * * * including the various non-innocent mental states accompanying different criminal acts, there is employed an entirely different process of thought. The argument here is purely from the point of view of the doctrine of chances,the instinctive recognition of that logical process which eliminates * * * innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all. * * * similar results do not usually occur through abnormal causes; and the recurrence of a similar result (here in the shape of an unlawful act) tends (increasingly with each instance) to negative * * * (an) innocent mental state * * *; and the force of each additional instance will vary in each kind of offence according to the probability that the act could be repeated, within a limited time and under given circumstances, with an innocent intent." II Wigmore on Evidence, s. 302, p. 196 (3d Ed., 1940).
Admission in evidence of exhibit 7, at least in light of the bank record of no account, was not prejudicial error. Moore's other contentions are not well taken.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592971/ | 19 So.3d 1081 (2009)
Karen FINA, Roger Fina, Nicolas Fina, a minor, and Nationwide Insurance Company of Florida, Appellants,
v.
Duane HENNARICHS, as Personal Representative of Estate of Sara Rose Hennarichs, deceased, Appellee.
No. 4D08-1290.
District Court of Appeal of Florida, Fourth District.
October 7, 2009.
Rehearing Denied November 18, 2009.
*1082 Hinda Klein, of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., of Hollywood, for appellants Fina.
John H. Pelzer and Robin F. Hazel of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellant Nationwide Insurance Company of Florida.
Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, Paul Jacobs of Jacobs & Straus, P.A., Boca Raton, and Richard E. Retamar of Retamar & Millian, P.A., Deerfield Beach, for appellee.
GERBER, J.
Thirteen-year-old Sara Hennarichs was driving a four-wheel all-terrain vehicle ("ATV") when she lost control, ran into a tree, and died soon thereafter. Sara's estate brought a negligence action against Roger and Karen Fina, who owned the ATV, and their son Nicolas, who let Sara drive it. The estate prevailed at trial. The Finas have appealed the trial court's denial of various motions, contending that the estate could not recover against them for negligence either legally or factually. We affirm.
The Finas bought the ATV when Nicolas was eleven or twelve years old. They had seen other kids Nicolas's age riding their own ATVs, so they decided to buy Nicolas an ATV to ride on their 9^ acre property. Roger initially shopped at a dealership, where he saw an ATV containing a label entitled "WARNING" in large, bold print with an exclamation point. Under that appeared a large red circle in which a red slash crossed through the large bold-printed words "UNDER 16," The label then stated, "Operating this ATV if you are under the age of 16 increases your chance of severe injury or death. NEVER operate this ATV if you are under the age of 16." According to Roger, he asked the salesperson if it was the law that no one under sixteen could ride an ATV, and the salesperson responded that the labels were there to protect the manufacturer from liability. Without further investigating the warning, the Finas ultimately purchased two ATVs from a private individual. The ATVs carried the same warning label. Nicolas also saw the warning label, but he did not think it was important.
*1083 The ATVs also came with a manual which stated on its cover "WARNING" in large, bold print with an exclamation point, followed by "This ATV should not be ridden by anyone under 16 years of age." Pages of the manual also showed a label stating, "WARNING" in large, bold print with an exclamation point, followed by "NEVER ride as a passenger. Passengers can cause a loss of control, resulting in SEVERE INJURY or DEATH." Although Roger acknowledged being given the manual when he purchased the ATV, he testified he could not remember going through the manual with Nicolas. Karen testified that she went over the manual with Nicolas, but she could not remember whether she discussed the warnings with him.
Contrary to the warnings, Roger trained Nicolas to operate the ATV by having Nicolas ride as a passenger with him, and by riding as a passenger himself when Nicolas was driving. When the Finas were satisfied that Nicolas was a safe driver, they allowed him to ride the ATV unsupervised. Roger initially testified that the only rules which he required Nicolas to follow were wearing a helmet and obtaining his parents' permission if he was going to leave their property. Roger later testified that he also prohibited Nicolas from letting friends ride the ATV without their parents' permission. On that point, however, his testimony was inconsistent.
A year and a half later, when Nicolas was thirteen, he and his friend Matt Imbres began spending time with Sara Hennarichs and Alexa Majdalawi, all of whom were the same age as Nicolas. One day, Nicolas let Sara and Alexa drive his ATV around the neighborhood even though they did not have any training. Sara drove the ATV without incident.
A week later, Nicolas and Matt rode on Nicolas's ATV to Alexa's house, where Sara was spending the day. Alexa's mother had been there earlier, but left to go shopping, leaving Alexa and Sara unsupervised. After the boys arrived, Matt asked Nicolas for the keys so he could ride the ATV. Sara then asked if she could drive the ATV. Nicolas gave his helmet to Sara, who began driving the ATV with Matt riding as a passenger.
Within a few minutes, Sara was approaching a curve when she lost control of the ATV and drove into a tree. She was ejected from the ATV and hit the tree helmet first. Later that day, Sara died from her injuries.
Sara's father, as personal representative of Sara's estate, sued the Finas under multiple negligence theories. At trial, the estate narrowed its claim to three theories against Roger and Karen and one against Nicolas. As the trial court instructed the jury, the issues on the claim against Roger and Karen were whether they negligently entrusted the ATV to Nicolas, negligently trained Nicolas in the proper use of the ATV, or negligently supervised Nicolas. The issue on the claim against Nicolas was whether he negligently entrusted the ATV to Sara.
The Finas attempted to include on the verdict form three other allegedly negligent persons: Sara, Sara's mother, and Alexa's mother. The Finas' theory against Sara's mother and Alexa's mother was that each of them was negligent in supervising Sara. However, the trial court granted the estate's motion for directed verdict to exclude Sara's mother from the verdict form on the basis that no evidence existed to show Sara's mother was negligent in supervising Sara. Thus, besides the Finas, only Alexa's mother and Sara appeared on the verdict form.
The jury found for the estate, apportioning the negligence as follows: Roger 35%, Karen 35%, Nicolas 10%, Sara 5%, and Alexa's mother 15%. The jury determined the estate's total damages were $4.5 million. *1084 The trial court entered a final judgment consistent with the jury's verdict. The Finas have appealed, raising numerous arguments.
We choose to address only the argument that the trial court allegedly erred in denying the Finas' motion to dismiss, motion for summary judgment, and motions for directed verdict. In all of these motions, the Finas contended that the estate could not recover against them for negligence either legally or factually. Our review is de novo. See Goodall v. Whispering Woods Ctr., L.L.C., 990 So.2d 695, 697 (Fla. 4th DCA 2008) ("Because a ruling on a motion to dismiss for failure to state a cause of action is an issue of law, it is reviewable on appeal by the de novo standard of review.") (citation omitted); Stone v. Palms W. Hosp., 941 So.2d 514, 519 (Fla. 4th DCA 2006) ("The standard of review applicable to trial court rulings on motions for summary judgment is de novo."); Premier Lab Supply, Inc. v. Chemplex Indus., Inc., 10 So.3d 202, 205 (Fla. 4th DCA 2009) ("The standard of review on appeal of the trial court's ruling on a motion for directed verdict is de novo....").
The Finas initially claim that Roger and Karen could not have been liable for negligently entrusting the ATV to Nicolas. They concede that "a parent may incur liability ... [w]here he entrusts his child with an instrumentality which, because of the lack of age, judgment, or experience of the child, may become a source of danger to others." Gissen v. Goodwill, 80 So.2d 701, 703 (Fla.1955). However, the Finas argue that rule does not apply here for four reasons. We address each argument in turn.
First, the Finas contend Nicolas's "lack of age" is insignificant because Florida law does not prohibit children from operating ATVs.[1] We disagree. The fact that Florida law does not prohibit children from operating ATVs does not render a child's lack of age irrelevant in determining whether a parent has negligently entrusted an ATV to his or her child. If a child's lack of age deprives him of the maturity to act responsibly with an ATV, then the child's parent may be liable for entrusting an ATV to that child.
Second, the Finas claim that the rule is inapplicable because Nicolas was not operating the ATV when the accident occurred. However, that fact is irrelevant. Gissen does not require the child to be operating the instrumentality which the parent has entrusted to him for the parent to be liable. Rather, Gissen holds that, upon entrustment, liability merely depends upon whether the instrumentality may become a source of danger to others.
Third, the Finas argue the estate presented no evidence showing Nicolas was incompetent to have been entrusted with an ATV because of his lack of age, judgment, or experience. We disagree. The estate presented evidence that Nicolas was incompetent to have an ATV because of his lack of age. The ATV came with a warning label and manual stating in various forms that no one under sixteen should ride or operate the ATV. Although the Finas' disregard of the warning label and manual does not make them strictly liable, the fact that they disregarded the warning label and manual potentially makes them liable for the foreseeable consequences of that choice.
*1085 Fourth, the Finas contend the estate presented no evidence establishing that they knew or should have known that Nicolas might let another child like Sara ride the ATV. We disagree. The estate presented evidence that Roger and Karen set an example of disregarding the warnings which came with the ATV. Under those circumstances, it should have come as no surprise to them that Nicolas would have disregarded their rules too. Moreover, the jury's common sense might have led to the conclusion the Finas should have known that a thirteen-year-old boy may let his friends ride his ATV despite his parents' instructions otherwise. See Fla. Std. Jury Instr. (Civ.) 2.1 ("You may make deductions and reach conclusions which reason and common sense lead you to draw from the facts shown by the evidence in this case.").
The Finas next argue that Nicolas could not have been liable for negligently entrusting the ATV to Sara because, under the dangerous instrumentality doctrine, a bailee has no cause of action against a bailor for the bailee's own negligence. In support of that proposition, the Finas rely on Woodson v. Ivey, 917 So.2d 993 (Fla. 5th DCA 2005), and cases cited therein. We find the dangerous instrumentality doctrine inapplicable because the estate's action against Nicolas was not based upon Sara's negligence as bailee, but upon Nicolas's negligence as bailor in entrusting the ATV to Sara. We recognize, as other courts have, the plain language of section 390 of the Restatement (Second) of Torts (1965) setting forth the law of negligent entrustment:
One who supplies directly or through a third person a chattel for use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.
See also Kitchen v. K-Mart Corp., 697 So.2d 1200, 1202 (Fla.1997) (law of negligent entrustment as set out in section 390 is a recognized civil cause of action in nearly every state).
In sum, the estate presented sufficient evidence to prove that the Finas failed to exercise reasonable care by entrusting the ATV to Nicolas, that Nicolas failed to exercise reasonable care by entrusting the ATV to Sara, and that this tragedy was foreseeable. Applying that evidence, the jury reached a verdict for the estate. We find no legal reason to disturb that verdict. On all grounds the Finas raised in their appeal, we affirm.
Affirmed.
DAMOORGIAN and LEVINE, JJ., concur.
NOTES
[1] See § 316.2074(1), Fla. Stat. (2003) ("It is the intent of the Legislature through the adoption of this section to provide safety protection for minors while operating an all-terrain vehicle in this state."); § 316.2074(3), Fla. Stat. (2003) ("No person under 16 years of age shall operate, ride, or be otherwise propelled on an all-terrain vehicle unless the person wears a safety helmet ... and eye protection."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592972/ | 922 F.Supp. 558 (1995)
Richard GOSSARD, et al., Plaintiffs,
v.
ADIA SERVICES, INC., Defendant.
No. 91-11-CIV-T-17(B).
United States District Court, M.D. Florida, Tampa Division.
September 5, 1995.
*559 Amy Lyn Koltnow, The Whittemore Law Group, P.A., St. Petersburg, FL, Ronald M. DeHaan, Randolph E. Ruff, David S. Adduce, DeHaan & Richter, P.C., Chicago, IL, Hendrik Uiterwyk, Uiterwyk & Associates, Tampa, FL, for Richard B. Gossard, Joyce S. Gossard, Barney Dewees, John Daly, Nursefinders of Sarasota, Inc., Nursefinders of St. Petersburg, Inc., and Nursefinders of Mobile, Inc.
Stanley Howard Eleff, Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, P.A., Tampa, FL, David J. Butler, Tacie H. Yoon, Brownstein & Zeidman, P.C., Washington, DC, for Adia Services, Inc.
*560 ORDER
THOMAS G. WILSON, United States Magistrate Judge.
THIS CAUSE came on to be heard upon the Renewed Motion of Defendant Adia Services, Inc. for Judgment As A Matter of Law or for A New Trial (Doc. 208). At the hearing, the defendant clearly demonstrated that it did not "induce or otherwise cause" a breach of contract. It established further that the plaintiffs' theory of damages was fundamentally flawed. Consequently, the defendant's motion should be granted, and judgment entered in its favor.
I.
In about 1974, Larry Carr started a business in Texas in which he provided nurses on a temporary basis. The business was successful, and in 1978-79 he began selling franchises through a franchisor that subsequently took the name of Nursefinders, Inc. Franchise purchasers included the individual plaintiffs, who bought franchises covering, among other areas, Florida's west coast.
The people who purchased franchises in this area were long-time friends of Carr. At the time the sales of the franchises were being negotiated, Carr agreed with the franchisees that neither Nursefinders, nor its parent or affiliates, would provide similar services within the franchise territory.[1]
About the beginning of 1987, the defendant, Adia Services, Inc., purchased the company that came to be called Nursefinders. Approximately one and one-half years later, Adia purchased a company named Star-Med that was also involved in the field of temporary nursing help. Adia contends that Star-Med was different from, and compatible with, the Nursefinders' franchisees. Adia asserts, specifically, that Star-Med operated a touring nurse program where nurses were sent from one area of the country to another for a period of 13 weeks, whereas the franchisees ran a business that provided nurses locally for a short time. There was evidence, however, from which the jury could reasonably find that the two businesses competed, and that they competed within the plaintiffs' territories.
In this suit, the plaintiffs alleged in Count I that Adia had tortiously interfered with their franchise agreements with Nursefinders. The theory of the tort wavered throughout the trial. The plaintiffs settled on the contention that, by purchasing Star-Med, the defendant caused Nursefinders to violate its promise that neither a parent nor affiliate would provide similar services within a franchisee's territory. Although this theory seemed to me to be of doubtful validity, it was sent to the jury to see whether the theory had been factually established. There were plainly factual disputes, such as the construction of the franchise agreements, that could have ended the matter if resolved in the defendant's favor. The jury, however, found for the plaintiffs on the factual questions. This circumstance thus raises the issue whether the plaintiffs' theory on Count I is legally viable.
II.
The Second Restatement of Torts defines the tort of intentional interference with a contract as follows (§ 766):
One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.
There was no evidence that, with respect to the franchise agreements, the defendant induced Nursefinders to do anything. Thus, the question here is whether the defendant "otherwise caus[ed]" Nursefinders to violate the franchise agreements.
*561 The Comments to § 766 of the Restatement explain that "otherwise causing" refers to the situation where, unlike the circumstances involving inducement, the tortfeasor "leaves [the contracting party] no choice," that is, he affirmatively prevents the party from carrying out the contract. Restatement (Second) of Torts § 766 cmt. h. Examples of this are "when A imprisons or commits such a battery upon B that he cannot perform his contract with C, or when A destroys the goods that B is about to deliver to C." Id. Another example is "when performance by B of his contract with C necessarily depends upon the prior performance by A of his contract with B and A fails to perform in order to disable B from performing for C." Id.
This case does not involve a situation that even roughly approximates the examples given in the Restatement. The evidence indisputably shows that, with respect to the franchise agreements, the defendant took no action at all toward Nursefinders.
The plaintiffs contend, however, that Nursefinders had promised its franchisees that no parent or affiliate would provide nursing services within their territory, and that when the defendant purchased Star-Med it caused Nursefinders to break that promise. While the defendant may have "caused" Nursefinders to be unable to carry out the agreements within some broad dictionary meaning of that term, it did not cause Nursefinders to breach the agreements in the legal sense. The Restatement, which in essence requires a contracting party either to be induced not to perform, or to be prevented from performing, his contractual obligations, clearly demands something far more direct than what occurred here to Nursefinders.[2]
A hypothetical example submitted by Adia demonstrates the invalidity of the plaintiffs' claim. Suppose, the defendant says, that General Motors (GM) executes an agreement in which it promises its dealers in Pinellas County that only GM cars would be sold in that county. Further, GM sends a copy of that agreement to Ford, in order to make sure that Ford has knowledge of the agreement. Surely, the defendant argues, Ford cannot be liable for intentional interference with contract if it sells its cars in Pinellas County contrary to GM's promise.
This hypothetical, in my view, shows the lack of merit in the plaintiffs' claim. In this case, the only additional circumstance presented is the corporate relationship between the defendant and Nursefinders. However, the two are separate legal entities. Moreover, Nursefinders had no authority to make a promise that would bind Adia. Indeed, recognizing that a contrary assertion would be self-defeating in this tort action, see Genet Company v. Annheuser-Busch, Inc. (sic), 498 So.2d 683, 684 (Fla.App.1986), the plaintiffs acknowledge that Adia is not a party to the franchise agreements and is not contractually bound by them. But since Adia is not bound by the franchise agreements, its situation is not meaningfully different from that of Ford in the defendant's hypothetical.
The plaintiffs, nevertheless, argue that, while Nursefinders' promise to its franchisees could not create contractual liability for the defendant, it did create tort liability for Adia. How this could be so was not explained. It seems to me either that Nursefinders could legally speak for the defendant, in which case the defendant would be subject to contract liability and not tort liability, or that Nursefinders could not legally speak for the defendant, in which case Nursefinders' promise created no liability at all on the defendant's part.
In all events, the circumstances here gave rise only to contract liability. Nursefinders, according to the jury, made a promise that was not kept. Liability for the violation of that promise should fall on Nursefinders, the party that made the promise, and not upon the defendant, a party that gave no such undertaking. Significantly, Nursefinders was in a position to protect its promise when it sold out to the defendant, but it did not do so. The plaintiffs, despite these circumstances, did not sue Nursefinders for breach of the franchise agreements, but sued the defendant in tort instead. That tactic was a *562 mistake because, under the facts of this case, the defendant did not commit a tort.
III.
Adia also contends that the jury's damage award cannot be sustained. To the extent that the defendant argues that the evidence fails to show causation or injury, that argument is contradicted by the evidence. Thus, assuming that Star-Med's operations under the defendant's ownership could legally cause harm, there was evidence in the record from which the jury could reasonably find that the plaintiffs were damaged by Star-Med's business. The far more serious question is whether the plaintiffs properly proved the extent of that damage.[3]
The Restatement makes clear that a party injured by intentional interference with a contract is entitled to recover its "pecuniary loss." Restatement (Second) of Torts §§ 766, 774A. Accordingly, the jury was given the following instruction (Doc. 195, p. 17):
The plaintiffs claim damages for lost profits and loss of present value in their franchises. Damages of those types may be awarded in an appropriate case if sufficiently established. With regard to any recovery by the plaintiffs, you should take care not to award duplicate damages.
However, the plaintiffs' damage expert, Robert Yerman, did not focus on the plaintiffs' losses. Rather, his damage analysis was predicated upon the theory that the plaintiffs were entitled to credit for all of Star-Med's sales during the period it was owned by Adia (Doc. 205, pp. 16-17). This approach resulted from Yerman's view that under the terms of the franchise agreements Adia had an obligation to turn over all of Star-Med's business in the plaintiffs' territories to the plaintiffs (Doc. 205, pp. 18-19, 59).
Importantly, any suggestion that Adia caused the plaintiffs to suffer a loss of all of the business done by Star-Med in the plaintiffs' territories is contrary to the facts and economic reality. In the first place, Star-Med had substantial business in the plaintiffs' territories prior to its purchase by Adia, and there is absolutely no reason to think the plaintiffs would have gained any of that business in the absence of the purchase. Furthermore, because of the strong competition within the plaintiffs' territories in the field of temporary nursing help, it is uncertain how much, if any, of Star-Med's business the plaintiffs would have acquired if Star-Med, instead of being purchased, had simply closed its doors.
As indicated, however, Yerman did not predicate his damage theory on the economic facts. Rather, his approach was based upon his view that the franchise agreements required Adia to give all of Star-Med's business within the plaintiffs' territories to the plaintiffs. But this notion is simply wrong. As previously explained, Adia was not a party to the franchise agreements and was not contractually bound by them. Under that circumstance, it cannot plausibly be said that Adia was obligated to turn over Star-Med's business to the plaintiffs. In other words, Yerman's theory would improperly award contract damages in this tort case. If the plaintiffs wanted contract damages, they should have sued Nursefinders.
Although the plaintiffs argue to the contrary, Yerman's testimony provided the sole basis for the amount of the jury's award. Since that testimony was wrong at its core, the jury's verdict cannot stand.
It is not enough to conclude, however, that the jury's verdict should be overturned. The question then becomes whether that conclusion warrants judgment for the defendant, or only the granting of a new trial.
*563 Rule 50(b), F.R.Civ.P., provides that, "[i]f a verdict was returned, the court may, in disposing of the renewed motion [for judgment as a matter of law], allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as a matter of law." As the court of appeals has explained in a case involving insufficient proof of damages, Rule 50(b) gives the court discretion to enter judgment or to grant a new trial. Network Publications, Inc. v. Ellis Graphics Corp., 959 F.2d 212 (11th Cir.1992). Generally, where a defect in proof could be expected to be cured at a second trial, the granting of a new trial is the preferred option. Id.
In this case, however, circumstances militate against simply granting a new trial. In the first place, plaintiffs' counsel had to know that Yerman's damage theory was subject to serious challenge. Nevertheless, they proceeded solely on that theory, even though they had received an earlier opinion using a different approach from another expert from Yerman's firm (Doc. 205, pp. 86-91). It seems to me that having elected to proceed into a two-week trial on only Yerman's dubious (but more lucrative) theory, the plaintiffs should not now be given a second chance to present an alternative method.
Furthermore, it is questionable whether the plaintiffs could reasonably establish damages with a different approach. Thus, there is some indication that, if competition is properly taken into consideration, an expert would be unable to assess damages with any degree of accuracy (Doc. 205, p. 91). Significantly, the plaintiffs failed to take advantage of the opportunity to submit a memorandum on this issue (Doc. 216), and consequently, they have not provided any information showing that at a new trial they could prove substantial damages with sufficient certainty.
For these reasons, the plaintiffs' failure to prove damages warrants judgment as a matter of law. However, it is appropriate to add that, if it should be subsequently determined that a new trial is the appropriate remedy, then obviously the defendant's alternative request for a new trial should be granted. On the other hand, if it is concluded that Yerman's damage theory is legally sufficient, then the motion for new trial should be denied, since Yerman's testimony would support the jury's verdict.
It is, therefore, upon consideration
ORDERED:
That the Renewed Motion of Defendant Adia Services, Inc. for Judgment As A Matter of Law or for A New Trial (Doc. 208) be, and the same is hereby GRANTED, and the Clerk is directed to enter judgment in favor of the defendant Adia Services, Inc.
DONE and ORDERED.
NOTES
[1] The defendant argues that the plaintiffs are bound by the terms of the franchise agreements, which do not provide such broad exclusivity. Both sides to the agreements, however, testified to their understanding, and the jury could have reasonably found that there was the broad exclusivity arrangement, as the plaintiffs alleged. It seems to me that in this tort action the parol evidence rule should not operate to negate the stated intent of both sides to the various franchise agreements.
[2] Neither side has found a case like this one. Moreover, contrary to the plaintiffs' contention, their cases are distinguishable. Thus, they all involve at least a direct impact upon a contracting party's ability to perform its obligations.
[3] The plaintiffs contend that the defendant has waived its right to challenge causation, the fact of damage, the theory of damages, and the sufficiency of the evidence of damages as a result of a failure to move for judgment as a matter of law under Rule 50, F.R.Civ.P. (Doc. 211, p. 28). This contention appears correct as to causation and the fact of damage. It is not correct with respect to the attack on the theory of damages. The defendant vigorously and fully challenged the plaintiffs' damage theory at the charge conference (Doc. 204, pp. 31-40). Since Rule 50(a)(2), F.R.Civ.P., provides that motions for judgment as a matter of law "may be made at any time before submission of the case to the jury," the defendant's attack on the damage theory during the charge conference was timely and sufficient. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592980/ | 34 Mich. App. 694 (1971)
192 N.W.2d 65
SUSKI
v.
SUSKI
Docket No. 11506.
Michigan Court of Appeals.
Decided June 28, 1971.
*695 Ralph B. Hoschner, for plaintiff.
Marvin R. Stempien, for defendant on appeal.
Before: R.B. BURNS, P.J., and FITZGERALD and T.M. BURNS, JJ.
PER CURIAM.
Plaintiff commenced proceedings for divorce in Genesee County Circuit Court. In response thereto, defendant interposed a decree of divorce rendered in a Nevada court as res judicata. The trial court, finding the decree entitled to full faith and credit,[1] granted defendant an accelerated judgment of dismissal. Plaintiff claims the trial judge erred in according validity to the Nevada divorce decree; the defendant has filed a motion to affirm and, in the face of the authority arrayed against plaintiff, we cannot conclude the issue she raises is substantial enough to warrant formal submission.
With defendant in search of employment, the parties went to Las Vegas, Nevada, in November, 1957. After an altercation, plaintiff returned to Michigan while defendant remained in Nevada. Defendant immediately notified plaintiff of his intention to institute divorce proceedings. On December 6, 1957, plaintiff executed a document authorizing a specific Nevada attorney to "enter my appearance and represent me in said action" conditioned on payment of his fee by defendant and on his obtaining $50 per month support for the parties' minor child.
Pursuant to this authorization, once defendant initiated divorce proceedings, the Nevada attorney the wife had designated entered her appearance. He filed an answer denying the husband's allegation of domicile and his allegation of extreme cruelty. After *696 a hearing, at which the attorney was again present, a decree of divorce was entered which included an express finding of jurisdiction in the Nevada court and the support provision requested by the wife.
Upon these facts, we are not reviewing a pro confesso foreign divorce decree.[2] Rather, this is a case where plaintiff entered a general appearance through counsel, filed an answer, and asserted defendant did not have a valid domicile in Nevada; resolution of the question by the Nevada court constituted final adjudication of the issue of defendant's Nevada domicile, and is entitled to full faith and credit. Pratt v. Miedema (1945), 311 Mich 64; Albaugh v. Albaugh (1948), 320 Mich 16. The Full Faith and Credit Clause of the Federal Constitution bars a party from collaterally attacking a divorce decree in the courts of a sister state where there has been participation by the party in the divorce proceedings. Sherrer v. Sherrer (1948), 334 US 343 (68 S Ct 1087, 92 L Ed 1429); Davis v. Davis (1938), 305 US 32 (59 S Ct 3, 83 L Ed 26). Plaintiff, after voluntarily authorizing the Nevada attorney to enter her appearance and act in her behalf upon the conditions she set forth, cannot now disassociate herself from those divorce proceedings.
The judgment of the lower court is affirmed.
*697 MEMORANDUM OPINIONS
NOTES
[1] US Const, art 4, § 1.
[2] See, e.g., Gray v. Gray (1948), 320 Mich 49, and Reinink v. Reinink (1970), 24 Mich App 202, as to the limited validity accorded pro confesso foreign decrees in Michigan. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593043/ | 922 F.Supp. 926 (1996)
AMERICAN MOVIE CLASSICS COMPANY, Plaintiff,
v.
TURNER ENTERTAINMENT CO., as successor in interest to RKO Pictures, Inc. and Turner Classic Movies, Inc., Defendants.
No. 95 Civ. 4591 (AGS).
United States District Court, S.D. New York.
April 11, 1996.
*927 *928 Weil, Gotshal & Manges, New York City, for plaintiff (Kenneth L. Steinthal and David J. Lender, of counsel).
David Dunn, Davis, Scott, Weber & Edwards, P.C., New York City and Jack Dalton, P.C., Troutman Sanders, Atlanta, Georgia, for defendants.
OPINION AND ORDER
SCHWARTZ, District Judge:
This case concerns a dispute over the exhibition of classic motion pictures on cable television. Plaintiff American Movie Classics Company ("AMCC"), the owner and operator of the American Movie Classics ("AMC") cable network, alleges that defendants Turner Entertainment Co. ("Turner Entertainment") and Turner Classic Movies, Inc. ("Turner Classic") violated AMCC's exclusive exhibition rights in a library of classic RKO Pictures, Inc. ("RKO") motion pictures licensed by AMCC from Turner Entertainment. AMCC claims that Turner Entertainment and Turner Classic, which operate the TNT and Turner Classic Movies ("TCM") cable networks, respectively, violated AMCC's rights by airing certain RKO films on TNT and TCM during times in which AMCC had the exclusive right to exhibit these films on cable television.
The question before the Court is the extent to which federal copyright law preempts certain state law causes of action. AMCC's Complaint presents six claims for relief for the wrongs alleged to have been committed by Turner Entertainment and Turner Classic. Four of these claims arise under state law. AMCC also asserts two claims for copyright infringement under federal law. Pursuant to Rule 12(b)(6) of the Federal *929 Rules of Civil Procedure, defendants move to dismiss plaintiff's four state law claims on the grounds that these claims are preempted by Section 301 of the Copyright Act, 17 U.S.C. § 301, and, therefore, fail to state a claim upon which relief can be granted. For the reasons set forth below, defendants' motion is granted.
FACTS[1]
AMCC's Complaint centers on its charges that Turner Entertainment and Turner Classic knowingly, intentionally, and repeatedly violated AMCC's exclusive exhibition rights in certain RKO classic films licensed by AMCC from Turner Entertainment. Complaint ¶ 1. AMCC asserts that "exclusive exhibition windows" like those in its license agreement with Turner Entertainment which give AMCC the sole right to exhibit films on cable during specified periods of time are crucial to the ability of a cable network to define its identity in the increasingly crowded and competitive cable market. Complaint ¶ 2.
In March 1992 Turner Entertainment, as successor to RKO, amended and extended a prior film licensing agreement with AMCC. Under the March 1992 agreement ("the Agreement"), Turner Entertainment granted AMCC exhibition rights to a library of approximately 700 RKO films for a ten-year period, and AMCC agreed to pay some $48 million in license fees for such rights. The license was granted on an exclusive basis as set forth in the Agreement. Complaint ¶ 24. AMCC acquired the exclusive right to exhibit the RKO films during specified windows. Outside of these windows, Turner Entertainment retained the right to exhibit the films covered by the Agreement. From AMCC's perspective, the exclusive exhibition windows were a cornerstone of the Agreement. Complaint ¶¶ 2-7, 25.
Turner Classic launched TCM, its own classic movies cable network in competition with AMC, in April 1994. Complaint ¶ 26, 46. AMCC alleges that Turner Entertainment and Turner Classic willfully violated AMCC's exclusive rights in certain RKO films at least 28 times during 1994 and 1995 by airing films on TNT and TCM during AMCC's exclusive exhibition windows. Complaint ¶¶ 6, 9. Asserting that AMCC has been seriously harmed by defendants' conduct, AMCC seeks compensatory damages in excess of $150 million, punitive damages of at least $100 million, and other relief necessary to fairly redress AMCC for defendants' allegedly unlawful conduct. Complaint ¶ 13.
Among its six claims for relief, AMCC asserts two claims for copyright infringement, one against Turner Entertainment and one against Turner Classic. The copyright claim against Turner Entertainment alleges that it "committed numerous infringements of the copyrighted films exclusively licensed to AMCC by granting to Turner Classic (or the TNT network) the right to exhibit, or otherwise allowing Turner Classic (or the TNT network) to exhibit, the same films on [TCM] (or TNT)." Complaint ¶ 57. The copyright claim against Turner Classic alleges that it "committed numerous infringements of the copyrighted films exclusively licensed to AMCC by exhibiting the same films on [TCM]."
AMCC also asserts four state law claims breach of contract, tortious interference with contract, unfair competition, and unjust enrichment which are the subject of defendants' motion to dismiss. In its First Claim for Relief, AMCC claims that Turner Entertainment breached its obligations under the Agreement "by violating AMCC's exclusive exhibition rights with respect to the films licensed thereunder." Complaint ¶ 36. The Second Claim alleges that Turner Classic tortiously interfered with the Agreement between [Turner Entertainment and AMCC "by inducing Turner Entertainment to provide [Turner Classic] with movies for exhibition to which AMCC has (and had) exclusive exhibition rights." Complaint ¶ 41. In its Third Claim, AMCC alleges that Turner Entertainment and Turner Classic engaged in unfair competition by misappropriating "the exclusive property of AMCC (i.e., AMCC's exclusive rights in the films at issue), and have given such misappropriated property to Turner *930 Classic in order to permit Turner Classic to gain an unfair competitive advantage against AMCC." Complaint ¶ 48. AMCC alleges in its Fourth Claim that Turner Classic was unjustly enriched at AMCC's expense "by being able to exhibit classic movies covered by the agreement ... on its cable network during the same period under which AMCC had the exclusive license to exhibit such films." Complaint ¶ 52.
DISCUSSION
When Congress revised the copyright laws in 1976, it specifically provided for preemption of all state rights equivalent to those within the scope of federal copyright law. Section 301 of the Copyright Act, 17 U.S.C. § 301,[2] contains a two-part analysis for preemption.[3] First, the work of authorship in which state law rights are claimed must fall within the "subject matter of copyright" as defined in Sections 102 and 103 of the Act. Harper & Row, Publishers, Inc. v. Nation Enters., 723 F.2d 195, 200 (2d Cir.1983), rev'd on other grounds, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). Second, the statute requires that a state law have created "legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified in section 106" if the state law is to be preempted. Id.
A. Rights in Works Within Subject Matter of Copyright
The first prong of the preemption analysis is satisfied here because AMCC's four state law claims assert rights in the RKO films, which come within the subject matter of federal copyright. The subject matter of copyright consists of any "original works or authorship fixed in any tangible medium of expression" and includes "motion pictures and other audiovisual works." 17 U.S.C. § 102(a); Universal City Studios, Inc. v. T-Shirt Gallery, Inc., 634 F.Supp. 1468, 1475 (S.D.N.Y.1986). Indeed, AMCC has asserted in its Complaint that it has valid copyright rights in the licensed RKO films.
B. Equivalency to Rights Within Scope of Copyright
The second prong of the preemption analysis requires a close review of plaintiff's four state law claims. The test is satisfied when the state law rights asserted by the plaintiff are equivalent to any of the exclusive rights within the scope of copyright law. These exclusive rights include the rights "to reproduce the copyrighted work in copies," and, in the case of motion pictures, "to perform the copyrighted work publicly." 17 U.S.C. § 106.
Section 301 preempts only those state law rights that "may be abridged by an act which, in and of itself, would infringe one of the exclusive rights" provided by federal copyright law. Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 716 (2d Cir.1992) (quoting Harper & Row, 723 F.2d at 200). *931 But if an "extra element" is "required instead of or in addition to the acts of reproduction, performance, distribution or display, in order to constitute a state-created cause of action, then the right does not lie `within the general scope of copyright,' and there is no preemption." Computer Assocs., 982 F.2d at 716 (quoting 1 Melville B. Nimmer and David Nimmer, Nimmer on Copyright § 1.01[B][1], at 1-14-15 (1995)); see also Harper & Row, 723 F.2d at 200 (where state law right "is predicated upon an act incorporating elements beyond mere reproduction or the like, the [federal and state] rights are not equivalent" and there is no preemption).
Under this so-called "extra element" test, "a state law claim is not preempted if the `extra element' changes the `nature of the action so that it is qualitatively different from a copyright infringement claim.'" Computer Assocs., 982 F.2d at 716 (quoting Mayer v. Josiah Wedgwood & Sons, Ltd., 601 F.Supp. 1523, 1535 (S.D.N.Y.1985)). However, an action "will not be saved from preemption by elements such as awareness or intent, which alter `the action's scope but not its nature.'" Id. at 717 (quoting Mayer, 601 F.Supp. at 1535).
To determine whether a claim meets the standard for preemption, the Court must determine "what the plaintiff seeks to protect, the theories in which the matter is thought to be protected and the rights sought to be enforced." Computer Assocs., 982 F.2d at 716 (quoting 1 Roger M. Milgrim, Milgrim on Trade Secrets § 2.06A[3], at 2-150 (1992)). Accordingly, the Court will consider each of plaintiff's four state law causes of action separately.
1. Breach of Contract Claim
Although there is language in the legislative history of Section 301 and several cases stating that breach of contract claims are generally not preempted,[4] there is also persuasive authority indicating that breach of contract claims should be preempted in certain circumstances. See, e.g., Wolff v. Institute of Electrical and Electronics Eng'rs, Inc., 768 F.Supp. 66, 69 (S.D.N.Y.1991); Brignoli v. Balch Hardy and Scheinman, Inc., 645 F.Supp. 1201, 1205 (S.D.N.Y.1986); Smith v. Weinstein, 578 F.Supp. 1297, 1307 (S.D.N.Y.), aff'd, 738 F.2d 419 (2d Cir.1984). The teaching of these cases is that a breach of contract claim is preempted if it is merely based on allegations that the defendant did something that the copyright laws reserve exclusively to the plaintiff (such as unauthorized reproduction, performance, distribution, or display). However, if the breach of contract claim is based on allegations that the parties' contract creates a right not existing under copyright law a right based upon a party's contractual promise and the plaintiff is suing to protect that contractual right, then the claim is not preempted. National Car Rental System, Inc. v. Computer Assocs. Int'l, Inc., 991 F.2d 426, 431-433 (8th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 176, 126 L.Ed.2d 136 (1993) ("contractual restriction [creating right not existing under Copyright Act] constitutes an extra element that makes this cause of action qualitatively different from one for copyright").
Here, the basis for AMCC's breach of contract claim is that Turner Entertainment "violat[ed] AMCC's exclusive exhibition rights" with respect to the licensed RKO films. Complaint ¶ 36. There is no allegation that Turner Entertainment breached any provisions of the Agreement other than those providing AMCC with the exclusive right to exhibit the films during the windows specified in the Agreement. The Agreement's exclusivity provisions cannot provide the "extra element" necessary to avoid preemption because licensees such as AMCC are required to show that they have exclusive licenses in order to establish standing to assert copyright violations. Furthermore, the Court does not perceive a "qualitative difference" between AMCC's breach of contract claim (based on the Agreement's exclusive *932 exhibition right) and its copyright claim (based on the Copyright Act's exclusive right of public performance). Rather, it appears clear that the rights asserted under the contract claim are equivalent to the Copyright Act's exclusive right of public performance.[5] Accordingly, AMCC's breach of contract claim is preempted.
2. Tortious Interference Claim
AMCC's tortious interference with contract claim against Turner Classic fares no better than the breach of contract claim against Turner Entertainment under the Section 301 preemption analysis. In the Second Circuit, it is well settled that claims for tortious interference based on the unauthorized publication of a work protected by the Copyright Act are preempted. In Harper & Row, supra, the plaintiff publisher entered into an agreement with Time magazine under which Time was to print pre-publication excerpts of President Ford's memoirs. Time paid $12,500 in advance for this privilege, and was to pay an additional $12,500 when its edition containing the excerpts was complete. Before Time's publication date, The Nation magazine obtained a manuscript and published a summary and portions of the Ford memoirs. Time never published excerpts of the manuscript and refused to pay Harper & Row the additional $12,500. Harper & Row, 723 F.2d at 198-99. On these facts, Harper & Row sued The Nation for tortious interference with contractual relations. The Second Circuit affirmed the dismissal of the tortious interference claim, holding that "[i]f there is a qualitative difference between the [right of exclusivity based on the contract] and the exclusive right under the [Copyright] Act ... we are unable to discern it. In both cases, it is the act of unauthorized publication which causes the violation." Harper & Row, 723 F.2d at 201; see also Kamakazi Music Corp. v. Robbins Music Corp., 522 F.Supp. 125 (S.D.N.Y.1981) (dismissing tortious interference claim based on same factual allegations as copyright infringement claims), aff'd, 684 F.2d 228 (2d Cir.1982).
As with the breach of contract claim, the gravamen of AMCC's tortious interference claim is an alleged violation of AMCC's exclusive right to exhibit certain films during the windows specified in the Agreement. AMCC alleges that Turner Classic interfered with the Agreement between AMCC and Turner Entertainment "by inducing Turner Entertainment to provide [Turner Classic] with movies for exhibition to which AMCC has (and had) exclusive exhibition rights." Complaint ¶ 41. As discussed above in the context of the breach of contract claim, AMCC's contractual right to exclusivity is equivalent to its exclusive right of public performance under the Copyright Act. The allegations unique to the tortious interference claim that Turner Classic acted wrongfully and intentionally with knowledge of the Agreement make no difference to the preemption analysis. The fact that a tortious interference claim contains
additional elements of awareness and intentional interference, not part of the copyright infringement claim, goes merely to the scope of the right; it does not establish qualitatively different conduct on the part of the infringing party, nor a fundamental nonequivalence between the state and federal rights implicated.
Harper & Row, 723 F.2d at 201. Accordingly, AMCC's tortious interference with contract claim against Turner Classic is preempted under Section 301 of the Copyright Act.
*933 3. Unfair Competition Claim
AMCC's Third Claim alleges that Turner Entertainment and Turner Classic misappropriated AMCC's exclusive rights to exhibit the licensed films and gave this misappropriated property to Turner Classic in order to permit it to gain an unfair competitive advantage over AMCC. Complaint ¶ 48. This claim appears to be asserted under the misappropriation branch of New York's unfair competition law, which generally "protects against a defendant's competing use of a valuable product or idea created by the plaintiff through investment of time, effort, money and expertise." Mayer, 601 F.Supp. at 1534 (citations omitted).
Courts in this Circuit have consistently held that claims for misappropriation of rights within the scope of copyright brought under New York unfair competition law are preempted. See, e.g., Universal City Studios, 634 F.Supp. at 1475 ("Since the unfair competition complained of here consists simply of misappropriation and reproduction of the style and characters of [the television show] into t-shirt form, the second condition under § 301 is satisfied and plaintiffs' New York unfair competition claim is preempted."); Orth-O-Vision, Inc. v. Home Box Office, 474 F.Supp. 672, 684 (S.D.N.Y.1979) (claim for misappropriation of right to exhibit films preempted); Mayer, 601 F.Supp. at 1535-36 (claim for misappropriation of snowflake design preempted); Galerie Furstenberg v. Coffaro, 697 F.Supp. 1282, 1291 (S.D.N.Y.1988) (claim for misappropriation of rights in certain Dali drawings preempted).
The Second Circuit has noted that application of the extra element test "has led to holdings that § 301 preempts unfair competition and misappropriation claims grounded solely in the copying of a plaintiff's protected expression.... In contrast, unfair-competition claims based upon breaches of confidential relationships, breaches of fiduciary duties and trade secrets have been held to satisfy the extra-element test and avoid § 301 preclusion." Kregos v. Associated Press, 3 F.3d 656, 666 (2d Cir.1993) (citing Computer Assocs., supra, 982 F.2d at 717). In Kregos, the plaintiff claimed that the defendant's publication and distribution of a "pitching form" copied from the plaintiff's form misrepresented the authorship of the form and constituted unfair competition. The Second Circuit held, however, that the "unfair-competition and misappropriation claims, based solely on the copying of the protected expression in his forms, are preempted by § 301 ... the state unfair-competition claim is equivalent to copyright ..." Kregos, 3 F.3d at 666.
Relying on Kregos and other cases preempting unfair competition claims, defendants contend that AMCC's claim is preempted because the basic act which allegedly constitutes misappropriation of AMCC's rights the exhibition of certain films by Turner Classic during AMCC's exclusive exhibition windows is the same act which allegedly constitutes copyright infringement. The Court agrees, and AMCC appears to concede that unfair competition claims alleging "mere misappropriation" are preempted. See Plaintiff's Mem. at 18-19. AMCC argues, however, that its unfair competition claim is much broader than "mere misappropriation" because it includes elements of "passing off" and deception, pointing to its allegations that defendants' conduct created false impressions and confusion in the marketplace about Turner Classic's ability to exhibit the same movies that air on AMC. AMCC relies on cases distinguishing between "misappropriation-only" claims, which are preempted, and claims including elements of "passing off," which are not preempted. See, e.g., Orth-O-Vision, 474 F.Supp. at 684 n. 12; Gemveto Jewelry Co. v. Jeff Cooper, Inc., 613 F.Supp. 1052, 1064 (S.D.N.Y.1985), vacated on other grounds, 800 F.2d 256 (Fed.Cir.1986); Princess Fabrics, Inc. v. CHF, Inc., 922 F.2d 99 (2d Cir.1990); Warner Bros. Inc. v. American Broadcasting Cos., 720 F.2d 231, 247 (2d Cir.1983).
AMCC's attempt to rescue its unfair competition claim by seizing on the "passing off" cases is unavailing. AMCC's Complaint does not allege any claim based on "passing off," the essence of which is false representation of origin. See, e.g., Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1020 (9th Cir.1985), cert. denied, *934 474 U.S. 1059, 106 S.Ct. 802, 88 L.Ed.2d 778 (1986). In a "passing off" case, the tortfeasor misleads customers into believing that the product he produces emanates from another source. See Orth-O-Vision, 474 F.Supp. at 684 n. 12. Here, the defendants are not accused of falsely representing the origin of the films they have exhibited; the movies exhibited were the original copyrighted works, properly identified to their producers. Rather, if any unfair competition claim is asserted, it is of the "reverse passing off" variety i.e., that Turner Classic took goods of another and passed them off as Turner Classic's own. See Waldman Publishing Corp. v. Landoll, Inc., 848 F.Supp. 498, 505 (S.D.N.Y.), vacated on other grounds, 43 F.3d 775 (2d Cir.1994). A claim that a defendant has reproduced the plaintiff's work and sold it under the defendant's name even if denominated "passing off" by the plaintiff is preempted by the Copyright Act. Id. Professor Nimmer has explained the distinction between "passing off" and "reverse passing off" and its effect on preemption analysis as follows:
If A claims that B is selling B's products and representing to the public that they are A's, that is passing off. If, by contrast, B is selling B's products and representing to the public that they are B's [when presumably they are A's], that is not passing off. A claim that the latter activity is actionable because B's product replicates A's, even if denominated "passing off," is in fact a disguised copyright infringement claim, and hence preempted.
1 Nimmer on Copyright § 1.01[B][1][e], at 1-25 n. 110, quoted in Waldman, 848 F.Supp. at 505.
Applying this distinction here, it is clear that AMCC has not pled a "passing off" claim. AMCC argues that defendants' conduct has created false impressions that the same movies shown on AMC could be seen concurrently on defendants' networks. This does not constitute "passing off," which would require a showing that customers were mislead into believing that the movies came from another source. AMCC's claim is far more akin to "reverse passing off," because Turner Classic is essentially accused of exhibiting films which AMCC had exclusive rights to exhibit. This "reverse passing off" claim is equivalent to a claim for copyright infringement. See Waldman, 848 F.Supp. at 505. Accordingly, the Court holds that AMCC's unfair competition claim is preempted by the Copyright Act.
4. Unjust Enrichment Claim
In its Fourth Claim, AMCC alleges that Turner Classic was unjustly enriched by its exhibition of the licensed RKO films during AMCC's exclusive windows for such films. Complaint ¶ 52. Courts have frequently preempted similar unjust enrichment claims that derive from the reproduction, use, or misappropriation of material covered by copyright protection. See, e.g., Kakizaki v. Riedel, 811 F.Supp. 129, 132 (S.D.N.Y. 1992) (dismissing claim that defendant was unjustly enriched by use of plaintiff's photograph without authorization); Kunycia v. Melville Realty Co., 755 F.Supp. 566, 577 (S.D.N.Y.1990) (dismissing claim that defendant was unjustly enriched by reproduction and use of plaintiff's copyrighted work to prepare derivative work). On the other hand, several decisions indicate that unjust enrichment claims may survive a preemption challenge "[t]o the extent plaintiffs can show that defendants have been unjustly enriched by material beyond copyright protection." Selmon v. Hasbro Bradley, Inc., 669 F.Supp. 1267, 1273 (S.D.N.Y.1987) (citing Harper & Row, 723 F.2d at 200); see also Kunycia, 755 F.Supp. at 577 (noting that plaintiff "does not allege any misconduct incorporating elements other than those subsumed within the claim of copyright infringement").
In this case, preemption is appropriate because AMCC's unjust enrichment claim does not allege that defendants were enriched from anything other than their unauthorized exhibition of the copyrighted films a claim which is equivalent to the exclusive right of public performance provided by the Copyright Act. Thus, the claim does not possess the "extra element" required to avoid preemption.
Attempting to save its unjust enrichment claim from preemption, AMCC relies on the Eighth Circuit's opinion in National Car Rental System, Inc. v. Computer Assocs. *935 Int'l, Inc., 991 F.2d 426 (8th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 176, 126 L.Ed.2d 136 (1993). In that case, Computer Associates International, Inc. ("CA") asserted counterclaims including breach of contract, copyright, and unjust enrichment against National Car Rental System, Inc. ("National") claiming that National had used copyrighted computer programs in violation of a license agreement. The Eighth Circuit rejected National's contention that CA's unjust enrichment claim was preempted under Section 301, holding as follows:
National is correct in noting that certain courts have held claims for unjust enrichment preempted when based upon allegations that the defendant engaged in one of the acts reserved to the copyright holder under § 106. We do not read CA to allege that National was unjustly enriched as a result of a wrongful exercise of one of the § 106 rights. Rather, we read this allegation of damage as a further explanation of the damages CA intends to prove arising from the breach of contract.... [W]e read [CA's] allegation of unjust enrichment as an attempt, albeit inartful, to allege that National received from [third parties] amounts that CA would have received had National not breached their contract.
991 F.2d at 434-35. AMCC contends that "the gist of AMCC's [unjust enrichment claim] is that Turner Classic was unjustly enriched by its unfair competition and tortious interference with AMCC's contract with Turner Entertainment." Plaintiff's Mem. at 23-24. Citing National Car Rental, AMCC argues that its unjust enrichment claim "constitutes part of the damages it intends to prove in connection with its unfair competition and tortious interference claims against Turner Classic." Id. at 24. If this is so, then AMCC's unjust enrichment claim must rise and fall with its unfair competition and tortious interference claims. Because the Court has concluded that AMCC's unfair competition and tortious interference claims are preempted by the Copyright Act, the unjust enrichment claim must also be dismissed.
CONCLUSION
For the reasons set forth above, AMCC's First, Second, Third, and Fourth Claims for Relief breach of contract, tortious interference with contract, unfair competition, and unjust enrichment are preempted by Section 301 of the Copyright Act. Accordingly, defendants' motion is granted and these claims are dismissed. This action shall proceed solely on the copyright infringement claims set forth in the Complaint's Fifth and Sixth Claims for Relief.
SO ORDERED.
NOTES
[1] All facts relevant to defendants' motion are set forth in AMCC's Complaint and must be taken as true for purposes of this motion. See LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir.1991).
[2] Section 301 states in relevant part as follows:
(a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.
(b) Nothing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to
(1) subject matter that does not come within the subject matter of copyright as specified by sections 102 and 103, including works of authorship not fixed in any tangible means of expression; or
(2) any cause of action arising from undertakings commenced before January 1, 1978; [or]
(3) activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 ...
17 U.S.C. § 301.
[3] Some courts have referred to a three-part analysis because Section 301 by its terms does not apply to causes of action arising before January 1, 1978. See, e.g., Mayer v. Josiah Wedgwood & Sons, Ltd., 601 F.Supp. 1523, 1531-32 (S.D.N.Y. 1985). Because AMCC's cause of action arose in 1994, this "additional" condition of Section 301 is obviously satisfied.
[4] See H.R.Rep. No. 1476, 94th Cong., 2d Sess. 132, reprinted in 1976 U.S.C.C.A.N. 5659, 5748 ("nothing in the bill derogates from the rights of parties to contract with each other and to sue for breaches of contract"); see also Strauss v. Hearst Corp., No. 85 Civ. 10017 (CSH), 1988 WL 18932 (S.D.N.Y. Feb. 19, 1988), at *9; Ronald Litoff, Ltd. v. American Express Co., 621 F.Supp. 981, 986 (S.D.N.Y.1985).
[5] AMCC suggests in its brief that the nature of the relief it seeks under its contract claim (including the fact that it seeks replacement cost damages and may decide to seek rescission of the Agreement) should have a bearing on the Section 301 preemption analysis. Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss Plaintiff's First, Second, Third and Fourth Claims ("Plaintiff's Mem.") at 13-14. However, it offers no authority for the novel proposition that a "qualitative difference" between the state law claim and the copyright claim may be supplied by a difference in damages claimed for the same basic wrong. In fact, if there were such an exception to the rule of preemption, the exception would quickly swallow the rule. Whenever the applicable state law of damages differed from the Copyright Act's remedial scheme, the state claim could not be preempted. Surely, this was not Congress' intent in enacting Section 301. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592990/ | 453 So.2d 625 (1984)
STATE of Louisiana
v.
Rujan STERLING.
No. KA 84 0161.
Court of Appeal of Louisiana, First Circuit.
June 26, 1984.
*627 Ossie Brown, Dist. Atty. by Joseph N. Lotwick, Luke Lavergne, Asst. Dist. Attys., Baton Rouge, for plaintiff-appellee.
Anne L. Jordan, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
Before COVINGTON, COLE and SAVOIE, JJ.
COLE, Judge.
Rujan Sterling was charged by bill of information with committing armed robbery in violation of La.R.S. 14:64. Following a jury trial, he was found guilty and sentenced to fifteen years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Defendant now appeals both his conviction and sentence.
The victim of the armed robbery was accosted by two men as he left a poolhall during the early morning hours of March 2, 1983. One of the men held a small caliber gun on the victim and told him it was a robbery, while the other man searched through the victim's pockets removing various valuables, including his wallet. A police officer driving by observed the incident and gave chase to the two men, who fled on foot. The officer saw one of the men tumble over a fence which obstructed his path and fall to the other side. In the presence of the victim, the officer found a wallet containing defendant's driver's license near the spot where he had observed the man fall. Both suspects eluded arrest at that time. However, defendant was subsequently arrested, orally advised of his *628 rights and transported to police headquarters for processing. During transport, he confessed to the armed robbery. On appeal defendant relies upon six assignments of error.
ASSIGNMENT OF ERROR NUMBER ONE
Defendant argues the trial court erred in denying his motion for a mistrial, which was based upon the contention black women were systematically excluded from the jury by the state's use of peremptory challenges.
A defendant is not denied equal protection when the state exercises its peremptory challenges to exclude black persons in a particular case, unless there has been a systematic exclusion of them over a period of time. The defendant must establish a prima facie showing of such systematic exclusion before the state is required to show the exercise of its peremptory challenges was not discriminatory. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); State v. Brown, 371 So.2d 751 (La.1979), rehearing denied 1979.
Defendant has failed to meet this burden. He relies primarily upon the fact four of the state's five peremptory challenges excluded black women and has produced no evidence of a history of systematic exclusion. Additionally, it is undisputed one black male served on the jury.
Defendant also argues the manner in which the state exercised its peremptory challenges violated his Sixth Amendment rights. The Sixth Amendment guarantees a criminal defendant the right to an impartial jury selected from a group representing a fair cross-section of the community. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Supreme Court stated:
"In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a `distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process." (Emphasis added.) 439 U.S. at 364, 99 S.Ct. at 668.
Defendant has failed to demonstrate any violation of this Sixth Amendment right. He does not contend the jury venire failed to represent a fair cross-section of the community, but rather that the state deprived him of this right by using its peremptory challenges to exclude black women from the petit jury. However, the Supreme Court cases defining this Sixth Amendment right have only applied it to jury venires, panels or pools and have never extended application of the fair cross-section requirement to petit juries in the manner suggested by defendant.[1] In fact, the court in Taylor v. Louisiana, supra, specifically held a criminal defendant is not entitled to a jury of any particular composition and the petit jury actually chosen need not mirror the community. Additionally, defendant has not made any showing of a systematic exclusion of blacks by the state.[2]
This assignment of error lacks merit.
*629 ASSIGNMENT OF ERROR NUMBER FOUR
Defendant argues an inculpatory statement and confession made by him were the result of impermissible inducements or promises by the police and thus was not freely and voluntarily given.
Detective E. Hill, one of defendant's arresting officers, was the only witness who testified as to the circumstances surrounding this inculpatory statement and confession. He testified as follows: Defendant was orally advised of his rights at the time of his arrest. Although defendant indicated he understood these rights and appeared to do so, he nevertheless chose to make an unsolicited oral statement while enroute to police headquarters. Defendant was not interrogated prior to giving this statement, the substance of which was that he was not going to take the rap alone. Once at police headquarters defendant was given a written form listing his rights, which Detective Hill read and explained to him. After once again indicating he understood his rights, defendant signed a waiver of rights form and gave officers a handwritten statement confessing to the crime charged.
Detective Hill testified he made no promises to defendant to induce or influence defendant to make a statement. Although he advised defendant he would inform the district attorney's office of any information given by defendant on other cases, he made no promises regarding possible leniency or a charge reduction. Detective Hill told defendant the district attorney's office would determine what weight to attach to any such information.
Before a confession or inculpatory statement may be admitted in evidence, the state must prove affirmatively and beyond a reasonable doubt it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. La.R.S. 15:451; State v. Odds, 430 So.2d 1269 (La. App. 1st Cir.1983). A confession is considered involuntary as a matter of constitutional law if it is obtained by "any direct or implied promises, however slight, [or] by the exertion of any improper influence." Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897). However, Detective Hill's statement that he would inform the district attorney's office of any information supplied by defendant on other cases, does not constitute an inducement sufficient to vitiate the free and voluntary nature of defendant's confession. See State v. Jackson, 414 So.2d 310 (La.1982); State v. Vernon, 385 So.2d 200 (La.1980), rehearing denied 1980. Moreover, the trier of fact's decision as to the voluntary nature of a confession is entitled to great weight and will not be overturned on appeal unless it is not supported by the evidence. See State v. Odds, supra.
Finding the trier of fact did not err in concluding the state had borne its burden of proving the free and voluntary nature of defendant's confession and inculpatory statement, we reject this assignment of error.
ASSIGNMENTS OF ERROR NUMBERS 2 AND 3
Defense counsel contends the trial court improperly restricted her cross examination of Detective Hill. Defense counsel attempted to elicit Detective Hill's opinion as to the relative importance of this case as compared to that of the other cases for which defendant supplied information. The trial court sustained the state's objection to this line of questioning.
A witness generally may not testify as to any impression or opinion he may have unless he is qualified as an expert. La.R.S. 15:463; La.R.S. 15:464. Before a witness can testify as an expert, the trial court must be satisfied as to his competence. La.R.S. 15:466.
Defense counsel admits her questions called for an opinion from Detective Hill, but argues in brief his eleven years of service as a police officer qualified him to answer. However, defense counsel made no attempt at trial to qualify Detective Hill as an expert. See State v. Shea, 421 So.2d *630 200 (La.1982), on rehearing, cert. granted, ___ S.Ct. ___, 104 S.Ct. 2167, 80 L.Ed.2d 551 (1984). We find no error in the trial court's ruling. In any event, Detective Hill testified previously as to the number and nature of the other crimes about which defendant had provided information. Since the trier of fact could draw its own inferences from this testimony, the trial court's ruling was harmless.
These assignments of error lack merit.
ASSIGNMENT OF ERROR NUMBER FIVE
Defendant argues the evidence presented was legally insufficient to convict him of armed robbery. He argues the state did not prove beyond a reasonable doubt that the robbery was committed with a dangerous weapon or that he possessed the specific intent required to commit the offense. The standard for reviewing sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the essential elements of the crime were proven beyond a reasonable doubt. See La.Code Crim.P. art. 821; State v. Walker, 447 So.2d 54 (La.App. 1st Cir.1984).
It is true the state did not introduce a weapon in evidence at trial. However, the victim testified one of his assailants held a gun on him as the other assailant went through his pockets. Additionally, defendant admitted in his confession a gun was used to commit the robbery.
The state need not introduce in evidence the gun used during the commission of an armed robbery. The victim's testimony can sufficiently establish a robbery was committed with a dangerous weapon. See State v. Rash, 444 So.2d 1204 (La.1984), rehearing denied (1984). Thus, we find the evidence sufficient to support the jury's determination that the robbery was committed with a dangerous weapon.
However, defendant also maintains the evidence was insufficient to establish the existence of specific intent. At the time of defendant's arrest the police seized an inoperable gun from him. Defendant argues he lacked specific intent to commit an armed robbery because he knew the gun would not operate. This argument is without merit.
First, the reason the inoperable gun seized from defendant was not introduced in evidence was that it was not seized until the day after the crime was committed, therefore it could not be sufficiently connected with the crime. Thus, it is not even clear this gun was the one used in the robbery. Second, if this gun was the one involved in the robbery, it was used in a manner calculated or likely to produce death or great bodily harm. It would be considered a dangerous weapon within the meaning of La.R.S. 14:64 because of the manner in which it was used. See La.R.S. 14:2(3); State v. Green, 409 So.2d 563 (La. 1982). The determinative issue is therefore not whether defendant knew the gun was inoperative, but whether he intentionally used it in a manner calculated or likely to produce death or great bodily harm. The highly charged atmosphere at the scene of a gun-robbery is conducive to violence, whether the gun is loaded, workable or unworkable. Danger invites rescue. It also invites self-help. State v. Levi, 259 La. 591, 250 So.2d 751, 753 (1971), rehearing denied 1971.
Intent is a state of mind which need not be proven as a fact, but may be inferred from the facts and circumstances of a transaction and the actions of the defendant. La.R.S. 15:445. To possess specific intent an offender must actively desire the prescribed criminal consequences to follow his act or failure to act. La.R.S. 14:10(1). The existence of specific intent is an ultimate legal conclusion to be resolved by the trier of fact. State v. Graham, 420 So.2d 1126 (La.1982).
Viewing the evidence in the light most favorable to the state, we find the evidence sufficient to support the jury's determination that defendant possessed specific intent to commit armed robbery *631 with a "dangerous weapon" within the meaning of La.R.S. 14:64.
This assignment lacks merit.
ASSIGNMENT OF ERROR NUMBER SIX
In his final assignment of error defendant argues his sentence is excessive.
A trial judge has wide discretion in imposing a sentence within statutory limits. The sentence imposed will not be set aside as excessive in the absence of a manifest abuse of discretion.
The trial court adequately considered the sentencing guidelines set forth by La.Code Crim.P. art. 894.1 in particularizing the sentence to defendant. Particularly noteworthy is defendant's status as a second felony offender whose previous opportunity for supervised probation was resolved unsatisfactorily. Additionally, the trial court was aware of the mitigating factors defendant alleges were present, since defense counsel was given an opportunity to apprise the court of such prior to the imposition of sentence. Accordingly, we find no abuse of discretion in the sentence imposed.
The conviction and sentence are affirmed.
AFFIRMED.
NOTES
[1] Justices Marshall and Brennan are of the opinion that the state's use of peremptory challenges to exclude blacks from a petit jury may constitute a denial of a defendant's Sixth Amendment right to a jury drawn from a fair cross-section of the community. See dissent from denial of certiorari in McCray v. New York, ___ U.S. ___, 103 S.Ct. 2438, 77 L.Ed.2d 1322 (1983). The majority of the court has thus far not joined in this view.
[2] We pretermit consideration of whether black women constitute a "distinctive" group in the community, one of the enumerated requirements of Duren to establish a prima facie violation of the fair cross-section rule. The unique approach by defendant in this regard does not overcome his failure to satisfy the other requirements of Duren. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592996/ | 35 Mich. App. 487 (1971)
192 N.W.2d 555
BANOSKI
v.
MOTO-CRANE SERVICE, INC.
Docket No. 8927.
Michigan Court of Appeals.
Decided August 24, 1971.
Martin, Bohall, Joselyn, Halsey & Rowe, P.C. (by John R. Mullett), for plaintiffs Banoski.
*490 Plunkett, Cooney, Rutt & Peacock (by Alvin A. Rutledge), for intervening plaintiff General Accident Fire & Life Insurance Corporation.
Before: DANHOF, P.J., and McGREGOR and LEVIN, JJ.
Leave to appeal denied, 387 Mich 755.
McGREGOR, J.
Alex Banoski met with a compensable accident in the course of his employment with the Austin Company. General Accident Fire & Life Insurance Corporation, the workmen's compensation carrier for the Austin Company, on its behalf, paid out the sum of $14,080 as a result of said injuries.
Alex Banoski and Marjorie Banoski, his wife, instituted a common-law negligence action against the alleged tortfeasors, Moto-Crane Service, Inc. and W.H. Anderson, Inc. Pursuant to a stipulation with the plaintiffs, General Accident Fire & Life Insurance intervened[1] as a party plaintiff,[2] seeking to recover the workmen's compensation payments made to Alex Banoski.
Prior to trial, Banoskis' attorney moved the court to exclude any reference to compensation payments in the presence of the jury, and further moved that the attorney for General Accident take no active part in the trial and should be introduced to the jury as "of counsel" for the Banoskis. Although the General Accident attorney consented to these motions, he remained present at the counsel table throughout the four days of trial. Banoskis' suit was prepared and tried without any aid or assistance from the attorney for General Accident.
*491 The jury returned a verdict in favor of Alex Banoski in an amount of $130,000, and in favor of Marjorie Banoski in an amount of $9,000. Judgments in accord with the verdicts were entered, and the attorney for General Accident consented to the entry of said judgments. Only those judgments in favor of the Banoskis were entered.
Subsequently, the attorneys for the Banoskis and General Accident could not agree on the amount of reimbursement for each party, and on October 7, 1969, the plaintiffs' attorney filed a motion to determine the amount of reimbursement due General Accident; said motion was heard by the trial court, which ordered the following:
(a) The total workmen's compensation benefit paid by General Accident Fire & Life Insurance Corporation was $14,080.11.
(b) General Accident Fire & Life Insurance Corporation's share of the expenses of recovery are: (1) one-third contingent attorney fee, amounting to $4,693,[3] and (2) miscellaneous expenses in the amount of $75.90.
(c) Plaintiff Alex Banoski shall reimburse General Accident Fire & Life Insurance Corporation in the amount of $9,311.21; this amount is to be paid after Alex Banoski receives sums satisfying his judgment, with interests and costs.
(d) General Accident Fire & Life Insurance Corporation is not entitled to interest on compensation benefits it has paid.
From these determinations, the intervening plaintiff appeals.
*492 Initially, the intervening plaintiff contends that the trial court erred reversibly by requiring it to reimburse plaintiffs' attorney for its pro rata share of attorney fees. The applicable statute governing this issue reads:
"In an action to enforce the liability of a third party, the plaintiff may recover any amount which the employee or his dependents or personal representative would be entitled to recover in an action in tort. Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall first reimburse the employer or its workmen's compensation carrier for any amounts paid or payable under the workmen's compensation act to date of recovery, and the balance shall forthwith be paid to the employee or his dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payment of compensation benefits.
"Expenses of recovery shall be the reasonable expenditures, including attorney fees, incurred in effecting such recovery. Attorney fees, unless otherwise agreed upon, shall be divided among the attorneys for the plaintiff as directed by the court. The expenses of recovery above mentioned shall be apportioned by the court between the parties as their interests appear at the time of said recovery." MCLA § 413.15 (Stat Ann 1968 Rev § 17.189).
The general rule in regard to sharing attorney fees, as stated by 2 Larson, Workmen's Compensation Law, § 74.32, p 226.118, is that, if the sum recovered by the employee is more than enough to pay attorney's fees and reimburse the carrier, the carrier is reimbursed in full, and, apart from special statutes on sharing attorney fees, is not required to share the legal expenses involved in effectuating *493 recovery. It is also noted that a considerable number of statutes exist which state that, if suit is brought or recovery is effected by the employee, the carrier is obliged to pay a portion of the attorney's fee out of his share, usually in proporation to his share of the recovery.
The primary Michigan case which has interpreted the above statutory provision was Potter v. Vetor (1959), 355 Mich 328; also Horsey v. Stone & Webster Engineering Corporation (WD Mich, 1958), 162 F Supp 649. In Potter, plaintiff was injured by a third-party tortfeasor, and the employer, through its compensation carrier, made payments therefor. Subsequently, plaintiff instituted a lawsuit in circuit court and the carrier supplied plaintiff's attorney with the results of its investigation and medical reports. Thereafter, a settlement was reached and a judgment was entered therefor. It was noted that the carrier did not participate in the lawsuit, nor in the negotiations between plaintiff and the third-party defendant's counsel. Plaintiff appealed the trial court's ruling that the carrier should recover the full amount of its payments without being required to pay part of the expenses incurred by plaintiff in the circuit court law action.
The Supreme Court stated that MCLA § 413.15 used unambiguous language in providing that
"expenses of recovery shall be reasonable expenditures, including attorney fees, incurred in effecting such recovery,"
and that these expenses of recovery
"shall be apportioned by the court between the parties as their interests appear at the time of said recovery." Potter v. Vetor, supra, 331, 332. *494 The Court then concluded that the trial court erred in ruling that the carrier should recover the full amount of its payment without sharing its part of the expenses incurred in the circuit court action.
In Potter, supra and in Horsey, supra, the carriers did not, prior to judgment, participate in the plaintiff's lawsuit, nor in the negotiations between plaintiff and the third-party tortfeasor. The carriers in both cases were required to pay for their proportionate share of expenses of recovery, including attorney's fees. In the instant case, although the carrier did intervene,[4] the carrier's attorney did not assist plaintiff's attorney in this cause. Furthermore, the carrier agreed not to participate in the trial of this cause. No claim was made that plaintiffs' attorney would not or did not adequately represent the carrier's interests at the trial,[5] nor does the carrier now complain that it was denied the right to participate. We find that the trial judge did not abuse his discretion in requiring the carrier to bear its pro rata share of the expenses.
The carrier also claims that it is entitled to interest on its share of the recovery. Plaintiffs contend that, inasmuch as no money judgment was entered in favor of the compensation carrier (the *495 judgment entered in this matter was in favor of Alex Banoski), and that, since the carrier consented to the entry of the judgment, it is not entitled to any interest. The applicable statute provides, in pertinent part:
"Interest shall be allowed on any money judgment recovered in a civil action * * *." MCLA § 600.6013 (Stat Ann 1971 Cum Supp § 27A.6013).
In view of the fact that the aforementioned statute is remedial in nature and is in derogation of the common law, it must be strictly construed. Motyka v. Detroit, G.H. & M.R. Co. (1932), 260 Mich 396; Swift v. Dodson (1967), 6 Mich App 480.
