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https://www.courtlistener.com/api/rest/v3/opinions/1549562/ | 146 F.2d 757 (1945)
SLOAN'S FURRIERS, Inc., et al.
v.
BRADLEY.
No. 9805.
Circuit Court of Appeals, Sixth Circuit.
January 15, 1945.
*758 Sol Goodman and Albert Spievack, both of Cincinnati, Ohio, for appellants.
Maurice H. Koodish, of Cincinnati, Ohio (Maurice H. Koodish, and J. E. Rappoport, both of Cincinnati, Ohio, on the brief), for appellee.
Before HICKS, SIMONS, and MARTIN, Circuit Judges.
SIMONS, Circuit Judge.
The appellants in this bankruptcy appeal are merchandise creditors of the bankrupt who, at the election of a trustee, objected to the allowance of claims of other creditors for the purpose of voting, and to the appointment of the elected trustee, on the ground that his election was bankrupt-controlled. The referee overruled substantially all objections to proofs of claim, overruled the motion to set aside the election, and appointed the recommended trustee. The appellants' petition for review of the referee's order of appointment was overruled, and the order confirmed. It is from this order that appeal is taken.
The bankrupt was a corporation engaged in the retail fur business in the Fountain Square building in Cincinnati. Upon the filing of a petition in bankruptcy on June 22, 1943, one Bradley was appointed receiver by the United States District Court, to conserve its assets. The first meeting of creditors held July 19, 1943, in the office of the referee, at which the bankrupt was examined and claims of creditors discussed, was adjourned to July 24, to permit correction in some of the claims. At the adjourned meeting an election was held at which Bradley, the receiver, was elected trustee over the objection of present counsel for the appellants. A petition for review was based upon the grounds already stated. The objections to the voting of claims were, in the main, technical. They included, in addition to charges that attorneys who had performed services for the corporation, had, in reality, represented Grabfield, its sole stockholder, the charge that claims for personal services were not sufficiently specific; that some of the debts had not been liquidated; that some creditors were in reality secured, even though security was without reservation waived; and that claims evidenced by notes were ineligible to be voted because the notes had not been attached to the claim, though the referee had permitted such claims to be voted both for and against Bradley upon representation of counsel that the notes would be later attached.
There is, however, upon the record, no doubt as to the existence of the debts objected to, or the good faith of the creditors asserting them. It must be understood that the allowance of claims, for purposes of voting, is not their final allowance, and that upon a determination of their validity for voting purposes, when challenged, the only question for the court is whether there was reasonable ground for the determination made. In re Rosenfeld-Goldman Co., D.C., 228 F. 921. The mere filing of a proof of claim is prima facie evidence of its validity, with the burden of disproving it upon the objector. Whitney v. Dresser, 200 U.S. 532, 26 S. Ct. 316, 50 L. Ed. 584. The situation that faced the referee is important in order to determine whether he exercised a sound discretion in accepting the votes of the assailed creditors. At the time of the appointment of Bradley as receiver, the bankrupt's assets, located in the Fountain Square building, were in charge of a single employee who had remained after the resignation of the only officer of the corporation residing in Cincinnati. The premises of the bankrupt contained not only its own stock of furs, but much property of others held in its custody for storage and safekeeping. The landlord was concerned about its rent, which was substantial, and had already filed a motion with the district court to compel the bankrupt to vacate. It was important to the orderly liquidation of the bankrupt's assets, and in the release of furs belonging to customers, that a trustee be promptly chosen. The referee, nevertheless, gave careful consideration to the objections urged, and we perceive no abuse of discretion in permitting the assailed creditors to vote. This conclusion is fortified by the fact that the challenged claims were finally allowed by the referee, and that from such allowances the appellants failed to seek review.