Since the judgment was entered in favor of plaintiff Alex Banoski, the carrier does not fall within the ambit of the statute.
Affirmed. Costs to appellee.
LEVIN, J. (dissenting).
I would remand for a determination by the trial court of a "reasonable expenditure" for attorney fees for the attorney representing the injured employee and for the attorney representing the subrogee (which could be less, more, or the same as the one-third contingent fee the injured employee agreed to pay his attorney), and for a division of the amount so determined between the two attorneys.
The subrogee is entitled to that portion of the interest paid by the third-party tortfeasor allocable to the subrogee's share of the recovery.
I.
After Alex Banoski, the injured employee, and his wife, Marjorie, commenced this action against the third-party tortfeasor, leave to intervene was granted to General Accident Fire & Life Insurance *496 Corporation, the workmen's compensation insurance carrier of Alex Banoski's employer. Thereupon, General Accident became a party to this litigation.[1]
General Accident, as the employer's workmen's compensation insurer, enjoys statutory rights of subrogation under Part III, § 15 of the Workmen's Compensation Act.[2] Under the provisions of § 15, any recovery, whether by settlement[3] or pursuant to a judgment "for damages * * *, after deducting expenses of recovery, shall first reimburse the employer or its workmen's compensation insurance carrier for any amounts paid or payable under the workmen's compensation act to date of recovery, and the balance shall forthwith be paid to the employee or his dependents or personal representative".
II.
I agree with the majority that General Accident is obliged to share in the payment of Banoski's attorney's fees. Merely because General Accident was represented by its own counsel does not relieve *497 it of the statutory obligation recognized in Potter v. Vetor (1959), 355 Mich 328, to share the "expenses of recovery" of any amount recovered from the third-party tortfeasor.
Under the statute, as construed in Potter, the amount of the recovery payable to the subrogee is to be reduced by a pro rata portion of the reasonable expenses or expenditures of recovery, including attorney fees.[4]
III.
I disagree with the majority's holding affirming the trial court's decision that no part of the reasonable expenditure for attorney fees determined by the court is payable to General Accident's lawyer.
While it is arguable that a fee payable to a lawyer representing a subrogee in a case where the injured employee's attorney takes the leading role is not an expense of "recovery" because the same judgment would have been obtained against the third-party tortfeasor and thus the same "recovery" even if no lawyer entered an appearance for the subrogee, I am satisfied that the term "expenses of recovery" cannot properly be read in that narrow sense.
Manifestly, General Accident had a substantial interest in the outcome of the action commenced by the Banoskis and was entitled to be represented by counsel. It was not obliged to rely on the Banoskis' lawyer to protect its interests. From General Accident's point of view, the fees paid to its lawyer are an expense of recovery.
Section 15 provides:
"Expenses of recovery shall be the reasonable expenditures, including attorney fees, incurred in *498 effecting such recovery. Attorney fees, unless otherwise agreed upon, shall be divided among the attorneys for the plaintiff as directed by the court. The expenses of recovery above mentioned shall be apportioned by the court between the parties as their interests appear at the time of said recovery."
While an injured employee might be represented by more than one attorney, it is perfectly clear that the legislative provision for the possibility that there would be more than one attorney representing the "plaintiff" was made primarily to cover the situation with which we are now confronted, a case where different parties are represented by different attorneys and their interests are competitive. As stated by the Supreme Court in Potter v. Vetor, supra, p 332: "Who were the parties at the time of recovery? There can be but one answer: namely, plaintiff [the injured employee] and the insurance carrier".
Under § 15 the trial court has the duty of determining the aggregate amount of attorneys' fees which will be treated as a reasonable expenditure incurred in effecting a recovery and of dividing that amount among the attorneys for the "plaintiff". In this case, the Banoskis had agreed that their attorney would receive a contingent fee of one third of any recovery. The amount allowed by the court as the aggregate reasonable expenditure for attorney's fees might be the one-third contingent fee agreed upon or an amount more or less than the agreed contingent fee. The agreement of one of the parties and his attorney as to the amount of the attorney's fee does not limit the court's authority and responsibility to determine the amount that will be allowed as the shareable "reasonable expenditure" for attorney fees in a case such as this where the expenses *499 of recovery are to be shared between competing parties.
Whether the amount so allowed by the court limits the amount recoverable by the attorneys from their clients is an entirely different question. I am inclined to the view that § 15 establishes the means of determining what constitutes a reasonable expenditure only for the purpose of determining the amount of the expenditures for attorney fees to be shared between an injured employee and his subrogee, and that it does not confer on the court the authority to set an attorney's fee between attorney and client. The court's prerogative under § 15 then is only to determine what shall constitute the aggregate "reasonable expenditure" for attorney fees to be shared by the attorneys of competing parties and, once such aggregate amount is determined, to allocate and divide the amount among the attorneys.
Clearly, in this case the attorney representing the injured employee played the leading role in the preparation and prosecution of this action to a successful conclusion and is therefore, entitled to by far the largest portion of whatever amount is determined to be the reasonable expenditure for attorney fees.
The majority write that "no claim was made that the plaintiffs' attorney would not or did not adequately represent the carrier's interest at the trial". A subrogee's right to be represented by separate counsel does not depend on whether the employee's attorney is adequate, or upon an ex post facto determination of the adequacy of the employee's attorney's representation of the subrogee's interests.
While the litigation interests of an injured employee and of his subrogee in respect to a third-party tortfeasor are perhaps identical, their interests are *500 not altogether identical and the subrogee needs separate representation.
General Accident's cause of action against the third-party tortfeasor was tried as well as the Banoskis' action. While in this case the bulk of the recovery will go to the Banoskis and their attorney, in other cases the bulk of the recovery will go to the subrogee and its attorney.
The need for separate representation by different attorneys of the employee and of the subrogee would be more apparent if this case had been settled, or if the jury verdict was for an amount closer to the amount which the subrogee is entitled to retain. Until the jury's verdict was announced in this case, the judgment on the verdict was entered and the time for appeal had expired, it did not become finally established that the bulk of the recovery would belong to the Banoskis rather than the subrogee.
Where an action against a third-party tortfeasor is brought by an injured employee, his subrogee has the right to have its attorney in the courtroom observing the proceedings, playing such role as he thinks his client's interests require. In many cases, that role will be to remain silent and to allow a competent attorney representing the injured employee to present the plaintiff's case without interference. In another, the subrogee's attorney may conclude that he should play a more active role. That is a decision which he, as the representative of his client's interests, must make.
The trial court's judgment cannot be affirmed on the basis that the matter resides in its discretion. While great deference will, no doubt, be paid to a trial judge's determination of the amount which is reasonable and to the division of that amount, he does not enjoy discretion to deny altogether a share *501 of the "reasonable expenditure" for attorney fees to the attorney for one of the parties absent a finding and a record supporting such a finding that the attorney did not render services necessary to the adequate representation of his client.
IV.
I also disagree with the majority's holding affirming the trial court's decision that all the prejudgment interest, including the portion allocable to the subrogee's share of the recovery, should be paid to the injured employee.
When § 15 was enacted, prejudgment interest was not, as a general proposition, recoverable in an action for personal injuries against a tortfeasor.[5] Reading § 15 in that setting, I agree with the majority that the Legislature did not intend that prejudgment interest would be paid under § 15 as part of the "first reimbursement" to the subrogee out of whatever amount is recovered by an injured employee from a third-party tortfeasor.[6]
Prejudgment interest is now recoverable by injured persons in actions against tortfeasors as a result of a 1965 amendment of § 6013 of the Revised Judicature Act. Whereas formerly the act provided for interest calculated from the date of judgment, under the amended act "interest shall *502 be allowed on any money judgment recovered in a civil action, such interest to be calculated from the date of filing the complaint".[7]
In my opinion, the question presented does not require so much a construction of § 15 of the Workmen's Compensation Act as it does a construction of the 1965 amendment of § 6013 of the Revised Judicature Act.
Prejudgment interest, whether paid pursuant to a statutory directive or added apart from a statute as part of the damages, is allowed in order to accomplish full compensation.[8] In directing that in all civil actions interest shall be allowed on any money judgment, the Legislature sought to erase the feeble distinction between liquidated and unliquidated claims so that more adequate compensation would be paid, so that damages (interest) for the delay in payment would be paid in every case.
Having in mind that legislative purpose and the function of prejudgment interest, it does not make sense to allow the employee to retain the interest included in the judgment in respect to the portion of the award allocable and belonging to the subrogee.[9] The construction for which the majority write denies the subrogee the full compensation *503 which the Legislature sought to achieve when it amended RJA § 6013, and grants to the employee interest on the portion of the judgment which is payable to the subrogee. I do not think that we can properly impute such an intention to the Legislature. No doubt, the Legislature intended that prejudgment interest would be paid to the parties in interest as their interest shall appear.
It is of no significance that the judgment was entered in favor of Alex and Marjorie Banoski and that General Accident is not named in the judgment, or that its attorney consented to the entry of the judgment in that form. The judgment was entered in the interest of the subrogee as well as in the interest of the injured employee.
The subrogee was not named in the judgment because the subrogee's interest was not made known to the jury and the jury's verdict named only the Banoskis.[10]
General Accident, in consenting to the entry of the judgment, did not enter into a settlement of a then nonexistent controversy concerning prejudgment interest; no consideration was paid to General Accident for its consent. The question of its right to interest should depend on the substance, not the form of the matter. If, as I would hold, General Accident is entitled to interest, then interest should be allowed without regard to whether the dispute over interest came to light before or after the entry of the judgment on the jury's verdict.
*504 General Accident is entitled to that portion of the interest allocable to its share of the recovery determined before reduction on account of the expenses of recovery.
NOTES
[1] MCLA § 413.15 (Stat Ann 1968 Rev § 17.189), since replaced by MCLA 1971 Cum Supp § 418.827 (Stat Ann 1971 Cum Supp § 17.237[827]), effective Dec. 31, 1969. Since the instant case arose prior to this enactment, the discussion will relate to the prior statutes.
[2] Hereinafter designated as "intervening plaintiff".
[3] The trial court apparently assessed the intervening plaintiff 1/3 of $14,080 which was the amount claimed. If the procedure enunciated in Horsey v. Stone & Webster Engineering Corporation (WD Mich, 1958), 162 F Supp 649, were used (later referred to in Mead v. Peterson-King Co. [1970], 24 Mich App 530), the figure would have been $4,680. In any event, the difference is "de minimis".
[4] Although MCLA § 413.15 allows intervention by an employer or his insurance carrier, the nature and scope of such intervention is not clearly defined. Harrison v. Ford Motor Company (1963), 370 Mich 683; Harris v. General Coach Works (ED Mich, 1964), 37 FRD 343. Our Supreme Court said, in regard to the legislature's failure to define the intervening plaintiff's rights: "Undoubtedly an appreciation therefore accounts for the failure of the legislature, in providing for the insurer's `right to join in said suit,' to specify that it should, in all events, be as a party plaintiff or that, as such, it should have the right to participate as party plaintiff with the plaintiff employee in the trial of the case." Harrison v. Ford Motor Co., supra, 688.
[5] Right to Recovery by employer or carrier from monies received by employee from settlement before judgment, Transamerican Freight Lines, Inc., v. Quimby (1968), 381 Mich 149; Arnett v. General Motors Corporation (1970), 22 Mich App 658; See Gamble v. American Asbestos Products Company (1968), 381 Mich 105.
[1] Petrosian v. Frizell (1970), 25 Mich App 141.
[2] MCLA § 413.15 (Stat Ann 1968 Rev § 17.189). The Workmen's Compensation Act in effect when Banoski was injured and this action against the third-party tortfeasor was commenced and tried was repealed and replaced by the Workmen's Compensation Act of 1969, PA 1969, No 317. The substance of Part III, § 15 of the former act is now § 827 of the 1969 act, see MCLA § 418.827 (Stat Ann 1971 Cum Supp § 17.237[827]).
[3] See Gamble v. American Asbestos Products Company (1968), 381 Mich 105; Transamerican Freight Lines, Inc. v. Quimby (1968), 381 Mich 149.
In Modeen v. Consumers Power Company (1971), 384 Mich 354, the Michigan Supreme Court held that where an injured employee and his employer agree upon a settlement with a third-party tortfeasor of their claim against him and agree upon an apportionment of the "expenses of recovery" the employer cannot thereafter be required to respond for an additional portion of the employee's expenses of recovery by requiring the employer to pay to the employee the amount of the expenses of recovery attributable to future workmen's compensation benefits which would thereafter become payable if the employer were not relieved of payment by reason of the employee's recovery from the third-party tortfeasor.
[4] See Horsey v. Stone & Webster Engineering Corporation (WD Mich, 1958), 162 F Supp 649, 654; Mead v. Peterson-King Co. (1970), 24 Mich App 530, 535, n 6.
[5] 22 Am Jur 2d, Damages, § 191, p 269. That unliquidated claims do not bear interest, see Amluxen v. Eugene J. Stephenson, Inc. (1954), 340 Mich 273, 275; Fitzpatrick v. Ritzenhein (1962), 367 Mich 326, 333, 334. But see Cree Coach Company v. Wolverine Insurance Company (1962), 366 Mich 449, 461. See, generally, Banish v. City of Hamtramck (1968), 9 Mich App 381, 395.
[6] Moreover, prejudgment interest was not then an "amount which the employee or his dependents or personal representative would be entitled to recover in an action in tort." Additionally, prejudgment interest would not be an amount "paid or payable" to the employee by the employer or his insurer. The quoted words are from § 15, see MCLA § 413.15 (Stat Ann 1958 Rev § 17.189).
[7] PA 1965, No 240, and PA 1966, No 276, amending § 6013 of the Revised Judicature Act, MCLA § 600.6013 (Stat Ann 1971 Cum Supp § 27A.6013). Interest is to be computed at the rate of 5% per year unless the judgment is rendered on a written instrument having a higher rate of interest.
[8] See Banish v. City of Hamtramck, supra, p 397.
[9] The general rule is that a subrogee is entitled to recover interest in addition to the principal sum. 50 Am Jur, Subrogation, § 121, p 761. However, the cases cited in American Jurisprudence are distinguishable factually from the present case in that here the right of subrogation is neither legal (based on equitable or common-law principles) nor conventional (based on a convention or agreement entered into by the parties), but, rather, arises as the result of a mandate of the Legislature. Nevertheless, it is not totally without significance that as a general proposition a subrogee recovers interest.
[10] The Banoskis' attorney moved the court before the trial to exclude any reference in the presence of the jury to the workmen's compensation payments or to the fact that an insurance company had an interest in the proceeds of any judgment. The motion was granted. The jury, unaware of General Accident's interest, made no mention of General Accident in rendering its verdict and, accordingly, the judgment on the verdict was likewise silent as to its interest. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592999/ | 386 Mich. 483 (1971)
192 N.W.2d 241
PEOPLE
v.
TEES
PEOPLE
v.
BATTEN
No. 30 October Term 1971, Docket Nos. 52,924, 52,925.
Supreme Court of Michigan.
Decided December 21, 1971.
*484 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Thomas G. Plunkett, Prosecuting Attorney, and Dennis Donohue, Chief Appellate Counsel, for the people.
James F. Finn, for defendants.
PER CURIAM:
The controlling question here is substantially the same as that which confronted the Supreme Court in Barber v. Page (1968), 390 US 719 (88 S Ct 1318, 20 L Ed 2d 255), and again in Berger v. California (1969), 393 US 314 (89 S Ct 540, 21 L Ed 2d 508). That question is whether the defendants were deprived of their Sixth and Fourteenth Amendment right to be confronted by absent from this joint trial prosecution witnesses Connie Wood and Victor Postic. For the background of facts giving rise to the stated question, see People v. Tees (1970), 23 Mich App 476 and People v. Batten (1967), 9 Mich App 195.
Defendants were tried and sentenced in 1962, prior of course to the handing down of Barber and Berger. However, in Berger, the presently applied rule of Barber was held effective retroactively.
The prosecuting attorney concedes that "no showing was made of any attempt to procure the presence of the witness Victor Postic at the trial in the above entitled cause, other than a mere showing that he *485 was in the Navy and outside the jurisdiction of the State." He contends however that the transcript of Postic's testimony shows that such testimony did not incriminate either of the defendants, "and indeed constituted harmless constitutional error," citing Chapman v. California (1967), 386 US 18 (87 S Ct 824, 17 L Ed 2d 705). As for the witness Wood, the prosecutor states candidly that "the People have never contended that her testimony was harmless." His position nonetheless is that defendants "have failed to establish any abuse of discretion on behalf of the trial court's actions in ruling that sufficient effort had been expended to produce Miss Connie Wood for trial."
We are convinced that the record made here, as and for justification of nonproduction at the trial of the two named witnesses, and of the evidentiary employment during the trial of testimony given by them at the preliminary examination, comes within the constitutional ban of Barber and Berger and that it would never pass muster before the Supreme Court.
Reversed and remanded for new trial or separate trials, as the trial judge may be advised.
T.M. KAVANAGH, C.J., and BLACK, ADAMS, T.E. BRENNAN, T.G. KAVANAGH, SWAINSON, and WILLIAMS, JJ., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593001/ | 453 So.2d 1037 (1984)
Mary Virginia KNEBEL
v.
CITY OF BILOXI and Civil Service Commission.
No. 54996.
Supreme Court of Mississippi.
August 8, 1984.
Charles T. Sykes, Jr., Gulfport, for appellant.
Michael B. McDermott, Page, Mannino & Peresich, Biloxi, for appellees.
Before WALKER, P.J., and BOWLING and HAWKINS, JJ.
HAWKINS, Justice, for the Court:
Mary Virginia Knebel appeals from a judgment of the Circuit Court of the Second Judicial District of Harrison County, upholding the Civil Service Commission of the City of Biloxi in approving her discharge as a city patrolman.
The issue before us is the right of a police department under certain circumstances to order an employee to take a polygraph test, the refusal of which authorizes the department to discharge the employee.
We hold the facts of this case justified such order and affirm.
On Tuesday, June 29, 1982, the Narcotics Units of the Biloxi Police Department was in the process of searching a residence and making arrests of two female occupants. Knebel, driving her private automobile, and accompanied by Pat Blanchard, a police dispatcher, stopped. She asked Officer Richard L. Giraud what he was doing there, prompting the response from the latter of what she was doing there. Knebel either said she was visiting friends, or there to pick up a friend. Giraud then asked her if it was the house he pointed to (the house being searched), and she said it was. Whereupon Giraud told her that her friend had been "busted", and again upon inquiry from Knebel, he said it was for a narcotics violation. Knebel's curiosity persisted, what kind of violation? The reply: marijuana. Felony or misdemeanor? Felony. Knebel then said she had better leave, and she drove off with Blanchard.
Upon being questioned, the women in the house told the officer that Knebel had upon occasion visited the house, had purchased marijuana, and had smoked it in the house.
Giraud reported this to his superior which resulted in a department investigation. The Director of Public Safety of the Biloxi Police Department, Giraud's superior, directed an administrative investigation, but no criminal proceeding. Thereafter, upon being questioned, Knebel said the two occupants of the house were friends, but she denied she had bought or used any marijuana. When asked if she would take a polygraph test, she said she would have to consult an attorney.
Officer Blanchard admitted when she was questioned she had been to the house and had one time seen some marijuana. Blanchard refused outright the request to take a polygraph test.
Knebel was told the investigation was administrative, not criminal, and nothing she said would be used against her in a criminal proceeding.
A few days later Knebel reported to Director Lower that she would not take a polygraph test. She was ordered to take one, and upon her refusal, she was suspended.
A departmental hearing was conducted, resulting in a vote of three-to-two to discharge her. Knebel appealed to the city's civil service commission, which upheld her termination. She then appealed to the Circuit *1039 Court, and from the adverse decision of that court she has appealed.
There were in effect regulations of the city which require that under certain circumstances an employee may be directed to take a polygraph test, and refusal to do so will constitute ground for discharge. The reason the officer gave for her discharge was "insubordination", the refusal to comply with a lawful order.
LAW
There is no need to recite the administrative steps taken in the process of investigating Knebel, or the precise regulations. All administrative proceedings accorded her due process.
Knebel claims a 5th and 6th Amendment right under the United States Constitution, and a 26th Amendment right under our Constitution not to take the test. Also, she states thee was no grant of immunity from criminal prosecution, the city was without power to grant such immunity, and therefore, she had a constitutional right to refuse to take the polygraph test.
On June 30, 1981, Knebel was advised of her rights under the following form which she and Giraud signed:
1. You have no right to remain silent. You have an obligation to truthfully answer questions put to you. You are advised that your statements or responses constitute an official police report.
2. If you refuse to answer questions put to you, you will be ordered by a superior officer to answer the question.
3. If you persist in your refusal after the order has been given to you, you are advised that such refusal constitutes a violation of the Rules and Regulations of the Biloxi Police Department 30.18 and will serve as a basis for which your discharge will be sought.
4. You are further advised that by law any admission made by you during the course of this hearing, interrogation or examination cannot be used against you in a subsequent criminal proceeding. [Emphasis added]
In Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), police officers being questioned by the state attorney general's office were told they did not have to answer any questions and anything they said could be used against them. They were also told refusal to talk would subject them to removal from office. They talked; they were prosecuted; their statements were used against them at trial.
The U.S. Supreme Court held the statements were coerced and inadmissible. "The choice given petitioners was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent." [385 U.S. at 497, 87 S.Ct. at 618, 17 L.Ed.2d at 565]
The court then held the method of obtaining the statements precluded their use in a criminal proceeding.
In Gardner v. Uniformed Sanitation Men, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968), the court considered whether a city could fire an employee who had been subpoenaed for a grand jury and who refused to sign a waiver of his 5th Amendment right. The court held the discharge invalid.
While the Supreme Court in Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973), held that an architect who refused to sign a waiver of immunity from prosecution could not for such reason have his public contract cancelled, or be prevented from doing business with the state, the court also observed:
We should make clear, however, what we have said before. Although due regard for the Fifth Amendment forbids the State to compel incriminating answers from its employees and contractors that may be used against them in criminal proceedings, the Constitution permits *1040 that very testimony to be compelled if neither it nor its fruits are available for such use. Kastigar v. United States [406 U.S. 441, 32 L.Ed.2d 212, 92 S.Ct. 1653 (1972)], supra. Furthermore, the accommodation between the interest of the State and the Fifth Amendment requires that the State have means at its disposal to secure testimony if immunity is supplied and testimony is still refused. This is recognized by the power of the courts to compel testimony, after a grant of immunity, by use of civil contempt and coerced imprisonment. Shillitani v United States, 384 US 364, 16 L Ed 2d 622, 86 S Ct 1531 (1966). Also, given adequate immunity, the State may plainly insist that employees either answer questions under oath about the performance of their job or suffer the loss of employment... . [414 U.S. at 84, 94 S.Ct. at 325, 38 L.Ed.2d at 285-286]
Since Garrity holds that a statement, given by a police officer about his official conduct under questioning from state authorities under threat that if he does not answer he will be fired, is inadmissible into evidence in a criminal proceeding against the officer, it follows that a statement given under the promise that it will not be used against him in a criminal proceeding is likewise inadmissible. This follows, not from the authority of the interrogator to make such promise, but the very nature of the 5th Amendment as stated in Confederation of Police v. Conlisk, 489 F.2d 891, 894, Note 4 (7th Cir.1973) cert. denied sub nom. Rochford v. Confederation of Police, 416 U.S. 956, 94 S.Ct. 1971, 40 L.Ed.2d 307 (1974):
Appellants argue that the IAD is not empowered to grant immunity from prosecution to the police officers. Such a power, however, is not necessary. In Garrity the Supreme Court indicated that the Fifth Amendment itself prohibited the use of statements or their fruits where the statements had been made under threat of dismissal from public office. Therefore, by advising the officers that their statements, when given under threat of discharge, cannot be used against them in subsequent criminal proceedings, the IAD is not "granting" immunity from prosecution; it is merely advising the officers of the constitutional limitations on any criminal prosecution should they answer.
Constitutional rights and limitations are at stake here. It is therefore pertinent that we answer the effect of any such statement given in the event of a future criminal prosecution. The literal promise given Knebel was that any statement she gave would not be used against her in a criminal prosecution. The promise went no further than this. But what about the fruits of such a statement, such as leads to other witnesses or physical evidence located thereby? Would such a promise likewise preclude the state from use of the fruits of such statement? It would. See: Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, p. 1085, 20 L.Ed.2d 1082: "Answers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution... ." Also, see Lefkowitz v. Turley, quoted supra; Confederation of Police v. Conlisk, quoted supra; and Sanitation Men Association, Inc. v. Commissioner of Sanitation, 426 F.2d 619, 627 cert. denied 406 U.S. 961, 92 S.Ct. 2055, 32 L.Ed.2d 349 (1972).
In order to justify questioning, the promise need not, nor does it grant the questioned officer blanket immunity from prosecution of a matter being investigated. It extends only to preventing the state's use either of the statement or its fruits in a subsequent criminal proceeding. To hold a statement affords blanket immunity would extend the 5th Amendment further than the rights it grants. See: Uniformed Sanitation Men Association, Inc. v. Commissioner of Sanitation of New York, 426 F.2d 619 (1970).[1]
In Garrity, the Supreme Court quoted Justice Holmes: "The petitioner ... has no constitutional right to be a policeman ... *1041 the servant cannot complain, as he takes employment on the terms which are offered him. On the same principle, the city may impose any reasonable condition upon holding offices within its control."
Under the facts of this case, it was reasonable to require Knebel to take a polygraph test restricted to her involvement in illegal drugs under investigation. She had no constitutional right to refuse, and her refusal justified her dismissal.
It follows that the judgment of the Circuit Court should be affirmed.
AFFIRMED.
WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.
PATTERSON, C.J., not participating.
NOTES
[1] Counsel for Knebel is correct that the City of Biloxi has no authority to grant immunity from state prosecution, and certainly not federal prosecution. In the above cited case, Judge Friendly of the 2d Circuit distinguishes between "use immunity" and "transactional immunity." When investigating authorities require an officer to give a statement with a promise it will not be used against him, by virtue of the 5th Amendment neither the statement nor its fruits can be used in any subsequent state or federal prosecution. It's use is forbidden. But, to give immunity from prosecution for the transaction under investigation, this must come by a statute granting transactional immunity under the circumstances, or from an official or government agency with such authority. As we note in this opinion, "transactional immunity" is not necessary in order to require an officer to answer questions or be dismissed. Judge Friendly's opinion is an excellent study of the questions presented in this case. See also Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593003/ | 192 N.W.2d 133 (1971)
STATE of South Dakota, Plaintiff and Respondent,
v.
Lanford Charles SNOFLY, Defendant and Appellant.
No. 10878.
Supreme Court of South Dakota.
December 2, 1971.
David V. Vrooman, Sioux Falls, for defendant and appellant.
Gordon Mydland, Atty. Gen., Walter W. Andre, Asst. Atty. Gen., Pierre, for plaintiff and respondent.
WINANS, Judge.
The defendant, Snofly, was charged by information with the crimes of grand larceny and escape. The information filed was in two counts. Count 1 charged the defendant with escaping from the Jones County jail while being held prisoner there, and Count 2 contained the grand larceny charge. No question has been raised as to the joinder of the two crimes. The defendant was tried and was convicted on both counts and sentenced to a term of one year for escape and three years for grand larceny, the terms to run concurrently.
The defendant was incarcerated in the Jones County jail on a charge of public intoxication on the night of the 26th of January, 1970. He had been taken to the court on this charge sometime previous and given a jail sentence which he was serving, *134 but it would appear there was no order delivered to the sheriff from the justice of the peace committing the defendant to jail. The sheriff discovered that defendant and his companion were both missing from the jail about 8:30 or 9:00 o'clock a. m. on January 27, 1970. About this time a Mr. Anderson reported his car was missing and gave the description of such car to the sheriff who made an auto theft report and put this information on the state police radio. The car was recovered January 29, 1970 at Norris, South Dakota. In the car when discovered were some small items of personal property identified by the sheriff as having been taken from the jail, together with a jacket identified as belonging to Snofly. The defendant was seen at the Pete Medicine Bear trailer-house in Murdo early on the morning of January 27, 1970. The defendant and Joan Thin Elk left the trailer together in a car later identified as the missing car. The defendant who was the driver got out of the car at White River, South Dakota and Joan Thin Elk took it to Norris, then to Mission, and then back to Norris. When defendant left the car at White River he walked down-river. Mr. Anderson testified that his automobile had been parked by his home on the night of January 26th, the keys left in the vehicle and the car left unlocked.
Present counsel on this appeal raises two questions of claimed error. Defendant's assignments of error are (1) the court erred in submitting the issue of guilt or innocence of grand larceny to the jury because the evidence at most showed only that the crime of unauthorized tampering may have been committed, and (2) the court erred in not dismissing the escape charge for the reason the defendant was being illegally detained by the sheriff at the time of the alleged escape.
We address ourselves to the grand larceny charge first. Actually the defendant's assignment of error is simply that the evidence was insufficient to sustain the charge of grand larceny though maybe couched in a little different language. We briefly discuss the procedural question. SDCL 23-50-2 states in pertinent part:
"Grounds for new trial.The court in which a trial has been had upon an issue of fact may grant a new trial when a verdict or decision has been rendered against the defendant, by which his substantial rights have been prejudiced, in the following cases only:
* * * * * *
(7) Insufficiency of the evidence to justify the verdict or other decision or that it is against law; * * *"
SDCL 23-51-3 provides:
"Application for new trial not necessary for appellate review.An application for a new trial shall not be necessary as a prerequisite to obtain appellate review as to matters specified in subdivisions (5), (6), and (7) of § 23-50-2, and all of such matters may be reviewed on appeal from the judgment, regardless of whether a motion for a new trial has been made, provided such matter has been submitted to the trial court as prescribed in § 23-51-18."
and SDCL 23-51-18 provides:
"Matters presented by motion for directed verdictApplication for new trial unnecessary for review.Such of the matters specified in subdivisions (5), (6), and (7) of § 23-50-2 as may have been timely presented to the trial court by motion for directed verdict, or other apt motion, offer, objection, or exception may be reviewed on appeal from the judgment without necessity for an application for a new trial."
At the close of the State's case the defendant made a motion that the case against him for escape be dismissed, stating his reasons for such motion. Neither the motion nor the reasons given concerned the grand larceny charge. It would appear, therefore, based upon the statutes we have quoted, that the defendant is not *135 in a position to question the sufficiency of the evidence to sustain a grand larceny charge. The right of appeal is statutory and does not exist in the absence of statute. State v. Davis, 77 S.D. 87, 86 N.W.2d 174. This court has also held that when at the close of the evidence on behalf of the State and again at the close of all evidence, defendant makes a motion to direct a verdict of acquittal which is denied, on appeal the correctness of the motion may be reviewed and the insufficiency of the evidence to justify the verdict is thus presented. State v. Nelson, 80 S.D. 574, 129 N.W.2d 54.
We also note from the settled record that the trial court instructed on the necessary elements to constitute the crime of grand larceny and also instructed on the unauthorized tampering statute, SDCL 32-4-4, as a lesser included offense of the offense of grand larceny of an automobile and that all of such instructions given by the court were without objection on the part of the defendant Snofly and that he proposed no additional instructions.
The verdicts, which were not excepted to, allowed the jury to bring in a verdict of guilty or not guilty to the grand larceny charge and if the not guilty verdict was brought in by the jury, the verdict provided for a guilty or not guilty verdict of the included offense of unauthorized tampering.
The issue on the escape is a narrow one. The defendant was charged with having on the 27th day of January, 1970, escaped from the Jones County jail contrary to SDCL 24-12-2 while being held as a prisoner. That section of the law, omitting the heading, provides in pertinent part: "Every prisoner confined in any prison other than the state penitentiary, or in the custody of any officer or person as a prisoner at any place, who escapes therefrom is punishable by * * *." SDCL 23-54-24 provides as follows: "When a judgment of imprisonment is entered, a certified copy thereof must be delivered to the sheriff or other officer, which is a sufficient warrant for its execution." The defendant maintains on this appeal that because the sheriff did not have a certified copy of the judgment of imprisonment or an order committing the defendant to jail, the sheriff had no legal basis for holding him, that he was free to leave and that his actions do not constitute escape.
In 27 Am.Jur.2d, under the heading "Escape, Prison Breaking and Rescue", § 7 at page 854, it is stated:
"Legality of custody, generally.
While the definition of `escape' and related offenses is usually drawn in terms of `lawful' custody, and many courts have recognized that the crime of escape necessarily involves the leaving of `lawful custody,' and that one charged with the crime of escape or similar offenses can defend by showing that the escaping prisoner was not `lawfully' imprisoned at the time of the alleged escape, it has also been recognized that where the imprisonment is under color of law, the prisoner is not entitled to resort to self-help but must apply for his release through regular legal channels, even though he might be able to show such defects in the procedure by which he was arrested, tried, sentenced, committed, or imprisoned as to justify or require his release on appeal or habeas corpus."
In 30A C.J.S. Escape § 5, p. 882, it is stated in the headnote:
"(2) Lawfulness of Custody
"It is an essential element of the crime of escape that the custody from which the prisoner escaped was lawful. While it has been held that it is not a crime to depart from custody for which there is no authority, a prisoner may not defy his guards and run away merely because his sentence is irregular or voidable."
*136 The reading matter under the main heading, in part, states at page 883 of the same citation:
"Moreover, custody is not rendered unlawful because the prisoner has been arrested and confined without a warrant, on suspicion of a felony; or because of failure to comply with statutory formalities in arresting him, or because of a mere informality in process, such as the failure of a warrant to state the county in which an offense was committed, or because of the absence of a commitment, or because the warrant, of the existence of which the prisoner has been informed, is not in the possession of the arresting officer, * * *."
In Whitaker v. Commonwealth, 188 Ky. 95, 221 S.W. 215, 10 A.L.R. 145 (Ct.App. 1920), the defendant argued that his jail confinement was not legal and he therefore had a right to escape. He claimed that he was practically dragged out of bed on a Sunday night, taken before the county judge who refused to hear him, and sentenced without trial. The court held that: "It was his duty to submit to the commitment until his status was changed or he was released in a proper manner. Ubi jus ibi remedium is a maxim of wholesome application. Whatever his rights, appellant had his legal remedy, and of this he should have availed himself. He was not authorized or justified in leaving the jail of his own volition." Black's Law Dictionary, Revised Fourth Edition (West Publishing Co.), defines the above quoted maxim as "Where there is a right, there is a remedy. It is said that the rule of primitive law was the reverse: Where there is a remedy, there is a right."
For further reference material see 70 A.L.R.2d, page 1430, Annot., Justification For Escape; 96 A.L.R.2d, page 520, Annot., Escape or prison breach as affected by means employed.
In our case it appears the defendant was in jail for public intoxication having been committed there by the justice of the peace. The sheriff did not receive from him a certified copy of the judgment of commitment. Nevertheless, we think the imprisonment of the defendant was, at least, under color of law and he was not entitled to resort to self-help, but should have resorted to some other procedure, such as habeas corpus, to determine whether or not he was being illegally detained.
Affirmed.
BIEGELMEIER, P. J., and HANSON and WOLLMAN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593084/ | 35 Mich. App. 342 (1971)
192 N.W.2d 563
PEOPLE
v.
RODRIGUEZ
Docket No. 9567.
Michigan Court of Appeals.
Decided July 28, 1971.
*343 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Eugene C. Penzien, Prosecuting Attorney, for the people.
Kenneth A. Skronek, for defendant on appeal.
Before: DANHOF, P.J., and BRONSON and O'HARA,[*] JJ.
PER CURIAM.
After a jury trial the defendant was convicted of selling d-lysergic acid diethylamide (LSD), MCLA § 335.106 (Stat Ann 1971 Rev § 18.1106). He now appeals.
At the trial the people called one Todd Jones who testified that he had purchased some LSD from the defendant. Jones stated that he had contacted the State Police and informed them that he believed he could purchase some LSD at 2812 Seminole Court, Portsmouth Township, Bay County. He further testified that on July 11, 1969, he went to the Seminole Court address and purchased some "black osleys" from the defendant. It was later established that the "black osleys" contained LSD.
The defendant's first contention is that the trial court erred in allowing a State Police Corporal to testify that on the evening of July 11, 1969, he conducted a search at the Seminole Court address and discovered minute traces of narcotics. The defendant did not object at the time this testimony was given and absent a miscarriage of justice this *344 cannot be urged as error for the first time on appeal. People v. Bauman (1952), 332 Mich 198.
An examination of the record shows that not only was there a failure to object, but that the whole question of the search had been opened up by the defendant's counsel on cross-examination. On redirect examination the prosecutor inquired into the search in greater detail and the testimony to which the defendant now objects was given. On these facts we find no miscarriage of justice.
The defendant contends that he was prejudiced when the prosecutor asked him if he was acquainted with one John Sinclair or with an organization known as Trans-Luv Productions. The defendant asserts that this questioning was prejudicial because at the time of trial there had been extensive publicity in the Bay County area connecting John Sinclair and Trans-Luv Productions with the drug traffic. However, at no time has the defendant produced or offered to produce evidence that there was such publicity.
The defendant's final contention is that he was prejudiced when the prosecutor made the following statement in his closing argument:
"I'm satisfied from the evidence in this case that the evidence establishes that the defendant is guilty. More than that it establishes that the defendant is guilty beyond a reasonable doubt. I don't believe that in sitting here listening to this testimony that the testimony leaves any reasonable doubt, and because I feel that way, I'm going to ask you to come in and find a verdict of guilty as charged. Thank you."
The quoted statement was merely part of the prosecutor's argument that the evidence showed that the defendant was guilty, and therefore, was *345 not improper. People v. Humphreys (1970), 24 Mich App 411. Furthermore, the defendant did not object to these remarks and he cannot raise the issue for the first time on appeal. People v. Miller (1970), 26 Mich App 665.
Affirmed.
NOTES
[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593108/ | 386 Mich. 305 (1971)
192 N.W.2d 482
PEOPLE
v.
JOHNSON
No. 30 April Term 1971, Docket No. 52,330.
Supreme Court of Michigan.
Decided December 21, 1971.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Angelo A. Pentolino, Assistant Prosecuting Attorney, for the people.
Roger Johnson, in propria persona.
WILLIAMS, J.
This is one of a quartette of cases dealing with guilty pleas.[1]
*309 This case presents two basic issues before this Court: 1. Whether the defendant's guilty plea was freely, understandingly, and voluntarily made; 2. Whether the defendant was adequately informed of his constitutional rights by the trial court.
A third question was also raised: Whether the defendant was prejudicially denied counsel at the time of his sentencing.
The defendant Roger Johnson and one Clifton Downing were charged on August 10, 1962, with first-degree murder in the shooting death of Eugene Oliver. The defendant originally pled not guilty, but then on November 26, 1962, withdrew that plea and pled guilty to the included offense of second-degree murder. He was sentenced to a prison term of not less than 20 years, or more than 40 years.
On September 8, 1967, the defendant filed a delayed motion for setting aside of his plea of guilty and for a new trial. This motion was denied by the trial court on January 30, 1968. An application for delayed appeal was denied by the Court of Appeals on August 30, 1968. This Court granted *310 the defendant's delayed application for leave to appeal on June 24, 1969.
I.
In the instant case, the defendant waited five years before attempting to have his guilty plea set aside. While there is no final time limitation by existing rule, we do not look with favor upon a long-delayed motion for a new trial. People v. Barrows (1959), 358 Mich 267, 272. We recognize the problems of the people in prosecuting the defendant for an offense committed nearly a decade ago.
Appeals such as this one illustrate the need for a court rule which would allow as of right hearings on the merits by motion in the trial court to vacate conviction and to withdraw the guilty plea only for a fixed reasonable period, for example the first 90 days following the date of sentencing. Such a rule would afford defendants ample opportunity to appeal alleged deprivation of their constitutional rights, while at the same time eliminating long-delayed motions for new trials. Thereafter hearing would only be on good cause shown, both on the merits and reason for delay.
As noted in Rufus Williams (1971), 386 Mich 277 also decided this day, this Court is setting up a committee comprised of members of the Bench and Bar to re-evaluate our current court rule on the acceptance of guilty pleas. That committee should also give serious consideration to a provision limiting the time to move as of right for the withdrawal of a guilty plea and the grant of a new trial.
II.
The defendant's major contention is that his plea of guilty was not freely, understandingly, and voluntarily *311 made. He alleges in an unsupported affidavit that his plea was coerced in that after his arrest he was beaten by a police official until he passed out, and then warned he would be given more of the same if he did not plead guilty. The defendant further alleges that his plea was induced in that he was promised by his attorney, the assistant prosecutor, and a police officer that if he pled guilty he would receive a maximum sentence of ten years in prison. None of these allegations obviously were a matter of record at the time the guilty plea was received.
MCLA § 768.35 (Stat Ann 1954 Rev § 28.1058) deals with the acceptance of guilty pleas and requires the trial court to satisfy itself "* * * that said plea was made freely, with full knowledge of the nature of the accusation, and without undue influence."
Court Rule No 35A (1945) requires " * * * that the plea was freely, understandingly and voluntarily made, without undue influence, compulsion or duress, and without promise of leniency." A review of the law in this area illustrates that if the allegations contained in the defendant's affidavit are true, his plea of guilty must be vacated.[2]
*312 This Court dealt with alleged coerced pleas of guilty in the case of People v. Coates (1953), 337 Mich 56. The defendant in Coates pled guilty to the crimes of rape and robbery armed in 1929. Subsequently he moved to have those pleas vacated in 1947 alleging that he had been threatened with death by police officials if he did not plead guilty. The defendant's contentions were supported only by his *313 own affidavit, and were contradicted by the testimony of the police officials involved. While this Court affirmed the defendant's convictions in Coates, we also noted that if his allegation was true, it would be grounds for setting aside his plea of guilty:
"We have no hesitation in holding that if such threats came to the attention of any circuit judge a plea of guilty would not be accepted. Moreover, defendant's answers to questions propounded by Judge Black in open court after his plea of guilty was made contradicts the claim he now makes. In our opinion defendant's plea of guilty was voluntarily made and with knowledge of the consequences." 337 Mich 56, 75.
This Court was concerned with a plea of guilty allegedly obtained by inducement in the case of In Re Valle (1961), 364 Mich 471. In that case the defendant pled guilty to the charge of breaking and entering in the nighttime after his court-appointed counsel stated in open court that the prosecutor would not oppose probation with a six months' jail term. The defendant was subsequently sentenced to 5 to 15 years in prison. In holding that such a plea was unlawfully induced and not voluntary, this Court stated:
"In this situation we do not require that the promise of leniency be established beyond any doubt whatever, or even beyond any reasonable doubt in the mind of one learned in the law and acquainted with judicial administration. The requirement is far less stringent: If the evidence establishes that the prosecutor or the judge has made a statement which fairly interpreted by the defendant (in our case of foreign extraction and with only an eighth-grade education, presumably in court for the first time) is a promise of leniency, and the assurance is unfulfilled, the plea may be withdrawn and the case proceed to trial." 364 Mich 471, 477, 478.
*314 The United States Supreme Court has also dealt with the problem of induced pleas of guilty. In Machibroda v. United States (1962), 368 US 487 (82 S Ct 510, 7 L Ed 2d 473) the defendant had pled guilty to two charges of bank robbery in 1956. He was sentenced to imprisonment for 25 years on one charge and for 15 years on the other, the sentences to run consecutively. In 1959 the defendant moved to have his pleas of guilty vacated on the grounds that they had been obtained by promises and threats. An accompanying affidavit of the defendant stated that the United States Attorney had promised him that he would receive a maximum total sentence of 20 years if he pled guilty. The defendant also alleged that the United States Attorney told him that two unsolved bank robberies would be added to his difficulties if he did not plead guilty.
In vacating the defendant's plea of guilty the United States Supreme Court stated:
"There can be no doubt that, if the allegations contained in the petitioner's motion and affidavit are true, he is entitled to have his sentence vacated. A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void. A conviction based upon such a plea is open to collateral attack." 368 US 487, 493.
In the instant case, there is no record of the trial court proceedings on the defendant's motion to set aside the guilty plea. We have no basis for determining whether or not the trial court abused its discretion in denying the defendant's motion for a new trial. Therefore we must remand this case for an evidentiary hearing[3] with Valle as a guide to determine if the defendant's guilty plea was "* * * *315 freely, understandingly and voluntarily made, without undue influence, compulsion or duress, and without promise of leniency." If the defendant's guilty plea was unlawfully coerced or induced, then it must be vacated and a new trial granted.
III.
The defendant also alleges that his plea was not voluntary because he then believed an allegedly improperly exacted statement made by him to the police concerning the crime would be admissible as evidence. Without considering whether or not the statement would have been admissible, relying upon McMann v. Richardson (1970), 397 US 759 (90 S Ct 1441, 25 L Ed 2d 763) we dismiss this argument of the defendant. In McMann, the United States Supreme Court affirmed the guilty plea conviction of a defendant who alleged that he pled guilty due to a prior coerced confession. The Court stated that a plea entered under such circumstances with the advice of counsel is a voluntary act. The defendant in the instant case was advised by counsel at the time of his plea and therefore in light of McMann, supra, his argument on this issue must fail.
IV.
The defendant argues that the trial judge erred in failing to inform him of his constitutional right to confront witnesses, and of his presumption of innocence. The transcript of the plea proceedings is silent as to any such instructions. (See Transcript of Plea Proceedings attached as Appendix I of this opinion.) The defendant further alleges that the trial court committed error due to its failure to instruct the defendant as to the nature of the offense, and to establish a factual basis for the defendant's *316 plea. It would also appear that the trial judge did not inform the defendant of his right against self-incrimination, though the defendant has failed to raise this point in his brief.
As People v. Williams, supra, indicates, this Court will shortly adopt a strict compliance standard in the taking of guilty pleas. This case, however, is still governed by the substantial compliance standard enumerated in People v. Stearns (1968), 380 Mich 704.
Though the plea proceeding transcript is improperly silent as to the above points, it is possible that the proper instructions to the defendant took place at an earlier stage of the proceedings. Therefore, on remand, the trial court should determine whether the defendant was properly informed on the record at any time prior to the acceptance of his guilty plea. See Williams, supra. If the evidentiary hearing does not disclose that the defendant was substantially informed of each of his rights, then his motion to vacate his plea of guilty must be granted.
V.
The defendant's final contention of error is that he was effectively denied counsel at the time of his sentencing. This allegation concerns the sentence he received and not his conviction.
We agree with the Court of Appeals' decision in People v. Dye (1967), 6 Mich App 217. In that case the trial court sentenced the defendant in the absence of counsel. In remanding for a new sentencing, then-Judge, now Justice T.G. KAVANAGH stated that the Sixth Amendment of the United States Constitution, applicable to the states through the Fourteenth Amendment, requires counsel to be present at the time one convicted of a crime is sentenced. This reasoning finds further support in Gadsden v. *317 United States (1955), 96 App DC 162 (223 F2d 627) and Martin v. United States (CA 5, 1950), 182 F2d 225. Sentencing is a critical stage in the criminal proceedings, and absent an intelligent waiver the defendant must be represented by counsel.
The people's brief argues that Mr. Pliskow, attorney for a codefendant, provided sufficient representation for the defendant. The defendant should have been represented by his own counsel. A situation in which a single attorney represents two or more defendants easily gives rise to a conflict of interest.
Two defendants in Glasser v. United States (1941), 315 US 60 (62 S Ct 457, 86 L Ed 680) were convicted of conspiracy to defraud the United States. One defendant, Glasser, had retained an attorney to represent him. Prior to the trial, the court appointed the same attorney to represent a second defendant. On appeal, Glasser's conviction was affirmed by the Seventh Circuit of the United States Court of Appeals.
The United States Supreme Court reversed Glasser's conviction on the ground that the trial court had denied his right to have the effective assistance of counsel as guaranteed by the Sixth Amendment. The Court held that when the possibility exists that conflicting interests may arise, two defendants should not be represented by the same attorney.
This case is of particular interest due to the fact that Glasser himself was an attorney and did not raise a specific objection to the trial court's final decision to appoint Glasser's attorney as counsel for his codefendant as well. In spite of these circumstances, the United States Supreme Court still reversed Glasser's conviction.
*318 Before this Court the defendant makes a further assignment of error due to the fact that he was not provided with an opportunity to speak at the time he was sentenced. This issue was not raised in either the trial court or the Court of Appeals, and therefore will not be considered by this Court. Lake Erie Land Co. v. Chilinski (1917), 197 Mich 214.
If on remand the defendant's plea is found to have been legally accepted, then a resentencing must take place. If the plea of guilty is vacated, then issue as to the defendant's sentencing is moot.
Remanded for evidentiary hearing in accordance with the several instructions outlined in sections II, IV and V.
SWAINSON and T.G. KAVANAGH, JJ., concurred with WILLIAMS, J.
T.M. KAVANAGH, C.J., and ADAMS, J., concurred in the result.
APPENDIX I
TRANSCRIPT OF PLEA PROCEEDINGS
Examination of Roger Johnson
By the Court:
Q. Roger Johnson
A. (Interposing) Here.
Q. (Continuing) are you represented by Mr. Willis Ward?
A. Yes, sir.
Q. The attorney who addressed the Court on your behalf?
A. Yes, sir.
Q. Did you tell Mr. Ward what you know about the events of June 14th in regard to the shooting of Eugene Oliver?
A. Yes, sir.
*319 Q. And did he did he tell you what the law was and advise you and counsel with you in regard to the law of Murder in the First Degree and Murder in the Second Degree, in the included offenses?
A. Pardon me, would you say that again?
Q. Did he tell you what the law was in regard to the crime of Murder?
A. Yes, sir.
Q. Now do you know that the maximum possible penalty for Murder in the Second Degree is life or any number of years up to life in the State Prison?
A. Yes, sir.
Q. Do you further know that you are guaranteed the right to have a trial before a Jury on these charges or before the Court without a Jury?
A. Yes, sir.
Q. Do you know that before you can be found guilty of this offense that the People must prove you guilty beyond a reasonable doubt?
A. Yes, sir.
Q. Did Mr. Ward or did anybody promise you that the Court would be lenient with you or show you any special consideration
A. (Interposing) No.
Q. (Continuing) in order to persuade you to plead guilty against your will?
A. No.
Q. Did anybody threaten you in order to force you to plead guilty?
A. No.
Q. Are you pleading guilty to the offense of Murder in the Second Degree after you've thought it over carefully in your own mind and consulted and talked it over thoroughly with Mr. Ward your attorney?
A. Yeah.
Q. Are you pleading guilty to this offense of Murder in the Second Degree because you are guilty of that offense?
A. Yes, sir.
*320 Q. All right, the Court will accept the plea of guilty of Murder in the Second Degree offered by both Defendants. Each Defendant will be referred to the Psychiatric Clinic and Probation Department for pre-sentence investigation and report. Sentence will be imposed
T.E. BRENNAN, J. (dissenting).
I am unable to agree with the disposition proposed by my Brother WILLIAMS.
This is a delayed appeal from denial of a delayed motion for new trial.
The parameters of this appeal are determined by the motion for new trial from which the appeal is taken.
That motion was filed on September 8, 1967, and it was accompanied by an affidavit. The motion and affidavit are as follows:
"DELAYED MOTION FOR SETTING ASIDE OF PLEA OF GUILTY AND FOR A NEW TRIAL
"Now Comes the above-named defendant by his attorney, Kenneth A. Webb, and moves that this Honorable Court set aside his plea of guilty to the offense of Murder in the Second Degree entered and accepted by the Court on November 26, 1962 and that he be granted a new trial for the following reasons and grounds:
"1. That the defendant was not questioned by the Court at the time he entered his plea of guilty as to whether he was pleading guilty of his own free will.
"2. That the defendant was not questioned by the Court at the time he entered his plea of guilty as to whether he was pleading guilty voluntarily.
"3. That the defendant was promised by his attorney, an assistant prosecuting attorney and a police officer that his sentence would be for a term not exceeding *321 ten years in prison if he plead guilty to murder in the second degree.
"4. That the defendant was threatened, beaten and forced to plead guilty to murder in the second degree by police officers.
"5. The allegations of paragraphs 3 and 4 hereof are supported by the attached affidavit of the defendant.
"Wherefore, defendant prays that this Honorable Court enter an order setting aside defendant's plea of guilty and granting defendant a new trial.
"Kenneth A. Webb
"Attorney for Defendant
"872 Penobscot Building
"Detroit, Michigan 48226
"Telephone: 961-0990
"September 8, 1967
"Affidavit
"When I was arrested a day after the incidence the Police official named `CHUBB' and his partner (name unknown) beat me and administered the 1st degree of corporal punishment on me from about 12 o'clock in the day to about 9 o'clock in the night until I passed out.
"Later on after I regained consciousness they the police told me that if I did not cop out or enter a plea of guilty when I go to Court that they `would call me from over from the Wayne County Jail to 1300 Beaubien Detroit Police Headquarters and beat the hell out of me again'. * * *
"During the events of the time from June 14th, to Nov. 26, officer Chubb or some, other interrogation officer called me from over from the Wayne County Jail to 1300 Beaubien police headquarters to warn me what would happen if I did not cop out.
"Some time after arraignment, I was appointed an Attorney (name unknown). He came to visit me at the Wayne County Jail, first thing he told me was that he could not beat the charge and that the only and best thing to do was to enter a plea of second *322 degree, I refused to enter a plea. He left, but everytime I saw him, he would bring it up again until I ask him to please get off the case. Which he did and Willis Ward was appointed. He came to see me at Wayne County Jail. He said almost the same thing as the other Attorney, two day after he left my Mother came and said to me that she had talked to Mr. Ward and the Judge or Prosecutor, and that they said if I cop out to second degree that would get no more than a ten year Max * * *
"I told her that I would not cop out because I was not guilty of murder. She got mad and said that I was a God Damm Fool and left.
"At the final examination or final arraignment, Mr. Ward, the Prosecutor and one of the officers who has interrogated and beaten me told me that they has talked to the judge and that it was all arranged for me to enter a second degree plea. That I would receive no more than a Ten Year Max.
"I said that I didn't want to cop out. The lawyer and the prosecutor left but the police officer stayed and when we was alone he told me that I `Better cop out if I knew what was good for me' `Because if you don't I will beat the hell out of you.'
"I knew that he was not joking because he had already prove that, so I told Mr. Ward when he came back that I had changed my mind and that I wanted to cop out. He instructed me that I must say that I wasn't threatened or promise that they would be lenient on me., ect. * * *
"Because the Judge would not except the Plea if I did not answer the question right.
"Respectfully submitted,
"/s/ Roger Johnson
"July 19, 1967
"Sworn and subscribed to before me this day AD 1967.
"/s/ Paul J. LaDow
"Notary Public, Jackson County, Mich.
"My Commission Expires April 5, 1969"
*323 That motion was denied on January 30, 1968, by Honorable Geraldine Bledsoe Ford, Judge of Recorder's Court. The appendix on appeal does not contain a transcript of the record made before Judge Ford on the hearing of that motion.
A motion for new trial addresses itself to the discretion of the trial judge. Abuse of discretion is not to be presumed by an appellate court.
Appellant's motion for new trial attacks the integrity of the proceedings before Recorder's Judge Arthur Koscinski had on November 26, 1962, at which the appellant's plea of guilty was accepted.
In such a case, where the allegations in the motion for new trial, supported by affidavit, are such that, if true, would vitiate the voluntariness of the plea, the trial court, to whom the motion is addressed ought to conduct an evidentiary hearing to determine the truth of the allegations made.
Such an evidentiary hearing is not a new invention, nor an innovation in the area of post conviction remedies. It has always been within the discretion of trial judges to take testimony upon the hearing of a motion for new trial.
On this record, we have no way of knowing whether Judge Ford conducted an evidentiary hearing on January 30, 1968, or not.
Normally, it is the burden of the appellant to present to this Court all pertinent portions of the record below. If this were not an appeal in pro per, I would favor affirmance on that ground alone; but since the appellant is unschooled in such things, and since we have already come this far, I would vote to remand for the sole purpose of supplementing the appendix filed here with the addition of a verbatim transcript of the proceedings had before Judge Ford.
*324 If no testimony was taken before her controverting the allegations of coercion and promise of leniency, then I would favor remand for that purpose.
Such a remand would amount to nothing more than a rehearing of the motion for new trial.
BLACK, J., concurred with T.E. BRENNAN, J.
NOTES
[1] This case is one of the quartette of People v. Rufus Williams (1971), 386 Mich 277, People v. Jaworski (1972), 387 Mich 21, People v. Butler (1972), 387 Mich 1 and People v. Johnson (1971), 386 Mich 305. Together they consider the principal rules of law relating to the taking of guilty pleas. Williams relates more particularly to the requirement that the trial judge ascertain the factual basis of the alleged crime to which the defendant is pleading guilty, especially in light of People v. Barrows (1959), 358 Mich 267. Jaworski deals with whether the plea was understandingly made, more specifically with whether the defendant was adequately advised of his rights so that his guilty plea constitutionally waived them. Jaworski also considers the general implications of Boykin v. Alabama (1969), 395 US 238 (89 S Ct 1709, 23 L Ed 2d 274). Butler is a pre-Boykin case. Its main point is whether substantial compliance requires advising defendant of substantially all of his rights or substantially advising defendant of all his rights. Johnson's main consideration is whether the guilty plea was voluntarily made, more specifically whether it was made without duress or promise of leniency. It also deals with the Boykin challenge. Procedurally, since Johnson's main point is not a guilty plea record matter, Johnson also considers how and when such review should be handled.
These cases also conclude that the state of the law on this subject and the general understanding of the law leaves much to be desired. The Supreme Court is setting up a committee to consider the whole matter and recommend clarifying and definitive rules to be strictly followed after adoption.
[2] In Edwards v. People (1878), 39 Mich 760, the defendant's plea of guilty on a charge of larceny was set aside by this Court. The trial court in Edwards failed to investigate the defendant's case to ascertain that his plea was given freely and without undue influence. In writing for the court, Chief Justice CAMPBELL stated:
"This statute not only requires the judge to examine carefully into the facts of the case, which can require no less than a search into the depositions if they have been returned or similar evidence if they have not been taken, but also compels him to examine the prisoner himself concerning the circumstances which induced him to plead guilty."
The statute involved, PA 1875, No 99, stated, " * * * it shall be the duty of the judge of such court * * * to become satisfied * * * that said plea was made freely, with full knowledge of the nature of the accusation, and without undue influence."
The defendant in Henning v. People (1879), 40 Mich 733, was originally charged with murder and subsequently pled guilty to the crime of manslaughter. In his motion to have his plea set aside, he alleged that the judge did not make any investigation into the case to satisfy himself that the plea was made freely, with full knowledge of the accusation, and without undue influence. This Court asked for a return from the trial judge as to his investigation concerning the plea. The trial judge's return stated that he had repeated interviews with the defendant's counsel and friends, had made full inquiry into the matter, and was satisfied that the plea was properly received. This Court then affirmed the conviction.
This Court vacated a guilty plea conviction for bank robbery in the case of People v. Merhige (1920), 212 Mich 601. The defendant, a taxi driver, alleged that he had been forced under threat of death to drive his car for a number of men who proceeded to rob a bank, killing a customer in the process. The defendant alleged that at no time did he have the assistance of counsel, and that he pled guilty because he feared that a great crowd of people present at the time of his arrest might eventually take the law into their own hands. The defendant also contended that he did not understand the charges against him.
In remanding for a jury trial, this Court concluded that the defendant did not voluntarily enter his plea of guilty with full knowledge of the consequences of such a plea. The Court stated further that:
"`The plea should be entirely voluntary by one competent to know the consequences, and should not be induced by fear, misapprehension, persuasion, promises, inadvertence, or ignorance.'" 212 Mich 601, 612.
In People v. Vester (1944), 309 Mich 409, the defendant attempted to vacate his plea of guilty to the crime of rape after being sentenced to life imprisonment. The defendant alleged that he had not been represented by counsel and did not know the elements of the crime with which he was charged. In affirming the conviction, this Court made a presumption in favor of the trial court:
"We must assume that the trial court made a proper investigation of the nature of the case; and that the plea was made with full knowledge of the nature of the accusation and without undue influence as is required by 3 Comp. Laws 1929, § 17328 (Stat Ann § 28.1058)." 309 Mich 409, 412.
In People v. Winegar (1968), 380 Mich 719, this Court affirmed the guilty plea conviction of the defendant for assault with intent to murder. Though the defendant alleged in an affidavit that the plea had been obtained through inducement and coercive threats, this Court concluded that the record of the lower court proceedings indicated otherwise.
[3] Such remand for evidentiary hearing is supported by our decision in People v. Jones (1971), 385 Mich 288; People v. Daniels (1966), 2 Mich App 395, 397; People v. Henning (1879), 40 Mich 733. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593156/ | 35 Mich. App. 143 (1971)
192 N.W.2d 342
PEOPLE
v.
UNGUREAN
Docket No. 9037.
Michigan Court of Appeals.
Decided July 23, 1971.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, John M. Jereck, Prosecuting Attorney, and Noel G. Petersen, Assistant Prosecuting Attorney, for the people.
Richard T. Greene, for defendant on appeal.
Before: R.B. BURNS, P.J., and FITZGERALD and J.H. GILLIS, JJ.
R.B. BURNS, P.J.
Defendant was convicted of uttering and publishing a forged check. MCLA § 750.249 (Stat Ann 1962 Rev § 28.446).
On appeal defendant claims four points of error, of which only two will be discussed.
1. Defendant claims it was error for the prosecution to ask him if he had been sentenced to prison for 1-1/2 to 5 years for a similar offense.
2. Defendant claims it was error for the prosecution to ask questions pertaining to three other checks which were not introduced into evidence.
In People v. Nelson White (1970), 26 Mich App 35, this Court when faced with the issue of introducing sentence and sentence time into evidence ruled:
"While we must adhere to the rule that prior convictions are admissible for testing credibility, we see no reason to enlarge the rule to include prior sentences. * * *
*145 "The introduction of the length of defendant's prior sentence was reversible error." (pp 39, 40)
The prosecutor's question and the inferences that can be drawn therefrom according to the Nelson White case, "may have influenced the jury and denied the defendant the constitutional guarantee of a fair and impartial trial".
As a general rule evidence of other distinct offenses is not admissible even though they are of the same kind of offense as the one charged. People v. Schweitzer (1871), 23 Mich 301; People v. Askar (1967), 8 Mich App 95; People v. Heiss (1971) 30 Mich App 126.
The people claimed at trial, and the trial judge sustained their claim, that the defense had opened the door to such questions by asking Detective Kennedy questions on cross-examination about the other three checks.
The defense did ask Detective Kennedy questions concerning the three checks but as stated in People v. Eddington (1970), 23 Mich App 210, 231:
"A slight opening of the door by the defense should not permit the prosecution to swing it totally ajar."
As the case will be remanded for a new trial it is suggested that both the people and the defendant refrain from questions concerning the three checks not introduced into evidence.
Reversed and remanded for new trial.
FITZGERALD, J., concurred.
J.H. GILLIS, J. (dissenting).
Despite the holding in People v. Nelson White (1970), 26 Mich App 35, that introduction of the length of that defendant's *146 prior sentence was reversible error, I am not convinced that a miscarriage of justice occurred in the case at bar. See MCLA § 769.26 (Stat Ann 1954 Rev § 28.1096).
Chief Justice COOLEY, writing in Clemens v. Conrad (1869), 19 Mich 170, 174, held that:
"The right to inquire of a witness, on cross-examination, whether he has not been indicted and convicted of a criminal offense, we regard as settled in this State by the case of Wilbur v. Flood [1867], 16 Mich 40. It is true that in that case the question was, whether the witness had been confined in State prison; not whether he had been convicted; but confinement in State prison presupposes a conviction by authority of law, and to justify the one inquiry and not the other would only be to uphold a technical rule." (Emphasis added.)
Although Clemens, and its predecessor, Wilbur v. Flood (1867), 16 Mich 40, are over 100 years old, I fail to see how juries then and juries today are unable to rationally presume that if a defendant has been shown to have been convicted of a crime that he has been punished accordingly. I perceive no substantial prejudice by the mention of a defendant's prior prison sentence.
My disagreement with People v. White, supra, goes deeper. In White, sanguine reliance was placed on the following passage in People v. Kotek (1943), 306 Mich 408, 412:
"Defendant alleges that the trial court erred in referring to his previous prison sentence. As the record indicates that such reference was not made in the presence of the jury, it would not constitute reversible error."
In Kotek, the defendant did not testify; he was not subject to cross-examination, hence there would be *147 no basis for any reference to his prior prison sentence or criminal conviction where the credibility of the defendant was not first put in issue. In my opinion, the situation is entirely reversed where a defendant chooses to testify and puts his credibility on the line. See People v. Russell (1970), 27 Mich App 654; People v. McCrea (1942), 303 Mich 213; People v. Lloyd (1967), 5 Mich App 717.
Yet, despite the inapposite use of Kotek in People v. White, supra, and its failure to account for the holdings in Wilbur v. Flood, supra, and Clemens v. Conrad, supra, the majority here is content to follow a rule of law which would make it reversible error for the jury to know what they would justifiably presume. I cannot agree.
I also cannot agree that the prosecutor's reference to the three other checks constituted error. The first reference to these items occurred during defense counsel's cross-examination of the arresting officer relative to defendant's statement that he merely indorsed a check given to him by a third person:
"Q. Did he tell you whether he met him inside the restaurant or outside?
"A. He said the check was written in his car, whoever the individual's car was, is the way he indicated it.
* * *
"Q. And I understand that check was for the amount of $66?
"A. Yes, sir.
"Q. And this is the same check that you asked the defendant about, the one for $66?
"A. Yes, sir.
"Q. And you did specify to him $66 the $66 check rather than the one for $25?[*]
*148 "A. Yes.
"Q. But at that time you had no knowledge of the $25 check?
"A. I had four checks I had picked up from the bank, one in the amount of $25 so I may have asked him about the $25 check, however I was particularly interested in the one for $66 because that is the one the charge was based on.
"Q. Did Mr. Ungurean name a person on any of these other checks you asked him about?
"A. Yes, they were all payable to Mr. Florian Ungurean.
"Q. All four of these checks you had in your possession were payments to the defendant?
"A. Four of them from the Security National Bank they were all similar to the one of May 21st, however the only one that he was charged with was the amount of $66.
"Q. You have that knowledge relative to the other checks, is that correct?
"A. I have the other three in my possession, yes."
In my opinion, defense counsel had explored the matter of the three other checks with sufficient purpose to allow the prosecutor to ask defendant if they were also indorsed by him, which he denied, and to explain how his name appeared as payee and again as an indorser on the back of the checks, which he could not. Contrary to the implication in the majority opinion, the matter was not pursued, nor did the prosecutor attempt to introduce the proposed exhibits into evidence over defendant's failure to authenticate the signature. Since defense counsel initially brought out the existence of the checks, I find no error in the prosecutor's attempt to make them relevant.
I vote to affirm.
NOTES
[*] On a prior occasion defendant received a check in the amount of $25 from the complaining witness as payment for the sale of a used television. Presumably, this is the same item. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3070077/ | Order entered July 30, 2014
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00136-CR
RICHARD EARL DRIVER, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause No. 199-80032-2013
ORDER
The Court GRANTS appellant’s July 7, 2014 amended motion to extend time to file his
brief. We ORDER the appellant’s brief received on June 29, 2014 filed as of the date of this
order.
The State’s brief is due in this appeal and in the companion case 05-14-00135-CR within
THIRTY DAYS of the date of this order.
/s/ DAVID EVANS
JUSTICE | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2631306/ | 249 P.3d 1029 (2011)
STATE
v.
JOHNSON.
No. 85486-6.
Supreme Court of Washington, Department II.
March 30, 2011.
Disposition of Petition for Review Denied. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593041/ | 453 So.2d 381 (1984)
Fred Lyman BRUMBLEY, Appellant,
v.
STATE of Florida, Appellee.
No. 56006.
Supreme Court of Florida.
June 14, 1984.
Rehearing Denied August 22, 1984.
*382 Carl S. McGinnes, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.
*383 Jim Smith, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, and Doris E. Jenkins, Asst. Atty. Gen., Tallahassee, for appellee.
BOYD, Justice.
Fred Lyman Brumbley brings this appeal from the judgment of the Circuit Court, Third Judicial Circuit, in Taylor County, adjudicating him guilty of first-degree murder and sentencing him to death. This Court has jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the conviction and remand for reconsideration of sentence.
The murder victim was Robert Clifton Rogers, who left his home in Thomasville, Georgia on the morning of July 20, 1976, and went to work in Tallahassee, Florida. He left his place of employment that afternoon but did not return to his home that day, nor did he ever return home or to his place of employment. In February, 1977, the skeletal remains of the deceased were discovered near a wayside park on U.S. Highway 98 in Taylor County, Florida, several miles west of Perry. The body was identified by testimony matching the dentures recovered at the scene with a chipped piece of denture supplied by the wife of the deceased. A fracture in a bone among the skeletal remains corresponded to a fracture revealed by the medical history of the deceased. A ring found among the skeletal remains was identified at trial by a friend who had given the ring to the deceased.
The state presented the testimony of Russell Lamar Smith. Smith testified that on the afternoon of July 20, 1976, he and appellant were hitchhiking in the Tallahassee area and were offered a ride by Rogers. Rogers was driving a 1969 Chevrolet Caprice, blue with a white top. According to Smith's testimony, appellant got in the front seat and Smith got in the rear. Appellant displayed a pistol to Rogers and from that point on, appellant and Smith told Rogers where they wanted him to go.
Soon after the initial abduction, Smith took over operating the car while Rogers and appellant sat in the rear seat. Smith drove to an area south of Tallahassee where they went down a country lane and got out of the car. At this point Smith left Rogers and appellant, who was still holding the pistol, and took Rogers' car to Woodville to purchase beer and gasoline. Smith then returned for the other two men, and they began driving again. Smith testified that as he drove he was trying to "think things out" pertaining to the situation that he, appellant, and their captive were in.
Eventually Smith drove the car down another dirt road to a clearing where the three men got out of the car to drink beer and "talk things over." Smith and appellant told Rogers to go and sit down a short distance away from them so that they could discuss the problem of what to do with him. Then, with appellant still holding the gun, they robbed Rogers of his wallet, money, watch, ring, and belt.
The three men then got back in the car and traveled east on highway 98 toward Perry. They stopped at a roadside park west of Perry, the same one where the skeletal remains of the deceased were later found. Smith testified that Rogers at this point wanted to go to the bathroom but was too nervous to do so. The three men then climbed over a fence at the back of the wayside park and walked into the woods where again they sat down and talked. At trial Smith testified that at this point he took the gun and asked appellant to take the car and get more beer. When appellant returned, Smith got in the car and said, "Let's go." Rogers at this time was still beyond the fence, in the woods. When appellant asked Smith where Rogers was, Smith told him that Rogers had run away into the woods. Then, Smith testified, he and appellant departed the area in Rogers' car. At this point in Smith's testimony, the prosecuting attorney asked to address the court out of the hearing of the jury.
Smith was testifying as the state expected him to up until the point when he said that appellant had left the wayside park for the purpose of getting more beer. Based upon Smith's pre-trial statements to law enforcement officers and prosecuting attorneys *384 and in a defense deposition, the state expected him to testify that appellant shot Rogers behind the roadside park. So, the state asked that Smith be called as a witness by the court, arguing that because of the surprise change of testimony, the state no longer wanted to vouch for Smith's credibility and wanted to be able to lead, cross-examine and impeach him. The court granted the request.
After being assured of use immunity by the state's counsel, Smith testified as the court's witness, saying that during appellant's absence he, Smith, shot Rogers. Smith said that when appellant returned, Smith got in the car and they left, and that he told appellant that Rogers had escaped. Thus, according to Smith's direct testimony appellant knew nothing about the murder. The state, over the defendant's objection, then proceeded to impeach Smith by confronting him with his pre-trial statements to the effect that appellant had shot Rogers and asking him whether he remembered making the prior statements. In each instance Smith acknowledged that he had made the statements.
Appellant argues that it was improper to call Smith as the court's witness and that it was improper to allow the state to impeach him by quoting from his pre-trial statements. Appellant also argues that without the improper use of the prior inconsistent statements as substantive evidence, there was insufficient evidence to support the verdict of guilt of murder in the first degree and that his motions for judgment of acquittal should therefore have been granted.
In addition to the evidence already mentioned, there was also testimony that during the period of July 23 to July 27, 1976, appellant and Smith were seen in possession of a 1969 blue and white Chevrolet automobile which the jury could have concluded was the one belonging to Rogers. The search of a motel room in Gainesville, Florida on July 27, 1976, at which time appellant and Smith were occupying the room, produced a .38 caliber revolver. A bullet found in the sand directly beneath the skeletal remains of the deceased, it was proved, could have been fired from the gun found in the motel room.
It is within the discretion of the court to call a witness as a court's witness on motion of a party on the ground that the witness has become uncooperative, McCloud v. State, 335 So.2d 257 (Fla. 1976), or because the moving party does not wish to vouch for the credibility of the witness, Enmund v. State, 399 So.2d 1362 (Fla. 1981), reversed on other grounds, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), or because the party previously calling the witness has been surprised at trial by the testimony given, Lowe v. State, 130 Fla. 835, 178 So. 872 (1937). Appellant argues, however, that what transpired at trial was improper and unfair. Appellant relies upon cases holding that it is improper to allow impeachment by prior inconsistent statements to be presented to the jury as substantive evidence. We conclude that what these authorities say is that a witness may not be impeached by prior inconsistent statements merely because the witness failed to provide the testimony the party calling him desired or expected. However, if the witness becomes adverse by providing testimony that is actually harmful to the interests of the party calling him, then impeachment by prior inconsistent statements is permissible. Hernandez v. State, 156 Fla. 356, 22 So.2d 781 (1945); Lowe v. State, 130 Fla. 835, 178 So. 872 (1937); Adams v. State, 34 Fla. 185, 15 So. 905 (1984); McCloud v. State, 354 So.2d 407 (Fla. 4th DCA), cert. dismissed, 358 So.2d 132 (Fla. 1978); Williams v. State, 353 So.2d 956 (Fla. 1st DCA 1978); Pitts v. State, 333 So.2d 109 (Fla. 1st DCA 1976); Jones v. State, 273 So.2d 8 (Fla. 3d DCA 1973); Gibbs v. State, 193 So.2d 460 (Fla. 2d DCA 1967).
In the present case, after testifying as a witness for the state that he and appellant abducted and robbed Rogers and discussed what to do with him, Smith said that they abandoned him in the bushes behind the roadside park. At this point Smith had at least failed to give desired *385 testimony. Claiming surprise, the state asked that Smith be called as a witness by the court so that the state could ask leading questions and cross-examine. As a witness for the court, Smith testified that he alone had killed Rogers. At this point Smith had clearly become an adverse witness and had given testimony that was harmful to the state's case. While impeachment by prior statements is not proper when a witness merely fails to give the expected testimony, it is proper when the witness becomes adverse. Thus here it was not improper to allow the prosecutor to confront Smith with his prior statements. Nor was it improper for the state to impeach Smith by quoting the precise language of his prior statements. Such references were a correct method of laying a predicate for the introduction of the prior statements. Urga v. State, 104 So.2d 43 (Fla. 2d DCA 1958). Since Smith admitted making the statements, their introduction by independent testimony was unnecessary.
Appellant also argues that allowing the prosecutor to quote portions of Smith's pretrial statement was improper in that the prosecutor was thereby able, under the guise of impeachment, to introduce Smith's out-of-court declarations as evidence of the matters declared, i.e., as evidence that appellant shot Rogers, in violation of the rule laid down in Adams v. State and Lowe v. State. In this case, however, the court granted defense counsel's request for a special instruction to the jury that prior inconsistent statements were only to be considered as being relevant to the credibility of the witness impeached and could not be taken as proof or evidence of the defendant's guilt. The purpose of allowing evidence of prior inconsistent statements is to counteract the effect of testimony harmful to the interest of the impeaching party. Hernandez v. State. In Rankin v. State, 143 So.2d 193 (Fla. 1962), cited by appellant, the witnesses did not give testimony harmful to the state's case, but merely failed to give desired testimony. The prior inconsistent statements were used not for impeachment but as substantive evidence of the matters contained therein and therefore were improper. See Pitts v. State; Sutton v. State, 239 So.2d 644 (Fla. 1st DCA 1970). The present case is very different in that Smith's testimony was harmful to and contradicted what the state was trying to prove. We conclude that there was no error in allowing the state to impeach Smith's credibility through prior inconsistent statements.
Appellant argues that his conviction rests upon the use of the impeachment evidence as substantive proof that he killed Rogers and that without it there is insufficient evidence to support the verdict of guilt of first-degree murder. It is clear, however, even without considering the prior statements to the effect that appellant shot Rogers, that the evidence supports the conviction on the theory of felony murder. Appellant was a principal and a direct, active participant in the robbery of Rogers. Appellant held the gun on him throughout most of the episode, including the point in time when he and Smith relieved Rogers of his valuables. Even if the jury believed Smith's testimony that he shot Rogers and that appellant was not present when he did so, the jury could still have found that appellant was actually or constructively present, directly participating in or aiding and abetting the commission of the underlying felony of robbery. Since the robbery and subsequent flight from the scene resulted in or included murder, appellant, as a principal in the robbery, is guilty of first-degree murder. Enmund v. State, 399 So.2d 1362 (Fla. 1981), reversed on other grounds, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Adams v. State, 341 So.2d 765 (Fla. 1976), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 158 (1977); Pope v. State, 84 Fla. 428, 94 So. 865 (1922).
We agree with appellant, however, that the evidence, exclusive of any substantive use of the prior inconsistent statements, does not support a finding that he shared in the "premeditated design to effect the death" of Clifton Rogers. § 782.04(1)(a), *386 Fla. Stat. (1975). The fact that Smith and appellant discussed killing Rogers and that later it was done by Smith is a circumstance that might tend to support the conclusion that appellant aided, abetted, counseled, hired, or otherwise procured the commission of the murder. If such fact is proven then the accused can be considered a principal of the first degree "whether he is or is not actually or constructively present at the commission of such offense." § 777.011, Fla. Stat. (1975). Appellant's shrugging of his shoulders when Smith suggested killing Rogers is another circumstance from which a premeditation concurrent with that of the actual perpetrator might be inferred. The prior inconsistent statements of Smith, properly understood as impeachment of his credibility, might also contribute factual inferences by persuading the jury to believe parts of Smith's testimony, but to disbelieve other parts. But at best the factual inference that appellant shared in the premeditated design is supported purely by circumstantial evidence.
"When circumstantial evidence is relied upon to convict a person charged with a crime, the evidence must not only be consistent with the defendant's guilt but must also be inconsistent with any reasonable hypothesis of his innocence." Mayo v. State, 71 So.2d 899, 904 (Fla. 1954). Under the evidence in this case, we cannot say that the circumstances, which were consistent with premeditation on the part of appellant, were also inconsistent with any reasonable hypothesis of lack of premeditation. We therefore conclude that appellant's conviction for first-degree murder is grounded upon the felony murder statute.
Appellant argues that the trial court erred in admitting into evidence color photographs of the victim's skeletal remains. We find that the photographs were relevant to corroborate testimony about the circumstances of the murder and the identity of the victim, and were therefore admissible. See Bauldree v. State, 284 So.2d 196 (Fla. 1973); State v. Wright, 265 So.2d 361 (Fla. 1972).
Appellant argues that the court erred in refusing to instruct the jury on second-degree felony murder. We disagree.
The statutory scheme does not allow for the conviction of second degree felony murder of either the one who kills or his co-felons who are present. Only an accessory before the fact who was not personally present during the commission of the underlying felony can be found guilty of second degree felony murder under the applicable statute.
State v. Jefferson, 347 So.2d 427, 429 (Fla. 1977). Since there was no evidence that appellant was not present during the commission of the underlying felony, the court did not err in refusing to instruct the jury on second-degree felony murder.
Appellant also argues that the trial court erred in failing to instruct the jury on all the elements of the underlying felony of robbery. The state contends that because there was no request or objection pertaining to the instruction, the asserted error is non-reviewable. We will address appellant's contention, however, because it goes to a matter concerning the fundamental fairness of the trial and therefore need not have been raised by a contemporaneous objection. State v. Jones, 377 So.2d 1163 (Fla. 1979).
Where a murder defendant is prosecuted on alternate theories of premeditation and felony murder, there must be an instruction defining the underlying felony with sufficient definiteness to assure the defendant a fair trial. It is not necessary, however, to instruct on the elements of the underlying felony with the same particularity as would be required if the defendant were charged with the underlying felony. State v. Jones, 377 So.2d 1163 (Fla. 1979); Vasil v. State, 374 So.2d 465 (Fla. 1979), cert. denied, 446 U.S. 967, 100 S.Ct. 2945, 64 L.Ed.2d 826 (1980); Robles v. State, 188 So.2d 789 (Fla. 1966). Our review of the record reveals that there was no reversible error in the jury instruction.
*387 Appellant argues that the judgment and sentence are invalid because a prospective juror was improperly excused for cause based upon his views about capital punishment. The record shows, however, that the venireman in question held views which irrevocably committed him against any consideration of death as a possible punishment. See Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
Regarding sentence, appellant contends that it is constitutionally improper under the facts of this case to apply the death penalty to him. He relies upon Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and, by notice of supplemental authority, upon the recent decision in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).
We have already concluded that appellant's conviction for first-degree murder rests upon the felony murder rule because the evidence was not sufficient to show that appellant joined in the intent of Smith to kill Rogers. In Enmund v. Florida, the United States Supreme Court held that the Eighth Amendment does not permit imposition of the death penalty on a person participating in a felony during which a murder is committed but who does not himself kill, attempt to kill, intend that a killing take place or intend or contemplate that lethal force will be used. 458 U.S. at 797, 102 S.Ct. at 3376. In the present case the trial court's findings of fact in support of the sentence of death do not specifically discuss evidence of the extent of appellant's involvement in the murder and the events leading up to the murder. Without such findings of fact by the trial court, we have no basis for concluding that appellant's sentence of death meets the Enmund test. Therefore, it is necessary that the case be remanded to the trial court to consider whether the death penalty may be applied in this felony murder case.
Because we remand the case for further proceedings before the trial judge, sitting without a jury, on the matter of sentence, we need not address appellant's numerous other contentions regarding the sentencing procedure and the sentence of death.
The judgment of conviction of murder in the first degree is affirmed. The sentence of death is vacated and the case is remanded to the trial court for a new non-jury proceeding on the question of an appropriate sentence under section 921.141, Florida Statutes (1975), taking into consideration the requirements of Enmund v. Florida.
It is so ordered.
ALDERMAN, C.J., and ADKINS and EHRLICH, JJ., concur.
OVERTON, J., dissents with an opinion in which McDONALD, J., concurs.
OVERTON, Justice, dissenting.
I dissent from the majority opinion insofar as it permits the state to use a state witness's prior inconsistent statements as substantive evidence of appellant's guilt. The majority opinion essentially changes the established law concerning a party's impeachment of its own witness and the subsequent use of prior inconsistent statements as substantive evidence.
Under the law of this state, it is clear that a codefendant's prior inconsistent statements cannot be used as substantive evidence of a defendant's guilt. See Rankin v. State, 143 So.2d 193 (Fla. 1962); Adams v. State, 34 Fla. 185, 15 So. 905 (1894); Perry v. State, 356 So.2d 342 (Fla. 1st DCA), cert. denied, 364 So.2d 889 (Fla. 1978); Pitts v. State, 333 So.2d 109 (Fla. 1st DCA 1976).
The record clearly reflects that the codefendant's prior inconsistent statements, which were read before the jury, were used by the prosecutor as substantive evidence to obtain appellant's conviction. Such use was improper notwithstanding the supposedly curative instruction given to the jury that the statements were to be considered solely for the purpose of determining the credibility of the witness being impeached. I recognize that the codefendant's testimony caught the state by surprise, but that does not allow the use of impeachment *388 evidence as evidence in chief. To allow this evidence to be so used was error and was prejudicial to appellant in the trial of this cause. See Hall v. State, 381 So.2d 683 (Fla. 1979).
I agree with the majority that there was sufficient competent evidence of appellant's complicity in the robbery-murder, other than the impeachment evidence, upon which a jury could properly convict appellant. I conclude, however, that a new trial must be granted in order to eliminate the prejudicial effect of the inadmissible evidence.
McDONALD, J., concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593046/ | 34 Mich. App. 612 (1971)
192 N.W.2d 56
WRIGHT
v.
MARZOLF
Docket No. 8991.
Michigan Court of Appeals.
Decided June 25, 1971.
Sinas, Dramis, Brake & Turner, P.C., for plaintiffs.
Lavey & Taber, for defendant.
Before: R.B. BURNS, P.J., and FITZGERALD and J.H. GILLIS, JJ.
PER CURIAM.
This is an action to recover damages sustained by plaintiff, a minor, when he stepped out in front of a parked vehicle and was struck by defendant's automobile. The jury returned a verdict of no cause of action. Plaintiffs appeal from the trial court's denial of their motion for a new trial.
The sole issue preserved for review is whether the trial court erred in instructing the jury as to the "sudden emergency" exception to the "assured clear distance" statute, MCLA § 257.627 (Stat Ann 1968 Rev § 9.2327). Plaintiffs argue that the testimony produced at trial did not require the court to give the "sudden emergency" instruction, and, further, the instruction given was incorrect.
A party who invokes the doctrine of sudden emergency to avoid the harshness of the assured clear distance statute is entitled to a proper instruction *614 if there is any evidence which would allow a jury to conclude that an emergency existed within the meaning of that doctrine. Vander Laan v. Miedema (1970), 22 Mich App 170; McKinney v. Anderson (1964), 373 Mich 414. In reviewing the trial court's instruction, testimony taken at trial must be viewed in the light most favorable to defendant. McKinney v. Anderson, supra.
This testimony indicates that on the day in question defendant was proceeding west on a residential street. The day was clear and sunny; the road surface was dry. As defendant neared a parked car, plaintiff darted into the street from in front of that parked vehicle. The child plaintiff became visible to defendant when she was only 30 feet short of the accident location. Defendant tooted her automobile horn, swerved to avoid the child, and quickly applied the brakes. Her automobile had almost totally stopped at the moment of impact. There was no testimony given that defendant was exceeding the speed limit.
This evidence was sufficient to warrant the trial court's instruction as to the sudden emergency exception to the assured clear distance rule. Walker v. Rebeuhr (1931), 255 Mich 204; Gapske v. Hatch (1957), 347 Mich 648; Elliott v. A.J. Smith Contracting Company, Inc. (1960), 358 Mich 398.
Plaintiffs' allegation that the instruction given was incorrect is without merit. The trial court's instruction, read as a whole, adequately apprised the jury of the prevailing rules of law and their exceptions. Huffman v. First Baptist Church of Flushing (1959), 355 Mich 437, 445-447. Additionally, this Court will not review error which is raised for the first time on appeal, barring manifest injustice. *615 Taylor v. American Legion Post 180 (1967), 6 Mich App 398; Kwaiser v. Peters (1967), 6 Mich App 153; Wallace v. Pere Marquette Fiberglass Boat Company, Inc. (1966), 2 Mich App 605; GCR 1963, 516.2.
Affirmed. Cost to appellee. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593047/ | 453 So.2d 169 (1984)
STATE of Florida, Appellant,
v.
Charles STENZA, Appellee.
No. 83-1821.
District Court of Appeal of Florida, Second District.
July 20, 1984.
*170 Jim Smith, Atty. Gen., Tallahassee, and Gary O. Welch, Asst. Atty. Gen., Tampa, for appellant.
Fred S. Pflaum and Mark Louis Katzman, Sarasota, for appellee.
CAMPBELL, Judge.
Appellant, State of Florida, appeals the trial court's granting of appellee's motion to dismiss filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). We affirm.
Appellee was charged by information with grand theft in violation of section 812.014(1), Florida Statutes (1981). The information alleged that appellee, on April 5, 1983, obtained:
[H]ousehold furnishings, including appliances, furniture, pictures, linens, dishes and a television set ... property of the Estate of Elizabeth O'Kelly, ... without the consent of the said owner or custodian and with the intent to deprive said owner or custodian of her rights to the property or benefit therefrom, or with the intent to appropriate the said property to his own use or to the use of another not entitled thereto... .
Appellee is in the business of removing deceased persons from their homes and cleaning the homes. He is also engaged in the related enterprise of liquidation of estates. In this case, appellee was engaged to remove the body and clean the home of Mrs. O'Kelly. He performed those services and also arranged for the removal of Mrs. O'Kelly's home furnishings by Mid-County Auction Service, the sale of such property and payment of the funds received therefrom to Mrs. O'Kelly's heir.
In his affidavit, filed in support of and with his motion to dismiss, appellee stated as follows:
1. That the undersigned Affiant is the same CHARLES STENZA who is charged in case number 83-540F.
2. That pursuant to a contract with Manatee County the undersigned removed the body of one ELIZABETH O'KELLY from her residence located at 5050 5th Street East Bradenton, Florida.
3. At the time of the removal of the body the undersigned had conversations with PEGGY O'KELLY WHALEN and MICHAEL PATRICK O'KELLY who were the only heirs to the estate of ELIZABETH O'KELLY.
4. That the undersigned affiant [sic] received permission from the heirs to clean the residence.
5. That the undersigned honestly believed that at that time he had received permission from the heirs to make arrangements for the auction of all of the remaining estate of ELIZABETH O'KELLY.
6. That the Affiant contacted Mid-County Auction Service with whom Affiant had done business with in the past.
7. That Mid-County Auction came to the residence of ELIZABETH O'KELLY sometime in late March of 1983, and transported all of the estate of ELIZABETH O'KELLY to the Mid-County Auction Service where it was auctioned on April 2, 1983.
8. That a detailed inventory of said property was taken at the time of its removal from the ELEZABETH O'KELLY [sic] residence. (A copy of the Mid-County Auction Service inventory is attached hereto and marked as exhibit A.)
*171 9. That at the time said property was removed from the ELIZABETH O'KELLY estate, the Affiant instructed RICH LITTLE who is the owner of Mid-County Auction Service to cut a check after the property was auctioned to PEGGY O'KELLY WHALEN.
10. That all property removed from the residence of ELIZABETH O'KELLY was sold at the Mid-County Auction Service because the Affiant believed he had the consent of the heirs to auction off the estate.
Appellee also filed in support of his motion, the affidavit of Richard Little, owner of Mid-County Auction Service, who stated as follows:
1. Affiant is the owner of Mid-County Auction Service.
2. That Affiant has in the past done business with one CHARLES STENZA.
3. That the Affiant was contacted by CHARLES STENZA sometime in March of 1983, at which time CHARLES STENZA informed the Affiant that he had permission to dispose of an estate through an auction.
4. That sometime in late March of 1983, the Affiant and his employees went to 5050 5th Street East Bradenton, Florida and removed the contents of said residence to the Mid-County Auction.
5. That at the time said property was removed the undersigned Affiant and his employees took a careful inventory of all the property that was removed.
6. That on April 2, 1983, the contents of the residence at 5050 5th Street East Bradenton, Florida were auctioned.
7. That the attached inventory from Mid-County Auction Service is an accurate reflection of the prices received for the items sold at the auction.
8. That at the time Mid-County Auction Service removed the property from the O'KELLY estate the Affiant was instructed by CHARLES STENZA to cut the check for the sale in the name of PEGGY O'KELLY WHALEN.
9. That a number of weeks later CHARLES STENZA again contacted the Affiant and again instructed the Affiant to cut the check in the name of PEGGY O'KELLY WHALEN.
10. That all the property removed from 5050 5th Street East Bradenton, Florida residence of ELIZABETH O'KELLY was sold at the Mid-County Auction Service.
Appellant, State of Florida, filed a demurrer to appellee's motion to dismiss, which was sworn to by an assistant state attorney, and stated only as follows:
1. That both heirs, Peggy O'Kelly Whalen and Michael Patrick O'Kelly, have signed sworn statements that they had no agreement with Mr. Stenza, and had never authorized Mr. Stenza to remove the items alleged in the information.
The trial court granted appellee's motion to dismiss. The crux of the state's case rests on whether it could prove a felonious intent on the part of appellee. It argued to the trial court only the case of Casso v. State, 182 So.2d 252 (Fla. 2d DCA 1966), and in its brief filed here, only State v. McCray, 387 So.2d 559 (Fla. 2d DCA 1980). Both Casso and McCray stand for the well-accepted principle of law that intent or state of mind is a jury question that, in most instances, cannot be ascertained by direct evidence, but can only be inferred and, therefore, is not proper to be determined on a motion to dismiss. We continue to adhere to that rule of law, but in doing so, observe that for nearly every rule there is an exception. In Casso, the court, while stating that existence of the requisite felonious intent is for a jury to determine, also cautioned that that rule was "subject always to the legal requirement that there must be some substantial competent evidence from which the jury may reasonably infer ... the intent... ." 182 So.2d at 257. In this case, appellant relies upon the fact alleged in its demurrer that appellee had no permission to remove and sell Mrs. O'Kelly's property, to support an inference of his felonious intent to deprive Mrs. O'Kelly's heirs of the property or benefit thereof.
*172 The demurrer does not refute appellee's statement that he believed he had authority to liquidate the estate, nor does it refute the other circumstances alleged in the affidavits which support that apparent mistaken belief. From the unrefuted affidavits, it appears that appellee instructed Mid-County Auction Service to remove the property, sell it, and deliver the proceeds to the heirs. It is not asserted that this was done clandestinely, or in any way to deprive the heirs of the proceeds.
In Jalbert v. State, 95 So.2d 589 (Fla. 1957), in speaking of establishing the intent to commit grand larceny to sustain a breaking and entering charge with intent to commit a felony, the court held, "In the absence of other evidence or circumstances, the best evidence of what he intended to steal is what he did steal." (Emphasis supplied.) There was no evidence or other circumstances presented to the trial judge below to refute that appellee, at all times, had instructed that Mrs. O'Kelly's property be sold and the proceeds delivered to her heirs. Therefore, the evidence before the trial judge shows, by direct evidence, that appellee intended for Mrs. O'Kelly's heirs to benefit from the sale of the property. There is no room, therefore, for an inference that appellee had a felonious intent to deprive them of the property or benefit therefrom.
There has been a significant shift in the courts' statements over the past twenty years or so as to the susceptibility of determining intent in a criminal case on a motion to dismiss. This court in Scott v. State, 137 So.2d 625 (Fla. 2d DCA 1962), citing Jalbert, stated, "Intent, being a state of mind, is not subject to direct proof and can only be inferred from circumstances." (Emphasis supplied.) Edwards v. State, 213 So.2d 274 (Fla. 3d DCA 1968), cited to Scott for the same above quoted statement on intent. However, in Williams v. State, 239 So.2d 127 (Fla. 4th DCA 1970), the court makes a slight change in that statement where, in citing Edwards, they said, "Intent, being a state of mind, must in most cases be inferred from the circumstances." This change was continued in a somewhat different version in State v. West, 262 So.2d 457 (Fla. 4th DCA 1972), when that court said, "Being a state of mind, intent is usually a question of fact to be determined by the trier of fact." (Emphasis supplied.) In State v. J.T.S. and G.R.W., 373 So.2d 418 (Fla. 2d DCA 1979), this court relied on West to hold that intent is not an issue to be decided on a motion to dismiss "since intent is usually inferred from the acts of the parties and the surrounding circumstances." (Emphasis supplied.) In State v. Rogers, 386 So.2d 278 (Fla. 2d DCA 1980), this court made the same statement, relying on J.T.S. and G.R.W. In Adams v. State, 443 So.2d 1003 (Fla. 2d DCA 1983), this court reversed a conviction on a count charging grand theft in a multi-count information. The reversal was based on the insufficiency of the evidence to support the requisite felonious intent to steal. In so reversing, the court relied on Maddox v. State, 38 So.2d 58 (Fla. 1948), where the court quoted from several of its earlier decisions as follows:
In larceny, the criminal intention constitutes the offense, and is the criterion which distinguishes it from trespass. Where the act is done clandestinely, or where there is an effort to conceal the possession of another's property, or prevent the owner from discovering it, there is evidence of felonious intent; but the taking of another's property by mistake or accident, where the animus furandi forms no part is not felony.
... .
The intent to steal is a necessary ingredient of the offense of larceny. The burden rests upon the State to show that the property was taken animo furandi as an essential to conviction. It is appears that the taking was consistent with honest conduct, although the party charged with the crime may have been mistaken, he cannot be convicted of larceny.
38 So.2d at 59.
Finally, this court in Crawford v. State, 453 So.2d 1139 (Fla. 2d DCA 1984), relying partly on Adams, reversed a conviction for *173 grand theft because the evidence was insufficient to evince a felonious intent.
We, therefore, conclude that the unrefuted facts presented in support of appellee's motion to dismiss establish direct evidence that refute any inference of a felonious intent on the part of appellee. Accordingly, the order of the trial court is affirmed.
GRIMES, A.C.J., and SCHEB, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593052/ | 19 So.3d 252 (2009)
Manuel Lee OWENS and Sherri M. Owens
v.
STATE of Alabama.
CR-06-1957.
Court of Criminal Appeals of Alabama.
March 20, 2009.
*253 Benton H. Persons, Andalusia, for appellants.
Troy King, atty. gen., and Jean A. Therkelsen, asst. atty. gen., for appellee.
WISE, Presiding Judge.
The appellants, Manuel Lee Owens and Sherri M. Owens, were convicted of allowing minors to participate in an open house party, a violation of § 13A-11-10.1(b), Ala. Code 1975. The trial court sentenced Manuel to serve a term of 60 days in the county jail, but split the sentence and ordered him to serve one weekend in jail followed by 90 days on probation. It sentenced Sherri to serve a term of 60 days in the county jail, but suspended the sentence and placed her on probation. Manuel and Sherri did not file any post-judgment motions. This appeal followed.
Manuel and Sherri argue that the State did not present sufficient evidence to support their convictions. With *254 regard to open house parties, § 13A-11-10.1(b), Ala.Code 1975, provides:
"No adult having control of any residence, who has authorized an open house party at the residence and is in attendance at the party, shall allow the open house party to continue if all of the following occur:
"(1) Alcoholic beverages or controlled substances are illegally possessed or illegally consumed at the residence by a person under the age of 21.
"(2) The adult knows that an alcoholic beverage or controlled substance is in the illegal possession of or is being illegally consumed by a person under the age of 21 at the residence.
"(3) The adult fails to take reasonable action to prevent illegal possession or illegal consumption of the alcoholic beverage or controlled substance."
§ 13A-11-10.1(b), Ala.Code 1975. For purposes of § 13A-11-10.1, Ala.Code 1975, an "adult" is defined as "[a] person who, pursuant to state law, may possess alcoholic beverages." § 13A-11-10.1(a)(1), Ala. Code 1975. An "adult having control of a residence" is defined as "[a]n adult who has sanctioned an open house party and who is in attendance." § 13A-11-10.1(a)(2), Ala.Code 1975. A "residence" is defined as "[a] home, apartment, condominium, country club, motel, hotel, or any other unit designed for dwelling." § 13A-11-10.1(a)(7), Ala.Code 1975. Finally, an "open house party" is defined as "[a] social gathering at a residence." § 13A-11-10.1(a)(5), Ala.Code 1975.
"In deciding whether there is sufficient evidence to support the verdict of the jury and the judgment of the trial court, the evidence must be reviewed in the light most favorable to the prosecution. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). Conflicting evidence presents a jury question not subject to review on appeal, provided the state's evidence establishes a prima facie case. Gunn v. State, 387 So.2d 280 (Ala. Cr.App.), cert. denied, 387 So.2d 283 (Ala.1980). The trial court's denial of a motion for a judgment of acquittal must be reviewed by determining whether there existed legal evidence before the jury, at the time the motion was made, from which the jury by fair inference could have found the appellant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Cr. App.1978). In applying this standard, the appellate court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala.Cr.App. 1983); Thomas v. State. When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for a judgment of acquittal by the trial court does not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969); Willis v. State."
Breckenridge v. State, 628 So.2d 1012, 1018 (Ala.Crim.App.1993).
"`In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider the evidence in the light most favorable to the prosecution.' Faircloth v. State, 471 So.2d 485, 489 (Ala.Cr.App.1984), affirmed, Ex parte Faircloth, [471] So.2d 493 (Ala.1985).
"`. . . .
"`"The role of appellate courts is not to say what the facts are. Our role... is to judge whether the evidence is legally sufficient to allow submission *255 of an issue for decision to the jury." Ex parte Bankston, 358 So.2d 1040, 1042 (Ala. 1978). An appellate court may interfere with the jury's verdict only where it reaches "a clear conclusion that the finding and judgment are wrong." Kelly v. State, 273 Ala. 240, 244, 139 So.2d 326 (1962).... A verdict on conflicting evidence is conclusive on appeal. Roberson v. State, 162 Ala. 30, 50 So. 345 (1909). "[W]here there is ample evidence offered by the state to support a verdict, it should not be overturned even though the evidence offered by the defendant is in sharp conflict therewith and presents a substantial defense." Fuller v. State, 269 Ala. 312, 333, 113 So.2d 153 (1959), cert. denied, Fuller v. Alabama, 361 U.S. 936, 80 S.Ct. 380, 4 L.Ed.2d 358 (1960).' Granger [v. State], 473 So.2d [1137,] 1139 [(Ala.Crim.App. 1985)].
"... `Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty.' White v. State, 294 Ala. 265, 272, 314 So.2d 857, cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975). `Circumstantial evidence is in nowise considered inferior evidence and is entitled to the same weight as direct evidence provided it points to the guilt of the accused.' Cochran v. State, 500 So.2d 1161, 1177 (Ala.Cr.App.1984), affirmed in pertinent part, reversed in part on other grounds, Ex parte Cochran, 500 So.2d 1179 (Ala. 1985)."
White v. State, 546 So.2d 1014, 1017 (Ala. Crim.App.1989). Also,
"`[c]ircumstantial evidence is not inferior evidence, and it will be given the same weight as direct evidence, if it, along with the other evidence, is susceptible of a reasonable inference pointing unequivocally to the defendant's guilt. Ward v. State, 557 So.2d 848 (Ala.Cr.App.1990). In reviewing a conviction based in whole or in part on circumstantial evidence, the test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App. 1978), cert. denied, 368 So.2d 877 (Ala. 1979).'
"Ward, 610 So.2d at 1191-92."
Lockhart v. State, 715 So.2d 895, 899 (Ala. Crim.App.1997).
Deputy Kevin Wise of the Covington County Sheriff's Department testified that, around 12:30 a.m. on January 21 or 22, 2006, he responded to a complaint by one of Manuel and Sherri's neighbors about noise and vehicles on his property. As he went down the dirt road toward their house, he saw a truck in a ditch. He also saw approximately ten vehicles parked on the edge of Manuel and Sherri's yard and an adjacent field, which was approximately thirty or forty yards from their house. Wise testified that he saw approximately twenty people, including minors, in Manuel and Sherri's yard and near their house, but did not see any in the field, which was dark. Finally, he testified that he did not see any evidence of alcohol or of a bonfire.
Wise testified that he contacted Agent Scotty Ballard of the Alabama Alcoholic Beverage Control Board ("ABC Board") about the situation and left. As he passed the truck that was in a ditch, the driver and his brother, who were 17 and 18 years old, appeared. He investigated and learned that the driver had been at the party and had been drinking.
*256 Ballard testified that he arrived around 1:00 a.m. and saw eighteen to twenty people in the yard and on the back deck of Manuel and Sherri's house. Manuel was standing against a deck rail and had a beer can in his left hand. Four people were sitting at a table on the deck, and three of the four were under the age of 21. There were several open containers of beer on the table and deck and nine unopened cans of beer in a container on the deck. Ballard testified that several of the minors he talked to had a strong odor of alcohol on their person and that they arrested several minors for being in possession of or consuming alcohol. He also testified that he did not see any alcohol containers in the yard and that there was not a fire there. Finally, he testified that, after they learned that Manuel and Sherri's daughter Leandria had had the party, they located her and determined that she had been drinking.
Sergeant Kenneth Davis of the ABC Board testified that he also responded to the scene. When he went to the back deck, he saw Manuel leaning against a deck railing consuming a beer, Sherri standing near a door to the house, and two or three other adults there. He also saw open and unopened cans of beer on the deck and confiscated some of the unopened cans. Davis testified that Manuel and Sherri admitted that they knew that minors, including their daughter, had been drinking. However, they told him they did not know what to do. Davis testified that, when he first asked Manuel and Sherri if anyone was in the house, they indicated only that their younger child was in there. After they investigated, however, they learned that Manuel and Sherri's daughter Leandria was also in the house and had been consuming alcohol.
Davis testified that he did not see any evidence of a party or a bonfire in the field, but admitted that he did not go into the field. He also testified that the vehicles were parked in Manuel and Sherri's yard where the grass had been mowed about twenty to twenty-five yards from the house, that he did not see any cans or litter near the vehicles, and that he did not see any minors consuming alcohol at the house.
Davis testified that they arrested eight minors for consumption of alcohol. He also testified that he arrested Manuel and Sherri because they were there, admitted that they knew their underage daughter and other minors had been consuming alcohol, and that they did not do anything to prevent or stop the consumption of alcohol. Davis stated that he was not aware of allegations that Manuel and Sherri accumulated the minors' keys so they could not drive away. Nevertheless, he stated that would have kept the minors from driving, but would not have kept them from drinking.
Leandria Owens testified for the defense that Manuel and Sherri are her parents and that she was 19 years old at the time of the incident; that she decided to have an impromptu party in a neighbor's field approximately sixty to seventy yards behind her parents' house; that they used a bonfire for light; that her parents were not at home when the party started; and that she would not have had the party if her parents had been home. She testified that there were between fifteen and thirty people at the party who ranged in age from 17 to 21 years and that some of the people who were under the age of 21 consumed alcohol. However, she testified that none of the underage drinkers consumed alcohol at her parents' house.
Leandria testified that, during the party, a friend telephoned her and told her that law enforcement officers were on their way to the party. An officer arrived and had *257 to leave, but he told them to stay in the field until he returned. At that point, she went to her parents' house, got them out of bed, and told them that they had been drinking, that some people had left, and that law enforcement officers would be back. Finally, she testified that Manuel and Sherri then took the car keys from the remaining guests who had been drinking in an attempt to prevent them from driving.
Manuel testified that he got home around 10:00 p.m. or 10:30 p.m. on January 21, 2006; that there were some people in the field that was adjacent to his house; that the field belonged to his neighbor; and that Leandria had had get-togethers there before, but had not previously mentioned having one that night. Later, Leandria came to the house and told him and Sherri that they had been drinking and that law enforcement officers were coming. At that point, they took the car keys from those people who had been drinking.
Manuel testified that he was not drinking beer when law enforcement officers arrived at his house. He also testified that the beer officers confiscated from the deck was not his, that it belonged to Brandon Nall, and that there were some adults there drinking, but that he did not observe anyone who was underage drinking. Finally, he stated that, to his knowledge, he had never seen Davis.
Sherri testified that she did not know anything about the party until she got home from work at approximately 11:30 p.m. on January 21, 2006, when she noticed the gathering of young people in the field. Later, Leandria came to the house, admitted that they had been drinking, and told her and Manuel that law enforcement officers were on their way. Sherri told Leandria to go to bed and then stepped outside. Finally, she testified that the party guests were 19, 20, and 21 years old; that she confiscated car keys from the ones who had been drinking; and that she did not see any of them drinking alcohol in her presence.
Samantha Lumpkin, Leandria's best friend, testified that Leandria was intoxicated that evening and that she had seen Leandria intoxicated before that evening. She also testified that she was certain that Manuel and Sherri did not know about the party. Finally, she stated that she did not see anyone who was underage drinking alcohol at Manuel and Sherri's house and that the vehicles were parked at the edge of the field.
In rebuttal, Ballard testified that he observed Manuel drinking a beer when he arrived at the scene, that Manuel smelled of alcohol, and that Manuel did not say anything when he asked what he was doing. He also testified that no one ever said anything to him about taking up car keys.
Davis also testified as a rebuttal witness and reiterated that he saw Manuel drinking a beer and that he spoke to Manuel about the incident. He testified that Manuel and Sherri did not mention anything about confiscating any car keys or say that there had not been a party at the house. Finally, he added that no one told him the party occurred in the field and that he saw debris only immediately around the house.
The State presented evidence that Manuel and Sherri were on the deck and that Manuel was drinking a beer when officers arrived. It also presented evidence that there were minors and several open and unopened cans of beer on the deck and that several of the minors smelled of alcohol. The State further presented evidence that there was not any evidence of beer cans, debris, or a bonfire in the field. Rather, all of the people and beer cans were near Manuel and Sherri's house. Finally, *258 Manuel and Sherri admitted that they knew their underage daughter and other minors had been consuming alcohol and that they did not do anything to prevent or stop the consumption of alcohol. Even taking as true their allegation that they confiscated keys from the minors who had been consuming alcohol, that still would not have prevented the minors from possessing and consuming alcohol. At most, they simply prevented them from driving. Thus, the State presented circumstantial evidence from which the jury could have reasonably concluded that Manuel and Sherri authorized a party at their residence, were in attendance at the party, and allowed the party to continue after learning that alcohol was in the possession of or being consumed by people who were under the age of 21, in violation of § 13A-11-10.1(b), Ala.Code 1975. "In general, the jury is in the best position to decide the credibility of witnesses." Congo v. State, 477 So.2d 511, 516 (Ala.Crim.App. 1985). Also, "[t]he weight and probative value to be given to the evidence, the credibility of the witnesses, the resolution of conflicting testimony, and inferences to be drawn from the evidence are for the jury." Smith v. State, 698 So.2d 189, 214 (Ala.Crim.App.1996), aff'd, 698 So.2d 219 (Ala.1997). Accordingly, we affirm the trial court's judgment.
AFFIRMED.
WELCH, WINDOM, and KELLUM, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593012/ | 34 Mich. App. 607 (1971)
192 N.W.2d 35
BEELMAN
v.
BOICE BIRD & SONS
Docket No. 8966.
Michigan Court of Appeals.
Decided June 25, 1971.
*608 MacDonald, Fitzgerald & MacDonald, for plaintiff.
John Davidson, for defendants Boice Bird & Sons and Aetna Casualty & Surety Company.
Markle & Markle (by Richard L. MacArthur), for defendants James Beelman and Commercial Union Insurance Company.
Before: R.B. BURNS, P.J., and J.H. GILLIS and T.M. BURNS, JJ.
Leave to appeal denied, 386 Mich 751.
PER CURIAM.
Plaintiff, an industrial painter, fell from a scaffold in November of 1961 while in the employ of defendant Boice Bird & Sons sustaining a fracture of his left heel. Plaintiff also complained that his right ankle and back hurt. Such injuries caused him to miss two weeks of work for which defendant Boice Bird & Sons made voluntary compensation payments. He returned to work briefly, but was forced to leave in January of 1962 because he found climbing and moving heavy scaffolds too strenuous.
Having left Boice Bird, plaintiff commenced working as a residential painter for his brother, defendant James Beelman. Such residential painting involved considerable stooping and bending. In November of 1966, plaintiff experienced serious difficulty *609 with his back and as a consequence missed work from December 2, 1966, to January 15, 1967. Upon returning he was given lighter work which he performed until January of 1968 when he left the employ of his brother for a few months to work for the Morgan Construction Company for the reason that he was offered a painting job at a substantial increase in wages.
Hearing Referee James W. Nolan heard testimony on April 19, 1968, pursuant to plaintiff's application for hearing filed with the Workmen's Compensation Department on June 29, 1967. He found that plaintiff "did receive a personal injury arising out of and in the course of his employment by the above-named employers [all the defendants] on 11-3-61 and November, 1966 * * *". He then stated: "Having found that the work performed by plaintiff prior to November, 1966, while in the employ of James Beelman, so aggravated and worsened his condition so that he is now able to do only the lightest duties in his skilled field of employment. Benefits awarded above shall be paid by James Beelman's carrier."
From such order of the hearing referee, defendant James Beelman and his insurance carrier filed an application for review with the Workmen's Compensation Appeal Board. The Board, having reviewed the record, entered an opinion and order affirming the decision of the hearing referee. It is from this action of the appeal board that this appeal is taken by leave.
Part VII of the Workmen's Compensation Act[1] is designed to make compensable any injury which, though not traceable to a single event, is a direct *610 result of the conditions which are peculiar to the business of the employer:
"`Personal injury' shall include a disease or disability which is due to causes and conditions which are characteristic of and peculiar to the business of the employer and which arise out of and in the course of the employment."[2]
Plaintiff was able to perform his duties as a residential painter from January of 1966 until December of 1966, when due to the constant stooping, bending, and climbing, he found that the pain in his back would no longer allow him to work. Plaintiff did then suffer a "personal injury" as that term is defined in Part VII of the Act while in the employ of defendant James Beelman.
Defendant Beelman contends, however, that plaintiff could not have become disabled while working as a residential painter because he already was disabled at the time he left the employ of Boice Bird & Sons. MCLA § 417.1(a) [Stat Ann 1968 Rev § 17.220(a)] provides:
"`Disability' means the state of being disabled from earning full wages at the work in which the employee was last subjected to the conditions resulting in disability."
At the time plaintiff sustained his fall, he was earning $144 per week as an industrial painter. Then upon finding industrial painting too strenuous, he went to work for his brother as a residential painter at $140 per week. It is defendant Beelman's position that since plaintiff was earning $4 less per week after the fall, he was no longer earning "full wages" and was, therefore, already under a "disability" *611 at the time he left the employ of Boice Bird & Sons.
We disagree. Although plaintiff found it difficult to perform his duties as an industrial painter after the fall, he was able to perform all of the duties required of a residential painter. He received the same rate of pay as that received by all the other painters employed by defendant. He had established a wage earning capacity as a residential painter prior to the time the constant stooping, bending, and climbing caused the pain in his back to become intense enough to disable him.
He therefore became entitled to workmen's compensation benefits under part VII of the act from defendant James Beelman and his workmen's compensation insurance carrier.
Affirmed.
NOTES
[1] Part VII has been repealed by PA 1969, No 317, § 898, eff. Dec. 31, 1969. The above sections may be found at MCLA 1971 Cum Supp § 418.401 et seq. (Stat Ann 1971 Cum Supp § 17.237[401] et seq.).
[2] This section may now be found, unchanged, at MCLA 1971 Cum Supp § 418.401(c) (Stat Ann 1971 Cum Supp § 17.237[401][c]). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593018/ | 19 So.3d 386 (2009)
Magdalene RODRIGUEZ, a single woman as parent and natural guardian of Noemi Rodriguez, a minor, Appellant,
v.
FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, Appellee.
Joseph Basey and Lisa Basey, as parents and natural guardians of Samantha Basey, a minor, Appellant,
v.
Florida Birth-Related Neurological Injury Compensation Association, Appellee.
Nos. 2D07-5140, 2D07-5141.
District Court of Appeal of Florida, Second District.
June 24, 2009.
Rehearing Denied August 27, 2009.
*387 Richard A. Gilbert, David M. Caldevilla, and Christopher J. Lewis of de la Parte & Gilbert, P.A., Tampa, and J. Daniel Clark of Clark & Martino, P.A., Tampa, for Appellants.
Wilbur E. Brewton, Kelly B. Plante, and Tana D. Storey of Brewton Plante, P.A., Tallahassee, for Appellee.
SILBERMAN, Judge.
Ms. Rodriguez and the Baseys are parents of children with birth-related neurological injuries (the Parents). In these consolidated cases, Ms. Rodriguez and the Baseys appeal separate orders that purport to clarify a 1995 final order as to Rodriguez and a 1999 final order as to the Baseys. Those final orders approved stipulations settling the Parents' respective claims for benefits. In 2007, the Florida Birth-Related Neurological Injury Compensation Association (NICA) sought clarification of the previously entered final orders. Because the Division of Administrative Hearings (DOAH) did not have jurisdiction to enter the appealed clarification orders, we reverse the orders and remand for further proceedings on the Parents' motions for attorneys' fees and costs.
On August 22, 2007, NICA filed its motions for clarification of the 1995 and 1999 final orders. In the motions and at the hearing held in October 2007, NICA argued that the DOAH administrative law judge (ALJ) had jurisdiction to enforce the final orders pursuant to section 766.312, Florida Statutes (2007), and jurisdiction to interpret and clarify those final orders. NICA referred to a class action lawsuit that the Parents had filed in the circuit court for Hillsborough County, which involved a dispute between NICA and the Parents regarding care services the Parents rendered for their children. NICA argued that it had not previously sought clarification in the years since entry of the final orders because there had not been any need to do so until the Parents filed *388 their class action lawsuit. NICA indicated that even though it was not confused by the final orders, it filed its motions because of the Parents' contentions that NICA was not complying with its payment obligations.
The Parents filed responses to NICA's motions and asserted, among other arguments, that the ALJ did not have jurisdiction to entertain the motions for clarification. The Parents argued that NICA's motions were an improper attempt to circumvent the existing class action lawsuit. They stated that the class action lawsuit had been filed to address what the Parents believed was misconduct by NICA in its application of a 2002 statute to children who were born before the effective date of the statute. The Parents asserted that a class action was appropriate to allow a determination for families that were in a "similar predicament" regarding NICA's interpretation and application of the 2002 statute and that NICA's motions for clarification were an attempt to divest the circuit court of its jurisdiction. The Parents requested attorneys' fees and costs for having to defend against NICA's motions.
In October 2007, the ALJ entered orders that purported to clarify the 1995 and 1999 final orders. The ALJ also denied the Parents' motions for attorneys' fees and costs.
Section 766.312 provides the ALJ with authority to "enforce" awards. However, in the 2007 orders the ALJ did not enforce the awards that were made in the 1995 and 1999 final orders. Instead, the ALJ granted NICA's motions "[t]o the extent clarification may be warranted." The ALJ reiterated NICA's obligation to pay past and future expenses as authorized by statute and as required by the 1995 and 1999 final orders. The ALJ also observed that no dispute regarding the Parents' entitlement to benefits had even been presented to DOAH for resolution.
We agree with the Parents' argument that the ALJ was without jurisdiction to clarify, years later, the 1995 and 1999 final orders. See Brooks v. Monroe County Sheriff Dep't, 634 So.2d 295, 297 (Fla. 1st DCA 1994) (determining that a judge of compensation claims lacked jurisdiction to amend an unambiguous order more than a year after it had been entered and recognizing that a party is obligated to timely seek clarification if the party is uncertain as to the intent of an order). Further, the appealed orders do not appear to clarify anything about the 1995 and 1999 final orders. After reviewing NICA's motions and the record before us, we tend to agree with the Parents' assertion that NICA, in filing its motions for clarification, sought relief from the ALJ in order to circumvent the class action that was already pending in the circuit court. Because the ALJ did not have jurisdiction to enter the orders that purport to clarify the 1995 and 1999 final orders, we reverse.
The Parents also argue that the ALJ erroneously denied their motions for attorneys' fees and costs, which were filed pursuant to several statutes. Because we are reversing the ALJ's clarification orders, we remand for the ALJ to reconsider the motions for fees and costs.
The ALJ denied the Parents' motions for fees and costs pursuant to section 766.31(1)(c). That section provides for the recovery of "[r]easonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney's fees." NICA's motions for clarification were directed to the final orders that approved the Parents' claims for benefits, and as a result of the motions, the Parents incurred expenses. We conclude that the Parents' expenses to defend against NICA's untimely efforts to *389 seek clarification of the 1995 and 1999 final orders are expenses incurred in connection with the filing of their claims for benefits.[1] Accordingly, we reverse and remand for the ALJ to award the Parents' their reasonable expenses incurred in this matter.
The ALJ struck the Parents' motions for fees and costs under section 57.105, Florida Statutes (2007), and denied the Parents' motions for fees and costs under section 120.569(2)(e), Florida Statutes (2007). Because of our decision that the Parents' are entitled to recover their fees and costs under section 766.31(1)(c), their claims for fees and costs under sections 57.105 and 120.569(2)(e) may be moot. However, to the extent that the Parents may still be entitled to relief under the latter two statutes, we make the following observations.
It appears that the ALJ struck the Parents' section 57.105 motions on the basis that they were prematurely filed in violation of section 57.105(4). The Parents argue that they did not file the motions with DOAH, that they have in their possession the original motions, that they provided copies of the motions to NICA and others, and that it appeared someone else filed copies of the motions with DOAH. The issue as to the filing of the motions was not addressed at the hearing before the ALJ, and the record does not establish whether the Parents or someone else prematurely filed the motions. On remand, to the extent that the Parents continue to seek fees and costs under section 57.105, an evidentiary hearing may be required for the ALJ to determine whether the Parents complied with the procedural requirements of that statute.
The ALJ also denied the Parents' motions for fees and costs under section 120.569(2)(e) on the basis that it had granted NICA's motions for clarification. On remand, in light of our reversal of the clarification orders and to the extent that the Parents' still seek fees and costs under that statute, the ALJ will need to reconsider the issue.
Reversed and remanded.
NORTHCUTT, C.J., and LaROSE, J., Concur.
NOTES
[1] We have little doubt that had NICA sought clarification immediately after the entry of the final orders in 1995 and 1999, the DOAH would have considered the motions for clarification to be in connection with the Parents' claims for benefits. The Parents should not be required to absorb their reasonable expenses simply because NICA filed the motions years later. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593075/ | 453 So.2d 729 (1984)
Celeste BARRETT, etc.
v.
ODOM, MAY AND DeBUYS, a Partnership composed of J. Edmond Odom, Jr., James W. May and John DeBuys.
81-601.
Supreme Court of Alabama.
June 1, 1984.
*730 Carleton P. Ketcham, Jr., Dominick, Fletcher, Yeilding, Acker, Wood & Lloyd, Birmingham, for appellant.
James W. May, pro se and for partnership.
ON APPLICATION FOR REHEARING
PER CURIAM.
After further consideration of this case, the original opinion is withdrawn, and the following is substituted as the opinion of the Court.
*731 Celeste Barrett and Carolyn Allan formed a partnership, Cedar Bark Lot 14 (hereinafter "Cedar Bark"), which purchased a parcel of real estate containing a residential dwelling from Barrett Builders, Inc., a corporation apparently owned or controlled by Celeste Barrett's then-husband, Raymond. In connection with the purchase Mrs. Barrett and Mrs. Allan executed and delivered a promissory note and a mortgage in the amount of $13,001.45, payable to the order of Barrett Builders, Inc. The note was due in one lump sum with interest at the rate of 8¾ per annum three years from the date it was executed. The maturity date was May 28, 1979.
Mrs. Allan and her daughter moved into the house and shortly afterwards, Mrs. Allan began noticing numerous defects in the structure. Although she requested Barrett Builders, Inc., to remedy the defects, they were never repaired.
In December 1977, Raymond and Celeste Barrett were divorced. As part of an agreement incorporated into their final decree of divorce, Raymond Barrett agreed to assume liability for, and to hold Celeste Barrett harmless from, claims made against Celeste Barrett arising out of the operation of Barrett Builders, Inc.
On November 20, 1979, (after the note had matured) Raymond Barrett, acting on behalf of Barrett Builders, Inc., assigned the note and mortgage to the appellee, Odom, May & DeBuys (hereinafter "Odom"). The assignment was made to assure payment of legal fees incurred by Raymond Barrett and Barrett Builders, Inc.
After the divorce, various parties made claims against Celeste Barrett arising out of transactions involving Raymond Barrett and Barrett Builders, Inc. On December 10, 1979, she made a written demand on him for indemnification under the terms of the indemnification agreement in the divorce decree. She testified that she spent $8,464.00 successfully defending the claims.
Prior to April 25, 1981, Odom published notice of the foreclosure of the mortgage. Celeste Barrett, individually and as a partner in Cedar Bark, filed an action against Odom seeking to enjoin foreclosure of the mortgage. The complaint asked that the court determine the amount which Cedar Bark, the partnership, and Celeste Barrett, individually, were entitled to set off against the indebtedness due under the note to Barrett Builders, Inc., which had been assigned to Odom. She prayed for a judgment satisfying and cancelling the mortgage on the property.
After taking oral testimony the trial court found and/or ordered as follows:
(1) That Odom was the assignee of the note;
(2) That Odom's rights were governed by § 7-3-306 of the Code of Alabama (1975);
(3) That Cedar Bark's claim of $6,880.00 against Barrett Builders, Inc., arising out of the construction of the dwelling, be set-off against the amount due on the note;
(4) That the individual claims of Celeste Barrett against Raymond Barrett could not be set-off against the amount due on the note; and
(5) That the full principal amount of the note should bear interest until the date of maturity; that all principal and interest accrued as of the maturity date should bear interest from the date of maturity until the date of assignment; that $6,880.00 should be subtracted from the total amount due on the date of assignment; and that the remaining sum should bear interest until the note is paid.
On appeal neither party questions the propriety of the judge's order allowing Cedar Bark to reduce its obligation on the note by $6,880.00, the amount of its breach of warranty claim against the assignor. Celeste Barrett argues, however, that she should also be allowed to set-off the $8,464.00 claimed by her against Raymond Barrett under the indemnification agreement in their divorce decree. She also questions the trial court's method of computing the interest due on the note.
*732 The trial court did not specify the reasons that the individual claims of Celeste Barrett could not be set-off against the amount due on the note, but only made a general finding that such claims could not be allowed. When a trial court makes no specific findings of fact, but only a general finding that a claim will not be allowed, "[w]e will assume that the trial court made those findings which will justify the decree rendered." Sims v. Reinert, 285 Ala. 658, 661, 235 So.2d 802, 805 (1970).
One reason that can be asserted as justifying the trial court's disallowance of the individual claims is the fact that the note in question was executed to Barrett Builders, Inc., while Mrs. Barrett's claims are against Raymond Barrett individually. However, the parties to this appeal in their original briefs to this Court did not raise the issue of a separate corporate existence, and appellant in her application for rehearing claims that Barrett Builders, Inc., was the alter ego of Raymond Barrett and that the corporation and the individual were treated as one by the trial court.
We generally accept the concept that a corporation is a separate legal entity, but when this concept is invoked in support of an end subversive of justice, it will be disregarded. Cohen v. Williams, 294 Ala. 417, 420, 318 So.2d 279, 280 (1975) (quoting 18 Am.Jur.2d Corporations § 14 at 559 (2d ed. 1965)). A separate corporate existence will not be recognized when a corporation is so organized and controlled and its business so conducted as to make it a mere instrumentality of another or the alter ego of the person owning and controlling it. Woods v. Commercial Contractors, Inc., 384 So.2d 1076, 1079 (Ala.1980). A corporation and the individual or individuals owning all its stock and assets can be treated as identical, even in the absence of fraud, to prevent injustice or inequitable consequences. Cohen, 294 Ala. at 421, 318 So.2d at 281.
The trial court, without a jury, heard ore tenus testimony on the separate corporate existence and the other issues in this case. Generally, when a trial court has heard ore tenus testimony, "every presumption will be indulged in favor of the trial court, and its findings will not be disturbed on appeal unless palpably wrong or clearly erroneous." Morrow v. Wood, 411 So.2d 120, 122 (Ala.1982). However, "[w]here the evidence before the trial court is undisputed, the ore tenus rule is inapplicable, and the Supreme Court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court's application of the law to those facts." Samford v. First Alabama Bank of Montgomery, N.A., 431 So.2d 146, 149 (Ala.1983).
Undisputed testimony was offered at trial which showed that Raymond Barrett, without any authorization or authority other than his own, assigned the note in question to Odum, not only for the supposed debt of Barrett Builders, Inc., to the firm, but also for his own existing debt to the firm for services already rendered to him in the divorce and for services to be rendered to him on a pending petition to modify. The parties stipulated that the expenses incurred by Mrs. Barrett in defense of claims covered by the indemnity agreement were a result of debts owed not only by Raymond Barrett, but by Barrett Builders, Inc. The record also contains undisputed testimony which shows that Raymond Barrett used corporate funds to satisfy personal obligations. In light of this evidence, the trial court erred if it disallowed the individual claims of Celeste Barrett on the basis of the separate corporate existence of Barrett Builders, Inc. The evidence offered to prove that Barrett Builders, Inc., was merely the alter ego of Raymond Barrett is undisputed and clearly compels the treatment of the corporation and the individual as one.
Treating Barrett Builders, Inc., and Raymond Barrett as one, we must entertain the alternative ground for disallowance of the individual claims and decide the issue raised by the parties, which is whether Code 1975, § 7-3-306(b), permits the maker of a negotiable instrument to assert prior party set-off (i.e., an unrelated claim that *733 would have been available as a set-off had the original holder sued the maker on the instrument) as a defense against one not a holder in due course.[1] Section 7-3-306, corresponding to § 3-306, Uniform Commercial Code (UCC), provides in part:
"Unless he has the rights of a holder in due course, any person takes the instrument subject to:
"....
"(b) All defenses of any party which would be available in an action on a simple contract ...."
Comment 3 to § 7-3-306 states that "Paragraph (b) restates the first sentence of the original Section 58." The first sentence of § 58 of the Uniform Negotiable Instruments Law (NIL) provided: "In the hands of any holder other than a holder in due course, a negotiable instrument is subject to the same defenses as if it were non-negotiable." Code 1940, tit. 39 § 60, corresponding to § 58, NIL.
The language of UCC § 3-306(b) and NIL § 58 "appears to allow prior party set-off against a mere holder any time such a set-off would be available against the assignee of a non-negotiable contract right." Note, Prior Party Set-off as a Defense under U.C.C. Section 3-306(b), 1981 U.Ill.L.Rev. 869, 875-6. However, a comment accompanying § 58 raised questions regarding its proper interpretation. Note, supra at 876. A discussion of the comment provides:
"The Commissioners' Note stated that local law was still relevant to the availability of prior party set-off, but did not clearly indicate whether prior party set-off was allowed whenever the local statutes made set-off available against assignees of contract rights or only when the local statute explicitly mentioned negotiable instruments."
Note, supra at 876.
Two interpretations of the language of § 58 are available to the courts presented with the question of the meaning to be given to "defenses" in § 3-306. Note, supra at 876. The majority of courts addressing this issue have interpreted the Commissioners' Note to indicate that the NIL drafters did not intend any change in prior state law regarding the rights of parties who did not qualify for holder-in-due-course status and have relied on pre-NIL state law to determine the availability of prior party set-off. Note, supra at 881-8 (that Note refers to this interpretation as the "current judicial interpretation"). The other interpretation focuses on the plain meaning of § 58 and would allow prior party set-off against a mere holder whenever state law allowed prior party set-off against the assignee of non-negotiable paper. Note, supra at 876. Pursuant to either of these interpretations, we would allow the maker of a negotiable instrument to assert prior party set-off as a defense against one not a holder in due course.
The Alabama set-off statute provides: "All contracts and writings, except such as are governed by the Uniform Commercial Code, and paper issued to circulate as money, are subject to all payments, setoffs and discounts had or possessed against the same previous to notice of an assignment or transfer." Code 1975, § 8-5-25. The language of this statute would seem to exempt from set-off any writings or instruments governed by the UCC, but the Court in President, etc., Bank of Mobile v. Poelnitz, 61 Ala. 147 (1878), limited the exception in favor of commercial paper.[2] This exception relieves commercial paper from *734 liability to set-off only when it has been negotiated in good faith before maturity. President, etc., Bank of Mobile, 61 Ala. at 149. This pre-NIL interpretation of the exception provided by the set-off statute is consistent with the language of Code 1975, § 6-8-83, which provides: "Paper governed by the commercial law, negotiated before maturity, is not subject to counterclaim." It is also consistent with present UCC provisions, as will be shown by this opinion.
A careful reading of the Alabama statutes relating to set-off, along with the cases interpreting these provisions, would indicate that pre-NIL Alabama law would allow the maker of a negotiable instrument to assert prior party set-off as a defense against one not a holder in due course who took after maturity. President, etc., Bank of Mobile v. Poelnitz, 61 Ala. 147 (1878); Carroll v. Malone, 28 Ala. 521 (1856); Stone v. Goldberg & Lewis, 6 Ala.App. 249, 60 So. 744 (1912). In Robertson v. Breedlove, 7 Port. 541 (Ala.1838), a different conclusion was reached,[3] but in Carroll v. Malone, 28 Ala. at 527, this conclusion was labeled as dictum and questioned by the Court. Even if the conclusion in Robertson was not dictum, it was reversed by the later decisions in Carroll and President, etc., Bank of Mobile. In light of these decisions, we can conclude that Alabama courts prior to the adoption of the NIL allowed the maker of a note to assert prior party set-off as a defense against a mere holder who took after maturity. Therefore, pursuant to the first interpretation of the language of § 3-306, and the comments, we would interpret "defenses" in our § 7-3-306(b) to include prior party set-off.
The second interpretation focuses on the plain meaning of § 3-306 and § 58 and would allow prior party set-off as a defense against a mere holder whenever state law allowed prior party set-off against the assignee of non-negotiable paper. Section 8-5-25 provides that all contracts and writings, except those governed by the UCC, are subject to all payments, set-offs, and discounts had or possessed against the same previous to notice of assignment or transfer. The language of this statute is consistent with the wording of § 167(1) of the Restatement of Contracts (1932), which provides:
"An assignee's right against the obligor is subject to all limitations of the obligee's right, to all absolute and temporary defenses thereto, and to all set-offs and counterclaims of the obligor which would have been available against the obligee had there been no assignment, provided that such defenses and set-offs are based on facts existing at the time of the assignment, or are based on facts arising thereafter prior to knowledge of the assignment by the obligor."
The provisions of § 8-5-25 clearly allow prior party set-off against the assignee of non-negotiable paper, and, therefore, pursuant to the second interpretation, we would allow prior party set-off as a defense against a mere holder of negotiable paper who took after maturity as long as the claim for the set-off arose prior to notice of assignment or negotiation.
Following the second interpretation, which leads to simplicity and uniformity,[4] we interpret "defenses" in § 7-3-306(b) to include prior party set-off when *735 the instrument is negotiated after maturity and the claim for the set-off arose prior to notice of assignment or negotiation. The note in question was assigned after maturity, but the record is not clear as to when the individual claims of Celeste Barrett arose. Therefore, we remand this case to the trial court for that court to determine when these claims arose and to allow a set-off against the amount of the note for those claims which arose prior to notice of assignment.
Appellant also questioned the trial court's method of computing the interest due on the note. The trial court ruled that the full amount of the principal should bear interest until the date of maturity, and that all principal and interest accrued as of that date should bear interest from that date till the date of assignment, at which time the amount of the claim for breach of warranty ($6,880.00) should be subtracted. Appellant argued that the principal should have been reduced by $6,880.00 initially and that the interest should be calculated on the difference between the face amount of the note and $6,880.00.
We find no controlling authority in Alabama on the issue. Apparently, courts considering the question have reached differing results. See Macri v. United States, 353 F.2d 804, 808 (9th Cir.1965).
If the trial court's decree is allowed to stand, the purchasers will be forced to pay interest on the entire principal up until the date of maturity, and then to pay interest on the combined principal and interest until the note was assigned, even though $6,880.00 of the $13,001.45 represents payment for work which was unsatisfactory. Since the builder's breach resulted in a diminution of the fair market value at the time of the sale, allowing a recovery for interest based on the full amount of the principal would be tantamount to charging the purchasers interest on money which, due to the breach of warranty, they never in fact owed. Such a result would, in our opinion, result in unjust enrichment. Interest should be computed on the difference between the face amount of the note and $6,880.00, from the date of execution until maturity, and then until payment, interest should be computed on the combined principal and interest accrued as of the maturity date.
REHEARING GRANTED; OPINION SUBSTITUTED; REVERSED AND REMANDED.
TORBERT, C.J., and FAULKNER, ALMON, EMBRY and ADAMS, JJ., concur.
NOTES
[1] No contention is made that Odom is a holder in due course.
[2] The court was interpreting two sections of the Alabama Code of 1876 which are similar in language to the present code provisions:
§ 2100 "All contracts and writings, except bills of exchange, promissory notes, payable in money at a bank or private banking house, and paper issued to circulate as money, are subject to all payments, sets-off and discounts had or possessed against the same previous to notice of the assignment or transfer."
§ 2995 "The foregoing provisions relating to sets-off, do not apply to bills of exchange nor notes payable in bank [sic], or at a private banking house, which have been in good faith negotiated before maturity."
Ala.Code (1876).
[3] In Robertson, the opinion indicated that a "holder is not subject to a set-off, in respect of a debt due from the endorser to the maker of the note, arising out of a collateral contract." 7 Port. at 543-4.
[4] The author of the note discussing prior party set-off as a defense under UCC § 3-306(b) lists several significant advantages of the "plain meaning" interpretation over the "current judicial interpretation," which looks to pre-NIL state law:
"First, this interpretation is more consistent with the language of section 3-306(b) and accords with several other provisions in the text of the U.C.C. Second, this alternative approach avoids the complex search into pre-U.C.C. state law often required by the current judicial interpretation. Finally, the alternative interpretation results in a more uniform rule regarding the availability of prior party set-off under section 3-306(b)."
Note, supra at 889. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593082/ | 453 So.2d 858 (1984)
MERRILL LYNCH, PIERCE, FENNER AND SMITH, INC., a Foreign Corporation Doing Business in the State of Florida, and Brian Sheen, Petitioners,
v.
Helen MELAMED, Respondent.
Nos. 83-2514, 83-2515.
District Court of Appeal of Florida, Fourth District.
July 13, 1984.
Rehearing Denied August 22, 1984.
*859 Bennett Falk and Patricia E. Cowart, of Ruden, Barnett, McClosky, Schuster & Russell, P.A., Miami, for petitioner Merrill Lynch, Pierce, Fenner and Smith, Inc.
H. Michael Easley of Easley, Massa & Willits, P.A., West Palm Beach, for petitioner Brian Sheen.
F. Kendall Slinkman, West Palm Beach, for respondent.
HURLEY, Judge.
Merrill Lynch Pierce Fenner & Smith, Inc. (Merrill Lynch) and its employee Brian Sheen petition this court for the third time to review a non-final order which denied a motion to compel arbitration.[1] We grant the writ and order arbitration.
*860 When this case was first before us, we held that the substantive portions of the Federal Arbitration Act[2] supercede inconsistent provisions of state law, such that arbitration agreements which are valid and enforceable under federal law must be recognized and enforced in Florida courts.[3] Thereafter, the United States Supreme Court announced the same rule in Southland Corp. v. Keating, ___ U.S. ___, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984). Also, subsequent to our decision in "Melamed I," the United States Supreme Court concluded that the Federal Arbitration Act creates a body of federal substantive law which is applicable in both state and federal court. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983).
On remand, the trial court entered a second order denying arbitration. We reviewed this decision in "Melamed II" and quashed the order because the trial court had not held an evidentiary hearing as required by section 682.03(1), Florida Statutes (1983).[4]
Pursuant to our mandate, the trial court held the requisite evidentiary hearing to determine whether there were disputed issues regarding the making of the agreement to arbitrate. It found no genuine issue as to the making of the agreement, but nevertheless entered a third order denying the motion to compel arbitration on ground that the statutory prerequisites for application of the Federal Arbitration Act were not established.[5] We respectfully disagree.
THE SHEEN CLAIM
In May, 1980, the respondent, Helen Melamed, placed cash and securities with Merrill Lynch to be maintained in a cash management account. She opened the account through Brian Sheen, an account executive employed by Merrill Lynch. At that time she signed a contract which provided that "any controversy between us arising out of your business on this agreement shall be submitted to arbitration... ." The trial court was of the view that Sheen was not entitled to arbitration because he was not a signatory to the contract.
We reverse that ruling because we find that the language of the contract is broad enough to include persons within the respondeat superior doctrine. See Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286 (Fla. 3d DCA 1980); see also Paine, Webber, Jackson & Curtis, Inc. v. McNeal, 143 Ga. App. 579, 239 S.E.2d 401 (1977), aff'd, 161 Ga. App. 835, 288 S.E.2d 761, aff'd in part and rev'd in part, 249 Ga. 662, 293 S.E.2d 331 (1982); Berman v. Dean Witter & Co., 44 Cal. App.3d 999, 119 Cal. Rptr. 130 (Ct.App. 1975).
*861 THE FRAUD AND PUNITIVE DAMAGES CLAIMS
We further hold that the fraud claims are subject to arbitration, see Prima Paint Co. v. Flood & Conklin, 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967); Blumberg v. Berland, 678 F.2d 1068 (11th Cir.1982); Post Tensioned Engineering Corp. v. Fairways Plaza Associates, 412 So.2d 871 (Fla. 3d DCA 1982), as are the claims for punitive damages. Cf. Sabates v. International Medical Centers, Inc., 450 So.2d 514 (Fla. 3d DCA 1984) (holding claim under civil theft statute to be proper subject of arbitration, even though criminal violation is at its core and treble damages are available for violation thereof).
The factors cited by the trial court, ante, n. 5, are not sufficient to overcome the parties' agreement to arbitrate on those claims, particularly in view of the United States Supreme Court's recent holding that any doubts concerning the scope of arbitrable issues under the Federal Arbitration Act are to be resolved in favor of arbitration "whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or like defense to arbitrability." Moses N. Cone Memorial Hospital, supra, 103 S.Ct. at 941-42. Cf. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Westwind Transportation, Inc., 442 So.2d 414 (Fla. 2d DCA 1983).
THE EFFECT OF THE FEDERAL
SECURITIES ACT CLAIM
A claim under § 12(2) of the Securities Act of 1933, 15 U.S.C. § 77 l (1976) is presently pending in this suit. Merrill Lynch concedes the non-arbitrability of that claim,[6] but argues that its pendency is no bar to arbitration on the other counts. We agree, and order that the federal claim be stayed pending the outcome of arbitration on the other claims. We order the stay because it appears that the federal claim is factually, although not legally, dependent on Melamed's common law claim.[7]Cf. Sibley v. Tandy Corp., 543 F.2d 540 (5th Cir.1976), cert. denied, 434 U.S. 824, 98 S.Ct. 71, 54 L.Ed.2d 82 (1977); Sabates v. International Medical Centers, Inc., supra, 450 So.2d at 516.
APPLICABILITY OF THE FEDERAL ARBITRATION ACT
The trial court clearly departed from essential requirements of law in concluding that Merrill Lynch failed to show that the arbitration agreement evidences a transaction involving commerce for purposes of the Federal Arbitration Act, 9 U.S.C. § 2 (1976). Melamed has previously conceded in oral argument before this court that the contract involves interstate commerce within the meaning of the federal act. Moreover, we note that Melamed placed securities listed on a national stock exchange with Merrill Lynch, and has pled a claim against it under the federal securities law which is applicable only to transactions involving interstate commerce. Against this background, the applicability of the Federal Arbitration Act to this case cannot seriously be questioned.
WAIVER OF THE FLORIDA SECURITIES ACT CLAIM
As an initial matter, we observe that arbitration agreements are binding and enforceable as to claims arising under *862 the Florida Securities Law. See Raymond James & Associates, Inc. v. Maves, 384 So.2d 716 (Fla. 2d DCA 1980). But see Young v. Oppenheimer & Co., 434 So.2d 369 (Fla. 3d DCA 1983). We so conclude despite an express provision preserving the right to bring an action in court contained in the Florida Securities Act, section 517.241(2), Florida Statutes (1983), because we find that provision to be in conflict with § 2 of the Federal Arbitration Act and therefore invalid under the Supremacy Clause of the federal constitution. See Southland Corp. v. Keating, supra.
Keating involved a suit between the owner/franchisor of 7-Eleven convenience stores, and several 7-Eleven franchisees. The contract between the parties contained a clause requiring arbitration of any controversy or claim arising out of or relating to the agreement or breach thereof. The franchisees sued the franchisor alleging, inter alia, violations of the California Franchise Investment Law, and the franchisor moved to compel arbitration of the claims pursuant to the contract. The California Supreme Court held that the claims asserted under the Franchise Investment Law were not arbitrable, interpreting section 31512 of the law which renders void any provision purporting to bind a franchisee to waive compliance with any provision of the Law to require judicial consideration of claims brought under the statute. The Supreme Court reversed, finding section 31512 of the California Statute to be in direct conflict with § 2 of the Federal Arbitration Act. In holding that section 31512 is invalid under the Supremacy Clause, the Court observed that "Congress intended to foreclose state legislative attempts to undercut the enforceability of arbitration agreements" by passage of the federal arbitration act." Id. at 861.
Thus, under the authority of Keating, we hold that section 517.241(2), Florida Statutes (1983) is constitutionally infirm. See also Kroog v. Mait, 712 F.2d 1148 (7th Cir.1983), cert. denied, ___ U.S. ___, 104 S.Ct. 1001, 79 L.Ed.2d 233 (1984).
There is, however, some question as to whether waiver has occurred because of Merrill Lynch's failure to promptly assert its intention to seek arbitration of the Chapter 517 claims. Merrill Lynch acknowledges that its initial Motion to Compel Arbitration stated that arbitration was not sought as to the Chapter 517 claim. However, at a hearing held less than a month after the filing of the Complaint, counsel for Merrill Lynch argued to the trial court that what purported to be a Chapter 517 count was really a claim under the Securities Exchange Act of 1934, but further maintained that if the court upheld the viability of the Chapter 517 claim, it should be submitted to arbitration.[8]
Moreover, in its Answer to Melamed's Second Amended Complaint, Merrill Lynch raised arbitration as an affirmative defense without specifying the counts to which it referred. Melamed obviously was aware of Merrill Lynch's altered position, as evidenced by its memorandum of law in opposition to the defendants' second motion to compel arbitration, wherein it stated "It now appears that the Defendant has changed its position and seeks arbitration with reference to all pending counts of the Amended Complaint."
Viewing these facts in light of the Supreme Court's recent admonition in Moses H. Cone Memorial Hospital, supra, that "any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay or a like defense to arbitrability," 103 S.Ct. at 941-42, we conclude that the trial court departed from the essential requirements *863 of law by finding waiver of Merrill Lynch's right to arbitrate the Chapter 517 claim.
Mere delay in assertion of one's right to arbitrate does not constitute waiver unless the delay has given the party seeking arbitration an undue advantage or has resulted in prejudice to another. See Graham Contracting, Inc. v. Flagler County, 444 So.2d 971 (Fla. 5th DCA 1983); cf. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Westwind Transportation, 442 So.2d 414 (Fla. 2d DCA 1983). As there are no allegations of undue advantage or prejudice in this case, we conclude that the trial court erred in finding waiver of petitioners' entitlement to arbitration on the Florida Securities Law count. See Moses H. Cone Memorial Hospital, supra.
Accordingly, we grant the petition for Writ of Certiorari, quash the decision below, and remand with directions to enter an order compelling arbitration on all claims except the federal securities law count.
LETTS and BERANEK, JJ., concur.
NOTES
[1] The trial court presciently noted "that, like Jaws III and Rocky III, this case is destined to result in Melamed III." We earnestly hope that today's decision will forestall the production of "Melamed IV."
[2] 9 U.S.C. §§ 1 to 14 (1976).
[3] Merrill Lynch Pierce Fenner & Smith, Inc. v. Melamed, 405 So.2d 790 (Fla. 4th DCA 1981) ("Melamed I").
[4] Merrill Lynch Pierce Fenner & Smith, Inc. v. Melamed, 425 So.2d 127 (Fla. 4th DCA 1982) ("Melamed II").
[5] The trial court made the following findings of fact and conclusions of law: (1) the claim against Brian Sheen is not arbitrable because he was not a party to the contract between Merrill Lynch and Melamed; (2) the claims for fraud and punitive damages should not be referred to arbitration under the federal act because (i) the issues and proceedings are complex and involve a third party (Sheen) not subject to arbitration; (ii) the court has already assumed jurisdiction in a substantial sense, and (iii) there have been acts of waiver and estoppel by Merrill Lynch on some of the issues; (3) the claim under the federal securities law is not arbitrable; (4) Merrill Lynch has not demonstrated that the agreement is evidence of a transaction involving interstate commerce; (5) Merrill Lynch has conceded that the claim under the state securities law (Chapter 517) is nonarbitrable, and therefore is deemed to have waived any right it may have had to arbitrate it; (6) Merrill Lynch has waived arbitration as to any claim by delaying its presentation of pertinent case citations to the court until after the resolution of two appeals, which actions are "contrary to the spirit and letter of the arbitration law" that is designed to promote speedy and effective disposition of disputes.
[6] In Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953), the Supreme Court held that the provision of the federal securities act prohibiting arbitration controls over the more general Federal Arbitration Act, such that arbitration agreements are nonbinding as to claims under the federal securities act.
[7] The common law fraud claim and the § 12(2) claim are factually dependent in the sense that if the arbitrators find that Mr. Sheen did not make any misstatement of fact or misleading omission in his transaction with Ms. Melamed, then he would not be liable for common law fraud or a § 12(2) violation. On the other hand, the fraud and § 12(2) claims are not legally dependent. Mr. Sheen and Merrill Lynch could be absolved of fraud liability in arbitration and yet still be found liable under § 12(2) for negligence (assuming that the arbitrators find that Mr. Sheen made a false statement or misleading omission).
[8] The following colloquy between counsel for Merrill Lynch and the trial court occurred:
MR. FALK: If the Court were to determine that the Federal Securities counts existed, then the Court would be without jurisdiction to hear those counts.
COURT: Right.
MR. FALK: If the Court determined that the Florida Securities count existed, that would be submitted to arbitration under the Federal Arbitration Act. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593085/ | 453 So.2d 1054 (1984)
Robert Larry DAWSON
v.
Wanda Kay Tyner DAWSON.
Civ. 4125.
Court of Civil Appeals of Alabama.
May 23, 1984.
Rehearing Denied June 20, 1984.
*1055 Claude D. Boone, Mobile, for appellant.
No brief for appellee.
EDWARD N. SCRUGGS, Retired Circuit Judge.
This case involves contempt proceedings for Mr. Dawson's failure to pay child support. Though the parties are no longer married to each other, they will still be referred to as the husband and the wife.
The parties reached a written agreement in their divorce case and the June 29, 1983 final divorce judgment of the trial court expressly contained those settlement provisions in detail. In pertinent parts, the husband was ordered to pay, effective May 27, 1983, $400 each month for the support of two of their minor children. He was further required to maintain major medical and dental insurance upon three children and to pay one-half of the cost of their school books and tuition. In the divorce property settlement, the husband received a vendor's lien, subject to its partial assignment for the payment of a debt, ninety percent of his claim for employment injuries, a lot in Mobile, the savings accounts, checking accounts and individual retirement accounts which were then in his *1056 name, tools, a Tiger's Eye ring, and corporate stock.
On July 15, 1983, the wife filed a motion that the husband be adjudged to be in contempt of court for his failure to pay the monthly child support, for his nonpayment of one-half of the tuition of one child, and for other matters which are not now relevant.
After both parties testified before the circuit court, that court on October 25, 1983, adjudged the husband to be in contempt of court and ordered him committed to jail but allowed him to purge himself of contempt by paying $1,000 to the wife within thirty days. The wife was granted a judgment against the husband for $800 for the total amount of child support arrearage due as of October 25, 1983, and for the additional amount of $250 for the husband's portion of one child's tuition. The husband appealed. We affirm.
The lack of ability to pay child support is a complete defense to a contempt proceeding based upon a failure to pay in compliance with previous child support judgments. Williams v. Stumpe, 439 So.2d 1297 (Ala.Civ.App.1983). Indeed, when the accused proves that he is not financially able to pay child support, the burden of proof then shifts to the complainant to prove beyond a reasonable doubt that the accused is financially able to comply with the judgment of support. Ex parte Griggs, 435 So.2d 103 (Ala.Civ.App. 1983); Zeigler v. Butler, 410 So.2d 93 (Ala. Civ.App.1982).
The evidence established that the husband was delinquent for two months of child support totaling $800 and that he had not paid his one-half of the $500 tuition for a daughter. He testified that he had been unemployed as a construction electrician for all but three weeks of the previous five months and that he does not have any money or savings with which to presently pay his delinquent child support. The wife testified that he was unemployed because he voluntarily quit his job before the rendition of the divorce judgment.
Just being unemployed and having no cash is inadequate proof of inability to pay. Only four months previously, the husband had been awarded considerable assets by the divorce judgment which were unaccounted for at the contempt trial. For aught that appears from the evidence, he still owns adequate assets through which his delinquency may be made current. Accordingly, he failed to meet his initial burden that he did not have the ability to pay. We find no error in the action of the trial court in placing the husband in contempt of court and in providing for the conditional punishment imposed upon him.
Over the husband's objection that the evidence was outside of the issues as presented by the pleadings, the wife was permitted to testify that the husband did not maintain the required major medical insurance policy upon the children, that she continued in effect the family policy which the husband had procured and which provided family medical coverage at the time of their divorce. She has paid the premium of $276 due every two months since the divorce. That policy covers not only the three children but also the wife. However, if the wife were eliminated as an insured, the premium would still remain the same for coverage of only the children. The husband admitted that he did not provide the major medical insurance, contending that he was not able to pay the premium for it.
The trial court ordered that the husband reimburse the wife for all premiums which the wife paid on the health insurance which she carries on the minor children and which should have been maintained by the husband.
If an objection is made to the introduction of evidence on the ground that it is not within the pleading issues, the objector must show actual prejudice in maintaining his action or defense on the merits by the admission of the evidence. The wife could have filed an amendment to her pleading as to the insurance but she failed to do so, and we are not convinced of any prejudice to the husband on that account. *1057 Hawk v. Bavarian Motor Works, 342 So.2d 355 (Ala.1977); Rule 15(b), A.R. Civ.P. His only objection was that this insurance problem was outside of the issues as made by the pleadings and he made no contention, or showing, at the time of the introduction of the evidence that he was prejudiced in the slightest by trying that issue at that time. Now, the husband argues for the first time that he was deprived of an opportunity to present evidence as to how much of the insurance premiums which were paid by the wife might, in fact, have been for her coverage under the policy. No attempt was made to offer any such evidence at the trial. No request was made to the trial court to give the husband an opportunity to attempt to obtain and introduce such testimony. Neither was the trial court asked to continue the case so that he might counter the wife's evidence in that regard.
Since we find no prejudicial effect to the husband by the trial court's overruling of his objections, there was no error in so ruling.
The judgment of the trial court is affirmed.
The foregoing opinion was prepared by retired Circuit Judge EDWARD N. SCRUGGS, serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama 1975, and this opinion is hereby adopted as that of this court.
AFFIRMED.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594321/ | 432 N.W.2d 231 (1988)
230 Neb. 479
Vernon E. PETERSON, Appellant and Cross-Appellee,
v.
Donald PETERSON, Individually and as Personal Representative of the Estate of Herman E. Petersen, Deceased, Appellee and Cross-Appellant.
No. 87-155.
Supreme Court of Nebraska.
December 2, 1988.
*232 Kent F. Jacobs, of Blevens & Jacobs, Seward, for appellant and cross-appellee.
Daniel F. Kaplan, and, on brief, Earl J. Witthoff, of Perry, Perry, Witthoff, Guthery, Haase & Gessford, P.C., Lincoln, for appellee and cross-appellant.
HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.
CAPORALE, Justice.
Plaintiff-appellant, Vernon E. Peterson, claims his brother, defendant-appellee, *233 Donald Peterson, exercised undue influence upon their now-dead uncle, Herman E. Petersen, as the consequence of which the uncle caused the title to certain certificates of deposit to be changed to plaintiff's detriment. The district court dismissed plaintiff's petition, and plaintiff appeals, assigning as error the district court's conclusion that plaintiff failed to adduce clear and convincing evidence of undue influence. In turn, defendant has cross-appealed, asserting the district court erred in not awarding him an attorney fee because this action is barred by the doctrine of res judicata and is therefore frivolous and not brought in good faith. We affirm.
The record establishes that plaintiff enjoyed a close relationship over a 40-year period with his reclusive bachelor uncle, having operated a salvage business from a portion of his uncle's farm and having been permitted to erect a building on part of the farm in which both plaintiff and the uncle stored items. Plaintiff visited the uncle at the latter's home frequently, indeed on a virtually daily basis, and otherwise ministered to the uncle's needs, including taking the uncle to distant appointments as needed, for which plaintiff, on at least one occasion, received payment.
On January 5, 1984, plaintiff left his home for a winter vacation in Arizona. On January 9, 1984, defendant found the then 86-year-old uncle lying on the floor of his home with a broken hip. Defendant summoned an ambulance, and the uncle was transported to a hospital where he underwent hip replacement surgery the following day. The uncle remained in the hospital until January 28, 1984, when he was discharged to a nursing home.
In the meantime, on January 17, 1984, the uncle's attorney met with the uncle in his hospital room in connection with the preparation of a general power of attorney giving defendant authority to conduct the uncle's affairs. According to the attorney, the uncle recognized him at that time, was very conversational, and appeared to understand what he was doing. He appeared forceful, interested in the matter at hand, and was not, in the attorney's opinion, under anyone's domination at that time. The attorney thought the uncle was "very positive as to what he wanted."
On that same day, defendant, in taking stock of the uncle's assets pursuant to the uncle's request to see to his affairs, found several certificates of deposit held in joint tenancy by the uncle and plaintiff. Later that same day, the attorney discussed the state of title to these instruments with the uncle. According to the attorney,
I went up there and he was alone then and I just told him thatI related what his will had said and where he had divided the assets equally among the three nephews and the niece ... but that apparently he had some CD's that were going a different direction and he told me, he said that's not what I want. He said I want it to all go equally to my nephews and niece....
The following day, January 18, 1984, the attorney again visited the uncle in his hospital room, again out of the presence of other family members. In the attorney's words,
I went in and talked to [the uncle] again and asked him to restate how he wanted his property divided and how he wanted his will made and he restated that he didn't want to have any trouble after his death and that he felt that equal division would be best....
....
...[H]e appeared to be resolute and I thought he was clear-minded and think he still had pain but I couldn't detect that he was under the influence of anything that marred his judgment or anything.
The attorney prepared a document setting out the uncle's intent at the time, because
if there was any doubt in anyone's mind that this would be a good way to recollect what we had done and so I went in to [the uncle] and discussed the power of attorney that we had made the day before and the last will and testament, and the finding of the assets and otherin [plaintiff's] name, and reviewed everything that had taken place to the best of my ability, and he said yes, this is what I *234 want done. I want my assets to be divided among all of them equally....
At the attorney's suggestion, the uncle then signed the following statement:
I, the undersigned, Herman E. Petersen, hereby state that I have made Donald Peterson my Power of Attorney; in checking over my property I find that many of my assets held in various banking institutions have been placed in my name in joint tenancy with other parties. I have also made my Will, in which it is my wish that my nephew, Vernon Peterson, is to be given credit for the construction of a building that he built upon my real estate. Subject to that, I want my property divided equally between my three nephews, namely Vernon Peterson, LeRoy F. Peterson, and Donald Peterson, and my niece, namely Doris H. Stephens.
In order to carry out my wish of an equal division of my property, I have directed my Power of Attorney to instruct all of the institutions to place the ownership of my assets in my name only, and not to have a second name upon any of my accounts; I make this instruction, realizing now that if I did not make this instruction that upon my death, those properties would go only to the person whose name appears on that asset with my name, and this would destroy my wish that said properties be divided equally.
The will the uncle executed earlier that day conforms with the foregoing statement of intent.
On January 20, 1984, defendant used the power of attorney to have plaintiff's name removed from the instruments in question. Plaintiff returned from Arizona the next day. On January 23, 1984, a confrontation between plaintiff and defendant took place in the attorney's office over what had taken place in plaintiff's absence. It is plaintiff's contention that "[the uncle] just told me he wanted me to have [the certificates of deposit] upon his death for looking after him." In an effort to resolve this dispute, the attorney, plaintiff, and defendant met that afternoon in the uncle's hospital room. According to the attorney, during this meeting
[plaintiff] expressed anger about the appointment of [defendant], and [the uncle] said this is what he had wanted and this is what he was going to do and [plaintiff] said well, I will just go back to wherever he came from, Arizona or somewhere, and they had an exchange there and at that time [the uncle] pointed his finger [at plaintiff] and said I will take you out of my will if you keep this up.
In the attorney's opinion, the uncle was forceful in his manner at this meeting and not under anyone's domination. The uncle died a month later, on February 24, 1984.
The attorney's recitation of the events was corroborated by defendant and supported by the testimony of the brother of both plaintiff and defendant and of the nurses who attended the uncle in the hospital following his hip injury.
The uncle was also attended, while in the hospital, by his family physician, who testified that following surgery, the uncle was mentally alert and knew what was going on around him. This physician, who had known the uncle for 10 to 15 years, testified that the uncle was not one to be influenced by others and that this had not changed following surgery. However, he also testified that the day before the power of attorney was signed, the uncle had received Seconal and Valium at different times and that, although these drugs should not have affected the uncle's thinking processes at the time the power of attorney was signed, the effects of these drugs on older people are unpredictable.
Arrayed against the foregoing is plaintiff's evidence. The uncle's tenant, who visited the uncle in the hospital on January 19, 1984, was convinced that "this old gentleman did not fully understand what he had signed because asI had this grain in the bin, see, and [defendant] having been given power of attorney, [the uncle] shouldn't have been asking me to sell the grain for him which he did."
A former neighbor of the uncle, who saw him at the hospital on several occasions, stated that the uncle "thought he was in a *235 nursing home instead of being at the hospital." In the neighbor's opinion, the uncle seemed "real different" in the hospital than when she had known him years before.
An 80-year-old acquaintance of the uncle since childhood shared the uncle's hospital room for a time. According to this witness,
The mood that [the uncle] was in, he could be talked into anything at that time.
....
...He was in the bed beside of me and he said that was a torture chamber, he said. He had that broken hip, see, and he was kind of grouchy, and it seemed like he didn't care for nothing at that time.
According to plaintiff, his uncle was generally confused and had been wrongly told plaintiff had gone to Arizona "for good."
We first address defendant's cross-appeal, for if his contention that the doctrine of res judicata bars this action is correct, we need not consider plaintiff's appeal. Defendant argues that plaintiff's allegation of undue influence was litigated in earlier proceedings in which plaintiff unsuccessfully contested the uncle's last will and testament in district court and, in subsequent probate proceedings, unsuccessfully sought to assert in the county court a claim against the estate for the amount of the very certificates of deposit now in question. Indeed, the bill of exceptions developed as a result of the will contest was offered in evidence in this case and comprises a major portion of the evidence bearing on the undue influence issue allegedly exercised with respect to the certificates of deposit.
Defendant correctly points out that any right, fact, or matter in issue and directly adjudicated upon, or necessarily involved in, the determination of an action before a court of competent jurisdiction in which a judgment or decree is rendered upon the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties or their privies, irrespective of whether the claim or demand, purpose, or subject matter of the two suits is the same. NC + Hybrids v. Growers Seed Assn., 228 Neb. 306, 422 N.W.2d 542 (1988); Vantage Enterprises, Inc. v. Caldwell, 196 Neb. 671, 244 N.W.2d 678 (1976). However, the matter of undue influence regarding the power of attorney under which the title to the certificates of deposit was changed was not in issue and directly adjudicated upon, or necessarily involved in, the determination of the prior will contest between the parties.
In reaching its finding that undue influence was not practiced upon the uncle in connection with his will, the jury as the finder of fact was concerned with the inferences to be drawn from the evidence concerning the circumstances under which that document came into existence, a day after execution of the power of attorney in question. Although evidence concerning the subject power of attorney and treatment of the certificates of deposit overlaps that concerning the execution of the will, the jury in the will contest was not required to decide whether defendant procured a change in the title to the certificates as the result of undue influence. Thus, the matter in issue in the present case was neither directly adjudicated upon, nor necessarily involved in, the determination of the will contest.
On the other hand, plaintiff's county court claim against the estate for the value of the certificates of deposit was made on the basis that those certificates constituted payment for services plaintiff had rendered the uncle and that the undue influence defendant had practiced deprived plaintiff of their value. Therefore, the undue influence at issue in plaintiff's county court claim against the estate is the very undue influence at issue in the present case.
However, defendant moved for summary judgment in the claim proceedings on the ground that the will contest had determined the issue adversely to plaintiff. The county court sustained defendant's motion, saying the issue "may not now be raised." Plaintiff appealed that decision to the district court which, correctly or incorrectly, ruled that the county court lacked jurisdiction to determine the matter. As a result, *236 the district court vacated the summary judgment granted defendant and remanded the matter to the county court "for further proceedings consistent" with the district court's ruling. The county court then dismissed plaintiff's claim. As a consequence, no adjudication was ever made on the merits of plaintiff's claim against the estate.
Thus, the action at hand is not barred by the doctrine of res judicata, and its pursuit cannot be said to be frivolous or in bad faith. See Lutheran Medical Center v. City of Omaha, 229 Neb. 802, 429 N.W.2d 347 (1988). Accordingly, the district court was correct in not awarding attorney fees to defendant.
The foregoing resolution of defendant's cross-appeal means that we must concern ourselves with plaintiff's appeal. As part of the analysis of the issue presented by plaintiff's specific assignment of error, whether the evidence supported his allegations, we must both determine the scope of our review and settle upon the quantum of evidence required to prove undue influence in this type of case.
An action to set aside inter vivos transfers of property on the basis that they were made as the result of undue influence is one in equity and, as such, is reviewed by this court de novo on the record. Fremont Nat. Bank & Trust Co. v. Beerbohm, 223 Neb. 657, 392 N.W.2d 767 (1986). In such cases undue influence must be proved by clear and convincing evidence. In re Estate of Price, 223 Neb. 12, 388 N.W.2d 72 (1986). However, an action alleging undue influence in a probate context lies at law, and, as such, the findings of the trier of fact will not be disturbed unless clearly wrong. In re Estate of Marsh, 216 Neb. 129, 342 N.W.2d 373 (1984). Undue influence in the probate context must be proved by a preponderance of the evidence. In re Estate of Price, supra.
A certificate of deposit in the names of multiple parties is a type of joint account. Neb.Rev.Stat. § 30-2703(a) (Reissue 1985) provides: "A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit, unless there is clear and convincing evidence of a different intent." So far as is relevant to our inquiry, the comment thereto states that the statute, of which the quoted subsection is a part, "reflects the assumption that a person who deposits funds in a multiple-party account normally does not intend to make an irrevocable gift of all or any part of the funds represented by the deposit. Rather, he usually intends no present change of beneficial ownership."
Clearly, the creation or termination of a joint account is neither a present transfer of property nor a testamentary device, but represents instead a hybrid transaction, sharing aspects of both gift and bequest. In an action by the deceased mother's estate against the estate of her deceased son, this court, relying upon the aforesaid statutory provision and comment, determined that the evidence failed to clearly and convincingly establish that the mother intended a gift to her son of moneys she deposited in a joint account with her son and another, and thus upheld the award of a judgment in favor of the mother's estate for the moneys the mother had deposited in the joint account. In re Estate of Redpath, 224 Neb. 845, 402 N.W.2d 648 (1987).
Similarly, in the present case the evidence fails to clearly and convincingly establish that the uncle intended an irrevocable inter vivos gift to plaintiff of the moneys placed in the joint certificates of deposit. Indeed, the evidence clearly and convincingly establishes the opposite is true; even the plaintiff testified that the certificates of deposit were not to become his until his uncle's death. Furthermore, Neb.Rev.Stat. § 30-2706 (Reissue 1985) expressly provides:
Any transfers resulting from the application of section 30-2704 [which details the incidents of the right of survivorship in, among other things, joint accounts] are effective by reason of the account contracts involved and this statute and are not to be considered as testamentary *237 or subject to Articles 22 to 25 of this code.
The scope of this court's review of the district court's findings of fact regarding an allegation of undue influence in the creation or termination of a joint account is a matter of first impression. In Redpath, supra, conversion was alleged, not undue influence, nor did we discuss the scope of review on the question. In Rorabaugh v. Garvis, 198 Neb. 223, 252 N.W.2d 161 (1977), this court again did not discuss the standard the court applied in reviewing the evidence, leading to the conclusion a gift had been intended. And, finally, in Parkening v. Haffke, 153 Neb. 678, 46 N.W. 2d 117 (1951), decided prior to the enactment of § 30-2703, an accounting was sought, which this court treated as a matter in equity.
One who knowledgeably creates a joint account with another arguably does so with the present intent to employ the account's survivorship characteristic in substitution for a testamentary device. Like testamentary devices, under § 30-2703 creation of a joint account, without more, accomplishes no present transfer of title to property. If, as in this case, all sums deposited into the joint account are deposited by one person, the joint account contemplates transfer of title to those funds to the other person or persons named on the account upon the death of the depositor. Of course, others named as joint holders of the account have the power to withdraw funds from the account before the death of the depositor, but under § 30-2703, they arguably do not have the right to do so. In re Estate of Redpath, supra. See, also, Craig v. Hastings State Bank, 221 Neb. 746, 380 N.W. 2d 618 (1986), exploring the depository bank's right to set off the debts of one cotenant of a joint account against the account, when the other cotenant had contributed the funds thus reached.
Moreover, the creator of a joint account, like the maker of a will and unlike the giver of a gift, may change his or her mind during any lucid moment prior to death. These considerations suggest that joint accounts share more in the character of testamentary devices than they do in the character of present transfers of property, or gifts. Accordingly, we conclude that an allegation of undue influence in effecting a change in the ownership of a joint account sounds in law, rather than in equity. Thus, as noted earlier, the findings of the district court are not to be disturbed unless clearly wrong.
While, as established earlier, only a preponderance of the evidence is needed to sustain a finding of undue influence in a probate contest, in view of the language of § 30-2703(a) requiring clear and convincing evidence to overcome the statutory assumption that no gift is intended by depositing funds in a joint account, we hold that clear and convincing evidence is required to sustain a finding of undue influence in effecting a change in the ownership of such an account. (For another application of the clear and convincing standard of proof in a law action, see Castellano v. Bitkower, 216 Neb. 806, 346 N.W.2d 249 (1984), which required such quantum of proof in a suit to recover on lost promissory notes.)
Thus, the district court held the plaintiff to the correct standard of proof, and the record provides no basis for concluding that the district court's finding of no undue influence under that standard is clearly wrong. Accordingly, the judgment of the district court must be, and hereby is, affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593203/ | 45 F.Supp. 166 (1942)
TAMPA TIMES CO.
v.
BURNETT, Tax Collector of Hillsborough County, Fla.
No. 13.
District Court, S. D. Florida.
February 20, 1942.
*167 McKay, Macfarlane, Jackson & Ramsey, of Tampa, Fla., for plaintiff.
John W. Cone and Henry C. Tillman, both of Tampa, Fla., for defendant.
BARKER, District Judge.
This cause coming on this day to be heard upon application of plaintiff for the entry of a final decree, and defendant's motion to dismiss the complaint having been argued by counsel for the respective parties, and same having been overruled by the court, and counsel for the defendant declining to plead over or further, the court finds that the plaintiff is entitled to the relief in its bill of complaint prayed for.
The court finds the following facts: That the plaintiff is a corporation existing under the laws of the State of Florida; that this court has jurisdiction of the subject matter and the parties; that the plaintiff owns and operates a radio station known as WDAE, Tampa, Florida, under license issued to it by the Federal Communications Commission under and pursuant to the provisions of the United States Communications Act of 1934, 47 U.S.C.A. § 151 et seq.; that the defendant, and his successor in office, discharges the duty of collecting license taxes authorized and levied by the State of Florida for the use of the State of Florida and Hillsborough County; that the plaintiff is engaged in operating said broadcasting station in interstate and foreign commerce, and that the regulation of its business in operating said radio station is under the exclusive jurisdiction and regulation of the United States government; that the defendant, and his successor in office, is attempting to charge and collect licenses of the plaintiff for the operation of its said radio station.
Based upon the above and foregoing finding of fact, the court has arrived at the following conclusions of law:
One: This court has jurisdiction of the subject matter and the parties, and that the plaintiff is entitled to the relief in its bill of complaint prayed.
Two: That the plaintiff in conducting its radio station WDAE is engaged exclusively in interstate commerce, and that the United States government has, by the Communications Act of 1934, preempted the field of radio broadcasting and communications and has exercised and is exercising exclusive jurisdiction over the regulation of such operation; that the State of Florida does not have the right to levy a license tax upon the aforesaid business of radio broadcasting operated by the plaintiff and that any and all laws, and particularly Chapter 18011, Acts of Florida, 1937, insofar as it attempts to levy a license upon the plaintiff in the operation of its broadcasting business is void and inoperative; that the plaintiff is entitled to a perpetual injunction against the defendant, and his successors in office, to prevent the collection, or attempted collection, of any licenses against the plaintiff in the operation of its said radio station WDAE so long as the laws of Congress exercise exclusive jurisdiction over same.
It is, therefore adjudged and decreed that the defendant J. M. Burnett, as Tax Collector of Hillsborough County, Florida, and his successor and successors in office, be, and they hereby are perpetually enjoined and restrained from collecting, or attempting to collect, any license taxes now purportedly authorized or levied by any law of the State of Florida from the plaintiff in the operation of its said broadcasting station situate in Tampa, Florida, and known as WDAE so long as the laws of Congress exercise exclusive jurisdiction over same; that all laws of the State of Florida purporting to tax the plaintiff in the operation of its said broadcasting station, to the extent that the same purport to levy or charge any license tax on the operation thereof, are hereby declared to be illegal and void. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1604192/ | 8 So. 3d 556 (2009)
In re John Murray GAVIN.
No. 2008-OB-2082.
Supreme Court of Louisiana.
May 15, 2009.
*557 ON APPLICATION FOR ADMISSION TO THE BAR
PER CURIAM.
Petitioner, John Murray Gavin, is an attorney licensed to practice law in the State of Minnesota. When petitioner applied to take the Louisiana Bar Examination, he was advised by the Committee on Bar Admissions ("Committee") that he could not sit for the exam on character and fitness grounds stemming from a 2006 incident in which he used racial epithets toward two employees of DePaul University College of Law. Moreover, in the course of proceedings conducted by DePaul against petitioner under its Anti-Discrimination and Harassment Policy, he falsely denied making the offensive statements, which the Committee noted established petitioner's "lack of remorse or accountability." We subsequently granted petitioner permission to sit for the bar exam, with the condition that upon his successful completion of the exam, he apply to the court for the appointment of a commissioner to take character and fitness evidence. In re: Gavin, 07-1484 (La.7/17/07), 959 So. 2d 893.
Petitioner thereafter successfully passed the essay portion of the bar exam. On petitioner's application to this court, we remanded this matter to the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation and appointed a commissioner to take character and fitness evidence.
During the character and fitness hearing, the commissioner received documentary evidence and heard testimony given by petitioner and a witness. Following the proceedings, the commissioner filed his report with this court, recommending that petitioner be denied admission to the practice of law. Petitioner did not object to that recommendation.
The testimony at the hearing focused primarily on two issues: the incident at DePaul in 2006, which ultimately resulted in a determination by the university that petitioner engaged in race-based harassment of two employees of the College of Law; and petitioner's lack of candor. With regard to the latter issue, it was revealed that petitioner failed to disclose several prior arrests and criminal convictions when he applied to law school in 1995. Petitioner acknowledged during the hearing that these omissions were knowingly and intentionally made because he feared he would not be admitted to law school in the face of an accurate disclosure. Moreover, petitioner acknowledged that within days after submitting his law school application he was arrested and charged with DWI; nevertheless, he did not update his application, although he had signed an acknowledgment of his obligation to do so. Petitioner finally updated his law school application in 1996, at the end of his first year of law school, but the information he provided was untruthful and incomplete.
Under the circumstances, there can be no doubt that petitioner has demonstrated a lack of candor which reflects adversely on his character and fitness. The incident at DePaul further underscores petitioner's lack of fitness to practice law. Not only did petitioner utter derogatory and offensive comments which have no place in the practice of law, he continued in his pattern of lack of candor by denying throughout the DePaul proceedings that he made the comments in the first instance. We therefore conclude petitioner has failed to meet his burden of proving that he has "good moral character" to be admitted to the Louisiana State Bar Association. See Supreme Court Rule XVII, § 5(D).
*558 Accordingly, it is ordered that the application for admission be and hereby is denied.
ADMISSION DENIED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594304/ | 954 So. 2d 218 (2007)
Sheila THOMAS, et al., Plaintiff-Appellees
v.
Ryan Gregory DUNCAN, et al., Defendant-Appellants.
No. 41,938-CA.
Court of Appeal of Louisiana, Second Circuit.
March 7, 2007.
*219 Colvin, Weaver & Cerniglia, by James H. Colvin, Jr., Fiona C. York, Pamela N. Breedlove, Shreveport, for Appellants.
Chester Hugh Boyd, Baton Rouge, for Appellees.
Before BROWN, STEWART and MOORE, JJ.
MOORE, J.
After their minor child was struck by a car and injured, Sheila and Kenneth Thomas sued the motorist who hit the child, the owner of the car, his insurer, and the owner of the baseball field to which the child headed on foot. We previously affirmed a summary judgment in favor of defendant Shreveport Dixie Baseball, Inc. ("Dixie"). Thomas v. Duncan, 40,635 (La. *220 App. 2 Cir. 1/25/06), 920 So. 2d 969. In the instant appeal, defendants Ryan Duncan, Kent Duncan and State Farm Mutual Automobile Insurance Company ("State Farm") appeal from a judgment finding Ryan Duncan 50% at fault for the accident. We affirm.
Facts
Around 6:30 p.m. on April 28, 2003, eight-year-old Henry Hunter Thomas was a passenger in his mother's vehicle on his way to a baseball game held at Dixie's ballpark on Interport Drive in Shreveport. Interport Drive is a four-lane road with a grassy median dividing the north lanes from the south lanes of travel. The ballpark is on the east side of Interport adjacent to the northbound lanes. Hunter's mother was driving south on Interport. She stopped her vehicle in the inside southbound lane to let Hunter out to go to the ball park for his baseball game. The ballpark's parking lot was not yet open and vehicles were parked on the median. After letting Hunter out, Ms. Thomas drove away to find a parking place and did not witness the ensuing accident.
To get to the ballpark, Hunter had to traverse the grassy median and the northbound lanes of traffic before reaching the ballpark gate. Hunter said that he got out of his mother's vehicle and walked behind it to get to the median. Once there, he walked between two trucks to the curb of the inside northbound lane. There is no crosswalk at the location. Hunter stated that he looked for oncoming traffic, saw none, and then he ran across the northbound lanes of Interport. He reached the outside lane of travel and had about "a step" to go before safely reaching the east side when he was struck by a car driven by Ryan Duncan. Hunter explained that he did not see Ryan's vehicle when he started across the road because of the presence of a small hill in the road. Hunter testified that he saw that Ryan's arm was up near his face but did not see him using a cell phone. Ryan denied using a cell phone. Hunter said that after Ryan's car hit him, it skidded across into the other lane. Hunter's leg was broken in the accident, and he sustained other injuries as well.
Ryan testified that he was driving in the inside lane of Interport, not the outside lane, and was driving the speed limit of 35 miles per hour when he struck Hunter. Ryan said that he didn't apply the brakes until after the accident occurred. The vehicle left skid marks in the vicinity of the crash, but there are no photos to show the location of the skid marks. According to the police report, in the section marked "Skidmark Data," under the "FR" column there is the number 43.10; under the "FL" column, there is the number 35.5. The police report shows the car stopped in the inside lane but does not depict the location of the skid marks. Ryan seemed to agree at trial that his skid marks were about 43-feet long. He said that he saw the marks and that they were entirely in the inside lane. Hunter's father, Kenneth, recalled that the skid marks were "kind of diagonal" and began in the outside lane; likewise, Ms. Thomas said that the skid marks were "curved."
Only Ryan Duncan testified about the presence of people at the scene at the time of the accident. He said he saw "a couple of people on the outside close by the gate where the entrance was, but there wasn't anybody in the road." He also said that there was no one that he could see preparing to cross the road. Likewise, Ryan said there was no traffic on his side in the southbound lanes.
After hearing the testimony of the witnesses, the court noted the length of the skid marks and concluded that Ryan Duncan was going too fast for the conditions *221 "given the congestion and given the fact of all the youngsters out there" and that "he should have been looking for kids running out." The court attributed no fault to Hunter but allocated one-half of the fault to Ryan Duncan and one-half of the fault to Hunter's mother, Sheila Thomas. Ryan Duncan and State Farm now appeal from a judgment in accordance with that finding.
On appeal, the defendants assert five assignments of error. These assignments concern the trial court's allocation of fault to Ryan, the lack of allocation of fault to Hunter, and the alleged lack of evidence for its findings that the area was crowded and that the skid marks tended to show that Ryan was driving too fast.
Discussion
The determination of liability in a negligence case usually requires proof of five separate elements: (1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) proof that the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4) proof that the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element). Boykin v. Louisiana Transit Co., Inc., 96-1932 (La.3/4/98), 707 So. 2d 1225, 1230. (Citations omitted).
It is well-settled that a court of appeal may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Hanna v. Roussel, 35,346 (La.App. 2 Cir. 12/5/01), 803 So. 2d 261. An allocation of fault is a factual determination subject to the manifest error rule. Id. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review; the issue for the reviewing court is not whether the trier of fact was wrong, but whether the fact-finder's conclusions were reasonable under the evidence. Id.
Generally, duty is the obligation to conform to the standard of conduct of a reasonable man under the circumstances. Hanna, supra. Drivers are required to exercise due care to avoid colliding with pedestrians upon the road. La. R.S. 32:214;[1]Id. Motorists are charged with the duty to see what an ordinarily prudent driver should have seen and avoid striking pedestrians in the road. Likewise, a pedestrian must exercise reasonable care to avoid leaving a curb or other place of safety beside the roadway and walking into the path of a vehicle. La. R.S. 32:212(B).[2]
Although the law does not make a driver of a vehicle the insurer of a child's safety, it does impose a high degree of care upon the driver and a duty to anticipate that a child, possessed with limited judgment, might be unable to appreciate impending danger, is likely to be inattentive, and might suddenly place himself in a *222 position of peril. Bogan on Behalf of Bogan v. O'Connor on Behalf of O'Connor, 97-1205 (La.App. 4 Cir. 12/17/97), 703 So. 2d 1382, writ denied, XXXX-XXXX (La.3/20/98), 715 So. 2d 1212; Torres v. U.S. Fidelity and Guar. Co., 499 So. 2d 1293 (La.App. 4 Cir.1986). The operator of a motor vehicle has the constant duty to watch out for the possible negligent acts of pedestrians and avoid injuring them. A higher standard of care than that required of pedestrians is imposed upon the motorist commensurate with the hazards his conduct inflicts upon the public safety. Id. However, when a driver has employed all reasonable precaution to avoid an accident and a sudden act of a child creates an emergency rendering it impossible for the motorist to avoid striking the child, the accident is considered unavoidable and the motorist is not liable. Moore v. State Farm Mut. Auto. Ins. Co., 499 So. 2d 146 (La.App. 2 Cir.1986); Keel v. Thompson, 392 So. 2d 713 (La.App. 3 Cir.1980); Gladney v. Cutrer, 440 So. 2d 938 (La.App. 2 Cir.1983), writ denied 443 So. 2d 596 (La. 1983). Most importantly, each case will turn on its own particular facts. Keel v. Thompson, supra; Fusilier v. City of Houma, 421 So. 2d 418 (La.App. 1 Cir. 1982).
By their first and second assignments of error, appellants submit that the trial court erred as a matter of law by holding that Hunter could not be held at fault, and in not assessing any fault against Hunter. It contends that this error requires de novo review of the entire record. Appellants further argue that Hunter was at fault because he appears to be educated and answered all questions, that he knew the dangers of running into traffic, but let his excitement of the moment override his knowledge and ran into the road.
The record discloses that the trial court stated the following:
"I don't think the child should have been placed in that situation to begin with. I don't believe the child is old enough to impute any responsibility to the child. The child is a child, an eight year old is an eight year old, and a ball game is a ball game, and he's heading to it when mom lets him out of the car."
In our view, the appellants misconstrue the trial court's remark when it states that the court found, as a matter of law, that Hunter could not be held at fault categorically. We interpret the court's statement to mean that the child was not responsible for the accident under the circumstances of this case. The court determined that the child was placed in harm's way by his mother, and being an eight-year old child, he was excited about the ball game and crossed the street to get to the ball park. The clear implication is that the court found that, under these circumstances, and given Hunter's age, he could not have been expected to recognize the danger.
The general rule is that a child may be held negligent but is not held to the same standard of care as an adult. The test is whether the particular child, considering his age, background and inherent intelligence, indulged in gross disregard of his own safety in the face of a known risk, understood and perceived the danger. Carter v. City Parish Gov't of East Baton Rouge, 423 So. 2d 1080 (La. 1982)[3]; Moore, supra. In Moore, supra, a *223 panel from this court held that a young 8-year-old, Tonya, who was struck by a truck when she suddenly turned her bicycle in the path the truck driven by the defendant, "showed sufficient understanding, perception and intelligence to make her capable of negligence." The court noted that she testified intelligently, had been instructed how to make hand signals, and had done a lot of riding in the area where the accident occurred but had not used the street very often.
In Bogan, supra, a panel from the Fourth Circuit upheld a jury verdict that found no negligence on the part of a 16-year old driver who struck a 9-year-old boy who suddenly ran into the street in the path of the driver's vehicle. The court noted that the 9-year old had limited intellectual faculties, but the defendant driver had taken precautions when he noticed activity along the sidewalk immediately before the accident occurred. The driver was not speeding. There was no cross-walk. There was no traffic light. There were no school buses running at that late afternoon time. Finally, there was no evidence to support a finding that the driver should have or could have seen the boy any sooner than he did.
By contrast, in Dupuy v. Pierce, 285 So. 2d 321 (La.App. 3 Cir.1973), a Third Circuit panel held that an eight-year-old female pedestrian of ordinary intelligence was not contributorily negligent in causing her own death, where she was instructed by her mother to get the mail from the mailbox located across the highway that ran in front of their house. The girl made it safely across the highway, but she was struck and killed by an oncoming vehicle as she went back across to return home after getting the mail. The defense introduced evidence to show that the girl had been instructed at school as to the hazards of crossing a street and the proper method in crossing. She was considered a smart child with an IQ of 113. However, witnesses said she never looked in the direction from which the car driven by defendant was traveling. Apparently, when she was almost to the centerline of the highway, she panicked, and tried to return to the mailbox side of the highway. The court concluded that the child did not willingly expose herself to the danger confronting her and was therefore not contributorily negligent. Regarding the defendant's fault, the court noted that although the defendant was driving her vehicle at only slightly more than half the speed limit, the visibility was good and the child was wearing bright clothes. The defendant did not see the child until it was too late. The court held that the driver was negligent in that she was inattentive, did not blow her horn or apply her brakes before the accident.
In the instant case, Hunter testified that it was the first time his mother had ever let him out on the median to go to a game. He said he saw the defendant's car when he was already halfway across the road and he was hit when he had about a step to go before reaching the other side. He also testified that he thought that he did not initially see the car coming because of a small hill. Hunter's testimony conflicted with Ryan Duncan's testimony regarding what lane he was in at the time of the crash.
We cannot say that the trial court erred in finding that Hunter was not at fault in causing the accident. The court was not *224 clearly wrong in finding that Hunter could not be at fault under these circumstances.
The trial court specifically noted that it made credibility determinations in its findings, and although it did not specifically so state, we conclude that the trial court must have accepted Hunter Thomas' testimony about the accident over Ryan Duncan's testimony regarding the accident. In finding that Duncan had a duty to drive slower than the speed limit "given the congestion and given the fact of all the youngsters out there," the court must have believed that Duncan should have been looking out for kids running out into the street.
By their third assignment of error, appellants contend that the trial court erred in finding that there were children present, thereby increasing the driver's duty at the time of the accident, when the evidence established that there were no children or other pedestrians near the road. In their fourth assignment of error, appellants contend that because there were no children or pedestrians in the area, Ryan Duncan could not be at fault when Hunter suddenly ran into the street from behind parked vehicles.
The first issue is whether the trial court's statement regarding "all the youngsters out there" constituted a manifestly wrong finding of fact. Although this record does not support a finding that there were children crossing or standing around the roadway at the time of the accident, we observe that the location of the crash was adjacent to the ballpark, and the street area was congested with parked cars, including vehicles parked on the median. We think it is obvious that the presence of all the vehicles around the Dixie baseball field during baseball season creates an obvious inference that there might be children and adults coming and going as their games begin and end at any time. The presence of the parked vehicles next to the ball park on the median and roadside alone is enough to trigger a response to be cautious. The court's finding that defendant had a duty to drive slower than the speed limit and to be more cautious is based on both the "congestion" and "all the youngsters out there." We therefore conclude that the trial court meant that there were a lot of children in the area in general, namely the ball park area, and not a specific finding that there were children crossing the street or standing on the side of the road preparing to cross the street. Given the fact of the parking congestion along the roadway, there was an increased danger that a child might run out into the road and the defendant should have been cognizant of this danger and reacted by driving more slowly and cautiously. Accordingly, we find no error in concluding that Ryan Duncan was 50% at fault.
Defendants also urge that the trial court should not have placed weight on the length of the skid marks in the absence of expert testimony to show the correlation between that length and Ryan's speed. In this case, Ryan testified that he was driving the speed limit, and the trial court apparently accepted that testimony, so there was not a genuine dispute about Ryan's speed at the time of the crash that necessitated expert testimony to resolve. The trial court simply concluded that Ryan was driving too fast, even at the speed limit, given the congestion and nature of the area through which he was driving.
By its final assignment of error, appellants contend that the trial court erred in not assessing 100% fault against Sheila Thomas. We have previously concluded that the trial court did not err in finding that Hunter was not at fault and Ryan Duncan 50% at fault. We further conclude that the remainder of fault for this accident lies with Sheila Thomas. Just as Ryan Duncan should have taken *225 greater precaution while driving through the parked vehicle congestion along the roadside area next to the baseball park, Sheila should not have placed her eight-year old son in harm's way by dropping him off at the median in such a way that required him to cross the roadway. Accordingly, the trial court did not err in assessing the remaining 50% of fault to her.
Conclusion
After review of the entire record, we cannot say that the trial court's allocation of fault is manifestly erroneous or clearly wrong or that the court committed legal error. Hunter testified that he was not able to see Duncan's car until just before the crash because of a small hill, and that testimony was not contradicted. Given his age and the circumstances, the decision not to allocate fault to the child pedestrian in this case turns upon the trial court's decision to credit the child's testimony as truthful, a decision that this court will not upset. This court is not the finder of fact but must review the cold record; we do not have the benefit of hearing the witnesses. Although this court might weigh the evidence differently if it were the trier of fact, we are mindful of our role as a reviewing court and do not substitute our view of the evidence for that of the trial court when that court's view is reasonable and supported by the evidence. Rosell v. ESCO, 549 So. 2d 840, 844 (La.1989).
Therefore, we affirm the judgment of the district court at appellants' costs.
AFFIRMED.
NOTES
[1] La. R.S. 32:214 provides:
Notwithstanding the foregoing provisions of this Part, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a highway.
[2] La. R.S. 32:212(B) provides:
B. No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.
[3] A similar version of this test was enunciated by Judge Tate in Cormier v. Sinegal, 180 So. 2d 567 (La.App. 3 Cir.1965):
In evaluating whether the child's conduct constitutes contributory negligence, the child is required to exercise only the care expected of his age, intelligence, and experience under the particular circumstances presented to him; in this respect, the obviousness or not of the danger to one of the child's years, experience, and intelligence is taken into consideration.(Citations omitted). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593265/ | 35 Mich. App. 179 (1971)
192 N.W.2d 283
WILLIAMS
v.
GRIFFIN
Docket Nos. 9426, 9427.
Michigan Court of Appeals.
Decided July 26, 1971.
*181 Donley & Walz (by Peter A. Jordan), for plaintiff.
Frank Landon Young, for defendants.
Before: R.B. BURNS, P.J., and HOLBROOK and LEVIN, JJ.
Leave to appeal denied, 386 Mich 772.
R.B. BURNS, P.J.
Defendant John Griffin and plaintiff's decedent, Leslie B. Donnelly, had been friends for a considerable number of years. Due to his deteriorating physical condition Donnelly was incapable of attending to his physical needs in his last few years of life. During Donnelly's physical infirmness Griffin became a frequent visitor and gradually assumed the role of bill collector, real estate salesman, and business advisor. Subsequent to the business transactions forming the basis of this lawsuit the Cadillac State Bank was appointed Donnelly's guardian.[1]
This appeal concerns three instruments executed by Mr. and Mrs. Donnelly; a land contract dated February 13, 1967, a warranty deed dated March 30, 1967, and a quitclaim deed also dated March 30, 1967. By the February land contract the Donnellys conveyed certain lots in the City of Cadillac to Griffin and his wife for a sum of $12,675. The contract provided for a down payment of $675 with the $12,000 balance being paid at a rate of 1% per month including interest at 6% per annum. According to the payment sheet of this land contract two credits were given on April 19, 1967; one for $7,500, the other for $5,000. The trial court permitted *182 credit for the $7,500, but refused to recognize the $5,000 entry. The $5,000 entry represented a 90-day note allegedly given by Mrs. Donnelly to Griffin which Griffin applied against his land contract debt. The $5,000 entry on the payment sheet stated that the $5,000 represented a note given by Mrs. Donnelly which was acknowledged by Mr. Donnelly.[2] The defendants argue that the trial judge abused his discretion in refusing to allow credit for the $5,000 entry; but we must uphold the trial court's finding unless we can conclude that it was "clearly erroneous". See GCR 1963, 517.1, and McDaniels v. Schroeder (1968), 9 Mich App 444. This reluctance to overturn the trier of facts is based on the well-recognized premise that the "trial court is in better position to determine the credibility of witnesses by observing their conduct and demeanor in court, an opportunity which the reviewing court on appeal obviously does not have". Osius v. Dingell (1965), 375 Mich 605, 611, 612. This premise takes on added significance in this case because the trial court simply decided not to believe the $5,000 entry. Since the payment sheet entry and the 90-day note it was based on were both prepared by Griffin, the court's decision in effect was that it did not believe Griffin's testimony. The trial court did not express its reasons for disbelieving Griffin's testimony but our review of the record convinces us that its decision was justified.[3] At least two witnesses[4] testified to Griffin's bad reputation for telling the truth and anyone observing Griffin's prior arrest and conviction record *183 would hardly be instilled with confidence in his veracity.[5]
A number of questionable details also throw considerable doubt upon the validity of the $5,000 entry. To begin with the 90-day note purports to be a debt owed by Mrs. Donnelly to Griffin. Griffin testified that the debt represented "notes and taxes paid up". Since Mrs. Donnelly was deceased at the time of trial and because Griffin made no attempt to prove which notes and taxes he referred to, the court had only Griffin's word to rely on as to the validity of the note. In addition both the note and the payment sheet recited that the $5,000 was for land contracts, plural, without indicating which land contracts were involved. As previously mentioned Griffin prepared the payment sheet. The payment sheet somewhat mysteriously purports to record payments made on a piece of property unconnected with the land contract property. In addition, the defendants, although alleging full payment, did not have a deed for the property. According to the payment sheet the land contract price had been overpaid by $500. This overpayment was inconsistent with Griffin's weak financial position at the date of the entry.[6]
The trial court as trier of the fact was the sole judge of the credibility of Griffin.
The trial court held, and we agree, that Griffin stood in a fiduciary relationship to Donnelly. Such a relationship exists when there is a reposing of faith, confidence, and trust, and the placing of reliance by one upon the judgment and advice of another. In re Jennings' Estate (1952), 335 Mich 241; In re Wood Estate (1965), 374 Mich 278. Testimony in this case clearly established that Mr. *184 Donnelly, because of his feeble physical condition, was incapable of looking after himself. It is inconceivable to us that Donnelly was capable of attending to his business and financial matters. Griffin readily admitted that he had occupied a position of trust with both Mr. and Mrs. Donnelly and testified that Donnelly often heeded his advice concerning business matters. Griffin managed all of Donnelly's business affairs including the payment of taxes, the collection of debts, and the sale of real estate. Donnelly's advanced age and his physical infirmness led to his complete reliance on Griffin.[7] This substantial reliance justified the trial court's decision to impose upon Griffin, as Donnelly's fiduciary, the burden[8] of presenting credible evidence as to the fairness[9] of his business dealings with Donnelly. Walters v. Pierson (1960), 359 Mich 161. It was stated in In re Wood Estate (1965), 374 Mich 278, 285:
"Once such a relationship [fiduciary] is established and the fiduciary * * * benefits therefrom, the law recognizes a presumption that he in whom trust was reposed exercised his influence unduly."
The trial court was correct in imposing this evidentiary burden upon the defendant.
As was the situation with the land contract, many questionable details surround the February quitclaim and warranty deeds. The trial judge's conclusion that both deeds were not intended as outright *185 conveyances but were rather products of infidelity is supported by the record. Defendants failed to introduce sufficient credible evidence tending to prove the legitimacy of these two business transactions.
Affirmed. Costs to plaintiff.
All concurred.
NOTES
[1] The petition for guardian appointment was made by Sergeant Sweigert of the Cadillac City Police Department. Sergeant Sweigert testified to the extremely depressed and unhealthy living environment of Mr. Donnelly. According to Sweigert the room in which Mr. Donnelly slept was a filthy mess; it contained human waste and fresh garbage which combined to emit a very strong odor.
[2] Mr. Donnelly initialed the entry; no question as to genuineness of the initials was presented at trial level.
[3] The clearly erroneous standard established by GCR 1963, 517.1 does not disturb long-established precedent that review of equity cases is de novo. Papin v. Demski (1970), 383 Mich 561.
[4] A probate judge and a police officer.
[5] They range from fraud to false pretenses.
[6] When Mr. Griffin was accused of a crime about this time he could not afford counsel to represent him. Testimony indicated that one of Griffin's debts amounted to $14,000.
[7] Griffin also drove Donnelly to restaurants for meals. Donnelly lived apart from his wife and saw very little of his family and relatives.
[8] The ultimate burden of proof rests with the plaintiff; but the burden of erasing the presumption of undue influence, i.e., the burden of going forward, shifts to the defendant. In re Wood Estate (1965), 374 Mich 278.
[9] A fiduciary is held to the utmost fairness and honesty in dealing with the party to whom he stands in that relation. Horvath v. Langel (1936), 276 Mich 381. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593285/ | 954 So.2d 594 (2006)
Buster JAMES
v.
Henry "Butch" BREWSTER.
2050297.
Court of Civil Appeals of Alabama.
September 15, 2006.
*595 Walter W. Kennedy III, Pell City, for appellant.
Alan C. Furr of Church, Minor, Abbott, Furr & Davis, P.C., Pell City, for appellee.
BRYAN, Judge.
The defendant Buster James appeals a judgment insofar as it (1) established the western boundary line of James's property; and (2) declared that James did not have an easement to use a portion of a concrete driveway on the property of the plaintiff Henry "Butch" Brewster. We affirm in part, reverse in part, and remand.
On June 9, 1997, Hubert Steadman and Carrie Steadman, a married couple, deeded to James a parcel of real property in St. Clair County. James's property was adjacent to, and generally east of, property the Steadmans retained. Both James's property and the property the Steadmans retained were located generally north of U.S. Highway 78 ("the highway"). A house, a garage, a concrete driveway, and a fence line were located on the property the Steadmans retained. The house faced the highway. The garage was located to the northeast of the house. The concrete driveway ran northward from the highway along a route that passed the western side of the Steadmans' house and then turned eastward and ran behind the house to the garage and another building. The fence line began at the eastern boundary of the concrete driveway and ran westward along the southern boundary of the property the Steadmans retained.
The same day they executed the deed to James, the Steadmans executed an amendment of that deed. The amendment stated:
"No portion of the aforementioned 3½ acres [i.e., the property deeded to James] shall come within 15 feet of existing Steadman garage, nor closer than 50 feet from the existing Steadman home, and shall be in a straight line to the existing fence at existing ditch.
"The seller agrees that the existing driveway may be used by both parties (the Grantor and the Grantee). The Grantor additionally grants an easement across the property of the Grantor for a city water line to the Grantee's property *596 and for a driveway no wider than 15 feet in front of the existing Steadman house to the Grantee's property."
James moved a mobile home onto his property and began living there. Later in 1997, Hubert Steadman died. Carrie Steadman died in 1998. Upon the death of Carrie Steadman, Brewster inherited the Steadmans' property. After he inherited the Steadmans' property, Brewster placed chert[1] on a route running in front of the house and connecting the existing concrete driveway with James's property. Thereafter, Brewster objected to James's using the portion of the concrete driveway that was north of the intersection of the concrete driveway and the chert driveway ("the intersection"). However, he did not object to James's using the portion of the concrete driveway between the highway and the intersection or the route running in front of the house where Brewster had placed the chert.
James continued to use the portion of the concrete driveway that was north of the intersection, and, on January 29, 2001, Brewster sued James. Brewster alleged that James's use of the concrete driveway north of the intersection constituted trespass. Answering, James denied that his use of that portion of the concrete driveway constituted trespass.
On August 16, 2005, the case was tried by the trial judge sitting without a jury. The trial judge received evidence ore tenus as well as evidence in the form of documents.
Brewster introduced two surveys. One was prepared for him by registered surveyor S.M. Allen in 2000 ("the 2000 survey"). The other survey was prepared for Brewster by Allen in 2003 ("the 2003 survey"). Allen testified that the 2000 survey showed the boundaries of Brewster's property based on the deeds of record and the landmarks located on the property. The 2000 survey depicted the boundary line between Brewster's property and James's property as running in a generally southeasterly direction from a point on the north line of the Northwest Quarter of the Southwest Quarter of Section 2, Township 17 South, Range 2 East, St. Clair County, Alabama, to a point on the fence line that ran along the southern boundary of Brewster's property.
Allen testified that he had prepared the 2003 survey to depict a boundary line between Brewster's property and James's property that was based on a proposed compromise of the dispute between Brewster and James rather than the evidence regarding the location of the true boundary line.
James introduced a survey that had been prepared for him by registered surveyor Robert Darty ("the Darty survey") in 2005. Darty testified that his survey showed the boundaries of James's property according to Darty's interpretation of James's deed and the amendment of that deed. James also introduced his deed and the amendment of that deed.
In addition to receiving evidence ore tenus and evidence in the form of documents, the trial court viewed the parties' properties.
On September 19, 2005, the trial court entered a final judgment. In pertinent part, the judgment stated:
"Upon consideration of the testimony, exhibits and arguments of counsel and the Court having taken judicial knowledge *597 of its file, the Court finds as follows:
"1. Defendant Buster James was conveyed property by that certain deed dated June 9, 1997, which is recorded in Deed Record S9703263S in the Office of the Judge of Probate of St. Clair County, Alabama. Said deed was admitted into evidence as [James's] Exhibit # 1.
"2. The description contained in said deed is vague and imprecise and is subject to different interpretations.
"3. The Court believes the [Steadmans] in said deed intended the West boundary line of [James's] property to be as depicted on the survey by S.M. Allen dated August 10, 2003, which was admitted into evidence as [Brewster's] Exhibit # 2. Said boundary line runs roughly in a Southeasterly direction and extends from the North line of the Northwest Quarter of the Southwest Quarter of Section 2, Township 2 South, Range 2 East to a point on the North right-of-way of old U.S. Highway 78 (also known as Bankhead Highway).
"4. As to [Brewster's] trespass claims, the Court finds [James] could have reasonably believed that he had an easement across the entire length of the concrete driveway and therefore the Court finds [James] is not guilty of trespass. Furthermore, even if [James] was guilty of trespass, the Court finds that [Brewster] has suffered no damages.
"5. The deed to [James], which was admitted into evidence as [James's] Exhibit # 1, granted to [James] an easement across [Brewster's] property for a driveway fifteen (15) feet in width in front of the existing Steadman home to [James's] property.
"6. The survey by Robert Darty dated April 25, 2005, which was admitted into evidence as [James's] Exhibit # 5, depicts an area labeled as `chert drive.' This driveway runs East and West, parallel to U.S. Highway 78 and lies between the residence located on [Brewster's] property and U.S. Highway 78 (Bankhead Highway). The Court finds [James] is entitled to an easement across the existing concrete driveway from the North right-of-way of U.S. Highway Number 78 to the `chert drive.' [James] is also entitled to an easement across the `chert drive' fifteen (15) feet in width, which [James] may pave or otherwise improve at his sole cost and expense.
7. The Court finds [James] does not have an easement across the remainder of the concrete driveway which runs past the residence on [Brewster's] property. It is therefore CONSIDERED, ORDERED AND ADJUDGED as follows:
"1. The documents which were admitted into evidence at the trial of this matter are referred to as if fully set forth herein.
"2. The West boundary line of [James's] property is judicially established as depicted on [Brewster's] Exhibit # 2, the Allen survey dated August 10, 2003.
"3. As to [Brewster's] trespass claims, judgment is entered for [James] and against [Brewster].
"4. [James] is entitled to an easement across the existing concrete driveway from the North right-of-way of U.S. Highway Number 78 to the `chert drive' area depicted on [James's] Exhibit # 5, the survey by Robert Darty dated April 25, 2005. [James] is also entitled to an easement across the `chert drive,' said easement being 15' in width which is to extend 7½' North and South from the centerline of the `chert drive' area on said survey. [James] may pave or *598 otherwise improve the easement as he sees fit, at his sole cost and expense.
"5. [James] is ordered to cease using the remainder of the concrete driveway beyond the area described in paragraph 5[sic] above."
(Emphasis added.)
James moved the trial court to alter, amend, or vacate the judgment; however, the trial court denied that motion. James then appealed to the supreme court. Brewster did not cross-appeal. The supreme court, pursuant to § 12-2-7(6), Ala. Code 1975, transferred James's appeal to this court.
On appeal, James first argues that the trial court erred by judicially establishing the boundary line between the parties' properties in the absence of a claim seeking such relief in Brewster's complaint. However, the record reflects that James's own counsel represented to the trial court at trial that the location of the boundary line was an issue in the case. A party may not induce error by the trial court and then later win a reversal on the basis of that error. Neal v. Neal, 856 So.2d 766, 784 (Ala.2002) ("A party cannot win a reversal on an error that party has invited the trial court to commit."); Atkins v. Lee, 603 So.2d 937, 945 (Ala.1992) ("A party may not predicate an argument for reversal on `invited error,' that is, `error into which he has led or lulled the trial court.' Dixie Highway Express, Inc. v. Southern Ry., 286 Ala. 646, 651, 244 So.2d 591, 595 (1971); see also State Farm Mutual Automobile Ins. Co. v. Humphres, 293 Ala. 413, 418, 304 So.2d 573, 577 (1974)."). Accordingly, James's first argument has no merit.
James also argues that the trial court erred in finding that the boundary line was located where it is depicted on the 2003 survey because, James says, the evidence does not support that finding. First, James argues that that finding is not supported by the evidence because Brewster did not introduce deeds establishing his title to the property he claimed to own. However, Brewster testified that he inherited the property depicted on the 2000 survey from Carrie Steadman. James has not cited to us any legal authority for the proposition that Brewster's testimony alone was insufficient to establish his title to the property he claimed.
"Rule 28(a)(10), Ala. R.App. P., requires that arguments in an appellant's brief contain `citations to the cases, statutes, other authorities, and parts of the record relied on.' . . . [I]t is well settled that a failure to comply with the requirements of Rule 28(a)(10) requiring citation of authority in support of the arguments presented provides this Court with a basis for disregarding those arguments. Ex parte Showers, 812 So.2d 277, 281 (Ala.2001)."
State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 822 (Ala.2005).
James next argues that the trial court's finding that the Steadmans intended the boundary line to be the one depicted on the 2003 survey was unsupported by the evidence. James argues that the 2003 survey depicted a compromise boundary line rather than the true boundary line as established by the evidence.
In Todd v. Owens, 592 So.2d 534 (Ala. 1991), the supreme court stated the law that governs our review of this issue:
"`"[A] judgment establishing a boundary line between coterminous landowners on evidence submitted ore tenus is presumed to be correct and need only be supported by credible evidence. If so supported, the trial court's conclusions will not be disturbed on appeal unless plainly erroneous or manifestly unjust." Tidwell *599 v. Strickler, 457 So.2d 365, 367 (Ala. 1984) (citations omitted).'
"Garringer v. Wingard, 585 So.2d 898, 899 (Ala.1991). The presumption of correctness is especially strong in boundary line dispute cases because it is difficult for the appellate court to review the evidence in such cases. Bearden v. Ellison, 560 So.2d 1042 (Ala.1990). Moreover, the presumption is further enhanced if the trial court personally views the property in dispute, as was done here. Bell v. Jackson, 530 So.2d 42 (Ala.1988); Wallace v. Putman, 495 So.2d 1072, 1075 (Ala.1986)."
592 So.2d at 535.
In Catrett v. Crane, 295 Ala. 337, 329 So.2d 536 (1976), the trial court had created a totally new boundary line equidistant between the two disputed survey lines. On appeal, the supreme court reversed, holding that there was no evidence to support the line fixed by the trial court. 295 Ala. at 338, 329 So.2d 536.
On the other hand, in Todd v. Owens, supra, the trial court found in favor of the Owenses in a boundary-line dispute. However, instead of fixing the boundary line entirely where the Owenses' evidence established that the true boundary line was located, the trial court fixed one portion of it where the Owenses' evidence established that it was located and fixed another portion of it where Todd's evidence established that it was located. Todd appealed, but the Owenses did not cross-appeal. The supreme court explained and held:
"After a careful review of the evidence in this case, we find it clear that the trial court tried to effect a compromise. Todd argues that such a compromise effectually fixes the boundary line at neither of the points supported by the evidence, and that such a compromise is cause for reversal, citing Catrett v. Crane, 295 Ala. 337, 329 So.2d 536 (1976). In Catrett, the trial court created a totally new boundary line equidistant between the two disputed survey lines; this Court reversed, holding that there was no evidence to support the line fixed by the trial court. Id. at 338, 329 So.2d 536. However, this is not what we have in the case before us.
"In this case the trial court found that the evidence supported a finding that for approximately one-half of the line the old fence line was the boundary, and for approximately the second half of the line the court determined that the deed line was the true boundary. Neither party claims that the line fixed is, in its entirety, the true line; however, if any error has occurred in this case, it prejudices only the Owenses, and they did not appeal.
"Having reviewed the evidence in this case, we conclude that the record contains credible evidence to support the trial court's finding as to that portion of the boundary line involved in this appeal; therefore, the judgment of the trial court is due to be affirmed."
592 So.2d at 535-36.
In the case now before us, it appears that at least a portion, if not all, of the boundary line depicted in the 2003 survey was a proposed compromise that was not based on evidence of the actual location of the boundary line. Therefore, the holding in Todd v. Owens is not applicable in the case now before us, and on the authority of the holding in Catrett v. Crane, we must reverse the trial court's judgment insofar as it fixes the location of the boundary line.
James also argues that the trial court erred in holding that he did not have the right to use the portion of the concrete driveway located north of the intersection. James argues that the Steadmans granted him an easement to use the entire concrete driveway in the amendment of his deed. *600 The trial court apparently found that the language of the amendment conferred upon James only a license to use the concrete driveway instead of an easement and that Brewster, the Steadmans' successor in title, had revoked that license with respect to the portion of the concrete driveway lying north of the intersection.[2] In determining whether an instrument creates an easement or a mere license, the intent of the parties to the instrument is the critical factor to consider. See Boyce v. Cassese, supra. With regard to James's use of the concrete driveway, the amendment merely states, "The seller agrees that the existing driveway may be used by both parties (the Grantor and the Grantee)." Thus, the amendment neither characterizes James's use of the concrete driveway as an easement nor uses the traditional language used to convey an interest in real property. The language is more consistent with a grant of permission to use the concrete driveway than a grant of an interest in real property.
On the other hand, the amendment expressly grants James an easement for a driveway in front of the Steadmans' house:
"The Grantor additionally grants an easement across the property of the Grantor for a city water line to the Grantee's property and for a driveway no wider than 15 feet in front of the existing Steadman house to the Grantee's property."
(Emphasis added.)
Given the language of the amendment, we find no error in the trial court's implicit findings that the Steadmans intended James's right to use the concrete driveway to be only a license rather than an easement and that Brewster had revoked that license with respect to the portion of the driveway lying north of the intersection. Cf. Boyce v. Cassese.
We reverse the judgment of the trial court insofar as it held that the 2003 survey depicted the location of the boundary line between the parties' properties. In all other respects, we affirm the judgment of the trial court. Finally, we remand the case to the trial court for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
CRAWLEY, P.J., and THOMPSON and PITTMAN, JJ., concur.
MURDOCK, J., concurs in the result, without writing.
NOTES
[1] Merriam-Webster's Collegiate Dictionary 212 (11th ed.2003), defines chert as "a rock resembling flint. . . ."
[2] In Boyce v. Cassese, 941 So.2d 932 (Ala. 2006), the supreme court quoted Jon W. Bruce & James N. Ely, Jr., The Law of Easements and Licenses in Land (West Group 2001), as follows regarding the difference between a license and an easement:
"`§ 1:4 Fundamental difference
"`A license is often defined as permission to do an act or a series of acts on another's land that, absent authorization, would constitute trespass. Because permission is the voluntary grant of a personal privilege, the landowner may usually revoke consent at any time and thereby terminate the license. Given their revocable nature, licenses generally are not considered to reach the status of interests in land. In contrast, easements are irrevocable interests in land of potentially perpetual duration.'" | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593294/ | 954 So.2d 113 (2007)
In re Philip LAWRENCE.
No. 2006-B-2860.
Supreme Court of Louisiana.
April 11, 2007.
Charles Bennett Plattsmier, Baton Rouge, for Applicant.
Philip Lawrence, New Orleans, for Respondent.
ATTORNEY DISCIPLINARY PROCEEDINGS
PER CURIAM.
This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Philip Lawrence, an attorney licensed to practice law in Louisiana.
*114 PRIOR DISCIPLINARY HISTORY
Prior to addressing the instant charges, we find it helpful to review respondent's prior discipline. Respondent was admitted to the bar in 1996. In 2000, the ODC filed formal charges against respondent based on misconduct which occurred between 1998 and 1999. We determined respondent violated the Rules of Professional Conduct by failing to communicate with two clients and failing to safeguard the property of another client. We suspended respondent from the practice of law for a period of three months, but deferred that suspension in its entirety and respondent was placed on probation for a period of one year. In re: Lawrence, 02-2791 (La. 1/31/03), 841 So.2d 699 ("Lawrence I").
UNDERLYING FACTS AND PROCEDURAL HISTORY
Count I The Tyson Matter
In February 2003, Lugene Tyson retained respondent to represent him in a child custody and support case. Mr. Tyson paid respondent a fee of $1,000. Approximately one month later, respondent filed a pleading on behalf of Mr. Tyson entitled "Petition for Custody, Termination of Wage Assignment and/or Garnishment and Return of Child Support Payments."
Initially, Mr. Tyson was able to communicate with respondent; however, as time went on, Mr. Tyson had increasing difficulty contacting respondent and believed respondent was avoiding his calls.[1] In October 2003, while the case was ongoing, Mr. Tyson received a copy of a motion filed by respondent in which he sought to withdraw from representing Mr. Tyson. As a result, Mr. Tyson was forced to handle the case on his own because he could not afford new counsel.
The ODC alleges that respondent's conduct violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client) and 1.4 (failure to communicate with a client) of the Rules of Professional Conduct.
Count II The Wiltz Matter
In August 2002, Dinah Wiltz retained respondent to represent her in a child support case, paying him $500. After retaining respondent, Ms. Wiltz had difficulty contacting respondent. In particular, she attempted to call him at least twenty times from her cell phone number, but could not reach him. She finally reached him after calling from a different phone number, at which time he advised her he was working on the case; however, he did not keep in contact with her. Ms. Wiltz eventually learned from court personnel (not from respondent) that her case was set for hearing.
The ODC alleges that respondent's conduct violated Rule 1.4 of the Rules of Professional Conduct.
Count III The Hammonds Matter
In November 2002, Lori Ann Hammonds retained respondent to obtain a protective order on her behalf. On the day that Ms. Hammonds' rule for a protective order was set for hearing, respondent arrived ninety minutes late for court. Thereafter, Ms. Hammonds had difficulty communicating with respondent in an effort to determine whether the protective order had been served on the defendant. Ms. Hammonds was finally able to locate the defendant herself, and she notified respondent of the address for service. The defendant was served and ordered to appear *115 for a hearing on December 13, 2002; however, on that date, respondent failed to appear. Ms. Hammonds unsuccessfully tried to locate respondent and was forced to represent herself at the hearing pro se. Later the same day, respondent met with Ms. Hammonds and explained that he had not been in court because he had been checking on service. Following that meeting, Ms. Hammonds once again had difficulty communicating with respondent. On numerous occasions, Ms. Hammonds tried unsuccessfully to obtain updates from respondent concerning the status of the protective order matter, and when she was able to speak with him, he gave her conflicting accounts of what was happening in the case. The last communication Ms. Hammonds received from respondent was a motion to withdraw.
The ODC alleges that respondent's conduct violated Rules 1.3 and 1.4 of the Rules of Professional Conduct.[2]
Count IV The Rankin Matter
In August 2002, Denise Rankin retained respondent for the sum of $500 to represent her minor son, Christopher, who had been arrested for aggravated burglary. At that time, respondent promised Ms. Rankin he would meet with Christopher, then call her and discuss what could be done about a bond reduction. However, respondent did not meet with Christopher that day, nor did he call Ms. Rankin. Over the next week, Ms. Rankin tried to reach respondent by telephone, but despite numerous attempts and voice mail messages, she was unsuccessful in speaking with him. Respondent later billed Ms. Rankin for several client telephone consultations, which she denied ever occurred.
The ODC alleges that respondent's conduct violated Rules 1.4 and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct.
Count V The Summers Matter
In June 2002, William and Georgana Summers retained respondent to file bankruptcy on their behalf and to contest a traffic ticket issued to Mr. Summers. Mr. and Mrs. Summers paid respondent a total of $700 in fees and costs. One week later, respondent told Mrs. Summers that the traffic ticket was taken care of and that everything was fine. In mid-July, respondent told his clients they would soon be receiving a letter from the bankruptcy court. In August, Mrs. Summers tried to reach respondent on several occasions, but she was unsuccessful. In September, Mrs. Summers checked with the bankruptcy court and was told nothing had been filed under their names. Concerned, Mrs. Summers contacted the traffic court regarding the ticket, and was told that nothing had been done in that matter and that an attachment was scheduled to be issued on September 17th for Mr. Summers' arrest. After making more unsuccessful attempts to reach respondent, Mr. and Mrs. Summers discharged him on September 16, 2002.
The ODC alleges that respondent's conduct violated Rules 1.3 and 1.4 of the Rules of Professional Conduct.
Count VI The Richardson Matter
On July 31, 2002, Clifton Richardson retained respondent to handle a bankruptcy matter, paying him $300. Respondent appeared on Mr. Richardson's behalf at an August 6, 2002 hearing in the case, but thereafter he failed to communicate with *116 Mr. Richardson regarding the preparation of a written judgment. Mr. Richardson made numerous attempts to reach respondent between August 7th and August 12th, but respondent did not return Mr. Richardson's telephone calls and messages, nor was he available at his office when Mr. Richardson went there in an attempt to meet with him in person. Concerned that respondent might not prepare the bankruptcy judgment in a timely fashion, Mr. Richardson terminated respondent's representation by letter dated August 12, 2002 and prepared the judgment himself. Mr. Richardson subsequently received a billing statement from respondent, which reflected a telephone call that he denied ever occurred.
The ODC alleges that respondent's conduct violated Rules 1.4 and 8.4(c) of the Rules of Professional Conduct.
Count VII The Shoemaker Matter
In March 2001, Byron Shoemaker, who was in the U.S. Navy, retained respondent for the sum of $1,500 to represent him in connection with a disciplinary hearing before a military review board.[3] On the night before the hearing, respondent informed Mr. Shoemaker that he would be unable to appear at the hearing because his girlfriend was having a medical procedure. Respondent further indicated that he had left messages to this effect with the military board and assured Mr. Shoemaker that the hearing would not proceed in his absence. Despite respondent's assurances, the hearing was not continued and took place as scheduled. Mr. Shoemaker was represented by appointed military counsel at the hearing and was less than honorably discharged from the Navy.
The ODC alleges that respondent's conduct violated Rule 1.3 of the Rules of Professional Conduct.
Count VIII The Blackwell Matter
Reginald Blackwell, a resident of New York, received a notice indicating that he owed past-due child support in Louisiana. In January 2001, Mr. Blackwell retained respondent, paying him $500 to determine if the amount of the alleged arrearages was correct. Over the next few months, Mr. Blackwell called respondent several times seeking an update on his progress on the case, only to be told each time that respondent had not been able to reach anyone at the child support enforcement division. By May 2001, when respondent had not obtained any more information than Mr. Blackwell himself had already obtained, Mr. Blackwell terminated the representation. Ultimately, the child support arrearage was made executory and Mr. Blackwell's wages were garnished.
The ODC alleges that respondent's conduct violated Rule 3.2 (failure to make reasonable efforts to expedite litigation) of the Rules of Professional Conduct.
Count IX The Johnson Matter
In March 2000, Shirley Shipman Johnson retained respondent to assist her in developing a book and movie deal based upon the life story of her father, Sergeant Alvin Shipman, a World War II veteran. Ms. Johnson agreed to pay respondent a 15% contingency fee based upon the successful development and sale of Sergeant Shipman's life story. According to Ms. Johnson, respondent did not advise her to obtain independent counsel before she entered into the contingency fee agreement with him.
*117 Without the consent of Ms. Johnson, respondent applied for a copyright for the book about Sergeant Shipman and included his name in the copyright application as an author of the book. Ms. Johnson denies that respondent helped to write the book. The ODC alleges that respondent's conduct violated Rule 1.8 (engaging in a conflict of interest) of the Rules of Professional Conduct.
DISCIPLINARY PROCEEDINGS
Formal Charges
After investigation, the ODC filed formal charges against respondent. Respondent filed an answer, and the matter proceeded to a hearing before the hearing committee.
Hearing Committee Recommendation
In the Tyson matter, the committee determined respondent was dilatory in the manner in which he handled Mr. Tyson's case, but did not find the ODC proved by clear and convincing evidence that respondent violated Rule 1.3. However, the committee agreed respondent violated Rule 1.4 by failing to communicate with Mr. Tyson, noting that a client should not have to disguise his identity in order to have his attorney answer the telephone.
In the Wiltz matter, the hearing committee made a finding of fact that respondent was screening his telephone calls and avoiding Ms. Wiltz. The committee observed that Ms. Wiltz should have learned from respondent, not court personnel, when to appear in court. Accordingly, the committee found that respondent failed to communicate with his client in violation of Rule 1.4.
In the Hammonds matter, the committee found it was undisputed respondent was late for a court appearance in Ms. Hammonds' case. The committee found such conduct to be unprofessional; however, considering that Ms. Hammonds did not testify at the disciplinary hearing, the committee determined the ODC did not prove by clear and convincing evidence that respondent violated the Rules of Professional Conduct.
In the Rankin matter, the hearing committee concluded that respondent failed to take immediate action to secure Christopher's release from jail and failed to communicate timely with either Ms. Rankin or Christopher, causing actual harm to Christopher. Based on this reasoning, the committee found that respondent violated Rule 1.4 of the Rules of Professional Conduct. The committee further found that although respondent's billing practices were "sloppy," he did not have an intent to deceive, and thus the committee found no violation of Rule 8.4(c).
In the Summers matter, the hearing committee found that respondent told his clients that he had resolved the traffic ticket when, in fact, he had not. Additionally, it determined he delayed in filing their bankruptcy proceeding. Considering these findings, it concluded he violated Rule 1.3 by neglecting his clients' legal matters. It further found he failed to communicate with his clients or to respond to their telephone calls, in violation of Rule 1.4. The committee also noted respondent's misconduct caused actual harm to his clients by delaying their bankruptcy and by causing an attachment to be issued for Mr. Summers' arrest on the traffic ticket.
In the Shoemaker matter, the hearing committee made a factual finding that respondent failed to appear at the disciplinary hearing and failed to take appropriate precautions to ensure that his client was represented, all in violation of Rule 1.3. It further determined respondent's misconduct caused actual harm to Mr. Shoemaker, *118 who was tried without benefit of a defense by knowledgeable counsel.
In the Blackwell matter, the hearing committee found that respondent took action as requested by Mr. Blackwell and the delays in the matter were occasioned in large part by normal delays inherent in the system. Accordingly, the committee found no violation by respondent of Rule 3.2.
In the Johnson matter, the hearing committee found that the ODC failed to prove by clear and convincing evidence that respondent violated Rule 1.8. It found Ms. Johnson did not deny understanding the terms of the agreement and she admitted having other counsel. It further noted that no evidence was introduced to establish that Ms. Johnson was denied the opportunity to seek the advice of another attorney before she signed the agreement with respondent.
In summary, the committee found that respondent failed to communicate with his clients in the Tyson, Wiltz, Rankin, and Summers matters, and neglected his clients' legal matters in the Summers and Shoemaker matters. The committee found no violations in the Hammonds, Richardson, Blackwell, and Johnson matters.
As aggravating factors, the committee recognized respondent's prior disciplinary record in Lawrence I, multiple offenses, and vulnerability of two of the victims, Christopher Rankin and Byron Shoemaker. The committee also commented that respondent refused to acknowledge the wrongful nature of his conduct, and demonstrated a troubling lack of insight into the allegations. The mitigating factors found by the committee include the absence of a dishonest or selfish motive, personal or emotional problems,[4] timely good faith effort to make restitution or to rectify the consequences of the misconduct,[5] and a cooperative attitude toward the disciplinary proceedings.
Under the circumstances of this case, the committee recommended that respondent be suspended from the practice of law for eighteen months.
The ODC filed an objection to the hearing committee's report and recommendation.
Disciplinary Board Recommendation
The disciplinary board accepted the hearing committee's factual findings in the Tyson, Wiltz, Hammond, Rankin, Summers, Shoemaker, and Johnson matters. However, with regard to the Richardson matter, the board determined the committee was clearly wrong in determining that there was no violation of Rule 1.4. To the contrary, the board found Mr. Richardson's testimony constituted clear and convincing evidence that respondent failed to timely communicate with him. Finally, as to Count IX, the board found respondent's contingent fee agreement with Ms. Johnson was "troubling" as it relates to a conflict of interest involving a business transaction with a client; nevertheless, the board concluded that the committee's factual determinations in this regard are not manifestly erroneous.
In summary, the board determined that respondent violated Rule 1.4 by failing *119 to communicate with his clients in the Tyson, Wiltz, Rankin, Summers, and Richardson matters. It pointed out these clients testified about their repeated efforts to contact respondent by phone, and some attempted to find him at his office, but to no avail. The board also determined respondent neglected the Summers' traffic ticket and bankruptcy matters and failed to appear with Mr. Shoemaker before the military tribunal, in violation of Rule 1.3. However, the board concluded that respondent did not violate the Rules of Professional Conduct as charged in the Hammonds, Blackwell, and Johnson matters.
The board determined that respondent knowingly violated duties owed to his clients and caused actual harm to them. Under the ABA's Standards for Imposing Lawyer Sanctions, it found the baseline sanction for respondent's misconduct is suspension.
The board found the record supports the following mitigating factors: absence of a dishonest or selfish motive, personal or emotional problems, and a cooperative attitude toward the disciplinary proceeding. The board recognized the following aggravating factors: prior disciplinary record, a pattern of misconduct, multiple offenses, and vulnerability of the victims.
Considering the number of clients harmed in the instant case, the board recommended that respondent be suspended from the practice of law for eighteen months and be assessed with all costs of these proceedings.
Respondent filed an objection to the disciplinary board's recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).
DISCUSSION
Bar disciplinary matters come within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La. 11/30/94), 646 So.2d 343; Louisiana State Bar Ass'n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee's factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.
Based on our independent review, we determine the hearing committee's factual findings, as modified by the disciplinary board, are supported by the record.[6] Accordingly, we conclude respondent violated Rule 1.3 by neglecting the Summers and Shoemaker matters and violated Rule 1.4 by failing to communicate with his clients in the Tyson, Wiltz, Rankin, Summers, and Richardson matters.
Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent's actions. In considering that issue, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed *120 depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington, 459 So.2d 520 (La.1984).
The genesis of most of respondent's misconduct in the instant case, as well as his earlier misconduct in Lawrence I, is his repeated and willful refusal to keep his clients reasonably informed about the status of their legal matters. As we explained in Louisiana State Bar Ass'n v. St. Romain, 560 So.2d 820, 824 (La.1990), "[p]roper communication with clients is essential to maintain public confidence in the profession."
We are particularly disturbed by the testimony of several clients in this matter who testified that they were forced to call respondent from different telephone numbers in order to get him to answer their calls.[7] There is simply no excuse for such conduct by a member of the bar of this state.
The baseline sanction for respondent's misconduct is a suspension from the practice of law. Several aggravating factors are present, including respondent's prior disciplinary record, a pattern of misconduct, multiple offenses, and vulnerability of the victims. In mitigation, we recognize the absence of a dishonest or selfish motive, personal or emotional problems, and a cooperative attitude toward the disciplinary proceeding.
Considering all these factors, we find the appropriate discipline for respondent's misconduct is an eighteen-month suspension from the practice of law.
DECREE
Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Philip Lawrence, Louisiana Bar Roll number 22705, be and he hereby is suspended from the practice of law for a period of eighteen months. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.
TRAYLOR, J., dissents and would impose greater penalty.
NOTES
[1] Mr. Tyson testified he had to use a neighbor's telephone "so [respondent] did not recognize my number and maybe he would answer."
[2] The ODC also alleged a violation of Rule 1.5(c) relating to respondent's failure to obtain a contingent fee agreement in connection with a personal injury matter Ms. Hammonds wanted him to handle; however, this charge was dismissed by the ODC during the hearing.
[3] Respondent, who is in the United States Marines Corps Reserves, advertizes that he specializes in military law.
[4] The committee found that respondent was deployed as a member of the National Guard in the midst of some of his client representations and that his girlfriend's medical condition led to some inappropriate behaviors in the Shoemaker matter (Count VII).
[5] Respondent refunded some or all of the attorney's fees paid by Mr. and Mrs. Summers, Mr. Shoemaker, and Mr. Blackwell. Furthermore, following the disciplinary hearing, respondent submitted an affidavit in support of Mr. Shoemaker's appeal of his dismissal from the Navy.
[6] We also note that respondent has not disputed any of the factual findings and confines his objection to the question of whether the board's recommendation of discipline is appropriate.
[7] In his testimony before the hearing committee, respondent made the rather remarkable assertion that his current clients were merely "picking up on" similar comments reported in this court's opinion in Lawrence I. Like the hearing committee, we find no support whatsoever for such a theory. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593259/ | 45 F.Supp. 608 (1942)
THE TEMPLE BAR.
Petition of TEMPLE S. S. CO. Ltd.
No. 2426.
District Court, D. Maryland.
June 29, 1942.
*609 *610 Ritchie, Janney, Ober & Williams, of Baltimore, Md., and Kirlin, Campbell, Hickox, Keating & McGrann, of New York City (Robert W. Williams, of Baltimore, Md., L. de Grove Potter and Eugene F. Gilligan, both of New York City, and Southgate L. Morrison, of Baltimore, Md., of counsel), for petitioner Temple S. S. Co., Ltd.
Lord & Whip, of Baltimore, Md., and Bigham, Englar, Jones & Houston, of New York City (T. Catesby Jones and James Ryan, both of New York City, and George W. P. Whip, of Baltimore, Md., of counsel), for claimant Continental Ins. Co.
COLEMAN, District Judge.
This is a proceeding for exemption from liability combined with a proceeding for limitation of liability, brought pursuant to the provisions of 46 U.S.C.A. §§ 183-188, by the Temple Steamship Company, Ltd., a British company, owner of the British steamship Temple Bar. The owner was originally sued in this Court by the Continental Insurance Company, the insurer of a cargo of approximately 7,000 tons of scrap iron shipped by Japanese charterers on this vessel which was lost when the vessel stranded on the coast of the State of Washington on April 8, 1939. The insurance company paid the Japanese owners of the cargo for its loss prior to the outbreak of the War, took an assignment of such owners' rights against the vessel, and has filed its claim for $157,990. By injunction of this Court, issued on July 18, 1940, further proceedings in this original suit were stayed pending a determination of the issue in the present and later proceeding, which involves the determination *611 of two questions: First, whether the insurance company, the sole claimant in the limitation proceedings, has any valid claim against the owner of the vessel; and second, if it has, whether the owner is entitled to limit its liability to the value of its interest in the vessel and her pending freight. Obviously, if the first question be answered in the negative, there is no need for consideration of the second question.
The Temple Bar was a steel screw steamship of 4,291 gross, and 2,570 net, tons register, 390 feet in length, 52 feet beam, 27.2 feet moulded depth, and was built in 1928. For her ill-fated voyage she loaded her cargo at Jacksonville and Fort Everglades, Florida, leaving the latter port on March 14, 1939, whence she proceeded to Jamaica for coal, thence through the Panama Canal and was on her way up the Pacific Coast to Comax, British Columbia, for further coaling when the stranding occurred in the early morning of April 8th. At 8:20 p.m. on April 6th, she was in a position about nine miles off Cape Blanco on a course N 46° W. Her course was then changed to N 26° W, and again shortly afterwards to N 27° W. She proceeded until 8:00 a.m. on April 7th on the latter course when it was changed to N 23° W, and at noon of the same day was again changed to N 19° W. This latter course was maintained until the Temple Bar stranded at 3:30 a.m. on April 8th on Quillahute Needles Rock, south of James Island light and near the mouth of the Quillahute River, Washington, and north of Destruction Island light. The place of stranding was to the east and south of the calculated position of the master of the Temple Bar. The N 19° W course had been set at noon on April 7th to pass Destruction Island light on the starboard beam, at a distance of 18½ miles and to pass Yumatilla light vessel on the starboard beam at a distance of three miles. The Temple Bar's master and second officer testified that they had expected to sight Destruction Island light at 2:30 a.m. on April 8th, but that a misty rain came on and they passed Destruction Island light without seeing it. The second officer was on watch with the helmsman and bow lookout at the time of stranding. The weather was unfit for stellar observations on the evening of April 7th and the only log saved from the vessel, at least the only one that has been placed in evidence and said to be available, namely, her scrap-log, shows that the weather was overcast at 11:00 p.m. on that evening, with a light following (southerly) wind. The master left the bridge at 11:30 p.m. on that evening to go to bed, giving instructions in his night orderbook "to check position when possible" and that he should be called when the vessel was abreast of Destruction Island light. At 2:00 a.m. the second officer awakened the master because concerned over not having picked up this light, but the master expressed no alarm, believing that the vessel had not run far enough to do so, and accordingly the vessel was held upon her same course until she stranded as already explained, and sank within a few minutes, her officers and crew escaping in the life boats. Salvage of the vessel was impossible, and she was sold, less certain equipment that was removed, for less than $2,000 where she lay.
The charter party is dated February 16th, 1939, and provides for the carriage of one entire cargo for a single shipper. It was not executed in London by the British Company, the owner of the vessel, but in New York City by the Freighting Corporation of America, as brokers for the owner. Therefore, on the authority of the distinction between personal and nonpersonal contracts as defined in Earle & Stoddart v. Ellerman's Wilson Line, 287 U.S. 420, 421, 53 S.Ct. 200, 77 L.Ed. 403, this charter party is not to be treated as a personal contract, and so the owner is not denied the right to invoke the limitation of liability statute. See, also, Hockley v. Eastern Transportation Co., D.C., 10 F. Supp. 908.
The Harter Act, 46 U.S.C.A. §§ 190-195, is incorporated by express reference in the bills of lading for so much of the cargo as was taken on at Jacksonville, and both this Act and the Carriage of Goods by Sea Act, 46 U.S.C.A. §§ 1300-1315, are expressly incorporated in the bills of lading issued for the rest of the cargo taken on at Fort Everglades. But we need not dwell upon any of these documents since it is well settled that as between the provisions of a charter party and of a bill of lading, the former control. The G. R. Crowe, 2 Cir., 294 F. 506, certiorari denied 264 U.S. 586, 44 S.Ct. 335, 68 L.Ed. 862; The Nordhvalen, D.C., 6 F.2d 883. We, therefore, turn to a consideration of the provisions in the charter party which purport to define the liability of the vessel and its owner. These are to be *612 found in paragraphs 2 and 30 of the charter party. The first section of paragraph 2 reads as follows: "It is also mutually agreed that the Carrier shall not be liable for loss or damage occasioned by causes beyond his control, by the perils of the seas or other waters, by fire from any cause or wheresoever occurring, by barratry of the Master or crew, by enemies, pirates or robbers, by arrest and restraint of Princes, Rulers or People, by explosion, bursting of boilers, breakage of shafts or any latent defect in hull, machinery or appurtenances, by collisions, stranding or other accidents or navigation of whatsoever kind (even when occasioned by negligence, default or error in judgment of the pilot, Master, mariners or other servants of the Ship Owner, not resulting however, in any case from want of due diligence by the Owners of the Ship or any of them or by the Ship's Husband or Manager). Charterers also not to be responsible for restraint of Princes, Rulers or People." After providing for General Average, paragraph 2 concludes by incorporating into the charter party the Harter Act, 46 U.S. C.A. §§ 190-195, by providing that "It is also mutually agreed that this Contract is subject to all the terms and provisions of, and all the exemptions from liability contained in, the Act of Congress of the United States, approved on the 13th day of February, 1893, and entitled `An act relating to navigation of vessels,' etc."
Paragraph 30 of the charter party, in addition to providing for the incorporation of statutory or other provisions with which we are not concerned in the present suit, provides that the "Paramount" clause is "to be incorporated in this charter party." By the weight of the credible evidence introduced in the present case, this reference to the "Paramount" clause is to be taken in the sense in which that phrase is generally understood in the shipping trade, namely, that it has reference to the following clause: "This charter shall have the effect subject to the provisions of The Carriage of Goods by Sea Act of the United States, approved April 16, 1936, which shall be deemed to be incorporated herein and nothing herein contained shall be deemed a surrender by the carrier of any of its rights or immunities or an increase of any of its responsibilities or liabilities under said Act. If any term of this charter be repugnant to said Act to any extent, such term shall be void to that extent but no further." See The Steel Inventor, D.C., 35 F.Supp. 986.
Thus, the Carriage of Goods by Sea Act which became effective July 15th, 1936, 46 U.S.C.A. §§ 1301-1315, is expressly incorporated in the charter party, and by its very terms, § 12, 46 U.S.C.A. § 1311, supersedes the earlier, Harter Act when, as here, we are concerned not with rights and liabilities in relation to a cargo before its loading or after its discharge from the vessel, but during the voyage. The Carriage of Goods by Sea Act contains the following provisions, § 4 (1, 2), 46 U.S.C.A. § 1304 (1) and (2), which are very similar to Paragraph 2 of the charter party already quoted: "(1) Unseaworthiness. Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped, and supplied, * * *. Whenever loss or damage has resulted from unseaworthiness, the burden of proving the exercise of due diligence shall be on the carrier or other persons claiming exemption under this section.
"(2) Uncontrollable causes of loss. Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from
"(a) Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship;
* * * * *
"(c) Perils, dangers, and accidents of the sea or other navigable waters;
"(d) Act of God;
"(e) Act of war;
"(f) Act of public enemies;
"(g) Arrest or restraint of princes, rulers, or people, or seizure under legal process;
* * * * *
"(p) Latent defects not discoverable by due diligence; and
"(q) Any other cause arising without the actual fault and privity of the carrier and without the fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage."
*613 Both the Harter Act and the 1936 Act have the same underlying purpose. "Both prohibit the operation of contractual limitations upon the carriers' liabilities in handling goods, while at the same time granting them, in return, immunities from liability. In each the scheme is first to take away something, and then in return to give something which puts the liabilities on a single and statutory standard, rather than leaving them to the contractual divergencies, and the judicial divergencies in interpreting the contractual divergencies, which had previously obtained." Robinson on Admiralty, § 70, page 497. By the Harter Act such immunities as are granted are expressly made to depend upon the exercise of due diligence to make the vessel in all respects seaworthy, so that if there is a lack of such diligence the vessel owner is liable notwithstanding the fact that there may be no causal connection between the damage and the lack of diligence. By the 1936 Act, the vessel owner, while required to exercise due diligence in furnishing a seaworthy vessel, incurs no liability for loss arising even from unseaworthiness unless such is caused by lack of due diligence to make the vessel seaworthy. In short, the later Act, unlike the earlier one, does not condition its exemptions upon due diligence to make the vessel seaworthy, but only liability for loss due to unseaworthiness is so conditioned.
The 1936 Act expressly relates to foreign trade, that is, to the transportation of goods between ports of the United States and ports of foreign countries. However, provision is made for adoption of the Act by express agreement in cases of domestic trade. § 13, 46 U.S.C.A. § 1312. The 1936 Act is not made applicable to charter parties but its provisions may be incorporated by reference as has been done in this case. § 5, 46 U.S.C.A. § 1305. See Mente & Co. v. Isthmian S. S. Co., D.C., 36 F.Supp. 278; Id., 2 Cir., 122 F.2d 266. Section 3 of the Act, 46 U.S.C.A. § 1303, in defining seaworthiness, provides as follows: (1) "The carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to
"(a) Make the ship seaworthy;
"(b) Properly man, equip, and supply the ship; * * *." Then, as already pointed out, Section 4 of the Act provides that there shall not be liability for loss or damage arising from unseaworthiness unless caused by want of due diligence to make the ship seaworthy, properly man, equip, etc., Section 4 repeating in effect, the language of Section 3 and providing, as we have seen that "Whenever loss or damage has resulted from unseaworthiness, the burden of proving the exercise of due diligence shall be on the carrier or other persons claiming exemption under this section." Thus "The carrier may immunize himself, by diligence, from losses due to unseaworthiness. The new Act thus reaches the result which was argued for in The Carib Prince [170 U.S. 655, 18 S.Ct. 753, 42 L.Ed. 1181] and by the Supreme Court there rejected." Robinson on Admiralty, Section 71, pages 512, 513.
Therefore, to summarize, the following principles seem clear from the language of the Act: (1) The shipowner has the burden of proving that the vessel was seaworthy when she sailed, or that he had exercised due diligence to make her so; but (2) even if the shipowner fails in this proof, the claimant still cannot recover unless he sustains the burden of proving that the unseaworthiness did, in fact, cause the loss or damage in question.
It is contended on behalf of the claimant here that by incorporating in the charter party the provisions of the 1936 Act, the vessel owner thereby converted the contract of carriage from that of a private to a common carrier who had, in effect, assumed the obligation of an insurer. However, we find no support for this theory in the decisions or otherwise any merit in it. Given the status of a private carrier, such as unquestionably was the status of the owner of the Temple Bar in the present instance, it is not incompatible with such status for the vessel owner, if he sees fit to do so, to contract that his liability as a private carrier may be different from what the law would otherwise impose upon him. This is all that the present shipowner has done by agreeing to make himself subject to the provisions of the 1936 Act. See Mente & Co. v. Isthmian S. S. Co., supra; The Agwimoon, D.C., 24 F.2d 864; affirmed Atlantic Gulf & West Indies S. S. Lines v. Interocean Oil Co., 4 Cir., 31 F.2d 1006. In this connection see the quite recent opinion of the Supreme Court in Commercial Molasses Corporation v. New York Tank Barge Corporation, 314 U.S. 104, 62 S.Ct. 156, 86 L.Ed. ___, which, however, does not involve either the Harter Act or the 1936 Act.
*614 Adapting, then, the aforegoing principles to the present case, we turn to a consideration of the facts as disclosed by the evidence.
The cargo owner makes five charges of unseaworthiness against the vessel: (1) That the compasses were not adjusted by shore adjusters at the loading point as they should have been because of the character of the cargo; (2) that the steering compass was totally or substantially dry during the entire voyage; (3) that the vessel's sounding machine lacked wire during the voyage; (4) that the vessel's charts were improper in that they were (a) too small as to scale; (b) insufficient as to depth data; (c) failed to show James Island light; (d) incorrect as to variation figures; and (5) that the vessel's Coast Pilot was inadequate.
Taking up the evidence as bearing upon these charges in the order named, and therefore considering first the compasses, I find that unseaworthiness cannot be predicated upon failure to have had them adjusted by shore adjusters at the loading point, for two reasons: (1) There is no proof of the existence of a custom or practice at any ports in this country, of vessels having such adjustments made merely because of this, or any other type of cargo, independently of need for such adjustment being indicated; (2) there is no proof that either the standard or the steering compass was affected by any magnetism from the cargo, or from use of magnetic cranes for loading the scrap iron. As is customary, the compasses were kept ashore while the loading was being done, and the vessel's scrap-log indicates that there was no more deviation, i. e., the difference in degrees between the direction of the magnetic pole and the compass needle, caused by the ship, her cargo, etc., after the cargo was loaded, than before.
As to the second contention, namely, that the steering compass was totally or substantially dry during the entire voyage, little time need be devoted to this contention because, first, there is no convincing proof that the compass exhibited in the course of the trial was, in fact, the steering compass actually used on the Temple Bar during this particular voyage. Even counsel for the claimant do not affirmatively so contend. Also, this exhibited compass has changed hands many times and there is no proof as to what its condition was when taken from the vessel, assuming that it was on the vessel at the time of the stranding. When exhibited in Court it was filled with proper liquid. Second, it is entirely unreasonable to suppose that if at any time in the course of the voyage, the Temple Bar's steering compass was totally or substantially dry, the vessel could have been steered with any degree of precision. That is to say, it is common knowledge that a compass in such condition would "run wild" and therefore it is not reasonable to assume that any licensed navigator, upon finding that a compass acted in this way, would not have had it corrected forthwith.
As to the vessel's sounding machine, the testimony is as follows: The shipowner's Superintendent Engineer stated that when the Temple Bar left England in January, 1939, she had full standard equipment in this respect, namely, that she was equipped with a Whyte-Thompson patented sounding-machine capable of taking soundings at any speed; and that she also had two hand lead lines, one a deep sea lead and one for shallow work. The sounding-machine consisted of a steel wire on a hand-driven winch, with a lead sinker and sheath containing the compass and tube for depth recording. The master testified to the same effect and also that this equipment had been overhauled regularly, and that, to the best of his knowledge, it was in the same condition at the time of stranding as when the vessel left Port Everglades.
The fact that the only one of the vessel's logs, namely, the scrap-log, that was salvaged, does not show that this sounding machine had been used on this voyage prior to January 4, 1939, does not appear to justify the inference that it was not in good working order prior to the stranding, any more than does the fact that no order was given to use it on the night of the stranding. The vessel's radio beacon finding apparatus was not resorted to as a position finder on that evening, yet that apparatus was admittedly in good working order at the time.
The absence of any wire on the spool of the sounding apparatus when the vessel was boarded after the stranding, and the fact that the spool was rusty, form the basis of the main argument for the cargo claimant that this equipment was not in good working order at the time of the stranding, namely, that no wire was in fact available for soundings. Special reliance is placed by the claimant upon the testimony of Chief Boatswain Reutercrona, and others, of the local Coast Guard Station, which *615 is to this effect. However, it is uncontradicted that representatives of the Coast Guard did not board the vessel until more than 24 hours following her stranding, and that they did not go on the stern of the vessel where the sounding machine was located until a week after their first visit. These facts, coupled with the fact that, as we find from the weight of the credible evidence, Indians living along this part of the Washington coast were seen to go to and from the vessel frequently in their canoes, and to carry off a great deal of her equipment from time to time; and that representatives of the United States Customs Service who went aboard in company with the Coast Guard men, and two salvors, took off a great deal more, overcome, we think, such presumption as might arise that complete sounding equipment was not on the vessel and in good working order at the time of the stranding. Both whites and Indians who could get aboard the vessel before she began to break up seem to have helped themselves pretty much to whatever they wanted, that was removable. No effective patrol was ever established around the vessel by the Coast Guard, who admit that coils of wire, never accurately identified, were taken off.
Coming next to the claim that the vessel's charts were improper, we will consider the first ground for this contention, namely, that the only chart for this part of the Pacific coast which was on board the vessel was a British chart, issued in 1920 and corrected only to 1928, and of too small a scale. However, this chart was on the largest scale of coast charts published and made available by the British Admiralty for the coast of Washington at the point of stranding at the time the Temple Bar began her voyage. A British vessel navigating American waters cannot be held to be unseaworthy for mere failure to have on board an American chart, or the latest edition of a British chart, provided what she does have available is complete as to all lights, signals, buoys and other aids to navigation. Although a small scale chart and not as complete in all respects as the latest United States chart, we find from the weight of the credible evidence it was entirely adequate for safe navigation, and contained in this respect all the aids to navigation which the later British and American charts contained. The Master of the Darlington Court, another British vessel which safely passed by, only a few hours before, the point where the Temple Bar stranded, carried only British charts. We find in the authorities no such requirement as to charts as that for which claimant contends. See The Tregenna, 2 Cir., 121 F.2d 940; The Maria, 4 Cir., 91 F.2d 819; United States Steel Products Co. v. American & Foreign Ins. Co., 2 Cir., 82 F.2d 752; The Oritani, D.C., 40 F.2d 522, affirmed 3 Cir., 54 F.2d 1075.
Next, as to the claim that this chart had insufficient depth data, by comparing it with later British charts it appears that it had identical contour lines showing one hundred fathom and fifty fathom depths along the coast in the general vicinity of the place where the stranding occurred. Thus, any soundings showing less than one hundred fathoms would immediately locate the vessel inside the one hundred fathom contour; and any sounding showing less than fifty fathoms would likewise locate the vessel inside the fifty fathom contour. Since, however, no soundings were, in fact, made on the night of the stranding, the absence of sounding figures on this chart did not and could not have contributed to the stranding in any way.
As to the claim that the chart was inadequate in that it failed to show James Island light, suffice it to point out that there is no evidence contradicting that of Captain Bain, a Lieutenant Commander in the United States Navy, on inactive list, and at the present time Assistant Superintendent of the Hawaiian-American Steamship Company, and of Captain McQueen of the Donaldson Line, testifying on behalf of the vessel owners, that this small light was of relatively small candle-power and was never relied upon for coastal navigation. Its position and candle-power indicate that it was established for small craft entering the shallow Quillahute River. Furthermore, it is significant that this light likewise does not appear on the later and revised British Admiralty chart with which the cargo claimant says the vessel should have been equipped. It does, however, appear in the List of Lights and Tides of the World which was found on the Temple Bar after the stranding.
Lastly, we turn to the contention that the chart contained incorrect variation figures, that is to say, that it contained misinformation as to variation on the chart's compass roses. The compass rose on the chart nearest in line with the *616 Temple Bar's April 7th noon position, when calculations for variation according to that rose are made down to the year 1939, shows variation 23° 47" E. By the later Admiralty chart, the variation for the same position computed for 1939 would be 22° 5" E. The claim therefore is made that the master of the Temple Bar, being thus misinformed by the chart as to what was the actual variation, used the incorrect figure in laying his April 7th course. However, the log states the noon variation on April 7th to be 22° 45" E and not 23° 47" E as computed by the old chart. Therefore, the misinformation as to variation on the old chart cannot be said to have misled the master, because it does not appear that he used or recorded in his log the variation figure that accorded with that chart. Furthermore, even assuming that he had used it, it is clear from the testimony that the greater the total easterly compass error, the more westerly would be the compass course necessary to compensate for such error. That is to say, even if the master had relied on the variation figure of his chart, since it was a greater easterly variation than appears from the later charts, he then would have steered to that extent a more westerly course than was necessary, and would not have been taken further inshore, but further offshore.
Finally, as to the claim that the vessel's British "Coast Pilot" was inadequate, suffice it to say that this volume contained all of the information to be found in the later edition of it, and substantially the same information contained in the corresponding United States "Coast Pilot." So there can be no ground for saying that the older edition was inadequate.
We thus reach the conclusion that there is a complete failure of proof that the vessel was unseaworthy in any of the foregoing respects, or that if she was, her owner had failed to use due diligence to make her so, when she sailed from the Florida east coast, or that unseaworthiness had any causal connection with the stranding. We are not unmindful of the fact that Captain Moloney, of Seattle, a marine surveyor, testifying for the cargo claimant, stated that he thought the Temple Bar was unseaworthy as respects the first four of the grounds just analyzed. However, and taking into full account the fact that Captain Moloney had had long experience in west coast navigation, although recently he had not been in command of any large vessels, we do not think that his testimony is nearly as convincing as the testimony given by Captains Bain and McQueen on behalf of the vessel owner, who had made many trips up and down this west coast. Epitomizing their testimony as to what they both believed to have been the cause of the disaster, it gives a clear and completely convincing picture of extreme negligence on the part of the master in navigating the Temple Bar who, it is to be noted, had never previously navigated these waters. That is to say, while he had laid down a proper course, he did not check his positions between noon on April 7th and the time of stranding as he should have done by radio cross bearings or soundings, or both; namely, he failed to account properly for an inshore set; and although he had allowed 5° W for such a set the night before, he failed to make any allowance of this kind on the night of the stranding, presumably, because not having found that a set had materialized on the previous night, he considered such an allowance not necessary the next night.
Only about five hours prior to the Temple Bar's stranding another British freighter of comparable size, the Darlington Court, to which reference has previously been made, passed the location, going in the same direction on a course N 11° W (T). Her master testified that he had only British charts; that he established his position from time to time by radio cross bearings; that in the afternoon and evening of April 7th he had twice altered his course due to a strong easterly set which varied in speed from one-half to two miles an hour; that he had made numerous trips along this coast, the navigation of which required extra care; that, therefore, it was his custom to be on the bridge or in close touch with the navigation of his vessel throughout a voyage along this coast; that he had never, in fact, previously encountered as strong an easterly set as that which he experienced on April 7th; and that while on this particular evening the weather was not such as to necessitate taking soundings, on other occasions when navigating this coast in thick weather, he had frequently resorted to the taking of soundings in order to check his vessel's position, and that in both thick and clear weather he had frequently made use of radio cross bearings for the same purpose.
While the Temple Bar was not equipped with the latest edition of the British Admiralty *617 Sailing Directions entitled "West Coast of Central America and United States", there was on board the 1935 edition of this publication which contained all of the information to be found in the later edition. Furthermore, we find no merit in the contention that the vessel's equipment was deficient in that there was not aboard the vessel a copy of the United States Coast Pilot for the Pacific Coast, since the information contained in the corresponding publication of the British Admiralty just referred to is substantially the same. For example, we find the following taken from the British Admiralty Sailing Directions (page 33) to be duplicated, substantially verbatim, in the American publication: "Navigation along the Pacific coast of the United States is required to be carried out with all due caution, as the courses between salient points are, in general, long, and must be traversed during frequent periods of thick weather with the vessel subject to the action of currents (page 23), the rate and direction of which are uncertain." Also "From a study of the investigations made into the causes of strandings on this coast, it was found, however, that a large percentage of the strandings were due to the lack of the ordinary precautions essential to safe navigation having been taken, e. g., soundings, knowledge of compass deviation, etc."
It is true that the Carriage of Goods by Sea Act does not reduce the standards, imposed previous to that legislation, by which the seaworthiness of a vessel is to be tested, nor the requirements which constitute the exercise of due diligence. It must also be conceded that if the facts in any case disclose unseaworthiness resulting from the vessel owner's failure to exercise due diligence to make the vessel seaworthy, which concur with negligent navigation in causing the loss, the owner will be liable. That is to say, unseaworthiness cannot be transformed into bad seamanship for the purpose of avoiding responsibility for loss of vessel or cargo. If more than one means is required to effect seaworthiness, the lack of any one of them cannot be excused. The Maria, 4 Cir., 91 F.2d 819; Leathem Smith-Putnam Navigation Co. v. National Union Fire Insurance Co., 7 Cir., 96 F.2d 923.
In the present case the Court has been very definitely handicapped in its ability to form conclusions as to the credibility of many of the most important witnesses because, due to their foreign residence and war conditions, they, that is to say, the master and other officers and crew of the Temple Bar testified more than two years after the stranding and by deposition only. Thus, the Court never had an opportunity to see and to hear these witnesses and to form a first-hand impression as to their veracity or accuracy of statement. On the other hand, the Court has had the benefit of seeing and hearing other witnesses, notably Captain Bain and Captain McQueen, whose credibility has not been impeached in the slightest and whose long experience in the navigation of the Pacific coast must, we feel, be given all due weight. When this is done, and when due weight is given to the rest of the credible evidence, the conclusion seems inescapable that this is not a case of an attempt to transform unseaworthiness into bad seamanship for the purpose of avoiding responsibility.
We find no support in the testimony for the theory that the master of the Temple Bar had removed from the vessel and concealed her other important official records, such as the smooth log, the compass deviation card, etc. In short, we conclude that the weight of the credible evidence indicates that the stranding of the Temple Bar was cansed by faulty navigation of the very type which has, in fact, been virtually a concessum on the part of the vessel owner from the start, namely, that there was negligent failure of a very grave sort to check the vessel's position during the night of the stranding, by radio cross bearings or by soundings, or both, and we do no find that this negligence was in any respect caused by any unseaworthiness of the vessel. Captain Tucker, the Temple Bar's master, had held this position only since the previous year. He had never navigated our Pacific coast prior to this voyage. A short while before, while in command of the Temple Bar, she had grounded in Fehmar Sound, at the entrance to Kiel Bay, in a storm. However, it should be said, in fairness to the master, that the present record does not disclose facts from which it can reasonably be assumed that the master was responsible for this earlier misfortune. He gave as his explanation of the stranding with which we are concerned "an abnormally strong easterly set of current." But he is not to be exonerated from the results that followed when he failed to check his vessel's position by the use of the normal means which he admits he had at hand, and *618 which the prudent navigator would have used under such circumstances.
It thus becomes unnecessary to consider any of the other questions that have been raised, and a decree will be signed in accordance with this opinion, dismissing the claim. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594325/ | 432 N.W.2d 60 (1988)
STATE of South Dakota, Plaintiff and Appellee,
v.
Jimmy Lee BOYKIN, Defendant and Appellant.
No. 15668.
Supreme Court of South Dakota.
Argued March 22, 1988.
Decided November 16, 1988.
Janine Kern, Asst. Atty. Gen., Roger A. Tellinghuisen, Atty. Gen., on the brief, Pierre, for plaintiff and appellee.
John A. Schlimgen, Paul D. Stickney of Breit & Stickney, on the brief, Sioux Falls, for defendant and appellant.
HENDERSON, Justice.
PROCEDURAL HISTORY/ISSUES
On July 21, 1986, Defendant Jimmy Lee Boykin (Boykin) was indicted by a Minnehaha County grand jury on four counts: First-degree murder, first-degree murder/felony *61 murder, first-degree robbery, and kidnapping. After a jury trial, Boykin was found guilty on all of the counts except felony murder. The trial court sentenced Boykin to twenty-five years in the State Penitentiary on the robbery count, and life imprisonment without parole on the murder and kidnapping counts. Boykin appeals, arguing that the trial court erred in seven respects:
(1) Unauthorized communications between the bailiff and jurors deprived him of a fair trial;
(2) Admission of an incriminating statement he made to a police officer during a strip-search;
(3) Denial of a motion for mistrial following hearsay testimony regarding a codefendant's statement which was not redacted as the court had directed;
(4) Admission of Boykin's tennis shoes into evidence after the State negligently stored them allowing potentially exculpatory bloodstain evidence to deteriorate;
(5) Allowing testimony from State witnesses who had undergone hypnosis;
(6) Sufficiency of evidence to support the verdicts; and
(7) Denial of Boykin's motion for a change of venue.
Finding no grounds for reversal, we affirm Boykin's convictions.
FACTS
At 3:45 a.m., on June 19, 1986, Jean Larson was awakened by screams. She awakened her husband, and they looked out their farmhouse window. Larsons saw a truck in their driveway, one or more persons walking in front of the vehicle's headlights, and heard loud, angry conversation. Later that morning, on their way to town, the Larsons found a stabbed, beaten corpse in their cornfield. The body was that of DeWayne Jensen (Jensen), an elderly man who disappeared early in the morning of that day, midway through his newspaper delivery route in Sioux Falls.
Boykin and a companion, Howard Joseph Adams (Adams), were arrested the next day, June 20, 1986, in Mitchell, in connection with an unrelated robbery. Later, both were implicated in Jensen's murder, and transported to the Minnehaha County Jail.
Witnesses provided some details of Boykin's and Adams' activities in the time before and after the murder. They were stranded in Sioux Falls on June 18, 1986, when their car broke down. Looking for a friend, Harry Cokens, they encountered Marlene Anawski, who lived about four blocks from the Prairie Market. Anawski offered to let them spend the night in a tent in her backyard, and they accepted.
That night, Boykin and Adams shared a bottle of rum at a party at Mrs. Anawski's home. After the party, which ended at 12:45 a.m., both Boykin and Adams took a shower. Adams changed clothes, borrowing a shirt. He and Boykin then walked to the nearby Stockmen's Bar. Boykin stayed in the bar until approximately 3 a.m. Adams left around 2 a.m., but remained in the parking lot until Boykin joined him. They proceeded on foot to the Prairie Market parking lot where disputed testimony indicates their car was located.
By 5 a.m., they were back at their tent in Mrs. Anawski's backyard, asleep. At 9:30 a.m., Adams' wife picked them up. They had discarded their shirts, including Adams' borrowed one, and Adams' back was covered with scratches and a dark tarry substance. When Mrs. Anawski questioned Adams about losing her husband's shirt, Boykin was very quiet.
Investigation revealed that Jensen had started his morning deliveries at about 3 a.m. on June 19. The newspapers Jensen was to deliver to the Prairie Market were found in a jumble, although the first delivery on his route had been completed normally. He made no deliveries at stops scheduled beyond the Prairie Market. Jensen's pickup truck was found three blocks from the Anawski home, with bloodstains matching Adams' blood on the top, bumper, and side. Similar bloodstains were found on an abandoned stack of Jensen's papers. (Adams and Boykin both have type A *62 blood, though it differs in other respects. Jensen had type O blood.) The fillet knife Jensen kept in the vehicle to cut newspaper bindings was never found, but his stab wounds were well matched to an identical knife.
While in jail, Boykin made two self-incriminating statements. The first occurred during a strip-search, when he remarked to Deputy Sheriff Arntz that his shoes might match shoe prints at the site where Jensen was found. The second came in a conversation overheard by Arntz. When Adams stated "We aren't convicted yet," Boykin replied: "It looks like they've got us now."
Adams and Boykin were given separate trials. Adams was convicted of murder, robbery, and kidnapping. This Court affirmed Adams' convictions in State v. Adams, 418 N.W.2d 618 (S.D.1988). Adams raised the same arguments as Boykin now does regarding testimony of previously hypnotized witnesses. All seven issues are treated seriatim.
DECISION
I. UNAUTHORIZED COMMUNICATION BETWEEN BAILIFF AND JURORS
Boykin first asserts that communication between Bailiff Sandy Friessen and jurors during the second day of jury deliberations was prejudicial and deprived him of a fair trial. We disagree, and affirm the trial court's finding that Boykin suffered no prejudice.
The communication in question took place on Thursday, January 29, 1987, during the jury's lunch break. According to Bailiff Friessen, Janet Johnson, a juror, asked her: "What happens if we can't come in with a decision?" Friessen replied:
Well if you can't come in with a decision, the Judge and the attorneys talk it over on how long you have been deliberating, then it's up to them whether to send you back into the juryroom and say deliberate some more or they're going to take your answer as whatever you give for an answer.
I don't know when you're going to come in with a decision. My guess is if you're telling me that you're gonna come in after lunch and say you can't make a decision, I think the Judge would probably send you back into the juryroom, you know, and try to talk some more and try to come to a decision.
At no time did any member of the jury indicate that they were deadlocked or having any difficulty reaching a decision, although, according to Johnson, the jurors did discuss, among themselves, what might happen if they did become deadlocked. The jury continued its deliberations, and rendered its verdict the following morning, on January 30, 1987.
Boykin filed a motion for new trial based, in part, on the bailiff/juror communication. A hearing was held on February 2, 1987, whereat Bailiff Friessen testified. The hearing was continued two days later, on February 4, at which time Janet Johnson testified that she did not remember her conversation with Bailiff Friessen. Juror Johnson also testified that no attempt by any juror to communicate with the judge was frustrated by Friessen or anyone else, that no attempt to influence either her vote or the time of the verdict was made, and that there was no discussion among the jurors of Friessen's statement. After Johnson's testimony, the trial court concluded that Boykin, beyond a reasonable doubt, had suffered no prejudice. On February 9, 1987, Boykin submitted an affidavit from Anita Greenhoff, another juror, to the effect that she had overheard the exchange between Friessen and Johnson. After the prosecutor declined to offer new evidence, the trial court indicated that it was still satisfied that no prejudice had occurred, and denied Boykin's motion for new trial.
State and Boykin agree that the bailiff's communication was improper (see SDCL 23A-25-5[1] and SDCL 23A-25-8[2]). The *63 standard set forth by the United States Supreme Court in Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), is controlling:
In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant. Mattox v. United States, 146 U.S. 140, 148-150, 36 L.Ed. 917, 920, 921, 13 S.Ct. 50, [52-54] [ (1892) ]; Wheaton v. United States, (CA 8th S.D. [1943] ) 133 F.2d 522, 527.
Remmer, 347 U.S. at 229, 74 S.Ct. at 451, 98 L.Ed. at 656. South Dakota case law is entirely consistent with Remmer. See State v. Swallow, 350 N.W.2d 606, 610 (S.D.1984); State v. Holt, 79 S.D. 50, 51-52, 107 N.W.2d 732, 733 (1961); State v. McCoil, 63 S.D. 649, 652, 263 N.W. 157, 158 (1935).
Boykin maintains that Bailiff Friessen's remarks were in the nature of a "get together" instruction or "Allen charge," a name derived from Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896) (concerning supplemental jury instructions encouraging a deadlocked jury to reach unanimous agreement). This Court disapproved the use of such supplemental instructions urging unanimity in State v. Ferguson, 84 S.D. 605, 612, 175 N.W.2d 57, 61 (1970): "To assure the integrity and independence of criminal jury verdicts in the future the use of supplemental get-together instructions is not commended." The substance of Bailiff Friessen's communication, however, belies Boykin's assertion. The Kansas Supreme Court found no "Allen charge" coercion where "[t]here is nothing in the bailiff's comments compelling the jury to reach a verdict no implication that they must remain sitting until a verdict was reached or, in any other way, putting pressure on the jury to reach a verdict." State v. Lovely, 237 Kan. 838, 840, 703 P.2d 828, 831 (1985). Here, the bailiff told Johnson, among other things, that the judge and attorneys might decide to let them go. As in Lovely, the communication was not coercive. Johnson's testimony as to the juror's lack of difficulty during deliberation, as well as the prosecutor's cross-examination of Bailiff Friessen, effectively rebutted the presumption of prejudice.[3] As the State presented testimony explaining the improper communication, a question of fact arose for determination by the trial court as to whether the defendant suffered any prejudice. State v. Olesen, 86 S.D. 367, 373, 196 N.W.2d 362, 365 (1972). On this record, the trial court's determination that no prejudice resulted was not clearly erroneous.
II. ADMISSION OF BOYKIN'S INCRIMINATING STATEMENT MADE DURING A STRIP-SEARCH
On July 18, 1986, Boykin was undergoing a strip-search in the clothing storage area of Minnehaha County Jail, a procedure undertaken by the police because Boykin was about to be transported to Davison County. This room was routinely used by police for strip-searches. During the search, Boykin began complaining about *64 police having earlier taken his tennis shoes, and that he would have to get another pair from Goodwill. Deputy Sheriff Doug Arntz, the officer conducting the search, commented that they had probably taken the shoes to make casts or take pictures to match the shoes to shoe prints at the crime scene. Boykin replied: "Yeah, maybe they do." The conversation was initiated by Boykin, and Arntz did not ask him any questions about the shoes. Boykin had been given Miranda warnings, but was not given any such warnings by Arntz in the clothing storage room. On January 15, 1987, a hearing was held on a motion to suppress Arntz' testimony regarding Boykin's statement. The trial court entered findings of fact to the effect that Boykin's statement was not made in response to any interrogation or questioning by police and Deputy Sheriff Arntz' remark could not reasonably be construed as an attempt to elicit any incriminating response on Boykin's part. Boykin's motion was denied by the trial court.
Boykin now alleges that denial of his suppression motion was erroneous, and that the admission of Arntz' testimony at his trial violated his Fifth Amendment rights against self-incrimination. Specifically, Boykin maintains that Arntz' comment was a subterfuge to elicit an incriminating response by trickery, and the statement, therefore, should have been suppressed under Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 237 (1980). We disagree.
In Innis, the United States Supreme Court vacated the Rhode Island Supreme Court's reversal of a conviction because the state court had stretched Fifth Amendment protections (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1632, 16 L.Ed.2d 694 (1966)) too far. The defendant in Innis led police to a shotgun used in a murder, after overhearing one of two policemen, riding in a police car; one policeman with him mused that children from a nearby school for the handicapped might find the weapon and hurt themselves. Justice Stewart, in the opinion of the Court, wrote:
A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.
Innis, 446 U.S. at 301-02, 100 S.Ct. at 1690, 64 L.Ed.2d at 308 (emphasis in original; footnotes omitted). On the facts of Innis, the Court held that the defendant, though in custody, had neither been interrogated nor subjected to the functional equivalent. Innis, 446 U.S. at 303, 100 S.Ct. at 1691, 64 L.Ed.2d at 309.
Arntz' offhand remark could not be considered to trigger Fifth Amendment concerns. Boykin's response was voluntary, as the trial court found. The same result was reached in State v. Harding, 137 Ariz. 278, 670 P.2d 383 (1983), cert. denied, 465 U.S. 1013, 104 S.Ct. 1017, 79 L.Ed.2d 246 (1984) (defendant, during a routine strip-search, initiated conversation with a policeman, and remarked that useable evidence might be found on his shirt and shoes taken at his arrest. Held: No interrogation). See also Harding v. Lewis, 641 F.Supp. 979, 997-98 (D.Ariz.1986).
We find no error by the trial court on this issue. The record does not support Boykin's allegation of subterfuge and does indicate that Boykin initiated the incriminating exchange.
III. ADMISSION OF A CODEFENDANT'S UNREDACTED STATEMENT
At trial, the court granted Boykin's motion to prevent the State from using hearsay statements from Adams against Boykin unless they were changed from the active to the passive voice (redaction) to remove references to Boykin.[4] A State witness, who appears to have been poorly prepared, later testified that Adams had *65 said that "the money wasn't what they were after, but the keys is what was worth real money." Boykin moved for a mistrial, which the court denied. The court, instead, issued an instruction limiting the jury's consideration of the remark to the question of Adams' guilt. Again, we affirm the trial court.
Boykin relies on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), wherein a conviction was reversed after a non-testifying codefendant's confession, that he and Bruton committed robbery, was admitted with a limiting instruction. The Supreme Court held that this violated Bruton's Sixth Amendment right to confront his accusers, expressly overruling earlier case law on the point. Bruton, id.
Evans' [the codefendant] confession added substantial, perhaps even critical, weight to the Government's case in a form not subject to cross-examination, since Evans did not take the stand. Petitioner thus was denied his constitutional right of confrontation.
Bruton,391 U.S. at 128, 88 S.Ct. at 1623, 20 L.Ed.2d at 480. Bruton involved a joint trial, whereas this case involved severed trials, but Simmons v. United States, 440 F.2d 890 (7th Cir.1971), reached the same result in severed trials. The error in Simmons was not considered harmless because the only other admissible evidence connecting the defendant to the crime was uncorroborated testimony by a single witness. Simmons, id.
We deign to express that the United States Supreme Court has not ruled on the precise point at issue here. In Richardson v. Marsh, 481 U.S. 200, 208, 107 S.Ct. 1702, 1707, 95 L.Ed.2d 176, 186 (1987), that Court contrasted a codefendant's "confession [that] was not incriminating on its face, and became so only when linked with evidence introduced later at trial" to Bruton's "powerfully incriminating" statements, and observed that in the case of the former there does not exist the overwhelming probability that a jury will disregard limiting instructions. Richardson, id. However, the Court in Richardson declined to express an opinion on the admissibility of a "confession in which the defendant's name has been replaced with a symbol or neutral pronoun." Richardson, 481 U.S. at 211 n.5, 107 S.Ct. at 1709 n.5, 95 L.Ed.2d at 188 n. 5.
The Bruton rationale does not, in all cases, require reversal. As noted in Bruton itself, "`[a] defendant is entitled to a fair trial but not a perfect one.'" Bruton, 391 U.S. at 135, 88 S.Ct. at 1627, 20 L.Ed.2d at 484 (citation omitted). Unlike Bruton, where the codefendant's confession directly named the defendant as a participant, Adam's statement makes no direct reference to Boykin. The reference to "they" only states that Adams was not alone, a fact the testimony of several independent witnesses supports.[5] Boykin's own statements regarding his shoes and his "It looks like they've got us now" comment to Adams while in jail overwhelmingly out weight the minimally inculpatory effect of an isolated "they" as used by Adams. Adams' statement, in this setting, is not a "powerfully incriminating" statement as envisioned by Bruton. See Bruton, 391 U.S. at 135-36, 88 S.Ct. at 1627-28, 20 L.Ed.2d at 485.
Despite violation of Boykin's Sixth Amendment right to confrontation through admission of Adams' unredacted statement, we hold the error, in this case, to be harmless. It was a cumulative statement. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969) (cited with approval in Cruz v. New York, 481 U.S. 186, 193-194, 107 S.Ct. 1714, 1719, 95 L.Ed.2d 162, 172 (1987)). Error of constitutional dimension may be deemed harmless where the reviewing court finds, absent the error, it is clear beyond a reasonable doubt that the jury would have returned a conviction. State v. Miller, 429 N.W.2d 26, 36 (S.D.1988); State v. Garritsen, 421 N.W.2d 499 (S.D.1988); High Elk v. State, 344 N.W.2d 497 (S.D.1984).
*66 IV. ADMISSION OF BOYKIN'S TENNIS SHOES AND ASSOCIATED BLOOD TEST RESULTS AFTER THE STATE'S NEGLIGENT STORAGE ALLOWED POTENTIALLY EXCULPATORY EVIDENCE TO DETERIORATE
Boykin and Adams were arrested on June 20, 1986, in Mitchell, South Dakota. The Mitchell police took Boykin's tennis shoes, which exhibited a minute bloodstain, later determined by ABO testing to be human blood of Type A. Both Adams and Boykin have Type A blood, but Jensen, the victim, did not. The shoes and the associated bloodstain were not refrigerated until they were received at the Department of Criminal Investigation (DCI) Laboratory in Pierre on July 2, 1986. Rex Riis, a DCI criminologist, successfully performed the ABO tests on the bloodstain, but his attempt to carry out electrophoretic tests[6] on the bloodstain was a failure. Electrophoretic tests, if successful, could have determined whether the blood on the shoes was that of Adams or Boykin, or that of a third person. Boykin made a motion to exclude any testimony concerning the results of tests on the shoe bloodstain, asserting that the State's negligence in failing to refrigerate the shoes deprived him of potentially exculpatory evidence.
It is clear that suppression by the prosecution of evidence favorable to an accused violates due process rights under the Fourteenth Amendment where the evidence has been requested by the accused and is material either to guilt or punishment, irrespective of the good or bad faith of the prosecutor. State v. Clabaugh, 346 N.W.2d 448, 450 (S.D.1984) (citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)).[7] "[W]hen the Government has been responsible for delay resulting in a loss of evidence to the accused, we have recognized a constitutional violation only when loss of the evidence prejudiced the defense." United States v. Valenzuela-Bernal, 458 U.S. 858, 868, 102 S.Ct. 3440, 3447, 73 L.Ed.2d 1193, 1203 (1982). The extent of the government's duty to take affirmative steps to preserve evidence on behalf of criminal defendants is, however, not precisely clear. See California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984).
Whenever potentially exculpatory evidence is permanently lost [through prosecutorial neglect or oversight], courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed.
Trombetta, 467 U.S. at 486, 104 S.Ct. at 2533, 81 L.Ed.2d at 421 (citing Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440).
Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense. To meet this standard of constitutional materiality, see United States v. Agurs, 427 U.S. [97], at 109-110, 96 S.Ct. 2392, at 2400, 49 L.Ed.2d 342 [(1976)], evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.
Trombetta, 467 U.S. at 488-89, 104 S.Ct. at 2534, 81 L.Ed.2d at 422 (footnote omitted). The difficulty Boykin faces here is proving the materiality of the allegedly lost evidence.
According to Rex Riis, the criminologist, the bloodstain in question was so minute that electrophoretic testing was as likely to be unsuccessful through insufficiency of the amount of blood itself as through failure to freeze the sample. There is, according to this record, no showing that government mishandling deprived Boykin of any evidence because the blood sample was so small. As, at trial, the blood on the shoe could not be proven to be Adams' or Boykin's, and inasmuch as the *67 time the shoe was bloodied could not be proven, the inculpatory inferences a jury could draw from the ABO test were very weak, as was brought out at trial. The lack of electrophoretic test results lessened the inculpatory effect of the ABO test results admitted at trial. Even were the blood actually proven to be Adams', the proximity of Adams and Boykin in the tent where they slept on the morning of the murder could explain the stain in a light favorable to Boykin.
In a case where the State destroyed a blood sample in proving a bloodstain on the defendant's coat was Type A (as was the victim's), the Connecticut Supreme Court rejected the defendant's argument that he was prejudiced by the sample's destruction:
His principal claim is that, with the more sophisticated testing procedures his expert would have used, the blood groupings might have been more narrowly confined. That the evidence was less significant than it might have been if different techniques had been used did not, as far as can be ascertained, prejudice the defendant any more than the state. Counsel had the opportunity to explain the limited probative value of this evidence to the jury and presumably did so.
State v. Morrill, 197 Conn. 507, 549, 498 A.2d 76, 100 (1985). Morrill listed the following factors which courts should consider regarding the admissibility of lost or destroyed evidence: 1) The reason for the unavailability of the evidence; 2) the materiality of the evidence; 3) the likelihood of mistaken interpretation of it by witnesses or the jury; and 4) the prejudice to the defendant caused by the unavailability of the evidence. Morrill, id. Here, the State was potentially culpable in that the blood was negligently left unfrozen, but the defendant did not show electrophoretic testing was possible, absent the negligence, and two persons with Type A blood are involved, making the inculpatory inferences weaker.
Considered in the context of this case, the failure to freeze the blood sample did not violate Boykin's right to due process. "[A] defendant's due process rights are violated only if the undisclosed evidence creates a doubt which did not otherwise exist." State v. Sarabia, 118 Wis.2d 655, 670, 348 N.W.2d 527, 536 (1984) (interpreting United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)). The lack of electrophoretic results here did not deprive Boykin of any reasonable doubt because the ABO evidence that was presented at trial was so doubtful itself. We therefore find no reversible error in the trial court's admission of the ABO blood test results. The alleged exonerating effect of any electrophoretic testing, considered in conjunction with the evidence produced at trial, would not have altered the ultimate verdict of the jury. State v. Cody, 323 N.W.2d 863, 868 (S.D.1982).
V. HYPNOSIS OF WITNESSES
Boykin's challenge to the trial court's admission of post-hypnotic testimony of State witnesses Mike Rensch and Joe Kuusela is similar to that presented by Adams in State v. Adams, 418 N.W.2d 618, 622-24 (S.D.1988). As in Adams, we affirm on the basis that the trial court substantially followed the "procedural safeguards" approach to such testimony set out by the Eighth Circuit Court of Appeals in Sprynczynatyk v. General Motors Corp., 771 F.2d 1112 (8th Cir.1985),[8] and Little v. Armontrout, 819 F.2d 1425 (8th Cir.1987), and limited the witnesses to testimony corroborated by pre-hypnotic statements. See Adams, 418 N.W.2d at 624.
*68 The trial court did not abuse its discretion. Adams, id.
VI. INSUFFICIENT EVIDENCE
We affirm the trial court's denial of Boykin's motions for judgment of acquittal based on insufficiency of evidence to support the jury's verdict. In determining the sufficiency of evidence on appeal, the question is whether there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt. State v. Banks, 387 N.W.2d 19, 27 (S.D.1986); State v. West, 344 N.W.2d 502 (S.D.1984). In making that determination, the Court will accept that evidence, and the most favorable inferences fairly drawn therefrom, which will support the verdict. Banks, id.
Here, evidence supports inferences that Boykin was in the company of Adams at all relevant times. They were placed in the Prairie Market parking lot at the time the victim's route was interrupted. Two persons were seen at the farm where the body was discarded. The victim's truck (linked to Adams by blood evidence) was found within three blocks of the Anawski residence where Boykin and Adams were. Two witnesses, Bob Bankes and Harry Cokens, testified that Adams and Boykin, shortly before the murder, indicated that they were going to get some money. Jensen was, apparently, robbed. Also, Boykin's own statements linked him to the crime (to Arntz: "Maybe they do"; to Adams: "It looks like they've got us now."). The evidence, and legitimate inference therefrom, was sufficient to convict Boykin.
VII. CHANGE OF VENUE
Boykin alleges that the trial court abused its discretion in refusing to grant his motion for change of venue, and refusal to grant him ten additional peremptory challenges. Boykin alleges that fair trial was impossible because of the volume of pretrial publicity, and pretrial knowledge of the case on the part of jurors, as shown by an additional survey he presented to the trial court.
We disagree. "Pretrial publicity alone is not enough to deny a fair trial or, in other words, to warrant a change in venue." State v. Luna, 378 N.W.2d 229, 236 (S.D. 1985) (citing Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975)). Qualified jurors may have some knowledge of the facts and issues involved without burdening a defendant's Sixth Amendment rights. State v. Bonrud, 393 N.W.2d 785, 791 (S.D.1986); Luna, 378 N.W.2d at 236. Boykin has not shown unfair press coverage, and failed to transcribe the voir dire of potential jurors. A public opinion survey authorized by the trial court was also not preserved in this record by Boykin. As voir dire is the better forum for ascertaining the existence of hostility towards the accused (see Bonrud, 393 N.W.2d at 791), and no record exists for us to review, we cannot conclude that Boykin has suffered any prejudice. Appellant, as the party claiming error, had the responsibility to insure that a record was made. State v. Jones, 416 N.W.2d 875, 878 (S.D.1987). The settled record is the sole evidence of the circuit court's proceedings and, when confronted with an incomplete record, our presumption is that the circuit court acted properly. Id. Boykin's convictions are, therefore, affirmed.
All the Justices concur.
NOTES
[1] SDCL 23A-25-5 provides (in pertinent part): The officers shall not permit any person (including themselves) to communicate with the jurors or to ask whether they have agreed upon a verdict except by order of court.
[2] SDCL 23A-25-8 provides:
After jurors have retired for deliberation, if there is a disagreement among them as to any part of the testimony or if they desire to be informed upon a point of law arising in the case, they shall ask the officer having them in charge to convey their written request to the court. Any information allowed by the court must be given in the presence of, or after notice to, the prosecuting attorney and the defendant or his counsel, and must be taken down by the court reporter. (Emphasis supplied.)
[3] The timing of the communication, during lunch on Thursday, when considered in light of the jury's delivery of its verdict the following morning, also militates in favor of the trial court's denial of Boykin's motion for new trial. See United States v. Hooten, 662 F.2d 628, 636-37 (9th Cir.1981).
[4] For example: "We drove the car" would be redacted to "The car was driven."
[5] Attention is drawn to Mrs. Larson's testimony indicating that more than one person passed in front of the truck lights at the site of the victim's body. Two witnesses testified that Boykin and Adams told them at the Stockmen's Bar that they were about to come into some money.
[6] A process this Court approved in the appeal of Boykin's codefendant, Adams, in State v. Adams, 418 N.W.2d 618 (S.D.1988).
[7] Accidental destruction of blood samples in the mails does not constitute a violation of due process. State v. Huettl, 379 N.W.2d 298 (S.D.1985).
[8] In Sprynczynatyk, the Eighth Circuit required, as a threshold consideration, that the following procedural safeguards be met:
1) Only an impartial licensed psychiatrist or psychologist trained in the use of hypnosis should conduct hypnotic sessions;
2) Any information given to the hypnotist should be noted, preferably in written form;
3) The hypnotist should obtain a detailed account of facts from the subject before hypnosis;
4) The session should be recorded, preferably on videotape; and
5) No one other than the hypnotist and subject should be present during the session, unless it is shown the other's attendance was essential and that steps were taken to avoid influencing the results.
Sprynczynatyk, 771 F.2d at 1123 n. 14; State v. Adams, 418 N.W.2d at 624 n. 9. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593264/ | 45 F.Supp. 772 (1942)
SEARS et al.
v.
HASSETT, Collector of Internal Revenue.
Civil Action No. 1496.
District Court, D. Massachusetts.
March 20, 1942.
Robert G. Dodge, of Boston, Mass. (Walter A. Barrows, of Boston, Mass., on the brief), for plaintiff.
George F. Garrity, Asst. U. S. Atty., of Boston, Mass. (Samuel O. Clark, Jr., Asst. Atty. Gen., Andrew D. Sharpe and Frederic G. Rita, Sp. Assts. to Atty Gen., and Edmund J. Brandon, U. S. Atty., of Boston, Mass., on the brief), for defendant.
WYZANSKI, District Judge.
In accordance with Federal Rules of Civil Procedure, rule 56(a), 28 U.S.C.A. following section 723c, the plaintiffs have moved for a summary judgment in their suit to recover from the Collector of Internal Revenue amounts paid on account of income taxes for 1937. There are no issues of fact. The only issue of law is whether from June 24, 1937, to the end of that year the trustees of the F. R. Sears Real Estate Trust were taxable as an "association" within the meaning of Section 1001 of the Revenue Act of 1936, c. 690, 49 Stat. 1648, 26 U.S.C.A. Int.Rev.Acts, page 971.
During that period the trustees held one parcel of real estate which in 1921 they had leased to S. S. Kresge Co. until 1972, with an option for an extended period. The lease requires the lessee to pay taxes and assume all burdens, obligations and risks which the law casts on owners of real estate.
At all material times the trust instrument itself limited the trust to the holding of that one parcel and to the receipt and disbursement of income and proceeds from it. The trust comes to an end upon the sale of the property or the termination of the lease. The trust gave no specific power to develop the real estate, to rebuild damaged structures, to lease, to employ assistants, to acquire property, to make investments or transact other business. There was no provision purporting to exempt the trustees and beneficiaries from personal liability, although the beneficiaries agreed to indemnify the trustees for liability they incurred as holders of the legal title.
The only indicia upon which the Collector relies to support his argument that *773 this is an association are these: The beneficial ownership in the trust is represented by certificates of interest; the certificate holders retain the power by a two thirds vote to amend the trust; and the trustees are empowered to maintain out of income a reserve for paying any mortgage placed upon the parcel of real estate owned by the trust.
In my opinion the case for the taxpayers is so plain that discussion is unnecessary and would be ostentatious. Cleveland Trust Co. v. Commissioner, 6 Cir., 115 F.2d 481; Commissioner v. Gibbs-Preyer Trusts, 6 Cir., 117 F.2d 619; Myers v. Commissioner, 7 Cir., 89 F.2d 86; Paine v. United States, D.C.D.Mass., 32 F.Supp. 672. Compare Sears v. Hassett, 1 Cir., 111 F.2d 961.
The motion for summary judgment is granted in accordance with its terms. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593280/ | 19 So.3d 922 (2007)
JAMES ARTHUR BROWN
v.
VERONICA MICHELLE BROWN.
No. 2060487.
Court of Civil Appeals of Alabama.
November 16, 2007.
Decision of the Alabama Court of Civil Appeal Without Published Opinion Reh. denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593342/ | 954 So.2d 57 (2007)
HIGHTOWER GEOTECHNICAL SERVICES, INC., Appellant/Cross-Appellee,
v.
HBE-FLORIDA CORPORATION, et al., Appellee/Cross-Appellants.
No. 5D05-2755.
District Court of Appeal of Florida, Fifth District.
March 23, 2007.
Rehearing Denied April 25, 2007.
*58 Michael J. Korn, of Korn & Zehmer, P.A., Jacksonville, Rosanne P. Perrine of the Law Office of Rosanne Perrine, Ponte Vedra Beach, Harold S. Lippes of Lippes & Bryan, P.A., Jacksonville, and Dudley B. Birder, Jr., of Birder & Donsky Law Offices, P.A., Gainesville, for Appellant/Cross-Appellee.
Cheryl L. Worman and F. Eugene Atwood, Jr., of Rogers Towers, P.A., Jacksonville, for Appellee/Cross-Appellants.
PALMER, J.
Hightower Geotechnical Services, Inc. (Hightower) appeals the final judgment entered by the trial court arising out of litigation between the parties involving a construction contract. Appellees filed a cross-appeal. Determining that the trial court improperly entered a judgment for certain amounts against Hightower, we reverse and remand for entry of an amended final judgment.
Hospital Building and Equipment Company (HBE) is a general contractor that was hired by HBE-Florida to construct an addition onto an Adam's Mark Hotel. Hightower is a subcontractor who entered into a subcontract with HBE to perform chemical grout stabilization around the construction site.
During the course of construction, problems arose with Hightower's work. As a result, Hightower was removed from the job. HBE refused to pay two of Hightower's invoices based on the alleged unsatisfactory work. HBE also hired a different subcontractor to complete the work which was originally to be performed by Hightower.
Hightower filed a complaint against HBE and HBE-Florida seeking to establish and foreclose a construction lien on the hotel property and for breach of contract. HBE filed a counter-claim alleging a breach of contract claim against Hightower.
At trial, Hightower stated it was paid $238,075.20 for its work but contended that it was due additional monies, including retainage and unpaid contract sums. HBE claimed, among other things, that it was entitled to recover from Hightower the money it spent to complete the project.
After conducting a bench trial, the trial court concluded that Hightower was owed $5,375.10 for services performed in the last phase of the contract. The court also found that HBE was entitled to recover damages incurred by it in completing the last phase of the work. As a result, a net judgment was entered in favor of HBE.
On appeal, Hightower argues that the trial court erred in denying its motion to *59 amend the final judgment to add an award for unpaid retainage. We find no error in the trial court's factual conclusion that Hightower was not entitled to recover the retainage because the reasonable value of the work it performed did not exceed the amount it was paid plus the $5,375.10 awarded to it in the final judgment.
However, we conclude that the trial court did err in awarding HBE the money it expended in completing the project after Hightower was removed from the job. No evidence was presented that HBE expended more money to complete the work than it would have paid Hightower if it had properly completed the work. Since HBE was not required to pay Hightower for any of the work it performed on the last phase (except the $5,375.10 for unrelated work during that phase), it could not properly charge Hightower for the money it paid another subcontractor to complete that phase. To do so would improperly allow HBE to receive the work performed on the last phase at no cost. See Mnemonics, Inc. v. Max Davis Assoc., Inc., 808 So.2d 1278 (Fla. 5th DCA 2002) (holding that an award of damages for breach of contract is intended to place the injured party in the position he or she would have been had the breach not occurred).
Accordingly, we reverse the final judgment and remand this case to the trial court for the entry of a judgment in favor of Hightower in the amount of $5,375.10 and for such other relief as is warranted by this opinion.
In closing, we note that Hightower has filed a motion with this court seeking an award of appellate attorney's fees pursuant to the provisions of section 713.29 of the Florida Statutes on its claim for foreclosure of a construction lien. We provisionally grant that motion and direct the trial court to determine whether Hightower is entitled to prevail on its claim for foreclosure of its construction lien and, if so, to determine the reasonable amount of appellate fees to be awarded.[1]
AFFIRMED in part; REVERSED in part; and REMANDED.
GRIFFIN and EVANDER, JJ., concur.
NOTES
[1] It appears from the record that the only reason Hightower did not prevail on its construction lien claim was because it did not receive a net judgment in its favor. However, it is possible that other grounds existed to deny that claim, but were not articulated by the trial court because of its entry of a net judgment in favor of HBE. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1022871/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6694
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TERENCE JEROME RICHARDSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (3:00-cr-00383; 3:07-cv-00184)
Submitted: June 21, 2007 Decided: June 29, 2007
Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Terence Jerome Richardson, Appellant Pro Se. David John Novak,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terence Jerome Richardson appeals the order of the
district court dismissing for lack of jurisdiction Richardson’s
motion filed under Fed. R. Civ. P. 60(b) but characterized by the
district court as a successive 28 U.S.C. § 2255 (2000) motion.
Richardson may not appeal from the denial of relief in a
§ 2255 proceeding unless a circuit justice or judge issues a
certificate of appealability. See 28 U.S.C. § 2253(c)(1) (2000).
Richardson may satisfy this standard by demonstrating that
reasonable jurists would find both his constitutional claims are
debatable and that any dispositive procedural rulings by the
district court are debatable or wrong. See Miller-El v. Cockrell,
537 U.S. 322 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683 (4th Cir.), cert. denied, 534 U.S.
941 (2001). We have reviewed the record and determine that
Richardson’s self-styled Motion under Rule 60(b) is, in substance,
a second motion attacking his conviction and sentence under 28
U.S.C. § 2255 (2000). See United States v. Winestock, 340 F.3d
200, 206 (4th Cir. 2003). We therefore treat Richardson’s notice
of appeal and appellate brief as a request for authorization from
this court to file a second § 2255 motion. See id. at 208. This
court may authorize a second or successive § 2255 motion only if
the applicant can show that his claims are based on (1) a new rule
of constitutional law, made retroactive to cases on collateral
- 2 -
review by the Supreme Court, that was previously unavailable; or
(2) newly discovered evidence that, if proven and viewed in light
of the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that no reasonable factfinder would
have found him guilty of the offense. See 28 U.S.C. §§ 2244(b)(2),
2255. The applicant bears the burden of making a prima facie
showing of these requirements in his application. See In re
Fowlkes, 326 F.3d 542, 543 (4th Cir. 2003). In the absence of pre-
filing authorization, the district court is without jurisdiction to
entertain the motion. Evans v. Smith, 220 F.3d 306, 325 (4th Cir.
2000).
After reviewing Richardson’s motion and the record in
this matter, we conclude that it does not meet the applicable
standard. We therefore deny Richardson’s request for a certificate
of appealability and dismiss the appeal. We further deny
Richardson’s implied request for authorization to file a second or
successive § 2255 motion. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
DISMISSED
- 3 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1736982/ | 727 N.W.2d 34 (2006)
STATE
v.
WHITEHEAD
No. 2004AP3365-CR
Supreme Court of Wisconsin
November 6, 2006.
Petition for review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594365/ | 432 N.W.2d 7 (1988)
230 Neb. 377
L.J. VONTZ CONSTRUCTION CO., INC., Appellant,
v.
STATE of Nebraska, DEPARTMENT OF ROADS, Appellee.
Nos. 88-156, 88-157.
Supreme Court of Nebraska.
November 18, 1988.
*8 Jeff C. Miller, of Young & White, Omaha, for appellant.
Robert M. Spire, Atty. Gen., Warren D. Lichty, Jr., and Sharon M. Lindgren, Lincoln, for appellee.
HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.
*9 SHANAHAN, Justice.
The appeals by L.J. Vontz Construction Co., Inc., pertain to Vontz' two claims filed with the Director of Administrative Services, who found that Vontz' claims were not based on contracts with the Department of Roads of the State of Nebraska, but were tort claims for which the director lacked jurisdiction to determine whether the claims were meritorious.
In April 1983, Vontz entered two construction contracts with the State's Department of Roads (DOR) to repair asphalt shoulders on roads in Platte and Fillmore Counties, including asphalt removal, compacting the subgrade soil, recycling the removed asphalt, and replacing asphalt on road shoulders. Each of the Vontz-DOR contracts contained a clause incorporating "the general and detailed plans, the 1973 Standard Specifications for Highway Construction...; the contractor's bond; the proposal; all special provisions; and all supplemental agreements" into the contract. Section 102.07 of the DOR's 1973 Standard Specifications for Highway Construction provides in part that the DOR "will prepare full, complete, and accurate plans and specifications giving such directions as will enable any competent mechanic or contractor to carry them out." The contracts also provided that Vontz "shall not do any work ... not covered and authorized by this contract, unless ordered in writing by the Engineer."
On May 27, 1983, Vontz began removing the asphalt shoulders in the Fillmore County project and encountered "very wet subgrade soil conditions," which made mechanical soil compaction impossible without DOR's further directions. In spite of Vontz' repeated requests, DOR provided no further directions until June 24, 1983, when DOR directed Vontz to remove, mix, dry, and recompact the wet subgrade soil. When Vontz encountered further unstable subgrade soil conditions during the "lay-down" phase of the project in Fillmore County, DOR's project engineer required that the unstable areas be "cored out" and filled with recycled asphalt. As a result of the subgrade soil conditions, the Fillmore County project was substantially delayed and required Vontz to use additional road barricades and safety equipment, which cost in excess of $5,000.
On August 16, DOR informed Vontz that 33 percent of the allotted time for completion of the Platte County project had expired, but no work had been completed on the project. According to Vontz, DOR knew that Vontz contemplated completion of the Fillmore County project before Vontz would move its equipment to the Platte County project. Since the Fillmore County project was delayed by DOR's tardy responses to the problems involving subgrade soil conditions, the Platte County project was not underway according to schedule.
On August 17, Vontz completed major items of the Fillmore County project but was unable to finish the entire project because irrigation runoff had flooded the site for construction of a culvert. Vontz claimed that DOR's conduct in administering and engineering the Fillmore County project had delayed major asphaltic work for 30 days and minor work for "several months."
On receipt of DOR's notice about lack of progress on the Platte County project, Vontz began work on the project by surface-milling the shoulders as required by a supplemental agreement with DOR. After milling for 4 days, Vontz had to stop because another contractor's work on a requisite culvert had not been completed. Vontz maintained that DOR failed to require the culvert contractor to expedite its work in compliance with the specifications for the Platte County project. Further, Vontz claimed that it could have moved its milling operations to the other side of the culvert and continued operations if DOR had provided a stockpile area. In spite of Vontz' requests, DOR did not provide a stockpile area until June 14, 1984.
Vontz further contended that DOR's plans and specifications were incorrect in the assessment of water levels in four designated "borrow pits" specified for the projects. As a result of the water level discrepancies, Vontz was able to remove *10 less material than needed from the pits and also had to use special equipment to remove wet material, which had to be hauled to a site for drying and processing before use in the projects.
Vontz also claimed that DOR's project inspector, without good reason, repeatedly rejected Vontz' work on the Platte County project and even suspended project operations on November 9, 1983. DOR's final inspection of the Platte County project occurred on October 1, 1985.
In its claims, Vontz asserted that DOR's initial plans and specifications were inadequate and, consequently, necessitated additional compaction work. Vontz also asserted that DOR erroneously computed the amounts due under the contracts. For the Fillmore County project, Vontz claimed that DOR incorrectly deducted in excess of $18,000 under the contract's provision for liquidated damages. For the Platte County project, Vontz asserted that the DOR "required the Claimant to perform work under bid items, but beyond the plans and specifications and made no measurement or payment of these items."
Containing statements of the facts and circumstances set forth above in relation to the construction contracts, Vontz' claims were filed with the Director of Administrative Services pursuant to Neb.Rev.Stat. § 81-1170 (Reissue 1987), which provides in part:
All persons having claims against the state, except claims for overpayment of estate taxes and except claims within the jurisdiction of the State Claims Board, shall exhibit the same, with the evidence in support thereof, to the Director of Administrative Services to be audited, settled, and allowed within two years after such claims shall accrue.
Alleging that the Director of Administrative Services lacked jurisdiction to dispose of the claims, DOR requested dismissal of Vontz' claims. The Director of Administrative Services concluded:
The question before the Director of Administrative Services is whether the Director has jurisdiction over these claims as contract claims. The issue for decision is whether the claims are tort claims or contract claims.
Tort claim is defined in Neb.Rev.Stat. § 81-8,210(40 [sic] (Reissue 1981) which, in part provides: "Tort claim shall mean any claim against the State of Nebraska for money only on account of damage to or loss of property or on account of personal injury or death, caused by the negligent or wrongful act or omission of any employee of the state, while acting within the scope of his office or employment...."
The claimant has contended that the state was negligent in drafting contract specifications, special provisions, and construction plans; and interference with claimants [sic] performance of the contract. Clearly, the claims are tort claims as that term is defined in Neb.Rev.Stat. § 81-8,210(4) (Reissue 1981) of the Tort Claims Act.
The State Claims Board has the exclusive jurisdiction to initially consider tort claims brought against the state. The Director of Administrative Services does not have concurrent jurisdiction to consider claims properly before the State Claims Board. Neb.Rev.Stat. § 84-306 (Reissue 1981) provides that all claims shall be exhibited to the Director of Administrative Services "... except claims within the jurisdiction of the State Claims Board...." Accordingly, the claims are tort claims as that term is defined in the Tort Claims Act and the Director of Administrative Services does not have jurisdiction to consider these claims.
For these reasons, the Motions to Dismiss are granted and the claims thereby denied.
On the basis of Neb.Rev.Stat. § 24-319(1) (Reissue 1985), concerning appellate jurisdiction of the district courts over claims presented to the Director of Administrative Services, Vontz appealed to the district court and filed petitions in conformity with Neb.Rev.Stat. § 24-320 (Reissue 1985). There is no question that Vontz' appeals have been perfected in accordance with the Administrative Procedure Act, *11 Neb.Rev.Stat. §§ 84-901 et seq. (Reissue 1987), and in compliance with Neb.Rev. Stat. § 77-2407 (Supp.1987) (aggrieved party's appeal authorized under the Administrative Procedure Act). After determining that Vontz' appeals were governed by the Administrative Procedure Act, the district court found:
The Director of Administrative Services dismissed the claim presented as being a tort claim and the Director of Administrative Services did not have jurisdiction over tort claims. Upon review of the record made, the Court further finds and determines that the dismissal of the claim was correct in all respects.
The district court then affirmed the order of the Director of Administrative Services, dismissing Vontz' claims.
On appeal to this court, Vontz contends that the district court erred in (1) affirming the order that the director of the Department of Administrative Services lacked jurisdiction to hear the claims in question; (2) conducting a review under the standard prescribed by § 84-917 of the Administrative Procedure Act; and (3) denying a "hearing and determination" pursuant to § 24-319.
Fundamental to a disposition of this appeal is the nature of Vontz' claims. If the claims are negligence claims rather than contract claims, the Director of Administrative Services lacked subject matter jurisdiction because, by virtue of Neb.Rev.Stat. § 81-8,211 (Reissue 1987), the State Claims Board has the power "to consider, ascertain, adjust, compromise, settle, determine, and allow any tort claim" based on negligence of the State of Nebraska, by which a claimant seeks "money only on account of damage to or loss of property or on account of personal injury or death." See Neb.Rev.Stat. § 81-8,210(4) (Reissue 1987). However, if Vontz' claims are based on contract, the director of the Department of Administrative Services had jurisdiction to determine the merits of the claims pursuant to § 81-1170, which in pertinent part provides: "All persons having claims against the state ... except claims within the jurisdiction of the State Claims Board, shall exhibit the same, with the evidence in support thereof, to the Director of Administrative Services to be audited, settled, and allowed...." Also, if Vontz claims negligence for which the State may be liable, Vontz has not fulfilled a condition precedent to the district court's determination of a negligence claim, namely, filing the claim with the "Risk Manager of the State Claims Board." Neb.Rev.Stat. § 81-8,212 (Reissue 1987). Cf. Chicago Lumber Co. v. School Dist. No. 71, 227 Neb. 355, 417 N.W.2d 757 (1988) (necessity of a timely filed claim under the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 23-2401 et seq. (Reissue 1983), as a condition precedent to a negligence suit against a political subdivision).
In Lincoln Grain v. Coopers & Lybrand, 216 Neb. 433, 437, 345 N.W.2d 300, 304-05 (1984), we stated:
Although the dividing line between breaches of contracts and torts is often dim and uncertain, it has been said that the character of an action as one in tort or on contract is determined by the nature of the grievance, not by the form of the pleadings, with consideration being given to the facts which constitute the cause of action. Driekosen v. Black, Sivalls & Bryson, 158 Neb. 531, 64 N.W.2d 88 (1954)....
Thus, to determine whether an action is based on a contract or a tort, a court must examine and construe a petition's essential and factual allegations by which the plaintiff requests relief, rather than the legal terminology utilized in the petition or the form of a pleading.
Contract actions, which arise from a breach of a duty imposed on one by an agreement, protect a plaintiff's interest in or right to performance of another's promises, whereas tort actions, which arise from a breach of a duty imposed by law, protect a plaintiff's interest or right to be free from another's conduct which causes damage or loss to the plaintiff's person or property. Fuchs v. Parsons Constr. Co., 166 Neb. 188, 88 N.W.2d 648 (1958); Driekosen v. Black, Sivalls & Bryson, 158 Neb. *12 531, 64 N.W.2d 88 (1954); McNeel v. State, 120 Neb. 674, 234 N.W. 786 (1931).
The gist of Vontz' claims is that, notwithstanding DOR's contractual duty to prepare "full, complete, and accurate plans and specifications" and provide "directions" to enable Vontz to carry out the planned projects, DOR furnished inadequate and misrepresented engineering and design for the projects, which resulted in substantial project delays and increased Vontz' costs to complete the projects. Although Vontz alleged that DOR failed to properly administer the contracts during Vontz' work under the contracts, all the problems regarding Vontz' performance stem from allegedly inadequate plans, specifications, and engineering supervision for the projects.
In response, DOR maintains that its duty to prepare plans and specifications for the projects is a duty imposed by Neb.Rev.Stat. § 39-1316 (Reissue 1984), which provides in part: "The department shall be responsible for the preparation and adoption of plans and specifications for the establishment, construction, and maintenance of the state highway system." Because the duty to prepare adequate plans and specifications is imposed by statute, DOR argues, any failure to carry out that duty constitutes a tort rather than a breach of contract.
However, DOR's position and argument ignore the nature of the claims filed by Vontz. While DOR fulfilled its statutory duty to prepare the plans for the projects, the contract with Vontz involved more than DOR's statutory duty under § 39-1316. In its contract with Vontz, DOR agreed to prepare project plans and specifications and then incorporated § 102.07 of the 1973 standard specifications, which obligated DOR to "prepare full, complete, and accurate plans and specifications," and provide "directions" to enable the contractor to carry out plans and specifications for a project. The precise nature and degree of DOR's noncompliance with the requirement to provide full, complete, and accurate plans, as well as furnish appropriate directions, relate to DOR's failure to comply with an express contractual provision in the agreements between Vontz and DOR. Consequently, Vontz' claims are based on a breach of an express contractual duty, not a breach of a statutory duty, and, therefore, are contractual in nature.
Additionally, Vontz contends that the State, relying on the contracts' provisions for liquidated damages, deducted amounts from the totals otherwise payable under the construction contracts. Liquidated damages may have a bearing on the ultimate amounts due Vontz under the construction contracts. However, while liquidated damages, as an expressly stipulated amount to secure performance of a contract, may be recoverable on breach of a contract, liquidated damages are foreign to the damages recoverable in a negligence action. The question about liquidated damages raised in Vontz' claims in relation to the damages sought by Vontz strengthens our conclusion that Vontz based its recovery on contract rather than in tort.
Our conclusion that Vontz' claims are based on contract rather than tort is consistent with the definition of a "tort claim" under the State Tort Claims Act. As already noted, § 81-8,210(4) characterizes a tort claim as one "on account of damage to or loss of property or on account of personal injury or death...." In its claims, Vontz does not seek money from the State on account of "damage to or loss of property," but, rather, requests remuneration for services rendered pursuant to contracts with DOR.
Because Vontz' claims are based on contracts with DOR and not on DOR's negligence, the Director of Administrative Services had the power to determine the merits of the claims by Vontz, that is, the director had jurisdiction to audit, settle, and allow Vontz' claims by virtue of the authority conferred by § 81-1170. The order of the Director of Administrative Services, rejecting jurisdiction concerning Vontz' claims, and the district court's judgments, affirming that order of the Director of Administrative Services, are incorrect as a matter of law. Therefore, we reverse the judgments of the district court and *13 remand this matter to the district court with direction to set aside the order of the Director of Administrative Services, thereby restoring this matter to the Director of Administrative Services for further proceedings provided by law.
In view of our disposition on the jurisdictional issue and because the Director of Administrative Services has not determined whether the Vontz claims are meritorious, we need not, and do not, consider Vontz' contention that the district court should have granted an evidential hearing on the merits of the contractual claims.
REVERSED AND REMANDED WITH DIRECTION. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922115/ | 756 A.2d 55 (2000)
COMMONWEALTH of Pennsylvania, Appellee,
v.
Albert BUTLER, Appellant.
Superior Court of Pennsylvania.
Submitted April 17, 2000.
Filed July 3, 2000.
Reargument Denied August 31, 2000.
*56 Patrick J. Egan, Philadelphia, for appellant.
Catherine L. Marshall, Asst. Dist. Atty., Philadelphia, for the Com., appellee.
Before DEL SOLE, EAKIN, and OLSZEWSKI, JJ.
OLSZEWSKI, J.:
¶ 1 Albert Butler appeals the Post-Conviction Relief Act (PCRA) court's dismissal without a hearing of his PCRA petition. We affirm.
¶ 2 The PCRA court aptly summarized the facts:
1. On November 17, 1995, following a jury trial, [appellant] was convicted of first degree murder, robbery and conspiracy. [Appellant] was represented by Eugene Tinari, Esquire. Judge Eugene H. Clarke, Jr. presided.
2. The Commonwealth presented evidence that on August 3, 1994, two men entered the Sugar Ship Bar in Philadelphia. One of the men asked Calvin Edwards, the manager of the bar, if he knew what time it was. Mr. Edwards responded that it was 12:30 a.m. [Appellant] then told Mr. Edwards that that was not the correct time, but rather it was "time to give up the money." [Appellant] was armed with a silver revolver and pointed it at Mr. Edwards' head. He then fired the gun, causing a gunshot wound to Mr. Edwards' head which killed him.
3. On September 4, 1996, [Appellant] was sentenced to life in prison for the first degree murder conviction. He was also sentenced five to ten years for the robbery conviction and five to ten years for the conspiracy conviction, each to run concurrent to the life sentence. Following sentencing, Mr. Tinari withdrew as counsel and Jack McMahon, Esquire, filed an appeal to the Superior Court of Pennsylvania. The Pennsylvania Superior Court affirmed both the conviction and the sentence in an unpublished memorandum opinion on December 31, 1997. [Commonwealth v. Butler, No. 3353 Philadelphia 1996, unpublished memorandum (Pa.Super. filed Dec. 31, 1997).] [Appellant] did not seek allocatur.
4. On February 26, 1998, [appellant] filed a pro se PCRA petition. Thereafter, Patrick Egan was appointed to represent him and filed an amended petition. On February 3, 1999, the Commonwealth filed a motion to dismiss. Subsequently, on May 11, 1999, [appellant's] amended petition was dismissed without a hearing, [the PCRA court] having determined that a decision could be made from the existing record.
PCRA Court Opinion, 7/20/99, at 1-2 (footnote omitted). Appellant then filed a notice of appeal, and the PCRA court ordered him to submit a Pa.R.A.P.1925(b) statement.[1] Appellant did not do so; thus, the PCRA court's opinion addressed only the issues appellant raised in his amended PCRA petition.
¶ 3 On appeal, appellant raises the same issues he raised in his amended PCRA petition:
A. Was Appellant denied his constitutional right to effective assistance of counsel at trial and post-trial stages due to the failure of counsel to:
1. Object to the Trial Court's [i]nadequate [i]nstructions on [i]ncorrect [e]yewitness [i]dentification.
*57 2. Object to the Trial Court's [i]nadequate instructions on impeachment of witnesses.
3. Object to the trial court's defective alibi instruction.
4. Adequately and fully investigate and prepare for trial and [p]rovide even a minimal defense to the extent that the trial performance was deficient by constitutional standards.
* * *
B. Was Appellant's conviction obtained in violation of his constitutional rights under Article I Section 9 and pursuant to Brady v. Maryland?
Brief for Appellant at 4. Before we address the merits, however, we must determine whether appellant has waived the issues.
¶ 4 As noted above, the PCRA court ordered appellant to file a Rule 1925(b) statement, see PCRA court order, 6/25/99, at 1, but appellant failed to do so. Without the benefit of appellant's statement, the PCRA court then issued an opinion on July 20, 1999, discussing in detail the issues appellant had raised in his amended PCRA petition. See PCRA Court Opinion, 7/20/99, at 2. We are aware of no case specifically dealing with the issue of whether a PCRA petition may serve as a substitute for a Rule 1925(b) statement and, thus, now address this issue for the first time.
¶ 5 Our Supreme Court addressed Rule 1925(b) in Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998). In Lord, the Court held that "from this date forward, in order to preserve their claims for appellate review, Appellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Rule 1925. Any issues not raised in a 1925(b) statement will be deemed waived." Id. at 309. Our own Court has addressed Lord several times. See, e.g., Commonwealth v. Steadley, 748 A.2d 707, 708 (Pa.Super.2000); Giles v. Douglass, 747 A.2d 1236, 1236 (Pa.Super.2000); Commonwealth v. Ortiz, 745 A.2d 662, 663 (Pa.Super.2000); Commonwealth v. Overby, 744 A.2d 797, 798 (Pa.Super.2000).
¶ 6 In Steadley, the appellant failed to file a Rule 1925(b) statement but the trial court drafted an opinion addressing what it assumed the appellant might appeal. See Steadley, 748 A.2d at 709. This Court held that "appellant has waived the claim... because she neglected to file a Rule 1925(b) statement," reasoning that allowing "the trial judge [to] determine[ ] which issues an appellant could raise" would be detrimental to appellants. Id. In Giles, the appellant failed to file a Rule 1925(b) statement, and, just like in Steadley, the trial court issued an opinion attempting to address the appellant's issues, though it noted that it was unaware of the appellant's specific issues. See Giles, 747 A.2d at 1237. Our Court held that the appellant had waived his issues on appeal because when the trial court has "to guess what issues [an appellant is appealing], that is not enough for meaningful review." Id. In Overby, the trial court ordered the appellant to file a Rule 1925(b) statement on December 11, 1998. See Overby, 744 A.2d at 797. When the appellant had not done so by March 25, 1999, the trial court issued an opinion urging this Court to waive the issues on appeal. See id. This Court agreed and held that the appellant had indeed waived his issues on appeal for failing to file a Rule 1925(b) statement. Thus, this Court has established a pattern for 1925(b) cases.
¶ 7 The only deviation from that pattern is Ortiz. See Ortiz, 745 A.2d at 662. In Ortiz, the appellant filed his Rule 1925(b) statement two weeks late. See id. at 663. The trial court subsequently issued an opinion discussing the appellant's sole issue on appeal. See id. A panel of this Court held that "the trial court's subsequent opinion discussed the sole issue raised therein and, thus, there is no impediment to our meaningful review." Id. at 664 n. 3. It is with these cases in mind that we turn to the case at hand.
*58 ¶ 8 The case before us is more similar to Steadley, Giles, and Overby than Ortiz. Here, the court never had the benefit of a Rule 1925(b) statement, as the court did in Ortiz, 745 A.2d at 663. While the PCRA court did have the benefit of appellant's amended PCRA petition, it still had to guess what issues appellant would raise on appeal. Of course, a PCRA court would perhaps be more likely than the trial court to be aware of potential issues on appeal because of the PCRA petition, but the PCRA court would still be guessing. Had the PCRA court guessed incorrectly that appellant only wanted to raise two of the above issues instead of five, appellant would have been restricted to those two issues. Further, appellant could have wished to appeal the fact that he did not receive a hearing on his PCRA petition. As the PCRA court did not address that in the opinion, appellant would be precluded from raising that claim. Again, the PCRA court would be determining what issues the appellant could appeal, and we cannot conduct meaningful review where the PCRA court defines the appellant's issues. We can only conduct meaningful review where the appellant writes a Rule 1925(b) statement and the court below, be that a trial court or a PCRA court, responds to those issues in its opinion. Moreover, it is contrary to our system of justice to allow the court rather than the appellant to frame the issues. Indeed, this would "severely limit[ ] the types and nuances of arguments that [an] appellant [could] raise on appeal." Steadley, 748 A.2d at 710. While it may appear to punish appellant in this particular case, it will also allow future appellants to frame their own issues. Further, it again serves as notice to appellants: when a trial court or a PCRA court orders a Rule 1925(b) statement, the appellant must comply or risk waiver.
¶ 9 Order affirmed.
NOTES
[1] Pa.R.A.P.1925(b) permits the court to "enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal no later than 14 days after entry of such order." Pa.R.A.P. 1925(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922072/ | 756 A.2d 126 (2000)
David L. GEORGE, Jr., in his own right and as Administrator of the Estate of Julie George, Deceased, Appellant,
v.
CONSOLIDATED RAIL CORPORATION
v.
Borough of Fleetwood.
Commonwealth Court of Pennsylvania.
Argued April 12, 2000.
Decided July 10, 2000.
Daniel J. Mann, Philadelphia, for Appellant.
Craig J. Staudenmaier, Harrisburg, for Appellees.
Before DOYLE, President Judge, and COLINS, J., McGINLEY, J., SMITH, J., PELLEGRINI, J., FRIEDMAN, J., and LEADBETTER, J.
LEADBETTER, Judge.
David L. George, Jr., plaintiff in this action for the wrongful death of his wife, appeals from the judgment entered on a jury verdict in favor of defendant, Conrail. The issue is what effect the Federal Railroad Safety Act of 1970, 84 Stat. 971, as amended, 49 U.S.C. § 20101 et seq. and associated regulations at 23 C.F.R. §§ 646.214(b)(3) and (4) have on Mr. George's claim, which is based on the alleged inadequacy of the warning signs posted at the railroad crossing. In view of the recent decision of the United States Supreme Court in Norfolk Southern Railway Company v. Shanklin, ___ U.S. ___, 120 S. Ct. 1467, 146 L. Ed. 2d 374 (2000), we must conclude that the claim is preempted.[1]
In November of 1991, Julie George was killed when a Conrail freight locomotive collided with the car she was driving. The accident occurred at the South Beech Street railroad crossing in the Borough of Fleetwood, Berks County. At the time of the accident, only reflectorized crossbuck signs at the side of the cartway, erected by Conrail in 1987, warned drivers of the presence of the rail crossing. David George filed wrongful death and survival actions in Philadelphia County against Conrail asserting negligence in the failure to erect cross gates and lights at the railroad crossing. The action was transferred to Berks County and Conrail joined Barry and Lori Burkert, the owners of the land *127 at the northeast corner of the railroad crossing, the Pennsylvania Public Utility Commission (PUC), Pennsylvania Department of Transportation (DOT), Richmond Township and the Borough of Fleetwood. Following the entry of summary judgment in favor of PUC and DOT, dismissal of the action against Richmond Township and settlement with the Burkerts, the claims against Conrail for inadequate warnings at the crossing and against the Borough for inadequate road signs and markings were tried before a jury.[2] In a special verdict, the jury found neither Conrail nor the Borough negligent. Following denial of George's post-trial motions for judgment n.o.v. or a new trial, the court entered judgment in favor of Conrail and the Borough according to the verdict. Thereafter, George filed the present appeal in which he seeks a new trial against Conrail.[3] George contends that the trial court erred in refusing to instruct the jury that the federal regulations at 23 C.F.R. § 646.214(b) established a standard requiring cross gates and lights at the Beech Street crossing.
The regulations at 23 C.F.R. § 646.214 address the adequacy of warning devices at railroad crossings where improvements have been made using federal funds. The Supreme Court described the federal statutory and regulatory scheme as follows:
In 1970, Congress enacted the Federal Railroad Safety Act (FRSA) `to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.' 49 U.S.C. § 20101. The FRSA grants the Secretary of Transportation the authority to `prescribe regulations and issue orders for every area of railroad safety,' § 20103(a), and directs the Secretary to `maintain a coordinated effort to develop and carry out solutions to the railroad grade crossing problem,' § 20134(a).
....
Three years after passing the FRSA, Congress enacted the Highway Safety Act of 1973, § 203, 87 Stat. 283, which, among other things, created the Federal Railway-Highway Crossings Program (Crossings Program), see 23 U.S.C. § 130. That program makes funds available to States for the `cost of construction of projects for the elimination of hazards of railway-highway crossings.' § 130(a). To participate in the Crossings Program, all States must `conduct and systematically maintain a survey of all highways to identify those railroad crossings which may require separation, relocation, or protective devices, and establish and implement a schedule of projects for this purpose.' § 130(d). That schedule must, `[a]t a minimum, ... provide signs for all railway-highway crossings.' Ibid.
The Secretary, through the Federal Highway Administration (FHWA), has promulgated several regulations implementing the Crossings Program. One of those regulations, 23 C.F.R. § 646.214(b) (1999), addresses the design of grade crossing improvements. More specifically, §§ 646.214(b)(3) and (4) address the adequacy of warning devices installed under the program. According to § 646.214(b)(3), `[a]dequate warning devices ... on any project where Federal-aid funds participate in the installation of the devices are to include automatic gates with flashing light signals' if any of several conditions are present. Those conditions include *128 (A) `[m]ultiple main line railroad tracks,' (B) multiple tracks in the vicinity such that one train might `obscure the movement of another train approaching the crossing,' (C) high speed trains combined with limited sight distances, (D) a `combination of high speeds and moderately high volumes of highway and railroad traffic,' (E) the use of the crossing by `substantial numbers of schoolbuses or trucks carrying hazardous materials,' or (F) when a `diagnostic team recommends them.' § 646.214(b)(3)(i). Subsection (b)(4) states that `[f]or crossings where the requirements of § 646.214(b)(3) are not applicable, the type of warning device to be installed, whether the determination is made by a State regulatory agency, State highway agency, and/or the railroad, is subject to the approval of FHWA.' Thus, at crossings where any of the conditions listed in (b)(3) exist, adequate warning devices, if installed using federal funds, are automatic gates and flashing lights. And where the (b)(3) conditions are not present, the decision of what devices to install is subject to FHWA approval.
Shanklin, ___ U.S. at ___-___, 120 S.Ct. at 1471-72 (footnote omitted).
In the present case, it is undisputed that in 1987 Pennsylvania participated under Section 203 of the Highway Safety Act of 1973 (The Act), 23 U.S.C. § 130, in a program designed to improve safety at railroad crossings. The program was intended to bring all crossbuck signs at public rail-highway crossings into conformance with the Federal Highway Administration Manual on Uniform Traffic Control Devices (MUTCD). Pursuant to this program, representatives from DOT, PUC, and Conrail conducted a field inspection of the Beech Street crossing. Thereafter, Conrail installed one new crossbuck sign mounted on a breakaway wooden post at the south side of the crossing and placed an additional breakaway post for the existing crossbuck sign on the north side of the crossing. After completion of this work and submission of required documentation,[4] DOT paid Conrail from funds apportioned to Pennsylvania by the Federal Highway Administration pursuant to Section 203 of The Act, 23 U.S.C. § 130.
The Beech Street crossing has multiple main line railroad tracks, which satisfies one of the conditions triggering the requirements under 23 C.F.R. § 646.214(b)(3) as to particular warning devices. In CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 113 S. Ct. 1732, 123 L. Ed. 2d 387 (1993), the Supreme Court held that when these regulations are applicable, state tort law is preempted. Id. at 670, 113 S. Ct. 1732. The Court in Easterwood concluded that the preemptive effect arose from the express preemption clause of the Federal Railroad Safety Act under which "the States are permitted to `adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary [of Transportation] has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement.'" Id. at 662, 113 S. Ct. 1732 quoting 45 U.S.C. § 434 (recodified at 49 U.S.C. § 20106). The Easterwood Court summarized its analysis as follows:
In short, for projects in which federal funds participate in the installation of warning devices, the Secretary has determined the devices to be installed and the means by which railroads are to participate in their selection. The Secretary's regulations therefore cover the subject matter of state law which, like the tort law on which respondent relies, seeks to impose an independent duty on *129 a railroad to identify and/or repair dangerous crossings.
507 U.S. at 671, 113 S. Ct. 1732.
Most recently, in Shanklin, the Supreme Court ruled that the preemptive regulations at §§ 646.214(b)(3) and (4) apply to all warning devices actually installed with federal funds. ___ U.S. at ___, 120 S.Ct. at 1473. The Shanklin Court specifically rejected the contention that preemption should not apply where, as in the present case, federal funds are used merely to equip crossings with advance warning signs and reflectorized crossbucks, the bare minimum required by the MUTCD, without any judgment as to whether the signs are adequate. Id. at ___, 120 S.Ct. at 1473. In Shanklin, the Court stated:
When the FHWA approves a crossing improvement project and the State installs the warning devices using federal funds, §§ 646.214(b)(3) and (4) establish a federal standard for the adequacy of those devices that displaces state tort law addressing the same subject.... It is this displacement of state law concerning the devices' adequacy, and not the State's or the FHWA's adherence to the standard set out in §§ 646.214(b)(3) and (4) or to the requirements of the MUTCD, that preempts state tort actions. Whether the State should have originally installed different or additional devices, or whether conditions at the crossing have changed such that automatic gates and flashing lights would be appropriate, is immaterial to the preemption question.
Shanklin, ___ U.S. at ___, 120 S.Ct. at 1476.
In the present case, Conrail used federal funds to install the crossbuck signs, which were placed in accordance with applicable federal regulations. Therefore, George's state common law cause of action for inadequate warning devices is barred by the doctrine of preemption and the issue of Conrail's liability should never have reached a jury. Conrail is entitled to judgment as a matter of law.
Accordingly, the judgment in favor of Conrail is affirmed.
ORDER
AND NOW, this 10th day of July, 2000, the judgment entered in the Court of Common Pleas of Berks County in the above captioned matter in favor of Conrail is hereby affirmed.
NOTES
[1] We may affirm for reasons other than those relied upon by the trial court. See Beck v. Zabrowski, 168 Pa.Cmwlth. 385, 650 A.2d 1152, 1156 n. 12 (1994).
[2] Prior to trial, Conrail moved for summary judgment on the ground of federal preemption. The trial court denied the motion concluding that an issue of fact existed as to whether Conrail had been relieved of any duty to install gates and lights as the result of a determination by a diagnostic team that the crossbuck signs were adequate. As stated herein, this was not the proper focus of analysis. The determinative question is whether federal funds were used to install warning devices.
[3] George has entered into a settlement of his claim against the Borough of Fleetwood.
[4] Pennsylvania called the program the "Railroad Crossbuck Replacement Program" on the administrative forms used by the Pennsylvania Department of Transportation to document work performed under the program. The U.S. Supreme Court, in Shanklin, called the program funded under Section 203 of The Act, as this one was, the "Crossings Program." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593358/ | 19 So.3d 614 (2009)
STATE of Louisiana
v.
Bacardny Wayne GEORGE.
No. 09-143.
Court of Appeal of Louisiana, Third Circuit.
October 7, 2009.
*616 J. Phillip Haney, District Attorney, Jeffrey J. Trosclair, Assistant District Attorney, New Iberia, LA, for State-Appellee: State of Louisiana.
William Jarred Franklin, Louisiana Appellate Project, Bossier City, LA, for Defendant-Appellant: Bacardny Wayne George.
Court composed of MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
PICKETT, Judge.
FACTS
On April 12, 2007, retired prosecutor Ralph Lee was sitting in a swing in his back yard in New Iberia, drinking his morning coffee. Around 7:10 a.m., he heard a female voice coming from City Park, located adjacent to the back yard of his home, saying, "stop, you're killing me, stop, you're killing me." Lee stood up, turned around and saw a black male wearing a white t-shirt holding something over his head and forcefully smashing it to the ground. Lee went through a gate from his yard into a short street leading to the park and saw the man again raise something over his head and smash it to the ground. Lee heard a "splat," like "when you slap wet hamburger meat on a counter."
As Lee entered the park, he saw the man standing over what appeared to be a human, lying on the ground. The man had his hands on his knees and was looking at the person on the ground, "bending over looking at whatever he had done." When the chain link gate rattled, the man looked up and began walking toward an older model green Cadillac parked in the "tear drop" area of the park. The man looked directly at Lee once, and Lee was able to see his face "very well."
Lee was also able to plainly see the license plate on the car, OOU 586. Lee was unarmed, and, being a former assistant district attorney, understood the importance of being able to get away with the license plate information. No one else was in the park; Lee realized that "if [he] went down there was no witness left." The man got in the car and "drove off, very calmly, like nothing had happened."
When Lee went to the person on the ground, he found a black female, lying on her stomach, and "her head was an absolute mess." Lee thought she was dead. He jogged back to his house and called 911.
Deputy Jeff Credeur arrived at the park at 7:23 a.m. He found paramedics treating the woman and noted she had a severe head injury. Lee gave Deputy Credeur the car's license plate number, and Deputy Credeur had Deputy Brimm run the plate. *617 The 1999 green Cadillac was registered to the defendant, Bacardny George.
Detective Jeff Matthews located the green Cadillac at the defendant's workplace, Superior Inspection Services, about a twenty-minute drive from the park. The vehicle was placed in secure storage, and Detective Matthews tested areas in the vehicle for blood. The tests were positive.
Around the same time, Ralph Lee identified the defendant from a photo lineup as the person he had seen that morning in the park. At trial, Lee further identified the defendant as the man in the park and in the photo, although he believed the defendant was "a little lighter" in the courtroom than he had been at the time of the attack. Lee had no doubt that the defendant was the man he had seen that day in the park.
Meanwhile, Nicole Watkins was "bleeding very actively" in the emergency room of the Dauterive Hospital. Dr. Kevin Chamas, medical director and physician at the hospital, found seventy-five severe lacerations to Watkins' head. He considered her condition life-threatening without treatment, and described her injuries as "so extensive it was pretty difficult" to provide her the proper treatment. Watkins was responding only to pain when she arrived, unable to verbalize recognizable words. Dr. Chamas described her injuries as "facial edema over both eyes and then the right cheek, right lip and then large flap lacerations to her posterior scalp." The scalp lacerations "were extremely severe and deep and actually at first it was really difficult to realize how bad they were." As Dr. Chamas was repairing lacerations, he "just kept finding new lacerations and she had a total of about seventy-five (75) severe lacerations." Describing the lacerations, Dr. Chamas said "they were severe as I had ever seen."
A CAT scan showed Watkins had bleeding into the right frontal region of her brain. Her injuries were to both the front and back of her head. Because no neurosurgeon was available, Dr. Chamas repaired the extensive lacerations as quickly as he could and prepared Watkins for transfer to Lafayette General Hospital.
Dr. Chamas testified it was unusual for him to stay at a patient's bedside for more than an hour. He was at Watkins' bedside, providing "critical and extensive care," for more than two hours. He considered her injuries consistent with being struck in the head with large rocks. Forensic testimony at trial showed the presence of Watkins' blood on a concrete block that weighed seventeen pounds, twelve ounces; another concrete block found in the area with blood on it weighed eighteen pounds and nine ounces.
At trial, the twenty-five-year-old Watkins testified she has an eleventh grade education, lives with her mother and others, and has two children, ages five and nine. She takes medication for seizures resulting from "what happened to [her]." She does not recall being in the park, but knows she was in a black Jeep and smoked crack cocaine on the night before the attack. She knows she has "a whole lot" of scars on her head, and she has dreams about the attack.
The jury found the defendant guilty of attempted second degree murder on August 13, 2008. The next day, the state charged the defendant with being a second felony offender, based on his January 26, 2004 conviction for attempted possession with the intent to distribute cocaine. The trial judge adjudicated the defendant a second felony offender at proceedings on October 8, 2008, and sentenced him as such to eighty years at hard labor without benefit of probation, parole or suspension of sentence.
*618 ASSIGNMENTS OF ERROR
1. There is insufficient evidence to prove the guilt of defendant for the offense of attempted second degree murder beyond a reasonable doubt.
2. The trial court erred in allowing photographs of the alleged victim into evidence.
3. The sentence imposed is excessive for this offender and offense.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there are no errors patent.
ASSIGNMENT OF ERROR NUMBER ONE
The defendant contends the evidence was insufficient to prove his guilt of attempted second degree murder beyond a reasonable doubt. The standard of review in a sufficiency of the evidence claim is "whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged." State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); State v. Captville, 448 So.2d 676 (La.1984). The essential elements of the crime of attempted second degree murder are a specific intent to kill the victim and the commission of an overt act that tends toward the accomplishment of the victim's death. La.R.S. 14:30.1; State v. Hollingsworth, 42,317 (La.App. 2 Cir. 8/15/07), 962 So.2d 1183.
The defendant's argument is twofold. He contends the state failed to negate every reasonable probability of misidentification and also failed to establish the defendant possessed the requisite specific intent to kill. We find the state presented sufficient evidence on each point.
Identification of Defendant
When the key issue is not whether a crime occurred, but rather, the identity of the perpetrator, the state is required to negate any reasonable probability of misidentification. State v. Hughes, 05-992 (La.11/29/06), 943 So.2d 1047. One witness's positive identification is sufficient to support a conviction. Id.
Ralph Lee was an eyewitness to the attack. He picked the defendant from a photo lineup only hours after the man in the park looked directly at Lee as he was walking to the green Cadillac.[1] Although the defendant appeared somewhat lighter at the time of trial, Lee had no doubt he was the man Lee saw in the park.
In addition to Lee's positive identification, other evidence supports the jury's determination that the defendant was Watkins' assailant. The man in the park drove away in the defendant's vehicle around 7:10 a.m. The same vehicle was located at the defendant's place of employment, about a twenty-minute drive from the park. The defendant's work time sheet showed he clocked in at 7:38 a.m. the day of the attack. When Deputy Credeur learned the green Cadillac was registered to the defendant, he first went to the *619 defendant's home. There, he learned the defendant had never returned home on the prior evening. When Deputy Credeur interviewed the defendant, he first said he had slept at his house that night. However, the defendant then said he slept in a Wal-Mart parking lot, and then changed his story to say he had slept in the old Wal-Mart parking lot. Although neither the DVD nor a transcript of Deputy Credeur's interview with the defendant appears in the record on appeal, the interview was played to the jury at trial.[2]
Forensic evidence showed the presence of Watkins' blood in the green Cadillac. Winnie Kurowski, a forensic chemist who focuses her work at the Acadiana Criminalistics Laboratory in New Iberia on biological fluids, compared blood samples found on one of the concrete blocks and on the passenger seat in the green Cadillac to reference samples of Watkins' blood. Kurowski testified the DNA in all three samples matched, and that the probability that anyone else would have the same DNA profile as Watkins was one in ninety-three quadrillion.
The defendant correctly states his DNA was not found on any of the items submitted to the crime lab. However, the absence of the defendant's DNA does not negate the considerable evidence on which the jury could reasonably determine the defendant's identity as the offender. The defendant further argues "it is probable" that someone else was driving the defendant's car at the time of the incident. It is not reasonable to surmise that an unknown borrower (of which there is no evidence) used the defendant's vehicle, attacked Watkins and somehow delivered the vehicle to the defendant's place of employment with Watkins' blood in it while the defendant spent the night in a parking lot and arrived at work at 7:38 a.m. the morning of the attack. Accordingly, we find the jury was entirely reasonable in determining the defendant to be Watkins' assailant.
Specific Intent
Specific intent is "that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La.R.S. 14:10(1). The specific intent to kill is an essential element of the crime of attempted second degree murder. La.R.S. 14:27, 14:30.1; State v. Hongo, 96-2060 (La.12/2/97), 706 So.2d 419. The state does not have to prove specific criminal intent as a fact; it may be inferred. State v. Maxie, 93-2158 (La.4/10/95), 653 So.2d 526. The defendant here argues that, in the event this court finds the state met its burden as to identification of the defendant, it failed to prove his requisite specific intent, that he actively desired to kill Watkins.
The defendant seems to argue that, because Lee saw the defendant strike Watkins twice with the concrete blocks, she was only hit twice, and that two strikes could not cause the serious injuries she sustained. Thus, the defendant argues it was "reasonable to assume Watkins sustained some, if not a majority of the wounds" prior to her arrival at the park. This argument defies reason. The fact that someone witnessed only two blows by the defendant does not lead to the conclusion that the defendant struck Watkins only twice. Indeed, Lee investigated because he heard Watkins say, "stop, you're killing me, stop, you're killing me," indicating she had already been violently attacked *620 before Lee saw the defendant smashing an object to the ground and heard the "splat" of it hitting Watkins. Lee found Watkins lying in a pool of blood next to two large concrete blocks covered in blood. Dr. Chamas testified Watkins had injuries as severe as he had ever seen that resulted in very active bleeding and bleeding inside her brain. Her condition was life-threatening without treatment. Yet, the defendant argues those severe, life-threatening injuries occurred before Watkins' arrival at the park, and that the extent of Watkins' injuries is insufficient to support a finding of specific intent to kill absent proof that the defendant inflicted all of the wounds.
The severity of a victim's injuries may be probative in proving the defendant's intent to kill. State v. Green, 484 So.2d 698 (La.App. 1 Cir.1985), affirmed, 493 So.2d 1178 (La.1986). The evidence here was sufficient for the jury to find the defendant's actions showed he had the specific intent to kill Watkins, even if the only injuries he inflicted were the two blows to Watkins' head immediately before she was found.
Summary
Lee, an eyewitness to the attack on Watkins, had no doubt the defendant was the man he saw smash concrete blocks into Watkins with great force and drive away in the green Cadillac. Other evidence supports Lee's identification of the defendant as Watkins' assailant. The evidence presented to the jury allowed it to rationally find proof beyond a reasonable doubt of each of the essential elements of the crime charged. This assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER TWO
The defendant alleges the trial court erred by allowing photographs of the victim into evidence. He claims the effect of the graphic photographs was overly prejudicial, and that the state introduced the photographs as a substitute for other, sufficient evidence in an effort to inflame the jury's emotions.
"Generally, photographs are admissible in evidence when they are shown to have been accurately taken, to be a correct representation of the subject in controversy, and when they shed light upon the matter before the court." State v. Strickland, 398 So.2d 1062, 1065 (La. 1981). Photographs are admissible in a criminal prosecution when their probative value outweighs their probable prejudicial effect. State v. Robinson, 02-1869 (La.4/14/04), 874 So.2d 66, cert. denied, 543 U.S. 1023, 125 S.Ct. 658, 160 L.Ed.2d 499 (2004); La.Code Evid. art. 403. Louisiana courts routinely allow gruesome and graphic photographs into evidence in such circumstances.
For example, photographs from an autopsy showing bullet wounds in the victims' bodies were held admissible in State v. Dunn, 01-1635 (La.11/1/02), 831 So.2d 862. In State v. Hoffman, 98-3118 (La.4/11/00), 768 So.2d 542, opinion supplemented 00-1609 (La.6/14/00), 768 So.2d 592, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000), crime scene photographs were deemed relevant and admissible to show the manner of death and the location of the victim's body. Additional autopsy photographs were allowed to show details of the victim's gunshot wound and other injuries. The Hoffman court commented that photographic evidence is admissible "unless it is so gruesome that it overwhelms jurors' reason and leads them to convict without sufficient other evidence." Id. at 566.
Here, five photographs of Watkins' wounds were admitted into evidence at *621 trial.[3] The photographs were taken by Deputy Credeur at Dauterive Hospital while Dr. Chamas was providing care to Watkins. They showed the lacerations inflicted by the blows and the resulting disfigurement and swelling to Watkins' face and head. The trial court admitted the photographs, noting they "tend[ed] to show the severity of injuries and perhaps intent."
The photographs, while graphic and unpleasant to view, accurately depict Watkins' injuries and "shed light upon the matter before the court." Strickland, 398 So.2d at 1065. They are relevant, as noted by the trial court, to show the extent of Watkins' injuries. The record contains nothing to suggest the photographs caused the jury to convict the defendant without sufficient evidence. We find this assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER THREE
The defendant argues the sentence imposed is excessive. After the jury found him guilty of attempted second degree murder the defendant was adjudicated a second felony offender and sentenced to eighty years at hard labor without benefit of probation, parole or suspension of sentence. Louisiana Code of Criminal Procedure Article 881.1(A)(1) requires a defendant to make or file a motion to reconsider his sentence within thirty days of imposition of the sentence. A defendant who fails to make or file such a motion is precluded from raising any objection to the sentence on appeal. La.Code Crim.P. art. 881.1(E); State v. White, 03-1535 (La.App. 3 Cir. 4/28/04), 872 So.2d 588; State v. Prudhomme, 02-511 (La.App. 3 Cir. 10/30/02), 829 So.2d 1166, writ denied, 02-3230 (La.10/10/03), 855 So.2d 324. The defendant here did not make or file a motion to reconsider his sentence in the trial court. Nevertheless, we review his argument as a bare claim of excessiveness. State v. Baker, 08-54 (La.App. 3 Cir. 5/7/08), 986 So.2d 682.
This court has set out a standard to be used in reviewing excessive sentence claims:
La. Const. art. I, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331 (alteration in original).
*622 To decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:
[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, "it is well settled that sentences must be individualized to the particular offender and to the particular offense committed." State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge "remains in the best position to assess the aggravating and mitigating circumstances presented by each case." State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.
State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.
The nature of the offense here is attempted second degree murder, a violent crime with violent circumstances. The defendant is a second felony offender convicted in 2004 of attempted possession of cocaine with the intent to distribute and sentenced to five years at hard labor, suspended and placed on probation.
A third felony offender received the maximum one-hundred-year sentence for attempted second degree murder in State v. Fields, 42,761 (La.App. 2 Cir. 1/9/08), 973 So.2d 973, writ denied, 08-469 (La.9/26/08), 992 So.2d 983. This was an especially brutal crime where the defendant stabbed his girlfriend more than fifty times.
The defendant in State v. Hailey, 41,897 (La.App. 2 Cir. 2/28/07), 953 So.2d 979, writ denied, 07-1024 (La.11/16/07), 967 So.2d 522, was convicted of attempted second degree murder as a fourth felony offender. He received a sentence of eighty-seven years at hard labor.
In State v. Douglas, 39,036 (La.App. 2 Cir. 10/29/04), 888 So.2d 982, writ denied, 04-3146 (La.4/1/05), 897 So.2d 601, the defendant was not adjudicated a multiple offender, but he had a lengthy criminal record. He was sentenced to one hundred years at hard labor for attempted second degree murder, along with sentences of thirty years for aggravated burglary and ten years for sexual battery.
The defendant in State v. Tyler, 01-1038 (La.App. 5 Cir. 3/26/02), 815 So.2d 205, was a second felony offender convicted of attempted second degree murder. He was sentenced to sixty years at hard labor. The defendant stabbed his girlfriend seven times and also wounded her daughter.
In State v. Moore, 37,935 (La.App. 2 Cir. 1/28/04), 865 So.2d 227, writ denied, 04-507 (La.7/2/04), 877 So.2d 142, the defendant was sentenced to forty years on a conviction of attempted second degree murder, to run consecutively with a sixty-five-year sentence for second degree kidnapping and a forty-year sentence for armed robbery. He received eighty percent of the maximum possible sentence for attempted second degree murder.
This court, in State v. Sampy, 07-1059 (La.App. 3 Cir. 3/5/08), 978 So.2d 553, writ denied, 08-845 (La.11/10/08), 996 So.2d 1066, upheld the conviction and sentence of a defendant with no criminal history. The defendant was convicted of attempted second degree murder and sentenced to thirty years at hard labor. The sentence ran concurrently with an additional ten-year sentence for the defendant's conviction for attempted manslaughter.
*623 The defendant could have received a possible sentence of twenty-five to one hundred years as a second felony offender. La.R.S. 14:27, 14:30.1(B), 15:529.1. The eighty-year sentence imposed seems somewhat high when compared to comparable cases. However, this defendant committed an especially brutal crime that has left his victim with severe and permanent injuries. His sentence, while high, is not excessive under the circumstances.
CONCLUSION
We find the evidence was sufficient to convict the defendant of attempted second degree murder. Further, the trial court did not err in admitting into evidence five photographs of Watkins' injuries which showed the extent and magnitude of her wounds. Although the defendant's sentence is high under the Smith analysis, the trial court did not abuse its broad sentencing discretion. Accordingly, the defendant's conviction and sentence are affirmed.
AFFIRMED.
NOTES
[1] The defendant's brief erroneously states the photo lineup identification occurred two weeks after the attack. In fact, Lee testified he viewed the lineup and chose the defendant's picture from it the same morning of the attack. State's Exhibit 1 also shows the date on the photo lineup as "Thu Apr 12 10:32 CDT 2007." Lee's initials and date, "RKL 4/12/07" appear on the top center photo.
[2] Portions of the taped interview dealing with evidence of other crimes were not played to the jury.
[3] The same five photographs were designated S-1, 2 and 3 during the preliminary examination to preserve the testimony of Dr. Kevin Chamas, who was moving to California and would be unavailable for trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1646468/ | 9 So.3d 578 (2007)
WILLIAM J. BORDERS
v.
STATE.
No. CR-05-1771.
Court of Criminal Appeals of Alabama.
June 22, 2007.
Decision of the Alabama Court of Criminal Appeal Without Opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922192/ | 756 A.2d 917 (2000)
Bobbie Crider LAKE, Appellant,
v.
James Howard LAKE, Appellee.
No. 98-FM-909.
District of Columbia Court of Appeals.
Argued June 10, 1999.
Decided August 3, 2000.
*918 Joan Bernott Maginnis, Washington, DC, for appellant.
Peter R. Sherman, Washington, DC, for appellee.
Before STEADMAN, RUIZ and REID, Associate Judges.
RUIZ, Associate Judge:
Bobbie C. Lake sued her husband, James H. Lake, for divorce. After a divorce trial held in 1997, the trial court entered an order granting the divorce and finalizing the distribution of property. Noting that both parties needed "to reestablish or develop careers and incomes," the trial court order reserved Ms. Lake's request for alimony for a later date "if the circumstances warrant[ed]." The following year, 1998, the trial court held a hearing on the issue of alimony and awarded alimony to Ms. Lake in the amount of $2,000 per month. At Mr. Lake's request, the trial court vacated the original alimony order and issued an amended order reducing *919 the alimony to $1,000 per month. The trial court issued a further order in which it interpreted the initial order issued at the time of the divorce on property distribution requiring equal division of Mr. Lake's severance payment, to mean equal division after payment of income taxes. Ms. Lake appeals from both the amended order reducing alimony to $1,000 per month and the order regarding after-tax distribution of the severance payment. With respect to the alimony award, she asserts that the trial court abused its discretion in the alimony calculation by overstating her earning capacity from employment, by improperly considering her potential investment income, and by underestimating Mr. Lake's earning capacity. With respect to the ruling on the property distribution, she claims that the trial court erred in concluding that each party would receive an equal share after taxes. After reviewing the record, we conclude there is no abuse of discretion and affirm both the trial court's alimony award and its distribution of Mr Lake's severance pay on an after-tax basis.
I.
The Lakes married in October 1973 and separated in April 1993; there were no children from the marriage. Mr. Lake was the primary wage earner throughout the marriage.[1] During the five years prior to their separation, Mr. Lake earned approximately $1.2 million annually as a communications management consultant for Bozell Worldwide,[2] while Ms. Lake's maximum yearly earnings as a real estate agent were $35,000. Between the separation in April 1993, after the divorce, and up to October 1995, Mr. Lake provided voluntary financial support to Ms. Lake in the amount of $12,000 per month. In October 1995, Mr. Lake resigned from his employment at Bozell after refusing an offer of immunity from the independent counsel's office investigating improper political contributions which included pleading guilty to two misdemeanor counts of violating Federal elections law and a felony wire fraud count resulting from an improper $5,000 political contribution.[3] Mr. Lake was subsequently convicted on all three counts and sentenced to pay a $150,000 fine, write a monograph to be distributed to political action committees and farmer's cooperatives, and two years of probation. After resigning from his position, Mr. Lake terminated the monthly support payments to Ms. Lake. Mr. Lake was unemployed from October 1995 to May 1996, when he obtained a temporary consulting position with Burson-Marsteller, a global communications firm. After the first year, Mr. Lake became a full-time employee at a salary of $350,000 per year. He testified during the alimony trial that he did not anticipate receiving any significant increases in salary or bonuses from Burson-Marsteller. Mr. Lake's financial statement indicated that he had a net worth of approximately $551,000, including an interest in his residence, tangible personal property and his retirement plan.
Although Ms. Lake had been employed throughout the marriage,[4] her annual *920 earnings were de minimis between the separation in 1993 and the alimony trial in March 1998. In 1995, Ms. Lake attended business administration classes at Mount Vernon College for a semester. At the January 1996 divorce trial, Ms. Lake indicated that she hoped to resume her court reporting career and, in October 1996, she received a $20,000 advance from the courtsupervised marital funds escrow account to upgrade her court reporting skills. In December 1996, she purchased court reporting equipment, but did not receive training on the equipment until January 1998,[5] and had not begun looking for a court reporting position as of the March 1998 alimony trial.[6] At the alimony trial, Ms. Lake testified that she was working part-time at a jewelry store earning $334 per month. She also stated that she was in the process of trying to revive her real estate career by sending out periodic mailings on the real estate market,[7] and had spent considerable time marketing the parties' jointly-owned marital home, which was sold in May 1997. While Ms. Lake testified that her physical health was good, she indicated that she had been suffering from severe depression since the separation and that her "mental state" was a serious impediment to her efforts to gain full-time employment because she found it difficult to concentrate, was nervous, and was often unable to sleep.
On April 2, 1998, the trial court issued an order awarding alimony in the amount of $2,000 per month based partly on the fact that the parties had approximately the same net worth. After Mr. Lake observed that his net worth was significantly less than that of Ms. Lake, the trial court reduced its original alimony order after taking into account information regarding Ms. Lake's net worth which it "inadvertently failed to consider" when it issued the original order. Although Ms. Lake's financial statement reflected a net worth of $538,000, the trial court ruled that the evidence supported an actual net worth of $919,426. The trial court also ruled that Ms. Lake's earning potential was between $36,000 and $40,000 per year. On the issue of Ms. Lake's mental health, the court explained
While not doubting plaintiff's stated feelings of depression, the court notes that she presented herself well at trial, and there was no evidence establishing that plaintiff was unable to work.
The trial court issued an order on May 6, 1998, reducing the alimony award to $1,000 per month.[8] On June 4, 1998, the trial court issued another order which interpreted the divorce court's May 6, 1997, directive that "each be awarded one-half (½ ) share" of Mr. Lake's $200,000 severance payment from Bozell as meaning equal division after payment of income taxes.
II.
Alimony
"Decisions respecting the grant or denial of alimony are committed to the sound discretion of the trial court and will *921 be disturbed on appeal only when the record manifests abuse of that discretion." McCree v. McCree, 464 A.2d 922, 932 (D.C. 1983). In exercising that discretion, the trial court should consider certain factors, such as "the duration of the marriage, the ages and health of the parties, their respective financial positions, both past and prospective, the [requesting spouse's] contribution to the family support and property ownership, the needs of the [requesting spouse] and the [other spouse's] ability to contribute thereto, and the interest of society generally in preventing [the requesting spouse] from becoming a public charge." McEachnie v. McEachnie, 216 A.2d 169, 170 (D.C.1966). The objective of alimony is "to provide reasonable and necessary support." Id. An appellate court may reverse an alimony award only where the trial court's finding is "plainly wrong or without substantial evidence to support it." Id. at 171.
On appeal, Ms. Lake argues that the trial court abused its discretion in awarding alimony of $1,000 per month because it was based on an erroneous finding that she had an earning capacity of $36,000, improperly considered her potential investment income, and underestimated Mr. Lake's financial position.[9]
A. Ms. Lake's earning capacity.
Although Ms. Lake acknowledges that the trial court properly considered her past and prospective finances in determining the appropriate amount of alimony, see McEachnie, 216 A.2d at 170 (noting that the factors to be considered in making an alimony determination include the parties' past and prospective financial situations), she claims that the court's finding that she was capable of earning $36,000 annually was not supported by the evidence. Ms. Lake argues that given the divorce court's finding in 1997 that her wage earning potential was limited, coupled with its finding that her current earnings were de minimis,[10] the alimony court abused its discretion in disregarding her uncontradicted testimony in 1998 that, at that time, severe depression prevented her from reaching even her limited earning potential.
At the alimony trial, Ms. Lake testified that she had suffered from severe depression since the 1993 separation, describing her symptoms as "[e]xtreme sadness" and a "great sense of loneliness, futility, apathy. I don't sleep well. I have great immobility at times." She blamed her depression on what she termed the "apparently eternal" litigation over the divorce. When asked whether there were any impediments preventing her from seeking full-time employment, Ms. Lake responded *922 [m]y mental state. I find it very difficult to concentrate. And as any court reporter will tell you court reporting is all concentration.
She also testified that she was being treated for depression by a Christian Science counselor three to four times a week, and that the treatment has "kept [her] alive."[11] In response, Mr. Lake's counsel argued that Ms. Lake's testimony regarding her sale of the marital home demonstrated that "she is very capable of utilizing her earning capacity."
In its May 6, 1998, order, the alimony court found Ms. Lake capable of full-time employment, stating
[Ms. Lake] is 59 years of age, and she testified that she is in good physical health but that she has been depressed since the separation. While not doubting [Ms. Lake's] stated feelings of depression, the court notes that she presented herself well at trial, and there was no evidence establishing that [she] is unable to work.
Notwithstanding the fact that the court credited Ms. Lake's testimony regarding her "feelings of depression," the court found "no evidence" to support her claim that she was unable to work as a result of the depression.[12]
Ms. Lake claims that the trial court abused its discretion by disregarding her uncontradicted testimony regarding the effect of the depression on her ability to work, namely her statement that the depression seriously impeded her ability to obtain full-time employment as a court reporter because she found it difficult to concentrate. We realize that the alimony court's statement that there was "no evidence" about her inability to work appears to imply that Ms. Lake's testimony is not such evidence. After reviewing the trial court's ruling in context, however, we conclude that the court considered Ms. Lake's testimony regarding the effect of the depression on her mental state, but thought that her testimony alone was insufficient to counter other evidence of her ability to work. Viewing the evidence as a whole, the court's finding that Ms. Lake was capable of full-time employment, either as a real estate agent or a court reporter with earning potential of $36,000 to $40,00 per year, was not clearly erroneous.[13]
In its May 6, 1998, order, the alimony court indicated that it had taken the health of the parties into account and that it did *923 not "doubt[] [Ms. Lake's] stated feelings of depression." From this language, it is evident that the court considered the entirety of Ms. Lake's testimony before making the alimony award. However, the alimony court was clearly disturbed by the fact that Ms. Lake's testimony regarding the debilitating effects of her depression lacked independent corroboration. See supra note 11. While reiterating the evidence at the conclusion of the alimony trial, the court stated
The way the evidence stands in this hearing is that [Ms. Lake] says that since the marriage went bad, or at least since the divorce, she has been seriously depressed. I believe that is her term. And let's, let's put aside, let's assume for a minute that she was receiving regular or at least she said she was receiving regular psychiatric care for some condition. Still what we have is ... her word I mean the state of the record right now is that's what she says, and it may very well be true, but that is all I have. I don't have any corroboration from either [the Christian Science practitioner]... or from any other doctor.[14]
The trial court's concern regarding lack of corroboration is also reflected in the May 6, 1998, order, in which the trial court acknowledges Ms. Lake's testimony, but notes that her demeanor at trial belied her testimony and that the record lacks evidence suggesting that she is unable to work.
Ms. Lake asserts that because her testimony was both uncontradicted and not inherently improbable, the trial court erred in disregarding it. See Stone v. Stone, 78 U.S.App.D.C. 5, 8, 136 F.2d 761, 764 (1943) (trier of fact may not disregard "positive testimony, uncontradicted, and not inherently improbable"). We disagree that the trial court disregarded Ms. Lake's testimony. Rather, Ms. Lake's own testimony regarding her sale of the marital home supports the trial court's conclusion that she was capable of full-time employment. When asked to describe her efforts to sell the marital home, Ms. Lake responded that
[i]t required [her] presence ... almost every day. People who came to look at it. Writing ads. Holding open houses. Negotiating with agents, taking calls from agents. Talking to appraisers.
Ms. Lake also indicated that she thought she did a competent job in selling the home, that she worked hard at it, and that she was successful. Absent independent corroboration of Ms. Lake's testimony regarding the negative effects of her depression, the record reflects her contradictory statements that depression prevented her from seeking employment and from obtaining a job as a court reporter because she was unable to concentrate, but that she was able to work very diligently to sell the marital home.[15] While Ms. Lake represented that her Christian Science practitioner was unable to testify regarding her mental state "for Christian Science reasons," this did not prevent her from providing testimony from other witnesses in support of her claim that her income-earning capacity was diminished due to depression, such as her employer at the jewelry store where she worked part-time, a professor at Mt. Vernon College where she attended business administration classes *924 for a semester, or even a friend. We do not disagree with Ms. Lake that depression can be severely debilitating and we are aware that symptoms of depression might not be readily apparent to the untrained eye. We cannot substitute our judgment for that of the trial court, however, where, as in this case, the trial court's findings of fact are not clearly erroneous. We conclude that the trial court did not abuse its discretion in considering that Ms. Lake's uncorroborated testimony about the debilitating effects of her depression were unpersuasive in light of all the evidence presented at trial and finding that Ms. Lake was capable of full-time employment based on the trial court's assessment of her appearance and demeanor at trial and her testimony concerning her work in selling the marital home. See McEachnie, 216 A.2d at 171 (noting that we will reverse an alimony award only where the trial court's findings are plainly wrong or unsupported by substantial evidence).
B. Ms. Lake's expected investment income.
Ms. Lake further contends that the trial court abused its discretion in considering her potential, rather than her actual, investment income in determining the appropriate alimony award. Although Ms. Lake recognizes that one of the factors which the trier of fact must consider in determining the appropriate amount of maintenance is a party's financial resources, including expected investment income, see Skiff v. Skiff, 277 A.2d 284, 286 (D.C.1971), she argues that the court's determination of her future investment income was unsupported by the evidence.
After considering Ms. Lake's monthly expenses and income based on her earning capacity as a real estate agent or court reporter, the court determined that Ms. Lake was left with a negative monthly balance of $1,400, and awarded alimony in the amount of $1,000, leaving a $400 monthly shortfall (or $4,800 annually). See supra note 8. The court noted, however, that Ms. Lake's net worth was substantial and that "proper management of her assets" should reduce her financial needs significantly. Ms. Lake does not contest the alimony court's determination that her total net worth was $919,426.[16] Instead, she contends that it was inappropriate for the court to speculate about her anticipated earnings from these assets and to expect Ms. Lake to employ her net assets either by invasion of principal or need for increased future earnings for daily support. Although there was no direct testimony regarding Ms. Lake's investment income, her counsel represented to the court that she had at least $250,000 in liquid assets currently available, of which a conservative five percent could reasonably be imputed as annual investment income. Therefore, the alimony court's conclusion that Ms. Lake would be able to cover the $4,800 annual shortfall with the conceded $12,500 investment income from her liquid assets is supported in the record. Moreover, contrary to Ms. Lake's claim, the $12,500 annual investment income would not require invasion into principal or increased future earnings. As Ms. Lake's counsel stated, "[t]he stocks and the bank account are liquid and producing income." Cf. Skiff, 277 A.2d at 287 (holding that requesting spouse was not obliged to deplete inheritance for support where other spouse was able but refused to provide support).[17] Although the court *925 noted generally that proper management of Ms. Lake's substantial net worth would reduce her overall financial need, there is no evidence that it improperly calculated Ms. Lake's alimony award based on a projected future return on assets greater than the actual return she was receiving at the time of the alimony trial. Cf. Joel v. Joel, 559 A.2d 769, 771-72 (D.C.1989) (remanding trial court's order reducing alimony based on assumptions about future events). Because the objective of alimony is "to provide reasonable and necessary support" to the requesting spouse, McEachnie, 216 A.2d at 170, the trial court did not abuse its discretion in considering Ms. Lake's reasonable prospective investment income in determining the appropriate amount of alimony.
C. Mr. Lake's earning capacity.
Ms. Lake contends that the alimony court underestimated Mr. Lake's financial position. In particular, she argues that the trial court abused its discretion by failing to impute Mr. Lake's $1.2 million annual income from his former employment with Bozell after he voluntarily left the company in October 1995 and was subsequently employed by Burson-Marsteller at a substantially reduced salary.[18]See Tydings v. Tydings, 349 A.2d 462, 463 (D.C.1975) (per curiam) (where spouse's inability to pay alimony is self-inflicted or voluntary, it will not constitute grounds for reduction in future payments). We think this argument is without merit.[19] Mr. Lake resigned as partner in the firm of Robinson, Lake, Sayer, Miller, a subsidiary company of Bozell Worldwide, after pleading guilty to violations of federal campaign law. Ms. Lake offered no support for her assertion that Mr. Lake's resignation was voluntary. The facts that he left a lucrative partnership, was unemployed for several months, obtained a job at a quarter of the salary he previously commanded, and developed a criminal record, support that his resignation was due to an illegal $5,000 political contribution rather than to any intention to voluntarily reduce his income. Cf. Hamel v. Hamel, 539 A.2d 195, 202-03 (D.C.1988) (reversing trial court's reduction of alimony when appellee's *926 present financial difficulty was the result of "purely voluntary decisions" that proved extremely costly and greatly diminished his ability to provide support); Tydings, 349 A.2d at 464 (affirming trial court's refusal to reduce appellant's alimony obligation where appellant voluntarily retired, thereby decreasing his net income). Moreover, there is no indication that Mr. Lake left the partnership and Bozell in order to avoid his support obligations. Accordingly, the alimony court did not abuse its discretion in estimating Mr. Lake's prospective income based on his annual salary at the time of the alimony trial rather than on his income three years earlier, prior to leaving Bozell.[20]
III.
Property Distribution
Ms. Lake takes issue with the court's June 5, 1998 order that each party should receive an equal share of Mr. Lake's $200,000 severance payment after payment of taxes. The trial court has broad authority to distribute property accumulated during marriage in any manner that is "equitable, just and reasonable." D.C.Code § 16-910 (1997 Repl.) Under our case law, "[a] trial court is granted considerable discretion in distributing marital property to parties to a divorce action." Bowser v. Bowser, 515 A.2d 1128, 1130 (D.C.1986). Here, the alimony court found that it "would be inequitable for one party to pay all of the taxes on the severance payment." Therefore, the court stated, the Lakes should retain an "equal share of the Bozell severance payment after the taxes are paid." Upon review of the divorce court's May 6, 1997, order, we find that the alimony court did not abuse its discretion in reaching this conclusion.
Ms. Lake argues that the June 5, 1998, order misinterpreted the divorce court's May 6, 1997, order awarding her "one-half (½) share of [Mr. Lake's] severance compensation," maintains that the plain language of the initial order dictates that she receive one-half of the gross amount of severance received, or $100,000, rather than one-half of the severance payment after taxes.[21] We disagree. It is clear from the May 6, 1997, order that the divorce court intended to achieve an equal distribution of the marital assets.[22] The court distributed on an equal basis the "net proceeds" from the sale of jointly-held property, and specified that the parties should each report and pay for "one-half (½ ) of the taxable gain" from the sale. In addition, the court held the parties jointly responsible for taxes on the marital home until it was sold. With respect to joint personal property not actually distributed between the parties, the "net proceeds" from their sale was to be "divided equally between the parties."
Ms. Lake insists that had the divorce court intended her to share equally in the income taxes due on the severance payment, it would have expressly said so *927 as it did in distributing the parties' jointly held assets. However, a review of the 1997 order shows that the only time the divorce court held Mr. Lake solely responsible for payment of taxes on a particular asset was as a result of the parties' stipulation prior to trial that Mr. Lake would pay all income taxes on the proceeds from the initial sale of Bozell stock. Moreover, even in this particular case, the divorce court expressly noted that the parties each bore his or her own tax liability for any capital gains taxes attributable to future stock distributions.[23] The overall thrust of the order is that, except in specified circumstances, the parties were to share "net proceeds" equally. The divorce court's order recognized and accepted the impact of tax liability on both parties when it concluded that "the equitable distribution provided by this judgment is just and reasonable notwithstanding potentially adverse income tax consequences to each of the parties." On this record, the alimony court did not abuse its discretion in ordering that the parties' equal sharing of the severance payment was to be calculated after taxes were paid.
For the foregoing reasons, the trial court's alimony award of $1,000 per month and equal division of Mr. Lake's severance pay after taxes is
Affirmed.
NOTES
[1] On March 17, 1998, at the time of the alimony trial, Mr. and Ms. Lake were sixty and fifty-nine years old, respectively.
[2] At the alimony trial, Mr. Lake testified that he was a partner in the communications firm of "Robinson, Lake, Sayer, Miller," a wholly owned subsidiary of Bozell Worldwide.
[3] During the special counsel investigation, Mr. Lake disclosed federal elections law violations in exchange for immunity, but gave up the immunity offered when it appeared that the special counsel intended to investigate his firm and partners.
[4] The evidence shows that Ms. Lake worked at the Department of Agriculture from 1968 to 1976, and for part of that time was a confidential assistant in Agriculture Secretary Earl Butz's office. After the change in administration, she worked as a full-time court reporter from 1976 to 1987, during which time her average annual salary was $20,000. She left her court reporter position in 1987 to chair Jack Kemp's political action committee and, after the campaign ended, she became a real estate agent.
[5] Ms. Lake explained that she had attempted to schedule several training sessions with the Stenograph trainer in the area, but had been unable to do so because the trainer cancelled all the appointments. She did receive a free training session in January 1998 as part of the purchase of the equipment, but still needed training on the latest software.
[6] Although the October 1996 order approving the $20,000 advance stipulated that Ms. Lake account for the advance, Mr. Lake testified that Ms. Lake neither accounted for nor repaid this advance.
[7] At the alimony trial, Ms. Lake produced one real estate mailing dated March 1998, the month of the trial.
[8] The court determined that Ms. Lake's monthly expenses were approximately $3,500, and her potential net monthly income, based on a projected $36,000 annual salary, was $2,100. The court then concluded that Ms. Lake would need additional income of approximately $1,400 per month to sustain her current standard of living, which could be supplied by alimony in the amount of $1,000 plus income from her investments.
[9] Ms. Lake does not otherwise challenge the amount of the alimony award, including the use of her monthly expenses as a base point for analysis.
[10] Ms. Lake contends that the alimony court improperly ignored the divorce court's findings of fact, to which the parties stipulated and which the court recognized as part of the record. In particular, she notes the divorce court's finding that her "annual earnings have been de minimis the past four years," and that she "never earned more than $40,000 per annum, has limited employment credentials, and is unlikely to ever be a significant wage earner." She maintains that these findings necessitate the conclusion that her prospective earnings will be significantly less than $36,000 annually. Ms. Lake does not mention, however, that the divorce court also found that, while her earnings have been nominal since the separation, Ms. Lake is a licensed real estate agent and "employable as a stenographic reporter." The divorce court also noted, as a factual matter, that Ms. Lake intended to begin working full-time after the divorce trial. Thus, the alimony court's later conclusion that Ms. Lake was capable of earning at least $36,000 annually was not necessarily inconsistent with the divorce court's earlier findings of fact, especially given Ms. Lake's testimony that she had, in the past, earned $35,000 as a real estate agent, and exhibits admitted into evidence of vacancy announcements of the Superior Court dated September 1995 and September 1996 indicating that an entry-level court reporter's salary was approximately $37,000. Moreover, the alimony court stressed that, although it accepted the divorce court's findings of fact, the parties could still recommend what conclusions it should draw from these findings.
[11] Ms. Lake testified that she had three to four verbal consultations per week with the practitioner, either in person or by telephone, and that the practitioner prayed daily on her behalf. Ms. Lake further testified that she paid a monthly fee of $435 for this treatment.
[12] During counsel's closing statements, the trial court expressed skepticism about Ms. Lake's testimony regarding the gravity of her depression, stating
[Y]ou know a marital break up is depressing and it's sad. It always is. It's unfortunate. But with all respect, and I mean this respectfully, she looks pretty good to me. Seriously.
The court further signaled its skepticism toward Ms. Lake's claim that she was unable to return to full-time employment due to severe depression by opining
[D]on't you think it's good for people, particularly those who proffer to be and perhaps are depressed and unhappy because of a bad marriage that went bad, to put it behind them at some point, doesn't that make some sense?
Ms. Lake's counsel responded by stressing the toll that the protracted litigation had taken on his client. He stated that, once the litigation was concluded, Ms. Lake's depression might well be resolved so that she would be able to obtain full-time employment, but requested that the trial court make its decision based on actual, not imputed, income due to his client's uncontroverted testimony regarding her depression.
[13] Although the court recognized that, at the time of the alimony trial, Ms. Lake worked only part-time, it noted that she had testified that she had been trying to revive both her career as a court reporter and as a real estate agent. In addition, the trial court considered evidence that entry-level court reporters currently earned approximately $37,000 per year, as well as Ms. Lake's testimony that the most she ever earned as a real estate agent was $35,000.
[14] At the alimony trial, counsel for Ms. Lake explained this lack of corroboration by noting that Ms. Lake's Christian Science practitioner was unable to testify for "Christian Science reasons." Although the court reluctantly accepted this explanation, it did not suggest that the absence of corroborating evidence was somehow cured by the Christian Science practitioner's reluctance to testify, nor did it imply that the fact that the Christian Science practitioner did not testify supported Ms. Lake's claim that depression prevented her from gaining full-time employment.
[15] Although there is no specific evidence regarding the actual amount of time Ms. Lake spent in marketing and selling the jointly-owned marital home, the record shows that the home was sold in May 1997, and that Ms. Lake spent considerable time and effort to bring about the sale.
[16] Notably, this figure was substantially more than the $537,926 Ms. Lake declared on her financial statement, and almost double Mr. Lake's then net worth of $551,500.
[17] Ms. Lake cites Skiff for the proposition that she should not be "obliged to deplete her [net worth] to support herself when her husband is able ... to support her." 277 A.2d at 287. However, the Skiff facts are readily distinguishable. In Skiff, the wife's sole source of income was from investments. Because her anticipated expenses exceeded her investment income, this court affirmed the trial court's alimony award, even though Ms. Skiff had a net worth of $370,000 compared to Mr. Skiff's zero net worth. In the instant case, Ms. Lake has anticipated expenses which exceed her projected income from employment; however, her investment income more than covers the expected $4,800 annual shortfall between her expenses and expected annual compensation plus alimony. Moreover, although Ms. Skiff would have been forced to deplete her net worth to cover the shortfall she faced, the record indicates that Ms. Lake has sufficient investment income to meet her expenses without depleting the underlying assets.
[18] Ms. Lake again asserts that the trial court abused its discretion by overriding the divorce court's finding of fact, this time regarding Mr. Lake's prospective income. She argues that the alimony court wrongly substituted its own conclusion that Mr. Lake had a prospective income of up to $500,000 without regard for the fact that the parties had stipulated to the divorce court's finding that Mr. Lake's prospective income was at least $1.2 million. This claim is without merit. While the divorce court did express its opinion that Mr. Lake would be able to regain his former annual income once he found employment, Mr. Lake was unemployed at the time of the divorce trial. The court's opinion, therefore, was speculative and not based on fact.
At the alimony trial, Mr. Lake testified that he had regained employment, but his annual salary was $350,000. He also indicated that he did not expect to receive any significant salary increases or bonuses in the near future. Based on this testimony, and absent evidence that Mr. Lake's current employment was of limited duration, the alimony court concluded that his earnings were likely to increase to $500,000 in succeeding years. Because the alimony court's prospective income determination is supported by the evidence, we see no reason to disturb it on appeal. See McEachnie, 216 A.2d at 171 (noting that this court will not reverse a trial court's alimony determination unless plainly wrong or without evidence to support it).
[19] There is a question whether this particular argument was raised before the trial court in the first instance. See Southall v. United States, 716 A.2d 183, 189 (D.C.1998) (issues not raised below will not be considered on appeal absent a clear miscarriage of justice); D.D. v. M.T., 550 A.2d 37, 48 (D.C.1988) (claims not raised below are normally spurned on appeal).
[20] We note that, unlike other court orders, "an order emanating from a divorce settlement does not fall within the general rule [disfavoring revisitation of final orders], for the law specifically provides that the trial court may modify such orders as necessary." Smith v. Smith, 673 A.2d 1281, 1283 (D.C. 1996) (citing D.C.Code § 16-914(a) (1997 Repl.)). See also Graham v. Graham, 597 A.2d 355, 358-59 (D.C.1991) (noting circumstances where modification of alimony award may be appropriate based on increased income of the paying spouse).
[21] Upon receiving the $200,000 severance payment from Bozell, Mr. Lake disbursed $50,000 to Ms. Lake and $50,000 to himself, but withheld the remaining $100,000 in an escrow account to pay tax, intending to distribute the remainder equally after taxes were paid.
[22] Although the October 1995 severance payment from Bozell was treated as income to Mr. Lake for tax purposes, and the divorce court's order held Mr. Lake solely responsible for his income taxes starting in 1995, in the order the court considered the severance payment as a marital asset rather than income. This is likely because the payment was not dependent on continued employment with Bozell.
[23] Ms. Lake further argues that the language in the order holding Mr. Lake solely responsible for "the liabilities and debts directly related to the events leading to the termination of his employment" suggests that the court intended Mr. Lake to bear any adverse impact from leaving Bozell, including payment of taxes on the Bozell severance payment. Ms. Lake takes this language out of context, however, as earlier in the order the divorce court limited the above mentioned "liabilities and debts" to legal fees and fines related to his criminal convictions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593461/ | 954 So.2d 349 (2007)
Tammy Frazier, Wife of/and Timmie Clyde FRAZIER, Plaintiffs-Appellants
v.
Rosia BRYANT, Garrett Bryant, ABC Insurance Co., Ronald Hughes, Ron's Lawn Care and XYZ Insurance Co., Defendants-Appellees.
No. 41,978-CA.
Court of Appeal of Louisiana, Second Circuit.
April 4, 2007.
Robert M. Hanna, Shreveport, for Appellants.
Lunn, Irion, Salley, Carlisle & Gardner, by James A. Mijalis, W. Orie Hunter, III, Richard B. King, Jr., Shreveport, for Appellee, Ronald Hughes d/b/a Ron's Lawn Care.
Colvin, Weaver & Cerniglia, L.L.C., by Charles E. Weaver, Shreveport, for Rosia Bryant, Loreather Gail Garrett, Loneal Bryant and The American Central Ins. Co.
Before WILLIAMS, STEWART & SEXTON (Pro Tempore), JJ.
*351 SEXTON, J.
Plaintiffs, Timmie Clyde Frazier and his wife, Tammy Frazier, appeal the summary judgment granted in favor of Defendants, Rosia Bryant, Dr. Loreather Gail Garrett, Loneal Bryant and the American Central Insurance Company[1] (collectively "the Bryants"), and the summary judgment granted in favor of Defendant Ronald Hughes, d/b/a Ron's Lawn Care. Mr. Frazier was severely injured when he fell 50 feet from a tree located on Dr. Garrett's property, which was occupied by the Bryants. At the time of the accident, the Bryants had hired Mr. Hughes, through his business as Ron's Lawn Care, to remove the tree; Mr. Hughes, in turn, engaged Mr. Frazier for the job. Mr. Frazier was in the process of removing the top portion of the tree when he fell. Finding that no genuine issue of material fact existed as to liability of any of the Defendants, the trial court granted Defendants' motions for summary judgment and dismissed Plaintiffs' claims against all Defendants. Plaintiffs appeal. We affirm.
FACTS
Mr. and Mrs. Bryant lived on a property owned by Dr. Garrett, Mrs. Bryant's daughter, based on a verbal lease between them. Mr. Bryant sought to have a large tree removed from the property because the tree was leaning toward the house and several of the limbs of the tree were near or over the roof. They contacted Mr. Hughes, as proprietor of Ron's Lawn Care, for that purpose. Mr. Hughes then hired Mr. Frazier for the task as he had previously approached Mr. Hughes offering his services in tree removal.
The accident occurred during the removal of the tree. Mr. Frazier had climbed up to the top of the tree and was proceeding to cut away the top limbs. He wore a climbing harness and was attached to a climbing rope that was strung over the top of the tree. Mr. Frazier also had with him a lanyard rope that would have secured him to the tree by going around the tree and attaching to him on both sides. Mr. Frazier, apparently, had not connected the lanyard rope around the tree and was attached only to the climbing rope. Mr. Hughes was using his pickup truck to direct portions of the tree away from the house. Also at the property during the tree removal was Mr. Bryant, Mr. Bryant's assistant, Mr. Frazier's father, who is since deceased, Annette Frazier, Mr. Frazier's sister and her boyfriend. Mrs. Bryant was inside the house during the tree removal.
As the tree removal operation proceeded, Mr. Frazier, from up in the tree, signaled to Annette Frazier, who in turn signaled to Mr. Hughes to pull and to stop. At some point, Mr. Hughes pulled with his pickup truck and the entire top of the tree came down. Mr. Frazier was still attached to the climbing rope and came down with the tree. As a result of his fall, Mr. Frazier sustained a broken left arm, broken ribs and a closed head injury, which resulted in severe brain damage. Plaintiffs allege that the injury left Mr. Frazier with the mental capacity of a 12-year-old. The instant litigation resulted.
Mr. and Mrs. Bryant, Dr. Garrett and their insurer, American Central Insurance Company, filed an early motion for summary judgment. It was initially granted, but was then set aside by the trial court on Plaintiffs' motion for new trial. After additional discovery, Mr. Hughes, d/b/a Ron's *352 Lawn Care, filed a motion for summary judgment and the Bryants filed another motion for summary judgment. The trial court granted both and dismissed Plaintiffs' claims against all Defendants with prejudice. Plaintiffs appeal.
DISCUSSION
The standard of review for the grant or denial of a motion for summary judgment is de novo. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002. Appellate courts review summary judgments de novo under the same criteria that govern a trial court's consideration of whether or not a summary judgment is appropriate-(1) whether there exists a genuine issue of material fact and (2) whether or not the mover is entitled to judgment as a matter of law. Id. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). A genuine issue is a triable issue on which reasonable persons could disagree. Jones, supra, citing Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730. Further, a fact is material when "its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery." Jones, supra, quoting Smith, supra.
In a motion for summary judgment, the burden of proof is on the movant. La. C.C.P. art. 966(C)(2). The movant's burden does not require him to negate all essential elements of the adverse party's claim; but, rather, the burden on the movant at summary judgment is to demonstrate an absence of factual support for one or more elements essential to the adverse party's claim. Then, if the non-movant fails to produce sufficient factual support to show he can meet his evidentiary burden at trial, there is no genuine issue of material fact. Id.
Plaintiffs assert general negligence claims against Mr. Hughes and the Bryants. Under Louisiana jurisprudence, most negligence cases are resolved by employing a duty/risk analysis, which entails five separate elements: (1) whether the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) whether the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) whether the defendant's substandard conduct was a cause-in-fact of the plaintiff's injures (the cause-in-fact element); (4) whether the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and (5) whether the plaintiff was damaged (the damages element). Hanks v. Entergy Corp., 06-477 (La.12/18/06), 944 So.2d 564. A plaintiff must succeed on all elements to establish the liability of a defendant. Id.
After our de novo review of the record, we find no genuine issue of material fact. Attached to the various motions for summary judgment were the depositions of each Plaintiff, Mr. Hughes, Mr. Bryant and Annette Frazier, and a sworn affidavit of Mrs. Bryant and Mr. Hughes. The trial court struck Mrs. Bryant's affidavit to the extent any statement exceeded her personal knowledge. Due to the extent of his injuries, Mr. Frazier was unable to remember the accident. According to Mr. Hughes, Mr. Bryant and Annette, at the moment of the accident, Mr. Hughes was pulling because he was instructed to do so. Further, the deposition testimony does not create a genuine issue of material fact that any Defendant exercised such control over the operation as to be liable *353 for the accident. We find nothing in the depositions that create a genuine issue of material fact that would make any Defendant liable under general negligence.
Plaintiffs further maintain that the Bryants are liable for failing to warn Mr. Frazier of any defective condition of the tree. Liability for a thing under one's ownership or custody is governed by La. C.C. art. 2317.1.
The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.
An essential element for this liability is that a ruin, vice or defect existed that created an unreasonable risk of harm. Davis v. Diamond Shamrock Refining & Marketing Co., 34,309 (La.App.2d Cir.12/6/00), 774 So.2d 1076. Further, the defect must cause the plaintiff's injury. Id. The depositions and affidavits contained in the record do not create a genuine issue of material fact that any defect in the tree existed. At most, the depositions suggest that the tree was leaning due to erosion at the base of the tree and nothing indicates that this condition caused Mr. Frazier's fall.
CONCLUSION
From our de novo review of the record, we conclude that no genuine issue of material fact exists and that Defendants are entitled to judgment as a matter of law. We affirm the trial court's granting of Defendants' motions for summary judgment and dismissing them with prejudice. Costs herein are assessed against Plaintiffs, Timmie Clyde Frazier and Tammy Frazier.
AFFIRMED.
NOTES
[1] The original petition named as Defendants Rosia Bryant, Garrett Bryant, Ronald Hughes and ABC Insurance Company. The Defendants' actual names were corrected by two amending and supplementing petitions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593485/ | 19 So.3d 988 (2009)
WILLIAMS
v.
STATE, COM'N ON ETHICS.
No. 1D09-43.
District Court of Appeal of Florida, First District.
October 21, 2009.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593487/ | 954 So.2d 883 (2007)
LOUISIANA AG CREDIT, PCA, Plaintiff-Appellee
v.
LIVESTOCK PRODUCERS, INC., et al., Defendant-Appellant.
No. 42,072-CA.
Court of Appeal of Louisiana, Second Circuit.
April 4, 2007.
Rehearing Denied May 3, 2007.
*885 William H. Hallack, Jr., Dennis W. Hallack, West Monroe, for Appellant.
Michael A. Stroud, Roger J. Naus, for Appellee.
Before WILLIAMS, DREW and MOORE, JJ.
WILLIAMS, J.
Livestock Producers, Inc., Mary Alice Stratton and George Ronald Stratton (collectively referred to as "Livestock Producers") seek reversal of the district court's ruling granting summary judgment in favor of Louisiana AG Credit, PCA ("PCA"). For the reasons that follow, the judgment of the district court is hereby reversed and we remand this matter for further proceedings.
FACTS
Livestock Producers was in the business of operating a cattle-sale barn. PCA is a farm credit association. On or about October 21, 1999, Livestock Producers executed a revolving credit promissory note in favor of PCA in the principal amount of $800,000, plus interest at a variable rate as provided in the note. The promissory note required Livestock Producers to pay the note on demand at PCA's discretion. If no demand was made, Livestock Producers was required to pay all advances made by PCA pursuant to the revolving credit note, plus interest following each cattle auction conducted by Livestock Producers. The revolving credit note further required Livestock Producers to make regular monthly payments of accrued unpaid interest to PCA.
Over the next five years, PCA continued to provide financing to Livestock Producers on substantially the same terms and conditions set forth in the original promissory note. During the course of the lending relationship, Livestock Producers executed other revolving credit promissory notes in favor of PCA. The last note and loan agreement were executed on February 28, 2005.
From the time the initial loan agreement was made, Livestock Producers issued checks made payable to PCA following each cattle auction, and PCA advanced additional funds. On or about March 10, 2005, following an auction, Livestock Producers issued four checks, totaling $446,733.23, payable to PCA, toward the amount owed under the revolving credit agreement. In turn, PCA advanced an additional $447,379.40 in principal to Livestock Producers. Soon thereafter, Livestock Producers placed stop payment orders on the four checks.
On April 29, 2005, PCA instituted an action to recover the monies owed. On September 7, 2005, PCA filed a motion for summary judgment, alleging it was entitled to a judgment against Livestock Producers in the amount of $893,466.46, plus court costs and attorneys' fees. Livestock Producers opposed the motion for summary judgment, submitting a 13-page joint *886 affidavit from George Ronald Stratton ("Ronnie") and Mary Alice Stratton ("Mary").
On October 6, 2005, Livestock Producers filed a "First Amended Answer, Reconventional Demand and Third Party Demand," asserting a reconventional demand against PCA for lender liability. Livestock Producers also asserted a third-party demand against James B. Smith ("Smith"), President and Chief Executive Officer of PCA, and Leotis Hyde, Jr. ("Hyde"), PCA's Senior Vice President and Chief Credit Officer, for intentional interference with contractual relations. An additional third-party demand was asserted against Hyde for intentional infliction of emotional distress.
On October 19, 2005, the district court granted summary judgment against Livestock Producers and awarded $893,466.46, plus legal interest, to PCA pursuant to LSA-R.S. 9:2782.2(A). The district court also rendered judgment against Livestock Producers, Ronnie and Mary in solido, for indebtedness owed to PCA under a revolving credit note in the principal amount of $791,320.21, plus interest and attorneys' fees. The district court did not address any of the incidental demands asserted by Livestock Producers. The judgment was not appealed.
On May 16, 2006, PCA filed a motion for summary judgment with regard to the claims asserted in Livestock Producers' reconventional and third-party demands. In response, Livestock Producers filed a memorandum in opposition which "incorporated by reference" the joint affidavit from Ronnie and Mary previously submitted with the opposition to the motion for summary judgment in the principal action. No new affidavits or other evidence was introduced in opposition to the motion.
In the affidavit, the Strattons attested, inter alia, that the lending relationship between PCA and Livestock Producers began without problems. Mary would call the bank to request funds and a check would be issued to her when she arrived at the bank. However, on August 8, 2002, when she arrived at the bank, Mary was told by bank employees that Hyde had instructed them not to issue a check. Ronnie called Smith, who authorized the funds. The following day, the Strattons attended a social event at which Hyde and his wife were in attendance. At some point during the event, Hyde approached Mary and rubbed his finger down her arm, commenting that he "sure would like to have sex" with her and she "would be surprised how he could make any problems with the Livestock Producers loan disappear." Mary declined Hyde's offer, and he told her that she "really needed to think about it."
The Strattons stated that the lending relationship between Livestock Producers and PCA began to deteriorate after Mary rebuffed Hyde's sexual advance. Hyde changed the paperwork required to obtain the weekly advances against the line of credit, making the process increasingly difficult. Whether the funds would be advanced and in what amount was within Hyde's sole discretion. In 2004, Hyde began to require weekly meetings with regard to the renewal or extension of the line of credit, and Mary's presence was always requested at the meetings. During one of the meetings held in February 2005, Hyde stated that he had a "Plan B" with regard to the lending relationship between PCA and Livestock Producers. While alluding to the alternate plan, Hyde looked directly at Mary and refused to explain what he meant to the meeting's other attendees. Later that month, Hyde went to Livestock Producers' auction barn and approached Mary, telling her that he still *887 thought the two of them could "work this out."
In July 2004, the three-year line of credit was due for renewal. Hyde began to issue renewals or extensions on a month-to-month basis only, causing Livestock Producers to face a monthly note in excess of $800,000. PCA also "tightened the screws" by causing unscheduled audits of Livestock Producers' custodial account by both Packers and Stockyard Administration and the Louisiana Department of Agriculture. The Strattons further attested that Mary began treatment for "stress-related medical problems" as a result of Hyde's conduct.
Following a hearing, the district court granted summary judgment in favor of PCA and dismissed the reconventional and third-party demands with prejudice. The district court refused to consider the joint affidavit submitted, stating:
I really don't think that I can consider the stale affidavit submitted in a completely different motion. I think that it would have had to have been resubmitted and updated as an opposition to the motions that are before the Court this morning. So I think for that reason that the motions for summary judgment are entitled to be granted as a matter of law.
The district court further stated:
[I]f I had considered the prior affidavit of the original defendants in this case that because on the first cause of action, the lender liability, I would find that the Henning [Construction, Inc. v. First Eastern Bank & Trust Co., 92-0435 (La. App. 4th Cir.3/15/94), 635 So.2d 273, writ denied, 94-1544 (La.9/30/94), 642 So.2d 870] case is applicable. On the-with regard to the tortous [sic] interference, I think the 9 to 5 [Fashions v. Spurney, 538 So.2d 228 (La.1989)] factors are so limited that they would not be applicable in this case and I would have granted summary judgment on that ground as well. And on the intentional infliction of emotional distress, I find that that cause is not under these facts a continuing tort and therefore, has has prescribed.
Livestock Producers filed the instant appeal.
DISCUSSION
Livestock Producers contends the district court erred in refusing to consider the affidavit and in granting summary judgment. According to Livestock Producers, the Code of Civil Procedure makes no distinction between "fresh" and "stale" affidavits.
In determining whether summary judgment is appropriate, appellate courts are to review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is proper. Suire v. Lafayette City-Parish Consolidated Government, XXXX-XXXX (La.04/12/05), 907 So.2d 37. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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(A)(2) and (B).
The burden of proof remains with the movant. LSA-C.C.P. art. 966(C)(2). However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more *888 elements essential to the adverse party's claim, action, or defense. Id. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id.
When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967(B).
The Affidavit
In the instant case, in opposition to PCA's motion for summary judgment, Livestock Producers filed an opposing memorandum and "incorporated by reference" the joint affidavit of Ronnie and Mary, which had been filed in opposition to PCA's motion for summary judgment in the principal action.
Documents may be considered in support of a motion for summary judgment if they are attached to a pleading that is in the record. Hunt v. Petroleum Corp. v. Texaco, Inc., XXXX-XXXX (La.App. 4th Cir.12/1/04), 891 So.2d 36; Broadbridge v. Perez, 565 So.2d 1090 (La.App. 4th Cir.1990). Written motions for summary judgment constitute "pleadings" under LSA-C.C.P. art. 852. Written documents may be attached to pleadings and made part thereof. See, LSA-C.C.P. art. 853; Arnette v. NPC Services, Inc., XXXX-XXXX (La.App. 1st Cir.2/15/02), 808 So.2d 798.
In Palmer v. Ameriquest Mtg. Co., 41,576 (La.App. 2d Cir.12/13/06), 945 So.2d 294, the defendants argued that references to a deposition should not be considered by this court because the plaintiff failed to attach a copy of the deposition to his motion for summary judgment. Conducting a de novo review of the record, this court ruled that the deposition would be considered, stating:
Counsel for [plaintiff] attached a complete copy of [defendant's] deposition to the "omnibus motions" filed into the record on June 20, 2005. He did not attach it to this motion for summary judgment, but at the hearing he referred to the deposition and advised the court that it was in the record. This was sufficient to direct the court's attention to a deposition that was already on file within the meaning of art. 966 B. . . . Under the circumstances, the deposition was on file and its existence was clearly pointed out to the court.
Id. at 300-01 (emphasis in original).
We find that the district court erred in refusing to consider the affidavit on the basis that it had been "submitted in a completely different motion." The affidavit was attached to the memorandum in opposition to the initial motion for summary judgment and was a part of the record.
We also reject PCA's contention that the affidavit is inadmissible because one of the affiants, Ronnie, died before the current motion for summary judgment was filed. According to PCA, because the affidavit is a "joint affidavit" submitted by both Ronnie and Mary, it does not comply with the requirements of LSA-C.C.P. art. 967, which provides in pertinent part:
A. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent *889 to testify to the matters stated therein. . . .
It is clear that Ronnie is an unavailable witness, as defined by LSA-C.E. art. 804(A)(4).[1] However, the joint affiant, Mary, "is competent to testify to the matters stated" in the affidavit. In fact, the reconventional and third-party demands are primarily centered around allegations made by Mary. The allegations pertain to alleged conduct by Hyde which Ronnie did not witness. Therefore, the district court should have considered the joint affidavit which was a part of the record and incorporated by reference in support of the opposition to the motion for summary judgment.
Reconventional and Third-Party Demands
The district court further concluded that even if it had considered the affidavit, summary judgment in favor of PCA is still proper. For the following reasons, we reverse that ruling.
Lender Liability
In its reconventional demand, Livestock Producers alleged that PCA was negligent and failed to act in good faith during the lending relationship. Citing Henning Construction, Inc. v. First Eastern Bank & Trust Co., 92-0435 (La.App. 4th Cir.3/15/94), 635 So.2d 273, writ denied, 94-1544 (La.9/30/94), 642 So.2d 870, PCA contends it did not owe a duty of good faith to Livestock Producers.
At the time this action was filed, LSA-R.S. 10:1-203 provided:
Every contract or duty within this Title imposes an obligation of good faith in its performance and enforcement. The standard of good faith performance required under this Title shall be based upon Civil Code Articles 1983, 1996, and 1997.
Contracts must be performed in good faith. LSA-C.C. art. 1983. An obligor in good faith is liable for the damages that were foreseeable at the time the contract was made. LSA-C.C. art. 1996. An obligor in bad faith is liable for all the damages, foreseeable or not, that are a direct consequence of his failure to perform. LSA-C.C. art. 1997.
The decision to request payment of a demand instrument does not fall within the good faith connotations of LSA-R.S. 10:1-203 and 1-208. Bespress, Inc. v. Capital Bank of Delhi, 616 So.2d 795 (La. App. 2d Cir.1993); Commercial National Bank in Shreveport v. Audubon Meadow Partnership, 566 So.2d 1136 (La.App. 2d Cir.1990); Henning Construction, supra.
In the instant case, our examination of the language of the promissory notes reveals that they are unquestionably demand notes.[2] However, Livestock Producers does not allege that PCA acted in *890 bad faith in demanding payment of the notes. Rather, it contends the bank failed to act in good faith in the following manner, inter alia:
1. Hyde structured the lending relationship in such a manner as to require Livestock Producers to face a demand note of over $800,000 each month;
2. Hyde made sexual advances towards Mary in exchange for leniency with the loan;
3. After Mary rebuffed his advances, Hyde caused the lending relationship to become increasingly onerous;
4. PCA caused unscheduled audits with Packers and Stockyard Administration and the Louisiana Department of Agriculture;
5. PCA, knowing Wednesday was Livestock Producers' auction day, caused the petition and discovery requests to be served on Wednesdays and attempted seizure of cattle to take place on a Wednesday in the presence of hundreds of customers;
6. One of PCA's executives told one of Livestock Producers' customers that she should not sell her cattle through Livestock Producers because it was a "bad risk;"
7. PCA sent an employee to all of the banks doing business with Livestock Producers to persuade the other banks to join PCA's lawsuit;
8. Hyde told other members of the banking community that Livestock Producers had submitted inaccurate financial statements which excluded the debt owed to PCA;
9. Smith and other PCA executives shared the details of the lending relationship between Livestock Producers and PCA with others;
10. PCA attempted to persuade other banks to stop doing business with Livestock Producers.
Thus, it is clear from the language of Livestock Producers' reconventional demand that the claims asserted with regard to lender liability do not center around PCA's decision to request payment of the note. Therefore, the cases relied upon by the district court and PCA do not apply.
Black's Law Dictionary defines "good faith" as "an intangible and abstract quality with no technical meaning or statutory definition, and it encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage, and an individual's personal good faith is a concept of his own mind and inner spirit. . . ." Black's Law Dictionary defines "bad faith" as follows:
The opposite of "good faith," generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive. Term `bad faith' is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will.
Summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge, or malice. Jones v. Estate of Santiago, XXXX-XXXX (La.4/14/04), 870 So.2d 1002; Hooker v. Wal-Mart Stores, Inc., 38,350 (La.App. 2d Cir.4/07/04), 870 So.2d 1131, writ denied, XXXX-XXXX (La.9/24/04), 882 So.2d 1142. *891 One reason is that these subjective facts call for credibility evaluations and the weighing of testimony. Hooker, supra; Oaks v. Dupuy, 32,070 (La.App. 2d Cir.8/18/99), 740 So.2d 263, writ not considered, 99-2729 (La.11/24/99), 750 So.2d 993. Furthermore, the circumstantial evidence usually necessary for proof of motive or intent requires the trier-of-fact to choose from competing inferences, a task not appropriate for a summary judgment ruling. Hooker, supra.
After reviewing the record in this case, we conclude that the affidavit submitted by Livestock Producers raised a genuine issue of material fact with regard to whether the actions of PCA and its employees were prompted by a "dishonest purpose or moral obliquity" and/or "furtive design or ill will." It is clear that the purpose of the initial lawsuit filed by PCA was to recover funds owed by Livestock Producers. However, the motives and/or intent of PCA and Hyde with regard to the restructuring of the lending relationship and the other alleged conduct remain unclear. Consequently, the district court erred in granting PCA's motion for summary judgment.
Interference With a Contract
We also conclude that summary judgment is inappropriate for the disposition of the third-party demand for tortious interference with a contract. In one of the third-party demands, Livestock Producers alleged Smith and Hyde tortiously interfered with its contract with PCA. The district court concluded that summary judgment was appropriate pursuant to the factors set forth in 9 to 5 Fashions v. Spurney, 538 So.2d 228 (La.1989). In that case, the Supreme Court held that an action against a corporate officer for intentional and unjustified interference with contractual relations requires proof of the following:
1. The existence of a contract or a legally protected interest between the plaintiff and the corporation;
2. The corporate officer's knowledge of the contract;
3. The officer's intentional inducement or causation of the corporation to breach the contract or his intentional rendition of its performance impossible or more burdensome;
4. Absence of justification on the part of the officer;
5. Causation of damages to the plaintiff by the breach of contract or difficulty of its performance brought about by the officer.
In this case, it is undisputed that a contract existed between Livestock Producers and PCA, and Smith and Hyde had knowledge of the contract. Whether Smith and Hyde intentionally induced or caused PCA to breach the contract or intentionally rendered the performance of the contract impossible or more burdensome, without justification, are questions of fact to be determined by a trier of fact. As stated above, summary judgment is rarely appropriate when subjective facts are at issue.
Intentional Infliction of Emotional Distress/Prescription
Finally, with regard to the third-party demand against Hyde for intentional infliction of emotional distress for sexual harassment, we reject PCA's contention that the continuing tort doctrine does not apply under the facts of this case. Therefore, we reverse the district trial court's determination that the intentional infliction of emotional distress claim has prescribed.
Delictual actions are subject to a liberative prescriptive period of one year commencing from the day the injury or damage is sustained. LSA-C.C. art. 3492. Prescriptive statutes are to be strictly construed *892 against prescription and in favor of the obligation sought to be extinguished. Bustamento v. Tucker, 607 So.2d 532 (La. 1992); Fuller v. Baggette, 36,952 (La.App. 2d Cir.5/6/03), 847 So.2d 26, writ denied, 2003-2076 (La.11/7/03), 857 So.2d 498. Of two possible constructions of a prescription statute, one barring the action and one maintaining it, the statute will be read in such manner as to maintain the action. Elevating Boats, Inc. v. St. Bernard Parish, XXXX-XXXX (La.9/5/01), 795 So.2d 1153; Lima v. Schmidt, 595 So.2d 624 (La.1992); Fuller, supra.
When tortious conduct and resulting damages are of a continuing nature, prescription does not begin until the conduct causing the damages is abated. Bustamento v. Tucker, 607 So.2d 532 (La. 1992); Stett v. Greve, 35,140 (La.App. 2d Cir.2/27/02), 810 So.2d 1203. The principle of a continuing tort applies only when continuous conduct causes continuing damages. Stett, supra. The continuous nature of the conduct complained of has the dual effect of rendering such conduct tortious and of delaying the commencement of prescription. Bustamento, supra; Stett, supra. The conduct becomes tortious and actionable because of its continuous, cumulative, synergistic nature and prescription does not commence until the last act occurs or the conduct is abated. Id.
In Bustamento, supra, the plaintiff filed a tort action for intentional infliction of emotional distress against her employer and certain fellow employees, alleging that one of her co-workers had subjected her to almost daily incidents of sexual harassment over a two-year period. The Supreme Court stated:
While each incident alleged by Ms. Bustamento may not necessarily be classified as "outrageous," when her allegations are viewed properly as a whole, consisting of a continuing flow of related acts, by the same actor, stretching across a two-year span, the cumulative effect of them could serve to render such actions "outrageous" and actionable under White [v. Monsanto Co., 585 So.2d 1205 (La.1991)]. Moreover, the last act, just as previous acts of harassment, does not have to be in and of itself actionable, but rather need only be an act in furtherance of the continuing pattern of harassment so as to indicate that the harassment has not abated.
Id. at 543 (footnote and citations omitted).
In this case, Mary stated in the affidavit that Hyde approached her and suggested engaging in a sexual relationship with her on August 9, 2002. Soon thereafter, he began to make changes to the method by which funds were disbursed to Livestock Producers. The next alleged related incident took place in February 2005, when during a meeting, Hyde allegedly looked at Mary and stated that he had a "Plan B" with regard to the lending relationship. Finally, in February 2005, Hyde allegedly went to Livestock Producers' auction barn, where he stated to Mary that the two of them could "work this out." The third-party demand was filed on October 6, 2005.
It is apparent from the record before us that the relationship between PCA and Livestock Producers concerned the advancement of funds on a frequent basis. It is undisputed that Hyde's duties, as chief credit officer, included management of the loan. Once Mary refused to enter into a sexual relationship with Hyde, as he allegedly first suggested in August 2002, the relationship between PCA and Livestock Producers began to deteriorate, with Hyde making the lending process increasingly difficult.
*893 In our view, the alleged incidents with Hyde and Mary cannot be disunited from Hyde's alleged conduct in causing or contributing to the deterioration of the lending relationship with Livestock Producers. Hyde's actions cannot justly be classified as separate acts of negligence. Therefore, we conclude that if proven, the series of acts by Hyde would have continued to compound Mary's damage. The continuous negligent acts by the same party, Hyde, coupled with the cumulative nature of the damages, make this case a continuing tort, for which prescription did not begin to run until the last act occurred, February 2005. Accordingly, we reverse the district court's conclusion that the claim for intentional infliction of emotional distress has prescribed.
CONCLUSION
For the foregoing reasons, the summary judgment rendered in favor of Louisiana AG Credit, PCA is hereby reversed and the matter is remanded for further proceedings. Costs of this appeal are assessed to the appellee, Louisiana AG Credit, PCA.
REVERSED AND REMANDED.
APPLICATION FOR REHEARING
Before WILLIAMS, STEWART, DREW, MOORE and LOLLEY, JJ.
Rehearing denied.
NOTES
[1] LSA-C.E. art. 804(A)(4) provides:
A. Definition of unavailability. Except as otherwise provided by this Code, a declarant is "unavailable as a witness" when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court. This includes situations in which the declarant:
* * *
(4) Is unable to be present or to testify at the hearing because of death. . . .
[2] A promise or order is "payable on demand" if it (i) states that it is payable on demand or at sight, or otherwise indicates that it is payable at the will of the holder, or (ii) does not state any time of payment. LSA-R.S. 10:3-108(a). A provision for monthly installments does not destroy the demand nature of a note. Henning Construction, supra; Johnston v. Johnston, 568 So.2d 567, 568 (La.App. 5th Cir.1990), writ denied, 571 So.2d 655 (La. 1990); Blanchard v. Progressive Bank & Trust Co., 413 So.2d 589, 591 (La.App. 1st Cir. 1982). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593501/ | 45 F.Supp. 195 (1942)
JONES
v.
HASSETT, Collector of Internal Revenue (two cases).
Nos. 954, 955.
District Court, D. Massachusetts.
May 26, 1942.
*196 Charles M. Rogerson and Roger W. Hardy, both of Boston, Mass., for plaintiff.
Lyle M. Turner, of Washington, D. C., and George F. Garrity, of Boston, Mass., for defendant.
WYZANSKI, District Judge.
This case presents what must be an ever-recurring question in fiduciary accounting under the federal income tax law: may testamentary trustees of the residue of an estate in their fiduciary federal income tax return deduct interest they paid on account of the testator's federal estate tax?
Charles H. Jones, the testator, named the same persons as executors of his will and as trustees of the residue of his estate. In 1936 they as executors had distributed some of their assets to themselves as trustees, but had retained in excess of $300,000. In that year they as trustees paid to the United States on account of the estate of their decedent a federal estate deficiency tax of $109,369.30 and interest thereon of $16,961.29. The evidence does not disclose the reason why the trustees instead of the executors paid the whole tax and interest; but at the bar counsel admitted that the payment by the trustees had an effect upon beneficiaries different from what would have been the effect of a payment by the executors.
The trustees in their fiduciary return for 1936 under the federal income tax law took a deduction of $16,961.29 on account of the interest paid. On their books, the trustees charged Charles H. Jones, Jr., and Paul Jones, as beneficiaries of current income of the estate, with proportionate parts of the payment of interest, and after making such charge the trustees distributed to Charles H. Jones, Jr., $23,691.97 and to Paul Jones $23,691.98. The beneficiaries made their personal income tax returns accordingly.
The Commissioner of Internal Revenue asserted that the trustees should not have taken the interest deduction in their return; that proportionate parts of the $16,961.29 should have been distributed to the beneficiaries of current income; and that such parts should have been included in the individual income tax returns of Charles H. Jones, Jr., and Paul Jones. On that basis, he claimed deficiencies against Charles H. Jones, Jr., and Paul Jones; they paid; and now (after making a minor correction in their computations) they sue for refunds.
The relevant statutes impose an income tax upon the trustees but give them credit for "interest paid" and for income currently distributable to beneficiaries; and then impose a tax upon beneficiaries for the amount distributable to them. The statutory scheme is accomplished by four different sections of the Revenue Act of 1936: (1) Section 142 of the Revenue Act of 1936, 26 U.S.C.A. Int.Rev.Acts, page 884, requires the trustees to make a return for the trust "stating specifically the items of gross income thereof and the deductions and credits allowed" under the Act; (2) Section 161(a) (2) of the Act, 26 U.S. C.A. Int.Rev.Acts, page 893, imposes a tax upon income which is to be distributed *197 currently by the fiduciary to beneficiaries; (3) Section 23(b) of the Act, 26 U.S.C.A. Int.Rev.Acts, page 827, allows a deduction of "interest paid or accrued within the taxable year on indebtedness"; and (4) Section 162(b) of the Act, 26 U.S.C.A. Int.Rev.Acts, page 893, provides that "there shall be allowed as an additional deduction in computing the net income of the estate or trust the amount of the income of the estate or trust for its taxable year which is to be distributed currently by the fiduciary to the beneficiaries * * * but the amount so allowed as a deduction shall be included in computing the net income of the beneficiaries whether distributed to them or not".
The question at bar arises under the third of the sections just cited, Section 23(b). If the sum of $16,961.29 paid by the trustees was "interest paid on indebtedness", they were entitled to the deduction of that amount and the beneficiaries properly failed to include in their returns of income their proportionate parts of that amount. However, if the trustees were not entitled to the deduction, they should have reported the amount as income distributable to the beneficiaries of current income; the beneficiaries should have included in their returns of income their proportionate parts of that amount [Section 162(b) of the Revenue Act of 1936]; and the beneficiaries should now pay a tax as though distribution had been made properly. Freuler v. Helvering, 291 U.S. 35, 37, 38, 54 S.Ct. 308, 78 L.Ed. 634.
The plaintiffs rely upon the authority of Commissioner v. Beebe, 1 Cir., 67 F.2d 662, 92 A.L.R. 862; Scripps v. Commissioner of Internal Revenue, 6 Cir., 96 F. 2d 492, 495, 496 and Penrose v. United States, D.C.E.D.Pa., 18 F.Supp. 413. From these cases and more particularly Penrose's case, they derive the argument that a testamentary trust is part of the estate of a decedent; that the trust as part of the estate paid interest on that tax they paid interest on their own debt; that the payment was peculiarly proper because the trustees, as principles of probate law required, charged the interest to the beneficiaries of current income; and that allowance of the deduction to the trustees is fair since it enures directly to the advantage of the beneficiaries of current income who are the very persons who ultimately bear the economic disadvantage of the payment of the interest.
This reasoning seems to me unsound.
Despite Judge Maris' contrary ruling in Penrose's case, and despite the language in the Beebe case, interpreting another section of the revenue laws, I cannot accept the initial premise that a testamentary trust is, for the purpose of calculating tax deductions, a part of the estate of the decedent. Under the tax laws two taxable entities exist: the executors make their return and are allowed their deductions and credits; the trustees make their return and are allowed their deductions and credits. See Sections 162 and 163 of the Revenue Act of 1936, 26 U.S.C.A. Int. Rev.Acts, pages 893, 894. Thus it is often a tax advantage, as it may have been here, promptly to set up a residuary trust separate from the estate.
And the two entities have different obligations. The obligation to pay the estate tax and the obligation to pay the interest thereon are obligations of the executors. It is true that the property which the trustees received from the executors came to them burdened with a lien in favor of the Government for the executors' obligation to pay the tax [Section 315(a), 26 U.S.C.A. Int.Rev.Acts page 253] and also their obligation to pay the interest [Section 308(h) of the Revenue Act of 1926, 26 U.S.C.A. Int.Rev.Acts, page 246]. But although so far as the executors were concerned the two obligations were of different natures, so far as the trustees were concerned both obligations were alike. They were statutory obligations of a transferee to pay items owed by his transferor, and neither of the trustees' statutory obligations is interest. This conclusion accords with a decision of the Board of Tax Appeals in the case of a distributee of a decedent's estate, Helen B. Sulzberger v. Commissioner, 33 B.T.A. 1093; cf. Harvey M. Toy, v. Commissioner, 34 B.T. A. 877 and with an administrative ruling in the case of a transferee of corporate assets. I.T. 3156, C.B.1938, 1 p. 213. And there are numerous other situations reviewed in William H. Simon v. Commissioner, 36 B.T.A. 184 where it has been held that when the taxpayer, pursuant to his obligation, met another's obligation to pay interest, his payment was not, so far as he was concerned, a payment of interest. The classic case is where the tenant pays interest owed by the landlord. Charles R. Holden v. Commissioner, 27 B.T.A. 530.
*198 Moreover, even if from the trustees' viewpoint the payment of $16,961.29 had been interest, they ought to get no deduction because they were entitled to reimbursement from the executors out of the part of the estate still undistributed [Section 314(b) of the Revenue Act of 1926, 26 U.S.C.A. Int.Rev.Acts, page 252]; and were not precluded from exercising that right by instructions from the testator or by lack of funds in the hands of the executors as appears to have been the case in Scripps v. Commissioner of Internal Revenue, 6 Cir., 96 F.2d 492, 493, col. 2, lines 19-21. [Nor, it may be noted in passing, were they precluded by the executors' lack in September, 1936, of current income (as distinguished from principal); since if the executors had been asked to meet this unanticipated expense, they would have been bound to pay the obligation if necessary out of principal or out of borrowed funds and then to charge the item to the beneficiaries of current income over a period of several years. Am. Law Inst. Restatement, Trusts § 233 comment (e).] If, in the case at bar, the trustees had actually been reimbursed by the executors, they would surely not be entitled to a deduction. Their position seems to me to be no different where in law they have a claim for reimbursement which was in fact collectible. If the trustees were allowed a deduction and then the executors reimbursed them, there would exist the undesirable dilemma either of denying the executors a deduction or allowing at the expense of the Government a second deduction for the same interest.
The references which the plaintiffs make to probate law seem to me entirely beside the point. It is true that whether the executors or the trustees paid the $16,961.29, that item, when it appears in the probate accounts, ought to be charged against beneficiaries of current income, not against corpus. Parkhurst v. Ginn, 228 Mass. 159, 170, 117 N.E. 202, Ann.Cas. 1918E, 982; Bridge v. Bridge, 146 Mass. 373, 15 N.E. 899. The reason is that otherwise the procrastination of the fiduciaries would have had the effect of increasing each year during the delay the receipts of the beneficiaries of current income at the ultimate expense of those entitled to corpus. But although the beneficiaries of current income must bear the burden of the $16,961.29, it does not follow that the item is properly described even in probate accounts as interest paid by the trustees. And whatever the state probate law may choose to call the item, it is plain that the designation is not conclusive in applying federal tax law.
As to the contention that as a matter of fairness the trustees and the beneficiaries of current income should get the deduction since the economic burden of paying the interest falls upon the beneficiaries, a sufficient answer is that in Section 23(b) Congress authorized a deduction not for economic burdens, but for interest paid on indebtedness.
After the parties have submitted appropriate calculations in the light of the opinions in this and in the companion case, 45 F.Supp. 198, a judgment will be entered in accordance with the opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593502/ | 954 So.2d 577 (2006)
HOUSING AUTHORITY OF the CITY OF HUNTSVILLE
v.
HARTFORD ACCIDENT AND INDEMNITY COMPANY.
1040885.
Supreme Court of Alabama.
September 29, 2006.
John M. Heacock, Jr., of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellant.
L. Graves Stiff III and Elise M. Frohsin of Starnes & Atchison, LLP, Birmingham, for appellee.
SMITH, Justice.
On April 21, 2004, the Housing Authority of the City of Huntsville ("the Housing Authority") sued Hartford Accident and Indemnity Company ("Hartford"), alleging that Consolidated Construction Company ("Consolidated"), for whom Hartford had issued a performance bond, had improperly installed fire-alarm systems at a residential *578 facility operated by the Housing Authority. The complaint sought to enforce Hartford's obligations under the performance bond and demanded a judgment against Hartford "for compensatory damages in such amount as a jury may determine, plus interest and the costs of this action." Hartford filed a motion for a summary judgment, which the trial court granted on February 15, 2005. The Housing Authority appeals. We affirm.
Facts and Procedural History
Hartford issued a performance bond in favor of Consolidated, the general contractor for the renovation of the Housing Authority's premises. It is undisputed that Consolidated substantially completed its work at the premises on May 1, 1999, and that the Housing Authority discovered defects in the fire-alarm systems within one year of the completion date. Finally, it is undisputed that the Housing Authority did not file any action against Consolidated or Hartford for damages associated with Consolidated's work at the premises within the applicable two-year statutory limitations period. The Housing Authority filed this action on April 21, 2004, almost five years after Consolidated had completed its work, seeking to enforce Hartford's obligations under the performance bond. Consolidated was not made a party in this case.
The trial court, in its summary-judgment order, held:
"Under the applicable statute of limitations, all civil claims, whether in tort or contract, against an architect, engineer or contractor must be commenced within two (2) years `next after a cause of action accrues or arises, and not thereafter.' Ala.Code [1975,] § 6-5-221(a). . . .
"It is not disputed that the foregoing statute of limitations applies to any action against Consolidated, as a contractor for the [Housing] Authority project. It is also undisputed that the [Housing Authority] failed to commence an action against Consolidated within the period of time required by Ala.Code [1975,] §§ 6-5-220(e) and 6-5-221(a).
"Under Alabama law, a surety may make any defense not personal to the principal that the principal can. More specifically, a surety may assert as a defense the statute of limitations available to the principal even if the principal through negligence, inadvertence, collusion, or otherwise, has not raised it. Alabama Surface Mining Reclamation Comm'n v. Commercial Standard Ins. Co., 469 So.2d 619, 620 (Ala.Civ.App. 1985) (citing Commercial Standard Ins. Co. v. Alabama Surface Mining Reclamation Comm'n, 443 So.2d 1245, 1249 (Ala.Civ.App.1983), cert. denied, 467 U.S. 1242 (1984)).
"Because the [Housing Authority] failed to commence an action against Consolidated within two years following its discovery of the alleged deficiencies in the fire alarm system, and because Hartford, as surety, is entitled to assert the benefit of all defenses available to its principal, all claims against Hartford, as surety, are time-barred."
Standard of Review
In Smith v. State Farm Mutual Automobile Insurance Co., 952 So.2d 342, 346 (Ala.2006), this Court stated the applicable standard of review governing an appeal from a trial court's ruling on a summary-judgment motion:
"We review the trial court's grant or denial of a summary-judgment motion de novo, and we use the same standard used by the trial court to determine whether the evidence presented to the trial court presents a genuine issue of material fact. Bockman v. WCH, *579 L.L.C., 943 So.2d 789 (Ala.2006). Once the summary-judgment movant shows there is no genuine issue of material fact, the nonmovant must then present substantial evidence creating a genuine issue of material fact. Id. `We view the evidence in the light most favorable to the nonmovant.' 943 So.2d at 795. We review questions of law de novo. Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330 (Ala.2006)."
Discussion
The Housing Authority presents one issue on appeal: Whether Hartford can assert as a defense the two-year statute of limitations found at § 6-5-221, Ala. Code 1975. The Housing Authority alleges that the two-year statute of limitations asserted by Hartford under § 6-5-221, Ala.Code 1975, applies only to the builder, i.e., Consolidated, and to certain other design professionals. The Housing Authority argues that all other parties, including sureties, are excluded from asserting the two-year statute of limitations.
The statute of limitations in the present case is found at § 6-5-221, Ala.Code 1975; that statute reads, in part:
"(a) All civil actions in tort, contract, or otherwise against any architect or engineer performing or furnishing the design, planning, specifications, testing, supervision, administration, or observation of any construction of any improvement on or to real property, or against builders who constructed, or performed or managed the construction of, an improvement on or to real property designed by and constructed under the supervision, administration, or observation of an architect or engineer, or designed by and constructed in accordance with the plans and specifications prepared by an architect or engineer, for the recovery of damages for:
"(i) Any defect or deficiency in the design, planning, specifications, testing, supervision, administration, or observation of the construction of any such improvement, or any defect or deficiency in the construction of any such improvement; or
"(ii) Damage to real or personal property caused by any such defect or deficiency; or
"(iii) Injury to or wrongful death of a person caused by any such defect or deficiency;
"shall be commenced within two years next after a cause of action accrues or arises, and not thereafter. Notwithstanding the foregoing, no relief can be granted on any cause of action which accrues or would have accrued more than thirteen years after the substantial completion of construction of the improvement on or to the real property, and any right of action which accrues or would have accrued more than thirteen years thereafter is barred, except where prior to the expiration of such thirteen-year period, the architect, engineer, or builder had actual knowledge that such defect or deficiency exists and failed to disclose such defect or deficiency to the person with whom the architect, engineer, or builder contracted to perform such service.
"(b) This section shall apply to any civil action commenced against an architect, engineer, or builder as defined in this article, whether for his or her own act or omission or failure to act, for the act or omission or failure to act of his or her agents or employees, or for the act or omission or failure to act of any person or entity, its agents, or employees, who are acting under the instructions, control, or supervision of the architect, engineer, or builder."
*580 The Housing Authority argues that § 6-5-221 does not apply in this case because Hartford is not an "architect, engineer, or builder." Hartford argues, on the other hand, that, as a surety, it may, under the common law, assert as a defense the statute of limitations available to its principal, Consolidated. The trial court relied on Alabama Surface Mining Reclamation Commission v. Commercial Standard Insurance Co., 469 So.2d 619 (Ala.Civ.App.1985), in deciding that Hartford could assert the same statute-of-limitations defense available to Consolidated. In Alabama Surface Mining, the Alabama Surface Mining Reclamation Commission sued a surety under a bond executed pursuant to the Surface Mining Reclamation Act. That Act required that complaints alleging violations of Commission regulations "must, as a jurisdictional matter, be filed with the Commission within 90 days of the event or events giving rise to such complaint." Commercial Standard Ins. Co. v. Alabama Surface Mining Reclamation Comm'n, 443 So.2d 1245, 1247 (Ala. Civ.App.1983). The Commission argued that the liability of the operator and the surety under the bond is not extinguished until reclamation is complete. The Commission further contended that the bond obligations under the Act are enforceable by a breach-of-contract action, which is a separate and distinct remedy from a verified complaint filed under the Act and, thus, not subject to the 90-day limitations period of the Act. The Court of Civil Appeals affirmed the trial court's summary judgment in favor of the surety, discharging it from liability under the bond. Specifically, the Court of Civil Appeals held:
"The following language from Commercial Standard [Insurance Co. v. Alabama Surface Mining Reclamation Commission, 443 So.2d 1245 (Ala.Civ. App.1983),] remains determinative:
"`Under Alabama law, a surety may make any defense not personal to the principal, that the principal can. United States Fidelity & Guaranty Co. v. Town of Dothan, 174 Ala. 480, 56 So. 953 (1911). Specifically a surety may assert as a defense the statute of limitations available to the principal, State v. Bi-States Construction Co., 269 N.W.2d 455 (Iowa 1978), even if the principal through negligence, inadvertence, collusion, or otherwise, has not raised it. United States v. Frankini Construction Co., 139 F.Supp. 153 (D.Mass.1956). See also, 72 C.J.S. Principal and Surety § 255 (1951). Thus, in this case, the surety, Commercial, could claim the benefit of Hendrix'[s] defense of the lack of jurisdiction in the Commission to entertain the complaint against it.'
"443 So.2d at 1249."
Alabama Surface Mining, 469 So.2d at 620.
The Housing Authority has not asked this Court to overrule the express holdings in Alabama Surface Mining and Commercial Standard. We acknowledge that there is a conflict of authority as to whether a surety may assert as a defense the statute of limitations available to the principal.
Some jurisdictions agree with Alabama Surface Mining and hold that the expiration of the statutory limitations period against the principal obligor discharges the secondary obligor. See Lawyers Surety Corp. v. Texas, 825 S.W.2d 802 (Tex.App. 1992) (holding that the surety is bound by the obligation of the principal and the surety's liability depends upon the principal's liability and, thus, the three-year statute of limitations for the initiation of a suit for unpaid gas and diesel fuel taxes applied to a collection action by the state against the surety on a tax bond); State v. *581 Bi-States Constr. Co., 269 N.W.2d 455, 457 (Iowa 1978) (holding that "a surety may assert as a defense the statute of limitations available to the principal"). But see Bloom v. Bender, 48 Cal.2d 793, 798, 313 P.2d 568, 571 (1957) (holding that the obligation of the surety remains, notwithstanding the fact that the statute of limitations has run on the obligation of the surety's principal).
We adhere to the rule that a surety may assert as a defense the statute of limitations available to the principal. We thus hold that in the present case, Hartford, as a surety for Consolidated, may assert the defenses available to Consolidated, including the statute-of-limitations defense.
We note that this holding is in accordance with Restatement (Third) of Suretyship & Guaranty § 43 (1996), which states:
"[I]f the obligee fails to institute action against the secondary obligor on the secondary obligation until after the obligee's action against the principal obligor on the underlying obligation is barred by the running of the statute of limitations as to that action, the secondary obligor's rights and duties with respect to the principal obligor and the obligee are the same as if, on the day that the statute of limitations expired, the obligee had released the principal obligor from its duties pursuant to the underlying obligation without preserving the secondary obligor's recourse against the principal obligor. Accordingly, the principal obligor is discharged from duties to the secondary obligor . . ., and the secondary obligor is discharged from duties to the obligee. . . . "
The Housing Authority relies on several cases in support of its contention that a surety cannot assert the statute-of-limitations defense available to its principal. However, all of the cases it cites are distinguishable. The Housing Authority argues that under Burkes Mechanical, Inc. v. Ft. James-Pennington, Inc., 908 So.2d 905 (Ala.2004), Hartford cannot claim the benefit of the statute of limitations set out in § 6-5-221. In Burkes Mechanical, a party alleged that it met the definition of a "builder" under § 6-5-221; however, this Court analyzed that claim and held otherwise. In the present case, Hartford does not make any allegation that it satisfies the statutory definition of a builder; thus Burkes Mechanical does not apply. The Housing Authority also cites City of Birmingham v. Cochrane Roofing & Metal Co., 547 So.2d 1159 (Ala.1989), for the proposition that a surety's obligation may be subject to a longer statute of limitations than that of the principal. However, the surety in Cochrane Roofing was not even a party to the action, and this Court did not discuss the viability of the argument that a surety may assert a statute-of-limitations defense that is available to the principal. Finally, the Housing Authority cites Ex parte Water Works Board of Gulf Shores, 508 So.2d 242 (Ala.1987), which holds that an injured party may proceed against a surety without first exhausting all of its remedies against the principal. It is unclear how this holding applies to the present situation. That holding says nothing about a surety's ability to assert the statute-of-limitations defense available to its principal, and Hartford has not made any allegation that the Housing Authority must exhaust all remedies against the principal before the Housing Authority may proceed against Hartford. Therefore, Ex parte Water Works has no application to the present situation.
The trial court's holding that Hartford, as a surety, may assert the same statute-of-limitations defense that its principal may assert is in conformity with the prior *582 controlling decisions of Commercial Standard and Alabama Surface Mining and with the Restatement (Third) of Suretyship & Guaranty and the rule expressed in other jurisdictions.
The Housing Authority alleges that, even if the common law allows a surety to assert a statute-of-limitations defense available to its principal, § 6-5-228 expressly excludes a surety from asserting the two-year limitations period available under § 6-5-221. Therefore, the Housing Authority argues, the six-year statute of limitations applicable to contract actions should apply to Hartford. However, while it appears that the two-year limitations period does not expressly apply to a surety, the statute does not limit the application of any existing common-law doctrine.
Section 6-5-228, Ala.Code 1975, provides:
"Nothing contained in this article shall be construed as affecting any period of limitation for any cause of action arising out of or relating to the sale or disposition of real estate, or against any person other than architects, engineers and builders as defined in this article."
It is well-settled law in this State that the interpretation of a statute begins with the plain language of the statute itself. Ex parte Achenbach, 783 So.2d 4 (Ala.2000). In this case, the statute is silent with regard to the common-law doctrine that allows a surety to assert the defenses that are available to its principal. The common-law doctrine allowing a surety to assert all defenses available to its principal was in existence when § 6-5-221 was enacted. The legislature could have expressly limited that doctrine if it desired to do so, but it chose not to. See Ex parte Bozeman, 781 So.2d 165, 169 (Ala.2000) (holding that "the Alabama Legislature could have stepped beyond the confines of the text of the compact and included limitations in the statute expressly allowing `technical' violations to occur. However, it, like Congress, did not do so. This Court will not interject its interpretation of what the Legislature should have done.").
Contrary to the Housing Authority's allegation, the plain language of the statute does not compel the conclusion that the legislature in § 6-5-221 expressly limited the common-law doctrine that allows a surety to assert the defenses that are available to its principal. On its face, the statute applies only to "architects, engineers and builders,"[1] and it expressly states that all other periods of limitation for any cause of action against any other party are unaffected by the statute. The statute simply does not apply to Hartford, who is a surety and not an architect, engineer, or builder. The statute neither expands nor limits defenses available to Hartford; instead, it has no effect on Hartford at all. If, under the common law, a surety may assert the statute of limitations available to its principal, then, according to § 6-5-228, that common-law rule is unaffected by § 6-5-221. Therefore, Hartford may assert the limitations period available to its principal, whatever that period may be. To hold that § 6-5-221 does not allow Hartford to assert a statute-of-limitations defense that is available to its principal, even though Hartford could otherwise do so, would be to do exactly the opposite of what § 6-5-228 commands, because such a construction of the statute would directly affect a period of limitation for a cause of action against a person other than an architect, engineer, or builder.
Conclusion
In Alabama, a surety may assert the statute of limitations available to its principal; *583 this ability is unaffected by § 6-5-221, Ala.Code 1975. The material facts in the present case are undisputed, and the Housing Authority has failed to show, as a matter of law, that the trial court's judgment was erroneous. The trial court's summary judgment in favor of Hartford is affirmed.
AFFIRMED.
NABERS, C.J., and SEE, LYONS, HARWOOD, WOODALL, STUART, BOLIN, and PARKER, JJ., concur.
NOTES
[1] It is undisputed that Hartford is not an architect, engineer, or builder for purposes of § 6-5-221. See § 6-5-220(a)-(c), Ala.Code 1975. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593512/ | 215 S.W.3d 63 (2006)
Pat CARGILL and Sherman Arthur, Appellant,
v.
GREATER SALEM BAPTIST CHURCH; William M. Blackford, IV; Willie Newby, Sr.; Phillip Stepteau; Larry Austin; Alex Jones; George Johnson; Michael Royston; Walter Parmer; James Toney; Jasper Crenshaw; and Kevin Burns, Appellees.
No. 2005-CA-001110-MR.
Court of Appeals of Kentucky.
July 14, 2006.
Rehearing Denied August 31, 2006.
Discretionary Review Denied by Supreme Court February 14, 2007.
*64 J. Key Schoen, Louisville, KY, for appellants.
Wayne J. Carroll, Deborah L. Harrod, Louisville, KY, for appellees.
Before GUIDUGLI, HENRY, and SCHRODER, Judges.
OPINION
GUIDUGLI, Judge.
Pat Cargill (Cargill) and Sherman Arthur (Arthur) appeal from an order of the Jefferson Circuit Court granting the Appellees'[1] motion for summary judgment. Cargill and Arthur contend that the circuit court incorrectly determined that the Appellees' *65 oral and written statements were not actionable as defamatory. Having concluded that the circuit court properly granted summary judgment, we affirm.
Cargill and Arthur are former members of Greater Salem Baptist Church (Greater Salem), which is a Congregationalist church founded under the National Baptist Convention in alliance with the Southern Baptist Church. The recognized leaders of the church are the Pastor and the Deacons; however, the true governing body of Greater Salem is its congregation. The Bible is the ultimate source of authority for Greater Salem and its leaders.
Under the guidance of Matthew 18:15-18, a disciplinary committee comprised of the Deacons and the Pastor, deals with disciplinary matters requiring action. If the disciplinary committee is unable to resolve an issue, the matter is presented to the congregation. The congregation may either admonish the offender or strip the offender of church membership.
This appeal stems from a congregational meeting held by the Deacons and the Pastor after a church service on Sunday, September 22, 2002. This meeting resulted from disciplinary issues concerning the church and a few of its members. Specifically, the Deacons addressed certain allegations that were being made against the Pastor by a "Concerned Members" group. The "Concerned Members" group was formed by a group of Greater Salem members after April Smith, a member of the church, alleged that she had an extramarital affair with the Pastor. The group wrote letters to the disciplinary committee demanding action, held meetings, and sent unauthorized letters to members of the church. The disciplinary committee stated that it did not feel that any additional action was necessary regarding the allegations of the Pastor's affair.
In addition to addressing the Pastor's alleged affair, four Deacons recommended that the congregation terminate the church membership of two members of the "Concerned Members" group; Cargill and Arthur. The recommendation for Cargill's termination stemmed from a series of two events. The first issue concerned the Pastor's alleged affair with April Smith. The Deacons claimed that Cargill spearheaded the "Concerned Members" group and advised April Smith to write a letter that accused the Pastor of having an extramarital affair with her. They also alleged that Cargill was the owner of a Post Office box which sent unauthorized mailings to church members.
The Deacons also addressed issues concerning the cleaning services Cargill provided for Greater Salem. In 1999, Greater Salem hired Cargill's cleaning service, De's Dusters, to do janitorial work for the church. Greater Salem accepted Cargill's bid because she offered to provide her own cleaning supplies, which would result in a $2,000 annual savings for the church. On February 10, 2002, the Deacons sent Cargill a letter to inform her that the church would no longer need her cleaning services. The Deacons alleged that they had received complaints about the cleanliness of the church and about inappropriate behavior by De's Dusters' employees. Additionally, the Deacons claimed that Cargill owed the church $2,184.50 for supplies she charged to the church. Cargill did not reimburse the church, because she felt that the supplies were personal to the church and not part of the cleaning supplies she agreed to provide. However, the Deacons alleged that, pursuant to their agreement, De's Dusters should have provided the supplies.
The recommendation for Arthur's termination resulted from his work as the Deacon in charge of the music program. *66 There were several recordings made in 2001 of the church choir, and Arthur was in charge of selling and distributing the recordings. The Deacons alleged that Arthur failed to maintain an accurate record of funds collected on the sale of the tapes and CD's.
Additionally, the Deacons alleged that Arthur mishandled the purchase of a drum set, costing Greater Salem $2,500. After being asked by the Deacons to do research on a new drum set for the church, Arthur conducted research on the Internet and obtained a general description from a brochure. Arthur recommended a drum set to the church, which Greater Salem purchased. Unfortunately, the drum set was too small and was non-returnable.
In addition to holding the congregational meeting on September 22, 2002, the disciplinary committee sent out a letter to every person on the church's mailing list. Although the letter was dated September 22, 2002, it was sent out sometime in the middle of October, 2002. The "September 22, 2002" letter generally paralleled the allegations made against Cargill and Arthur in the congregational meeting on September 22, 2002.[2] However, there is some dispute as to whether the statements made in the letter were less severe than what was actually stated during the September 22, 2002, oral presentation to the congregation.[3]
On March 27, 2003, Cargill and Arthur brought an action against Greater Salem, the senior Pastor, and the church Deacons for defamation. The Appellees filed their first motion for summary judgment prior to taking any discovery, which was denied on June 11, 2003. After interrogatories were served and answered and depositions were taken, the Appellees again moved for summary judgment. The circuit court granted summary judgment in favor of the Appellees on January 25, 2005, and this appeal followed.
On appeal, Cargill and Arthur contend that the circuit court erred in granting summary judgment in favor of the Appellees, claiming that the September 22, 2002, oral presentation to the congregation, the "September 22, 2002" letter, and the recommendation to terminate their memberships were defamatory and were not privileged communications. The proper appellate review of summary judgment is provided in Scifres v. Kraft:[4]
The standard of review on appeal of a summary judgment is whether the trial *67 court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law. Kentucky Rules of Civil Procedure (CR) 56.03. There is no requirement that the appellate court defer to the trial court since factual findings are not at issue. Goldsmith v. Allied Building Components, Inc., Ky., 833 S.W.2d 378, 381 (1992). "The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476, 480 (1991). Summary "judgment is only proper where the movant shows that the adverse party could not prevail under any circumstances." Steelvest, 807 S.W.2d at 480, citing Paintsville Hospital Co. v. Rose, Ky., 683 S.W.2d 255 (1985).
Furthermore, the determination of the existence of a privilege is a matter of law.[5] Therefore, it is upon Cargill and Arthur to show that either there was no privilege under the circumstances or that the privilege was abused.[6]
While there is minimal Kentucky case law on this issue, this Commonwealth as well as the majority of other jurisdictions, recognizes that civil courts should not interfere with internal church matters.[7] As stated in Music v. United Methodist Church, issues of faith, internal organization, and church discipline are governed by ecclesiastical rule, custom, and law, and civil courts generally have no role in deciding such ecclesiastical questions.[8]
Furthermore, the qualified privilege afforded to defamatory statements made in the course of church related matters is also recognized in this Commonwealth. As early as 1872, the former Kentucky Court of Appeals in Lucas v. Case recognized that a member of a church "impliedly at least, if not expressly, covenants to conform to the rules of the church, to submit to its authority and discipline."[9] Similar to the instant case, Lucas involved a defamation suit brought by a church member against his church governing board for publishing a statement that alleged that he used improper and unchaste language in front of a female member.[10] The church governing board also recommended that the appellant's church membership be withdrawn.[11] In determining that the statements were privileged communications, the court held:
[W]ords spoken or written in the regular course of church discipline, or before a tribunal of a religious society, to or of members of the church or society, are as among the members themselves privileged communications, and are not actionable without express malice.[12]
In a later decision, the former Kentucky Court of Appeals in Wolff v. Benovitz stated:
While it seems that no privilege attaches to defamatory statements made by a clergyman from his pulpit, a different rule governs communications between *68 church members and authorities in respect of organizational and administrative matters; and the courts appear to agree that in the absence of malice, members may discuss the character of their pastor, communicate rumors of misconduct to each other, and prefer charges whenever there appears to be any foundation therefor.[13]
Cargill and Arthur contend that the oral and written statements were not privileged communications. Citing to Presbyterian Church v. Hull Church,[14] Cargill and Arthur argue that a privilege is not applicable because the oral and written statements do not require any analysis of church doctrine. Thus, Cargill and Arthur contend that the oral and written statements are unprotected speech for purposes of the First and Fourteenth Amendments to the United States Constitution.
We find no merit, under the facts of this case, in Cargill and Arthur's argument that there is no question of church doctrine. First, Cargill and Arthur incorrectly apply Presbyterian Church to our case.[15] The United States Supreme Court in Presbyterian Church concluded that a state may resolve a property dispute if it does not involve controversy over church doctrine and practice; however, civil courts cannot make any determination about ecclesiastical questions.[16] Unlike Presbyterian Church, this case does not involve a property dispute.[17] Furthermore, this case involves statements made by Greater Salem's disciplinary committee in the course of a church disciplinary matter. Specifically, this controversy requires the interpretation of the "Discipline" section of Greater Salem's By-Laws.[18] Therefore, this controversy rests upon the interpretation of ecclesiastical matters, and thus the statements are privileged communications if made in the absence of express malice.[19]
Because the oral and written statements are privileged communications, Cargill and Arthur must show that the privilege was abused.[20] Therefore, Cargill and Arthur must prove that the statements were made with malice, which is a showing that the statements were made "with knowledge that it was false or with reckless disregard of whether it was false or not."[21] Although the jury normally determines whether a privilege was abused, a motion for summary judgment is appropriate when the record shows no facts which would lead to the conclusion that the Appellees acted with malice.[22]
*69 Cargill and Arthur contend that summary judgment was not proper because the Appellees made defamatory statements in "bad faith." Specifically, Cargill and Arthur feel that the allegations made by the Appellees on September 22, 2002 were a pretext to the Appellees' "true motivation to send a warning of silence to the Plaintiffs and other members of [Greater Salem] who were questioning the actions of Defendant Pastor Blackford." Cargill and Arthur further contend that there were issues of "bad faith" with regard to the non-disclosure or destruction of relevant evidence. Cargill and Arthur believe that there was an audio recording of the September 22, 2002 congregational meeting. While the Appellees claim that they do not have a taping of the meeting, Cargill and Arthur contend that there may be an opportunity to discover if the congregational meeting was taped or if it was destroyed by the church in "bad faith." Therefore, Cargill and Arthur argue that summary judgment prevented them from possibly obtaining evidence to show that the Appellees acted in "bad faith."
As stated in Hartford Ins. Group v. Citizens Fidelity Bank & Trust Co., a party responding to a motion for summary judgment cannot complain of the lack of a complete factual record when it can be shown that the respondent has had an adequate opportunity to undertake discovery.[23] A review of the record compiled in this matter indicates that there was substantial pre-trial activity and that Cargill and Arthur had more than ample opportunity to conduct discovery. Therefore, we conclude that Cargill and Arthur presented no evidence, apart from conclusory allegations based on suspicion and conjecture, indicating that the Appellees were motivated by malice.
Having concluded that the Appellees' oral and written statements were privileged communications made in the absence of malice, we hold that the statements are not actionable as defamation. Therefore, the circuit court did not err in granting summary judgment in favor of the Appellees.
Cargill and Arthur also allege that the circuit court erred in determining that the oral and written statements were "pure" opinion and absolutely privileged. This issue is rendered moot given our conclusion that the circuit court properly granted summary judgment.
For the foregoing reasons, we affirm the order of the Jefferson Circuit Court.
ALL CONCUR.
NOTES
[1] The Appellees include Greater Salem Baptist Church, Inc., its senior Pastor, and its Deacons.
[2] The "September 22, 2002" letter stated in relevant part as follows:
Sherman ArthurFormer Deacon/DirectorWe believe he failed to maintain accurate records of Funds collected on Sale of Tapes & CD's. In our opinion, he mishandled the purchase of Drums, thus costing Church over $2,500.00. In our opinion, he was aware of church by-laws yet violated them.
Pat Cargill (De's Dusters)Former LeaderOne term of her employment was that she would buy all supplies, yet we believe she charged the church several thousand dollars for supplies purchased. In our opinion she was April Smith's Advisor. In our opinion Pat directed April to write the letter that accused Rev. W.M. Blackford IV of improper behavior. During the special committee meeting Pat stated she did not need to know Rev. William M. Blackford's side of the story. We believe Pat is the owner of the Post Office Box which sent unauthorized mailing to church membership.
[3] Cargill and Arthur claim that the Deacons made oral statements alleging that Cargill and Arthur stole money from the church and lied about matters related to the alleged thefts. The Appellees claim that the oral statements made by the four Deacons were read from parts of the "September 22, 2002" letter that was later sent to every person on the church's mailing list.
[4] 916 S.W.2d 779, 781 (Ky.App.1996).
[5] Columbia Sussex Corp., Inc. v. Hay, 627 S.W.2d 270, 276 (Ky.App.1981).
[6] Id.
[7] Marsh v. Johnson, 259 Ky. 305, 82 S.W.2d 345, 346 (1935).
[8] 864 S.W.2d 286, 287 (Ky.1993).
[9] 72 Ky. (9 Bush) 297, 1873 WL 6630, *3 (1872).
[10] Id. at *1-2.
[11] Id.
[12] Id. at *3.
[13] 301 Ky. 661, 192 S.W.2d 730, 733 (1945).
[14] 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969).
[15] Id.
[16] Id.
[17] Id.
[18] Church membership may be terminated in accord with Section VII of Greater Salem's By-Laws. Discipline, Section 2, states in relevant part as follows:
Should any case of gross breach of covenant or of public scandal occur, the Pastor and the Deacons shall compose a committee on Church Discipline to receive in writing such matters deemed to require action by the Committee. The Committee shall endeavor to remove the offense and restore the offender, and if this effort fails, shall report the case to the Church.
[19] Lucas v. Case, 72 Ky. (9 Bush) 297, 1873 WL 6630, *3 (1873).
[20] Columbia Sussex Corp., Inc. v. Hay, 627 S.W.2d 270, 276 (Ky.App.1981).
[21] New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964).
[22] Stewart v. Hall, 7 Ky.L.Rptr. 323, 83 Ky. 375, 1885 WL 5815, *4 (1885); Washburn v. Lavoie, 437 F.3d 84, 90 (D.C.Cir.2006); Singleton v. Christ the Servant Evangelical Lutheran Church, 541 N.W.2d 606, 615 (Minn.Ct. App.1996); Carter v. Aramark Sports and Entertainment Services Inc., 153 Md.App. 210, 835 A.2d 262, 281 (2003); Cooper v. Hodge, 28 A.D.3d 1149, 814 N.Y.S.2d 447, 449 (N.Y.App.Div.2006).
[23] 579 S.W.2d 628, 630 (Ky.App.1979). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593563/ | 400 N.W.2d 450 (1987)
STATE of Minnesota, Respondent,
v.
Janet KILKER, Appellant.
No. C1-86-778.
Court of Appeals of Minnesota.
February 10, 1987.
Hubert H. Humphrey, III, State Atty. Gen., William F. Klumpp, Jr., Asst. Atty. Gen., St. Paul, Harris Darling, Nobles Co. Atty., Worthington, for respondent.
C. Paul Jones, State Public Defender, Mollie G. Raskind, Deputy State Public Defender, Minneapolis, for appellant.
Considered and decided by FORSBERG, P.J., and SEDGWICK and HUSPENI, JJ., with oral argument waived.
OPINION
SEDGWICK, Judge.
A jury found appellant, Janet Kilker, guilty of one count of second degree assault and acquitted her of a second count of second degree assault. The trial court stayed imposition of sentence and placed Kilker on probation with the conditions *451 that she serve 360 days in the County Jail and restrict her place of residence. Kilker argues that the trial court committed reversible error when it admitted Spreigl evidence; that she was denied her constitutional right to confrontation; that the trial court's additional instructions to the jury were improper and that the condition of probation restricting her place of residence was improper. We reverse and remand for a new trial.
FACTS
Appellant is a thirty-five year old woman who lives alone in a house her father bought for her in Worthington, Minnesota. She is mildly retarded and has a severe speech impediment. For years she has been the object of harassment from the adolescents and young adults in the area. Because of this treatment she has become very protective of her property and at times tries to prevent people from walking on the public sidewalk in front of her house.
On the evening of August 22, 1985, several adults in their early twenties were drinking at a local bar. After a few hours, the topic of their discussion turned to Janet Kilker and her defensive behavior. Out of curiosity and boredom two of the women decided to test Kilker's reaction for themselves by walking on the sidewalk in front of her house. Kilker came out and stood at the end of the sidewalk on her property and watched the two women. As they passed by, one of the women took a picture of Kilker, using a flash bulb, and Kilker struck her causing a cut on the woman's arm. The cut did not require medical treatment so the two women returned to the bar. They recounted the incident to other young adults in the bar, but did not report the incident to the police.
Two men and two women who heard the story in the bar decided something had to be done about Kilker and that they would investigate. At approximately midnight the four drove by Kilker's house, but did not see her, so they decided to "give her another chance." They parked the car and walked by Kilker's house. Kilker came out and tried to prevent the four from walking on the public sidewalk in front of her house. As one of the women started back towards the car, Kilker followed her and appeared to have a knife in her hand. At that point one of the men started yelling and swearing at Kilker. A neighbor then intervened and told the four to leave and Kilker to go back into her house. At the same time the police arrived and took statements from the four alleged victims. Kilker had returned to her house and the police made no attempt to interview her.
Kilker was charged with two counts of second degree assault under Minn.Stat. § 609.222 (Supp.1985) for the two separate incidents. Before trial, the State gave notice that it would seek to introduce evidence of eight additional offenses. Defense counsel objected to the admission of this evidence at the omnibus hearing. The omnibus court declined to rule on the objection. No written order was ever issued.
In chambers before the trial commenced defense counsel stated:
We at one of our pre-trial hearings requested a ruling that all the evidence of other crimes, the so-called Spreigl evidence be excluded. [The omnibus court judge] heard that request and it's my belief that he ruled against me and in favor of letting all this evidence in. However, we do not have a written record of his ruling from that hearing and it was a little confusing because we were talking about several different things almost simultaneously and I guess [the prosecutor] and I have each proceeded on the assumption that all of the Spreigl evidence can come in and if it can't then we have really goofed up the trial and are liable for malpractice both of us so we are operating on the assumption that * * * [the] prior ruling was that all of it can come in.
Based on this erroneous assumption, the State presented eleven witnesses who testified about seven Spreigl incidents. Six of the witnesses were teenage males whom Kilker had tried to prevent from walking *452 on the public sidewalk in front of her house. The other five witnesses were police officers who had either observed one of the incidents or who had investigated an incident. None of these incidents involved a weapon or constituted more than a misdemeanor offense.
For example, a thirteen year old witness testified that he, his sister and a friend were passing by Kilker's house and were walking on the boulevard rather than the sidewalk to avoid Kilker. On direct examination the witness testified that Kilker chased them and that his sister ran into the street where she was almost hit by a car. On cross-examination the witness conceded that Kilker had actually only walked after them for a couple of steps.
The witnesses for the defense consisted of Kilker's father and sister and some of Kilker's neighbors. These witnesses confirmed that Kilker was continually harassed by young adults, some even driving over from nearby towns. One neighbor testified that she had three small children and had never had a problem with Kilker. Another neighbor testified that Kilker just watched the young children pass by and did not bother them.
The jury found Kilker guilty of second degree assault on the four adults but acquitted her of second degree assault for the incident involving the two women. The trial court stayed imposition of the sentence and placed Kilker on probation for five years with the conditions that she serve 360 days in the Nobles County Jail with credit for 188 days already served and that she participate in out-patient treatment. She was also ordered not to live within five blocks of any public school. After the notice of appeal was filed, counsel for Kilker moved the trial court for modification of probationary terms noting that Kilker was scheduled for release from jail and her house was within five blocks of a school. The trial court ordered that the Nobles County Corrections Department could require Kilker not to live adjacent to any street used by a large number of pedestrians under sixteen years of age.
ISSUE
Did the admission of Spreigl evidence constitute reversible error?
ANALYSIS
Subject to certain exceptions, evidence of a defendant's other crimes or bad acts is inadmissible. The Minnesota Supreme Court has often emphasized its:
antipathy * * * to evidence of crimes other than that for which the defendant is on trial, and the restrictions and procedural safeguards we have established to safeguard the defendant from unfair prejudice.
State v. Link, 289 N.W.2d 102, 105 (Minn. 1979). To protect against the dangers of this type of evidence, a trial court must determine before trial that there is clear and convincing evidence that the defendant participated in the other crimes or bad acts; that the evidence is relevant and material to the State's case and that the probative value of the evidence outweighs its potential for unfair prejudice. State v. Doughman, 384 N.W.2d 450, 454 (Minn.1986).
In the present case, either because of defense counsel's error or because of confusion caused by the omnibus hearing and the trial being heard by different judges, Kilker was denied the safeguards against misuses of Spreigl evidence. Eleven witnesses testified to seven Spreigl incidents. A review of the record shows that the probative value of the incidents was far outweighed by the potential for unfair prejudice. Spreigl evidence is inadmissible if
the sole purpose of its introduction is to show that the accused has a propensity to commit crimes, or if its potential for unfair prejudice outweighs its probative character.
State v. Stagg, 342 N.W.2d 124, 127 (Minn. 1984). Under this standard the Spreigl evidence in the present case was inadmissible.
To establish its case the State had the testimony of three of the alleged victims, witnesses and a police officer. The Spreigl *453 evidence was material to the general problems between Kilker and the adolescents in the community, but the evidence was not so material to the assault with which she was charged as to outweigh its prejudicial effect. This Spreigl evidence constituted a substantial portion of the State's case against Kilker. The trial court itself recognized the power of this evidence by commenting in chambers before closing arguments that:
There hasn't been any request for mistrial by either party. We talked previously after the session yesterday where the defense counsel indicated or asked the prosecution if he wanted a mistrial and he indicated no.
* * * * * *
The only other area that concerned the Court was the Spreigl evidence.
The State argues, and defense counsel appeared to agree at trial, that the prejudicial effect was counteracted by Kilker's opportunity to present evidence of the continual harassment to which she was exposed. We cannot agree. Both the State's and the defense's evidence of Kilker's various problems within the Worthington community could not help but prejudice the jury by focusing their attention not on the charge before them, but on the more general problem within the community. This is exactly the danger the supreme court has recognized and sought to avoid.
In Spreigl, we recognized that the introduction of evidence of prior crimes or bad acts may result in the jury's convicting the accused, not because the accused is guilty of the current charge, but because he or she may have escaped punishment for previous offenses or may have performed previous acts that are similar to the current charge.
Doughman, 384 N.W.2d at 455.
Further evidence of this prejudicial effect can be found in the trial court memorandum to its order modifying the conditions of probation.
This Court is reluctant to provide that as a condition of probation limitations be placed on locations where the Defendant can live. It is clear, however, that the personality of the Defendant is such that a danger to the public exists when she is in regular contact with small children who, on occasion, may tease her and incite her to anger. Knowing of no way in which this Court can control the actions of small children, this Court feels the only solution is to attempt to keep the Defendant away from them or at least out of an area where she would be in regular contact with them.
Kilker was not charged with, or convicted of, assault on small children. There was no evidence presented at trial to support such a charge. Clearly, Janet Kilker was tried and sentenced in an attempt to solve a community problem and not solely on the basis of the charges for second degree assault.
While justice does not demand an error-free trial, it does demand a trial free of prejudicial error that substantially influences the jury. State v. Marty, 376 N.W.2d 515, 516 (Minn.Ct.App.1985), pet. for rev. denied (Minn. Jan. 17, 1986) (citing State v. Billington, 241 Minn. 418, 427, 63 N.W.2d 387, 392-93 (1954)). A review of the record in the present case can only lead to the conclusion that the erroneous admission of the Spreigl evidence had an overwhelming prejudicial effect on both the jury and the trial court.
The State argues that under State v. Burns, 394 N.W.2d 495 (Minn.1986), Kilker's failure to specifically request a hearing on the admissibility of the Spreigl evidence precludes her from raising a claim of error on appeal. We disagree. The record makes clear that defense counsel objected to admission of this evidence at the omnibus hearing. Counsel understood the issue had been finally resolved against Kilker so he failed to pursue the issue further. Generally the failure to request these procedural safeguards works as a waiver. Under the unique facts in the present case, however, there was no waiver, only an inexplicable misunderstanding on the part of defense counsel perpetuated by the State's and the trial court's acquiescence. The *454 record supports a strong likelihood that this error resulted in an unjust verdict which compels a new trial.
The State suggests that the lesser remedy of remanding for a postconviction hearing on the admissibility of the Spreigl evidence rather than granting a new trial would be the appropriate remedy. See State v. Burns, 394 N.W.2d at 497-98. Since we have concluded that the admission of the Spreigl evidence in this case, as a matter of law, substantially prejudiced the proceedings and denied Kilker a fair trial, such a disposition would be ineffective and inappropriate.
In light of our resolution of this issue, we do not address the other issues raised by Kilker.
DECISION
Appellant was denied the right to a fair trial by the admission of Spreigl evidence. Therefore, a new trial is warranted.
Reversed and remanded for a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593401/ | 45 F.Supp. 340 (1942)
MEBCO REALTY HOLDING CO.
v.
WARNER BROS. PICTURES, Inc., et al.
No. 1811.
District Court, D. New Jersey.
April 22, 1942.
Starr, Summerill & Lloyd, of Camden, N. J., and Wolf, Block, Schorr & Solis-Cohen, of Philadelphia, Pa., for the motion.
Cassman & Gottlieb, of Atlantic City, N. J., and Milton C. Weisman and Melvin A. Albert of Weisman, Celler, Quinn, Allan & Spett, all of New York City, opposed.
AVIS, District Judge.
This action is instituted under the provisions of the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1-7, 15 note, and Clayton acts, 38 Stat. 730, alleges a conspiracy on behalf of the defendants to destroy the business of plaintiffs in the conduct and operation of a moving picture theatre in Atlantic City, seeks a decree to adjudge defendants guilty of such conspiracy in violation of law; that they have illegally restrained trade, for an injunction, and that defendants be required to pay to plaintiffs triple of all such damages as plaintiffs may have sustained.
Defendant, Warner Bros. Pictures, Inc., enters a special appearance to object to venue and service of summons and asks to be discharged from liability in the action.
An order dated October 15, 1941, authorized the issuance of summons to be served on defendants, nonresidents of this district, by the United States Marshals in such districts as defendants might be found. Amongst the defendants to be served in this manner was Warner Bros. Pictures, Inc., the moving party.
The section of the statutes authorizing suit provides: "Any person who shall be injured in his business or property by reason of anything forbidden in the anti-trust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee." Title 15 U.S.C.A. § 15.
The section of the statute which extends the venue or territorial jurisdiction of the district court to nonresidents reads as follows: "Any suit, action, or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found." Title 15 U.S. C.A. § 22.
Moving party claims that this defendant does not reside in this district, that it may not be found nor does it transact business herein. It is also asserted that the summons was not served in accordance with the law at any place.
*341 It is agreed, I believe, as facts, that Warner Bros. Pictures, Inc., is not incorporated in New Jersey, that it has no direct representative herein, nor does it transact business here unless certain acts hereinafter set forth subject it to this jurisdiction.
It owns 100 per cent of the capital stock of Vitagraph, Inc. This latter corporation, under a contract between it and moving corporation, handles the film of moving corporation, which is distributed to exhibitors in the State of New Jersey and elsewhere in the United States to be exhibited in moving picture houses and, after expenses are paid, Vitagraph receives 20% of clear proceeds and Warner Bros. 80% of clear proceeds. The films during all of this period are the property of Warner Bros. and when their use is discontinued are returned to it.
On this showing defendant says it is not found in or transacting business in this district.
Plaintiff's attorneys insist that these conditions subject Warner Bros. to the jurisdiction of this court and contest claimed right of dismissal.
It is alleged that Vitagraph, Inc., is the agent of Warner Bros., but this claim does not seem to be supported by any reported cases. As a matter of fact, it would appear that under a contract of this character, even though the acting corporation may be 100 per cent owned by the nonresident, the doctrine of agency cannot apply.
The plaintiff raises a new proposition which does not appear to have been determined in any jurisdiction, and that is, that Warner Bros. property having been circulated in this district by Vitagraph, in itself establishes the fact that Warner Bros. is transacting business in New Jersey.
It does not seem necessary to go deeply into reported opinions on the primary question. Judge Walker in the case of Westor Theatres, Inc., a corporation et al. v. Warner Bros. Pictures, Inc., D.C., 41 F.Supp. 757, filed October 30, 1941, under practically the same state of facts, determined that Warner Bros. could not be brought into this district and directed the quashing of service of summons.
The argument as to the latter question does not impress me to the extent that it overcomes the general situation. I am satisfied that the ownership of property handled by another party would not justify a decision determining that Warner Bros. is transacting business in this district. It is not necessary to determine the question of validity of service of summons.
The service will be quashed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4515727/ | Appeal Reinstated, Appeal Dismissed, and Memorandum Opinion filed March
12, 2020.
In The
Fourteenth Court of Appeals
NO. 14-17-00249-CV
JUDITH KING, INDIVIDUALLY AND AS HEIR TO KENNETH KING,
DECEASED, Appellant
V.
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS INDENTURE
TRUSTEE, ON BEHALF OF THE OWNERS OF ACCREDITED
MORTGAGE LOAN TRUST 2004-4 ASSET BACKED NOTES BY ITS
ATTORNEY-IN-FACT, SELECT PORTFOLIO SERVICING, INC.,
Appellee
On Appeal from the Probate Court No. 3
Harris County, Texas
Trial Court Cause No. 402647-403
MEMORANDUM OPINION
This is an appeal from a judgment signed December 20, 2016. On June 8,
2017, this court abated this appeal because appellant petitioned for voluntary
bankruptcy in the United States Bankruptcy Court for the Southern District of Texas,
under cause number 17-33478. See Tex. R. App. P. 8.2. Through the Public Access
to Court Electronic Records (PACER) system, the court has learned that the
bankruptcy case was closed June 20, 2017. The parties failed to advise this court of
the bankruptcy court action.
On January 23, 2020, this court issued an order stating that the appeal would
be reinstated and dismissed for want of prosecution unless any party to the appeal
filed a motion demonstrating good cause to retain this appeal by February 12, 2020.
See Tex. R. App. P. 42.3(b). No response was filed.
Accordingly, we reinstate the appeal and dismiss it for want of prosecution.
PER CURIAM
Panel consists of Justices Zimmerer, Spain, and Hassan.
2 | 01-03-2023 | 03-12-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1631989/ | 5 So. 3d 819 (2008)
Carl HOOD
v.
Mark M. COTTER, M.D.
Nos. 2008-C-0215, 2008-C-0237.
Supreme Court of Louisiana.
December 2, 2008.
Rehearing Denied January 30, 2009.
*820 Milling, Benson, Woodward, Normand Francis Pizza, New Orleans, for applicant in 2008-C-0215.
Roedel, Parsons, Koch, Blanche, Balhoff & McCollister, David Alva Woolridge, Jr., Larry Michael Roedel, Baton Rouge; Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman, Vance A. Gibbs, Deborah Johnson Juneau; Sumpter B. Davis, III, East Baton Rouge, for respondent in 2008-C-0215.
Joel Edward Gooch, Lafayette, for amicus curiae, NCMIC Insurance Company.
Roedel, Parsons, Koch, Blanche, Balhoff & McCollister, David Alva Woolridge, Jr., Larry Michael Roedel, Baton Rouge, for applicant in 2008-C-0237.
Milling, Benson, Woodward, Normand Francis Pizza, New Orleans; Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman, Vance A. Gibbs, Deborah Johnson Juneau; Sumpter B. Davis, III, East Baton Rouge, for respondent in 2008-C-0237.
KIMBALL, Justice.
We granted certiorari in this case to determine whether the coverage provision in a claims-made medical malpractice liability insurance policy, which denies coverage for medical malpractice that occurred during the policy period but was first made and reported after the policy period, violates La. R.S. 22:629. That statute prohibits any condition, stipulation or agreement in an insurance contract from limiting a right of action against the insurer to a period of less than one year from the time when the cause of action accrues in connection with all insurances unless otherwise specifically provided in the Insurance Code. We find the claims-made policy at issue denies coverage for plaintiff's claim, but does not limit plaintiff's right of action against the insurer in violation of La. R.S. 22:629. Additionally, we find that because defendant's qualification under the Medical Malpractice Act takes effect and follows the same form as the underlying medical malpractice insurance, and because defendant did not pay the applicable surcharge by purchasing the relevant tail coverage, he is not a qualified health care provider. Summary judgment is therefore appropriate in this case.
Facts and Procedural History
In April 2003, Carl Hood, plaintiff, sought treatment from Dr. Mark Cotter, defendant, for lower back pain, sleeping difficulties, and anxiety. The petition in this matter alleges that Defendant prescribed a regimen of narcotic drugs with no physical examination or diagnostic testing from April 2003 until August 2003. On September 5, 2003, defendant discharged plaintiff from his care. On April 29, 2004, plaintiff filed suit against defendant alleging that the cause of his symptoms was left undiagnosed and untreated, and that he is *821 addicted to the narcotic drugs prescribed by defendant.[1] On February 15, 2005, defendant amended his petition to name defendant's medical malpractice insurer, Louisiana Medical Mutual Insurance Company ("LAMMICO"), as a defendant. On July 5, 2005, the Louisiana Patient's Compensation Fund Oversight Board ("Board") intervened in the suit seeking a decision as to whether defendant is covered by the Medical Malpractice Act ("MMA"), La. R.S. 40:1299.41 et seq. for plaintiffs claim.
LAMMICO issued a professional liability policy of insurance to defendant from January 1, 2003, to January 1, 2004, covering "[a]ll sums which the insured shall become legally obligated to pay as damages because of injury, to which this insurance applies, from a medical incident resulting from a negligent act, error, or omission in the rendering or failure to render professional services, which occurs subsequent to the retroactive date [of January 1, 1997], and for which claim is first made against the insured and reported to the Company during the policy period." (Emphasis added.) This so-called claims-made policy lapsed because of nonrenewal on January 1, 2004.[2] Prior to the expiration of defendant's coverage under this policy, LAMMICO offered to provide defendant with a reporting endorsement ("tail coverage") that would have insured him against claims that arose from medical incidents occurring during the policy period, but were first made and reported after that period; however, defendant did not purchase tail coverage.
On January 3, 2006, LAMMICO filed a motion for summary judgment asserting that its insurance policy did not provide coverage for plaintiff's claim. LAMMICO pointed out that its policy was a claimsmade policy that expressly limited coverage to claims first made and reported to LAMMICO while the policy was in force. LAMMICO argued that although the tortious conduct alleged by plaintiff against defendant occurred while the policy was in force, the complaint was not made to defendant, LAMMICO, or the Patient's Compensation Fund ("PCF") during the policy period. Further, LAMMICO asserted that defendant was not a qualified health care provider under the MMA since his qualification was effective only for "the same period and following the same form" as his filed policy of professional liability insurance. La. R.S. 40:1299.42.
In opposition to LAMMICO's motion for summary judgment, plaintiff argued that LAMMICO's claims-made provision is void as it violates La. R.S. 22:629, which provides that "[n]o insurance contract shall contain any condition, stipulation or agreement limiting right of action against the insurer to a period of less than one year from the time when the cause of action accrues in connection with all other insurances unless otherwise specifically *822 provided in this [Insurance] Code."[3] Plaintiff also cited the first circuit's decision in Hedgepeth v. Guerin, 96-1044 (La.App. 1 Cir. 3/27/97), 691 So. 2d 1355, writ denied, 97-1377 (La.9/26/97), 701 So. 2d 983, as support for its position that the provision violates the statute and is unenforceable. Defendant also opposed LAMMICO's motion for summary judgment on the same grounds as plaintiff.
Subsequently, the Board filed a motion for summary judgment. The Board, citing La. R.S. 40:1299.42(A), stated that to be qualified under the MMA, a healthcare provider must pay the proper surcharge and cause to be filed with the Board proof of financial responsibility (here the underlying insurance coverage). The Board argued there was no PCF coverage for plaintiff's claim because the LAMMICO policy provides no underlying coverage for the claim and defendant failed to purchase a PCF extended reporting endorsement or pay the tail coverage surcharge.
Plaintiff opposed the Board's motion for summary judgment by again arguing that LAMMICO's claims-made provision violates La. R.S. 22:629 and is therefore void. Plaintiff asserted the statute "basically extends the LAMMICO coverage to one year from the date of the tort" and this extension applies to qualification under the MMA as well. Defendant opposed the Board's motion on similar grounds.
A hearing on both motions for summary judgment was held on March 27, 2006. In oral reasons for judgment, the district court indicated it felt constrained by the first circuit's decisions in Hedgepeth v. Guerin, 96-1044 (La.App. 1 Cir. 3/27/97), 691 So. 2d 1355, writ denied, 97-1377 (La.9/26/97), 701 So. 2d 983, and Bennett v. Krupkin, 99-2702 (La.App. 1 Cir. 12/22/00), 779 So. 2d 923, writ denied, 01-0193 (La.3/30/01), 788 So. 2d 1190, to find the LAMMICO policy provided coverage for plaintiff's claim. Consequently, it denied LAMMICO's motion for summary judgment. Regarding the Board's motion for summary judgment, the district court determined that although it found the LAMMICO policy provided underlying coverage for the claim, defendant did not pay the applicable surcharge to the PCF. Therefore, the district court found defendant did not have PCF coverage for the claim and granted the Board's motion, dismissing it with prejudice.
Subsequently, LAMMICO sought supervisory review of the denial of its motion for summary judgment, which was denied. Hood v. Cotter, 06-1086 (La.App. 1 Cir. 9/5/06) (unpub'd writ action). LAMMICO also appealed the granting of the Board's motion for summary judgment to the court of appeal. Hood v. Cotter, 06-1390 (La. App. 1 Cir. 12/28/07), 978 So. 2d 988. In its appeal, LAMMICO argued that the district court erred in determining its policy provided coverage for plaintiff's claims. Thus, LAMMICO's appeal included complaints against the district court's denial of its motion for summary judgment. Before reaching the merits of the appeal, the court, en banc, noted, "Arguably, the present appeal is restricted to the issue of PCF's coverage for the claims filed by [plaintiff]." Hood v. Cotter, 06-1390, at p. 4, 978 So.2d at 992. Nonetheless, the *823 court stated, it has allowed review of the denial of a motion for summary judgment filed by the appellant in conjunction with its review of the granting of a motion for summary judgment against the appellant when the issues involved were "identical." The court concluded that in this case, the issues involved in the granting of summary judgment in favor of the Board "are directly related" to the issues involved in LAMMICO's motion for summary judgment. Consequently, the court found that a review of the issue of LAMMICO's coverage in the appeal before it was appropriate.
Turning to the merits, the court of appeal reversed the grant of summary judgment in favor of the Board and affirmed the denial of LAMMICO's motion for summary judgment. Citing its prior decision in Hedgepeth, the court determined that "[b]ecause the policy provision at issue in this case effectively reduced the prescriptive period for making a claim against LAMMICO to less than the statutorilymandated period, the policy provision is in violation of the statutory law that prohibits the limiting of a right of action against an insurer to less than one year." Hood, 06-1390 at p. 8, 978 So.2d at 994. Thus, finding the policy violated La. R.S. 22:629, the court of appeal declared that portion of LAMMICO's policy that limited its liability to those claims that occurred and were reported while the policy was in force was unenforceable as to those acts of malpractice that occurred during the policy period for which a claim was filed within one year from the accrual of the cause of action and was also reported to the insurer within such time. Based on this reasoning, the court of appeal affirmed the district court's denial of LAMMICO's motion for summary judgment.
Regarding the Board's motion for summary judgment, the court of appeal discussed its opinion in Bennett and determined it was impossible at this stage of the proceedings to determine whether defendant was a qualified health care provider since such qualification is concurrent with the coverage of LAMMICO's underlying policy. The court of appeal therefore reversed the district court's grant of summary judgment in favor of the Board.
Both LAMMICO and the Board applied for review of the court of appeal's decision in this case. We granted certiorari in each case to determine whether the court of appeal properly resolved the issues relating to this claims-made policy when it concluded summary judgment was inappropriate and ordered the cases consolidated. Hood v. Cotter, 08-0215 (La.4/18/08), 978 So. 2d 337; Hood v. Cotter, 08-0237 (La.4/18/08), 978 So. 2d 337.
Discussion
At the outset, we must briefly address plaintiff's argument that the court of appeal improperly considered the district court's denial of LAMMICO's motion for summary judgment in LAMMICO's appeal of the district court's grant of summary judgment in favor of the Board. Plaintiff points out that the denial of LAMMICO's motion for summary judgment is an interlocutory judgment that was not appealable. We agree that the court of appeal did not have appellate jurisdiction to consider the district court's denial of LAMMICO's motion for summary judgment. See C.C.P. art. 968 ("An appeal does not lie from the court's refusal to render any judgment on the pleading or summary judgment."). The court of appeal relied upon its prior jurisprudence that has developed which suggests that even though an appeal involves a restricted issue, a court may address interlocutory issues on appeal if they are "identical" to the issues raised in the appeal. See Dean v. Griffin Crane & Steel, Inc., 05-1226 (La.App. 1 Cir. 5/5/06), *824 935 So. 2d 186, writ denied, 06-1334 (La.9/22/06), 937 So. 2d 387. The court of appeal found the granting of the Board's motion for summary judgment was "directly related" to the issues presented by LAMMICO's motion for summary judgment. While this situation is not as clear-cut as that in Dean, we recognize that both motions for summary judgment involve a common issue and the court of appeal was perhaps justified in its decision to reach the merits of the ruling denying summary judgment for this reason. In any case, however, we find that court of appeal did not improperly reach the issue of LAMMICO's motion for summary judgment because it could have chosen to consider this interlocutory ruling under its supervisory jurisdiction. See, e.g., Unwired Telecom v. Parish of Calcasieu, 03-0732 (La.1/19/05), 903 So. 2d 392 (on reh'g). Because the court had supervisory jurisdiction over the district court's denial of its motion for summary judgment, and explicitly chose to review it, we cannot say the court of appeal's consideration of this issue was improper.
Regarding the merits, LAMMICO points out that the policy at issue is a claims-made policy, and the provisions of the policy state unambiguously that coverage is limited to claims first made and reported to LAMMICO while the policy is in force. Further, although the tortious conduct alleged by plaintiff occurred while the policy was still in effect, the complaint by plaintiff was not made to either LAMMICO or the PCF during the policy period. Thus, LAMMICO argues, the policy does not cover plaintiff's claim. It asserts the decision to the contrary by the court of appeal changes its claims-made policy, which has previously been held by this court to be valid under Louisiana law, into an occurrence policy. Plaintiff responds by asserting the claims-made provision impermissibly violates La. R.S. 22:629, and is therefore void.
A motion for summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(B). The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). Appellate courts review a judgment granting or denying a motion for summary judgment de novo. Bonin v. Westport Ins. Corp., 05-0886, p. 4 (La.5/17/06), 930 So. 2d 906, 910. Thus, appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Smith v. Our Lady of the Lake Hosp., 93-2512, p. 26 (La.7/5/94), 639 So. 2d 730, 750.
The claims-made policy in this case provides:
NOTICEThis is a "claims made" policy. Except to the extent as may be provided herein, this coverage is limited to claims first made and reported to the Company while the policy is in force and arising from the performance of professional services subsequent to the retroactive date stated in the declarations. . . .
I. Coverage Agreements
The Company will pay on behalf of the insured:
AIndividual Professional Liability:
All sums which the insured shall become legally obligated to pay as damages because of injury, to which this insurance applies, from a medical incident resulting *825 from a negligent act, error, or omission in the rendering or failure to render professional services, which occurs subsequent to the retroactive date [of January 1, 1997], and for which claim is first made against the insured and reported to the Company during the policy period.
Here, the alleged malpractice occurred from April 2003, through September 5, 2003. The policy expired on its own terms on January 1, 2004. Plaintiff filed suit on defendant on April 29, 2004, and amended his petition to name LAMMICO as a defendant on February 15, 2005. Under the clear terms of the policy, coverage is not provided unless the alleged malpractice occurs after January 1, 1997, and the claim for that alleged malpractice is first made against the insured and reported to LAMMICO during the policy period, which ended January 1, 2004. Although the alleged malpractice occurred during the requisite time period, the claim was not made against the insured and reported to LAMMICO during the policy period. Accordingly, under the terms of the contract, there is no coverage for plaintiff's claim.
This court has previously examined claims-made policies on two occasions to determine whether the claims-made policies in those cases violated public policy. Anderson v. Ichinose, 98-2157 (La.9/8/99), 760 So. 2d 302, and Livingston Parish Sch. Bd. v. Fireman's Fund Am. Ins. Co., 282 So. 2d 478 (La.1973). In both of those cases, we held that claims-made policies are not per se impermissible as against public policy.
In Livingston Parish School Board, the roof of a newly constructed building collapsed on July 14, 1969. The engineer responsible for the design, planning and supervision of construction of the building was among the defendants. His services were performed between August 9, 1968 and prior to July 11, 1969. He was covered by a claims-made professional liability policy from July 11, 1968, to July 11, 1969. Thus, the policy expired and was not renewed three days before the building collapsed. The engineer filed a third-party demand against his insurer, which was dismissed by the trial court on the basis that the policy did not provide coverage. The dismissal was affirmed by the court of appeal. This court granted certiorari "primarily to consider whether a policy clause was void, as against public policy, which denied protection against a loss from conduct covered during the policy year unless, also, formal claim was made during the policy year." Livingston Parish Sch. Bd. at 480.
Justice Tate, writing for the court, sought to determine whether the clause that limited coverage to claims made during the policy year was against public policy. In analyzing this issue, the court first pointed out that the insurer had routinely offered to renew the policy long before its expiration, and that, had the insured renewed it, he would have been covered for the collapse of the building. The court then distinguished this type of policy from an occurrence policy, and stated:
Where a policy unambiguously and clearly limits coverage to acts discovered and reported during the policy term, such limitation of liability is not per se impermissible. J.M. Brown Const. Co. v. D & M Mechanical Contr., Inc., 222 So. 2d 93 (La.App. 1st Cir.1969); see also Home Ins. Co. v. A. J. Warehouse, Inc., 210 So. 2d 544 (La.App. 4th Cir.1968), syllabus 6. This is in accordance with the general principle that, in the absence of conflict with statute or public policy, insurers may by unambiguous and clearly noticeable provisions limit their liability *826 and impose such reasonable conditions as they wish upon the obligations they assume by their contract. Snell v. Stein, 261 La. 358, 259 So. 2d 876, 878 (1972), and decisions there cited.
No American decision we could find holds public policy to be offended by discovery and reporting provisions similar to the present. In the decisions cited below, such provisions were uniformly upheld, unless waived.
Livingston Parish Sch. Bd. at 482 (emphasis added).
Next, the court examined other similar cases around the country, and, agreeing with them, stated that it rejected the contention that such clauses are against public policy. The court continued, "No reasonable expectation of coverage by the insured was defeated by the unambiguous provisions clearly limited coverage to those claims discovered and reported during the policy period." Livingston Parish Sch. Bd. at 482. Finally, the court concluded that, in effect, the insured got what he paid for. Consequently, the court affirmed the lower courts' dismissal of the thirdparty demand against the insurer.
Over 25 years later, the issue of the validity of claims-made policies was again addressed by this court in Anderson. In that case, this court addressed the issue of whether a medical malpractice policy's denial of coverage when the alleged malpractice occurred within the policy period but the claim was not made or reported until after the policy period expired violated public policy. The malpractice occurred in October 1986, but was not discovered until December 1987. Suit was filed against the negligent doctor in November 1988. The medical malpractice insurer was not added as a defendant until May 1995. The insurer filed a motion for summary judgment, contending there was no coverage under the policy because although the alleged malpractice occurred after the retroactive date of the policy, the claim was not made or reported before the policy expired on October 1, 1987. The insurer viewed as irrelevant the fact that the policy expired before plaintiffs discovered the malpractice. The trial court denied the motion for summary judgment, but the court of appeal reversed and granted summary judgment in favor of the insurer.
In reviewing the judgment of the court of appeal, this court examined the language of the policy, which provided that to be covered the service must have been performed after the applicable retroactive date and the claim must have first been made while the agreement was in effect. The court noted that when the policy expired on October 1, 1987, the doctor did not renew his policy or purchase tail coverage, although it was offered.
The court then quoted a "seminal statement" on the subject of claims-made versus occurrence policies as follows:
With the development of a more complex society, it became more reasonable, particularly with respect to the activities of professionals, to insure against the making of claims, rather than the happening of occurrences, and "claims made" insurance developed to meet a need for professionals to insure against the making of a claim as the insured event, rather than having to struggle with traditional concepts and difficulties inherent in determining whether the "event" insured against was the commission of an act, error or omission or the date of discovery thereof or the date of injury caused thereby. The major distinction between the "occurrence" policy and the "claims made" policy constitutes the difference between the peril insured. In the "occurrence" policy, the peril insured is the "occurrence" itself. Once the "occurrence" takes place, coverage *827 attaches even though the claim may not be made for some time thereafter. While in the "claims made" policy, it is the making of the claim which is the event and peril being insured and, subject to policy language, regardless of when the occurrence took place.
Anderson at pp. 5-6, 760 So.2d at 305 (quoting Sol Kroll, The Professional Liability Policy "Claims Made", 13 Forum 842, 843 (1978)).
Next, this court reviewed Livingston Parish School Board, and noted that case held that a claims-made policy that clearly limits coverage to acts discovered and reported during the policy period is not per se impermissible. We then determined that in the 26 years since the Livingston Parish School Board case, the trend nationwide has been to uphold claims-made policies, and their use has become commonplace. We found that the purpose of the claims-made-and-reported requirement is to ease problems in determining when a claim is made or whether an insured should have known a claim was going to be made. Finally, we observed that the policy works perfectly as long as successive policies are purchased, but that problems arise when the policy is not renewed and tail coverage is not procured.
The Anderson court pointed out that unless there is a conflict with statutory provisions or public policy, insurers are free to limit their liability and to impose reasonable conditions upon policy obligations they contractually assume. Plaintiffs, however, asserted two bases for attacking the unambiguous terms on public policy grounds. First, they asserted the Direction Action Statute, La. R.S. 22:655, expresses the public policy that liability insurance is issued primarily for the protection of the public and confers substantive rights on third-party tort victims that are vested when the injury occurs. The court rejected this argument, stating, "The statute does not . . . extend the protection of the liability policy to risks that were not covered by the policy or were excluded thereby (at least in the absence of some mandatory coverage provisions in other statutes)." Anderson at p. 9, 760 So.2d at 307. The policy unambiguously states that the insured has no right to coverage under these facts, and the Direct Action Statute does not extend any greater right to third party tort victims who were damaged by the insured.
Plaintiffs also contended the policy provisions were contrary to public policy because La. R.S. 40:1299.45(D)(2) prohibits cancellation of medical malpractice insurance policies insofar as the cancellation affects "any claim that arose against the insurer or its insured during the life of the policy." The court rejected this argument, explaining that cancellation and expiration have entirely distinct meanings, and the policy at issue expired by its own terms and this is not a cancellation of the policy. For all these reasons, the court concluded that the claims-made policy at issue did not violate public policy under the facts of the case.
In the instant case, plaintiff acknowledges the holding of Anderson, but points to a first circuit case, Hedgepeth v. Guerin, 96-1044 (La.App. 1 Cir. 3/27/97), 691 So. 2d 1355, for the proposition that this claims-made policy violates public policy because it violates the provisions of La. R.S. 22:629, a statute that was not considered in Anderson. In Hedgepeth, which was rendered prior to this court's decision in Anderson, the alleged malpractice occurred on October 2, 1985. A medical malpractice action was filed on July 23, *828 1986.[4] The insurance at issue was a claims-made policy covering the period between January 31, 1985, and January 31, 1986. The insurer filed a motion for summary judgment contending plaintiffs' claim was made outside the policy period and, therefore, the policy afforded no coverage to the doctor.
In analyzing plaintiffs' claim that the claims-made policy was against public policy under the facts of their case, the court of appeal pointed out that Livingston Parish School Board recognized that such policies could be against public policy in some situations. The court quoted the provisions of La. R.S. 22:629 at issue in the instant case and certain prescriptive statutes, and concluded that medical malpractice claimants are guaranteed a period of not less than one year within which to institute a claim against a health care provider and/or his insurer. The court concluded that the policy before it limited its liability to those acts which occurred and were reported prior to the end of the policy's coverage. As a result, plaintiffs effectively were limited to less than one year from the date of the malpractice to bring an action against the insurer. Therefore, the court concluded, a policy provision that effectively reduces the prescriptive period against the insurer to less than the statutorily mandated period is without effect.
Thus, based on the first circuit's decision in Hedgepeth, plaintiff contends the LAMMICO policy violates La. R.S. 22:629. This statute was originally enacted as part of the Insurance Code in 1948. Acts 1948, No. 195. At that time, the pertinent language was identical to the current language. Although the statute has been amended several times since 1948, the language of the provision that is at issue in this case has remained unchanged. In 1978, this court had occasion to address this the portion of La. R.S. 22:629 at issue in this case in Grice v. Aetna Cas. & Sur. Co., 359 So. 2d 1288 (La.1978). There, plaintiff's home was burglarized on January 31, 1973, and she filed suit against her homeowners' insurer for its failure to reimburse her for her loss on September 12, 1974, more than a year after the burglary. The insurer filed an exception of prescription. The policy at issue consisted of a standard fire policy attached to a homeowners' policy that covered other perils. The standard fire policy contained a provision requiring that the insured render a proof of loss within sixty days after the loss, and the amount of loss shall be payable sixty days thereafter. Plaintiff contended this provision meant that no suit could be filed within sixty days after a loss, which reduced the time to file suit to ten months rather than one year in violation of La. R.S. 22:629. This court held that the clause did, in fact, limit the right of action against the insurer to a period of less than one year. The court concluded that "on the basis of . . . Section 629, the limitation in the standard fire policy in question would be considered void because it limits the right of action against the insurer to less than one year, unless it can be held that it is a limitation `otherwise specifically provided' in the Insurance Code." Grice at 1291. The court found that because the Insurance Code required the standard fire policy to include the 60day provision, it was therefore "otherwise specifically provided" in the Code and the prohibitions of La. R.S. 22:629 were not *829 violated.[5] Consequently, the court found plaintiff's suit was prescribed.
Thus, this court has found the provisions of La. R.S. 22:629 at issue would be violated when the policy clearly provided coverage for a loss, but does not make the covered loss payable by the insurer until sixty days after the loss was sustained. In the instant case, however, the claims-made policy at issue purports to deny coverage of plaintiff's claim. In that way, the instant situation is different from that in Grice in which plaintiff's claim was clearly covered by the policy, but the policy contained a provision that prevented her from filing suit for at least the first sixty days after the accident.
The question in this case, then, remains whether the claims-made policy provision that limits coverage to claims made and reported within the policy period limits the right of action against the insurer in violation of La. R.S. 22:629. An action can only be brought by a person having a real and actual interest which he asserts. La. C.C.P. art. 681. An exception of no right of action is a peremptory exception designed to test whether plaintiff has a real and actual interest in the action. La. C.C.P. art. 927(A)(5). The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Industrial Cos., Inc. v. Durbin, 02-0665, p. 12 (La.1/28/03), 837 So. 2d 1207, 1216 (citing Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com'n, 94-2015, p. 5 (La. 11/30/94), 646 So. 2d 885, 888). The focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit, but it assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation. Reese v. State, 03-1615, p. 3 (La.2/20/04), 866 So. 2d 244, 246; Industrial Cos., 02-0665 at p. 12, 837 So.2d at 1216; Benoit v. Allstate Ins., 00-0424, p. 10 (La.11/28/00), 773 So. 2d 702, 708.
The Direct Action Statute, La. R.S. 22:655, grants a procedural right of action against an insurer where the plaintiff has a substantive cause of action against the insured. Cacamo v. Liberty Mut. Fire Ins., 99-3479, pp. 2-3 (La.6/30/00), 764 So. 2d 41, 43; Descant v. Adm' of Tulane Educ. Fund, 93-3098 (La.7/5/94), 639 So. 2d 246 (La.1994). The Direct Action Statute states its intent is that "all liability policies within their terms and limits are executed for the benefit of all injured persons. . . ." La. R.S. 22:655(D) (emphasis added). In Anderson, this court recognized that the statute does not extend the protection of the liability policy to risks that were not covered by the policy unless another statute requires a mandatory coverage provision. Anderson at p. 9, 760 So.2d at 307.
In the instant case, the provision in the claims-made policy limiting coverage to those claims made and reported during the policy period does not limit plaintiff's right to bring his suit against LAMMICO. Rather, it provides the scope of coverage bargained for by defendant. This situation is different from that in Grice wherein the insurance policy provided coverage, but did not make the insured's covered loss due and payable until at least sixty days following submission of proof of loss. *830 During the sixty-day period following a submission of proof of loss, the insured was prevented from filing suit by the insurance agreement. Here, the claims-made policy denies coverage to defendant for plaintiff's claim, but it does not itself limit plaintiff's right of action. To hold otherwise would effectively convert a claims-made policy into an occurrence policy and change the bargained-for exchange between the insurer and the insured. As this court has previously held, claims-made policies are not per se impermissible or against public policy, and we do not interpret La. R.S. 22:629 as prohibiting the claims-made policy provision that makes coverage dependent upon a claim being first made and reported during the policy period. As in Anderson, the event that triggered policy coverage simply did not occur during the policy period. La. R.S. 22:629, which does not mandate coverage, but prohibits any condition, stipulation or agreement in an insurance contract from limiting a right of action against the insurer to a period of less than one year from the time when the cause of action accrues, was not violated as the claims-made coverage provision did not impermissibly limit plaintiff's cause of action.
Hedgepeth was incorrectly decided to the extent it conflicts with this decision. Rather than determining whether the claims-made policy impermissibly limited plaintiffs' right of action in violation of La. R.S. 22:629, the court cited several "prescriptive statutes," including La. R.S. 22:629, and concluded a medical malpractice claimant is "guaranteed" a period of not less than one year within which to institute a claim against a health care provider and/or his insurer. The court went on to conclude, "However, a `claims made' policy, requiring that a claim be made within the policy period, may effectively reduce the time period within which a medical malpractice claimant may institute his action against the insurer." Hedgepeth at pp. 13-14, 691 So.2d at 1363. Thus, the court concluded that "a policy provision, which effectively reduces the prescriptive period against the insurer to less than the statutorily mandated period, is without effect." Hedgepeth at p. 14, 691 So.2d at 1364. As discussed above, La. R.S. 22:629 prohibits any condition, stipulation or agreement in an insurance contract from limiting a right of action against the insurer to a period of less than one year from the time when the cause of action accrues; it is not a prescriptive statute nor does not mandate coverage where none is found.
In the instant case, LAMMICO's claims-made policy expired on January 1, 2004. Defendant was offered tail coverage, but did not purchase it. Thus, upon the expiration of the policy, there was no coverage for any claim that had not yet been made and reported. Such a claims-made coverage provision does not violate the applicable provisions of La. R.S. 22:629 and is not against public policy. Because plaintiff's claim was not first made and reported to LAMMICO before January 1, 2004, the LAMMICO claims-made policy does not provide coverage for plaintiff's claim. Consequently, summary judgment should have been granted in favor of LAMMICO. The lower courts' judgments to the contrary were in error.
Turning to the issue of the Board's motion for summary judgment, we must determine whether defendant is a qualified health care provider under the MMA for purposes of plaintiffs claim.[6] La. R.S. 40:1299.42(A) provides:
*831 A. To be qualified under the provisions of this Part, a health care provider shall:
(1) Cause to be filed with the board proof of financial responsibility as provided by Subsection E of this Section. (2) Pay the surcharge assessed by this Part on all health care providers according to R.S. 40:1299.44.
Subsection (E)(1) provides with respect to commercially-insured providers:
E.(1) Financial responsibility of a health care provider under this Section may be established only by filing with the board proof that the health care provider is insured by a policy of malpractice liability insurance in the amount of at least one hundred thousand dollars per claim with qualification under this Section taking effect and following the same form as the policy of malpractice liability insurance of the health care provider. . . .
In Abate v. Healthcare Internat'l, Inc., 560 So. 2d 812 (La.1990), we stated that in order to qualify under the MMA, a health care provider must file the type of proof of financial responsibility described in Subsection E and pay the annual PCF surcharge levied on the health care provider as provided by La. R.S. 40:1299.44. Abate at 816. Further, Subsection(E) alerts those health care providers that their proof of financial responsibility and, hence, their qualification under § 1299.42, takes effect and follows the same form as the underlying policy of malpractice liability.
Here, the LAMMICO claims-made policy does not provide coverage for plaintiff's claim, which was first made and reported to LAMMICO after the end of the policy period. According to Subsection (E), defendant's qualification under the MMA takes effect and follows the same form as the LAMMICO policy. Because the LAMMICO claims-made policy expired and does not provide underlying coverage for plaintiff's claim, we find defendant's qualification ceased to be effective when the policy expired and defendant failed to purchase tail coverage. Moreover, by not purchasing PCF tail coverage, defendant failed to pay the surcharge required by La. R.S. 40:1299.42(A)(2). Because defendant did not purchase tail coverage after his claims-made policy expired, he ceased to be qualified health care provider under the MMA. Thus, at the time plaintiff's suit was filed, defendant was not a qualified health care provider. Consequently, the Board's motion for summary judgment was properly granted by the district court and the court of appeal erred when it reversed this portion of the judgment.
Decree
For the reasons assigned herein, we find the LAMMICO claims-made policy does not provide coverage for plaintiff's claim. Consequently, its motion for summary judgment should have been granted. The court of appeal's judgment affirming the district court's denial of summary judgment to LAMMICO is reversed. Summary judgment in favor of LAMMICO is hereby granted and LAMMICO is dismissed with prejudice. Similarly, the trial court's grant of summary judgment in favor of the Board was improperly reversed by the court of appeal since defendant is not a qualified health care provider under the MMA. The court of appeal's judgment reversing the district court's grant of summary judgment in favor of the Board is reversed. Summary judgment in favor of the Board is hereby granted and the Board is dismissed with prejudice.
REVERSED.
NOTES
[1] Prior to the filing of suit in the district court, plaintiff filed a complaint requesting the appointment of a medical review panel on February 2, 2004. Although he was initially notified that defendant was qualified under the provisions of La. R.S. 40:1299.41 et seq., on April 21, 2004, plaintiff was informed that defendant was not, in fact, enrolled in the Patent's Compensation Fund for this complaint.
[2] On December 19, 2003, defendant voluntarily surrendered his medical license. Although LAMMICO and the Board have made alternative arguments that defendant's insurance coverage and PCF qualification lapsed on that date, it is not necessary for us to reach the issue of whether the policy terminated on December 19, 2003, or January 1, 2004, because our analysis and the resolution of the instant matter would be the same in either situation. We will therefore assume the policy expired on the later date of January 1, 2004.
[3] La. R.S. 22:629 has been amended since the events at issue in this case occurred. These amendments were primarily in response to the devastation wreaked by Hurricanes Katrina and Rita in this state. The amendments added provisions and changed the subsection lettering and numbering within the statute; however, the language of La. R.S. 22:629 at issue in this case remains unchanged. To avoid confusion, we will refer throughout this opinion to La. R.S. 22:629 as a whole, but we note here that this opinion addresses itself only to that portion of the statute quoted above.
[4] This action was dismissed without prejudice because an opinion had not been rendered by a medical review panel. A second suit was filed on November 25, 1991, and the case went to trial thereafter.
[5] The court also concluded that the time limit for filing suit contained in the standard fire policy applied to the homeowners' policy attached to the standard fire policy. The court found it significant that the attached homeowners policy had no provision prescribing the time for filing suit on a loss.
[6] We note that only LAMMICO, and neither plaintiff nor defendant, appealed the trial court's grant of summary judgment in favor of the Board. | 01-03-2023 | 10-30-2013 |
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