More important is the contention of the appellants that the election of Bradley was bankrupt-controlled. It is undoubtedly *759 the rule that where a bankrupt attempts to influence the election of a trustee the choice will be disapproved regardless of the qualifications and personal integrity of the man chosen. Collier, 13th Ed., pp. 1021 to 26; In re McGill, 6 Cir., 106 F. 57. This has been held to include a trustee whose election was secured by the activity of the bankrupt's attorney. In re Rekersdres, D.C., 108 F. 206; In re Sitting, D.C., 182 F. 917. So it becomes necessary to determine whether Grabfield, sole stockholder of the bankrupt corporation, dictated the election of the trustee, and whether the circumstances of Bradley's election were such as to forecast influence by Grabfield over the liquidation of the bankrupt's assets.
Although Grabfield presented a substantial claim against the bankrupt estate, he was not permitted to vote at the election. Neither was Rogoff, general manager and an officer of the corporation, even though he had resigned before bankruptcy. No previous connection between Grabfield and Bradley was shown, and when pressed by the referee as to Bradley not being a representative of Grabfield, counsel for the protesting creditors answered in the affirmative. The sole circumstance supporting the contention of the protesting creditors that the election was bankrupt-controlled, is the fact that Koodish, who later became attorney for the trustee, had been Grabfield's personal attorney. Koodish, however, represented other creditors of the bankrupt, and the record fails to disclose that his subsequent appointment as attorney for the trustee was opposed by the appellants. Indeed, no issue as to his appointment is presented upon this record, although at the time of the election the referee invited counsel for appellants to record objection to the selection of counsel for the trustee, if and when such appointment was sought.
The referee came to the conclusion that the contest over the selection of a trustee was not, in reality, a controversy in respect to Bradley at all, since high tribute was paid by the objectors to Bradley's integrity, ability and experience as a liquidating trustee, a tribute repeated even more fulsomely, here. The referee viewed the contest as one between attorneys for representation of the trustee, and there is much in the record to support his conclusion. When the claim of the Ohio Finance Company was first presented, its representative stated that he had authority to waive a portion of the security represented by hypothecated accounts. Appellants' counsel waived objection to the claim in the belief that it would be voted in his favor. When he found that in this he was mistaken, he sought to withdraw the waiver. There was evidence also that appellants' counsel had interviewed the local manager of this creditor and had offered to nominate its attorney as trustee, and evidence that he had offered to vote his claims for Bradley if Bradley would recommend his appointment as counsel for the trustee. Nowhere in the record is this evidence controverted.
The estate of the bankrupt has now been fully liquidated, its liabilities finally determined, and its assets converted into cash, nothing remains to be done except a distribution of the fund to creditors. We are asked to set aside the election of the trustee, and so to adjudicate, as a nullity, everything that has so far been done by him, and to throw the matter open to another fight among creditors whose claims, as voted, have now been finally without contest allowed. This would seem to be an utterly futile proceeding. True, it is, that the vindication of a principle, so salutary as freedom of a trustee from bankrupt control, might impose upon a court of equity, an adjudication wholly futile in practical aspect, but it would have to be in a case where evasion is much more clearly demonstrated than here it is, in response to challenge whose bona fides are not suspect, and requiring no approval to an unseemly contest among lawyers for trustee representation.
There was no evidence of the allowance of invalid claims, no evidence of fraud, as in Pepper v. Litton, 308 U.S. 295, 60 S. Ct. 238, 84 L. Ed. 281, no dereliction, breach of trust, or ineptitude on the part of the trustee, no undue influence by the bankrupt or its sole stockholder over the conduct of the liquidation. While the trustee might well have recommended, and the referee have appointed other counsel, we do not meet here any issue with respect to the appointment of Koodish as counsel for the trustee. The actual administration of bankrupt estates is, by the law, left largely to the referees, and it is settled practice not to disturb their acts unless a plain and injurious error of law or abuse of discretion is shown. In re Rosenfeld-Goldman *760 Co., supra. The order of the referee has now had the approval of the District Judge, and under settled rules we should not set it aside except upon a clear showing of an error of law or a plain mistake of fact. We find neither.
The order below is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304591/ | HICKEBSON, J.
The bill was filed by Nashville Trust Company, administrator with the will annexed, to construe the will of Mary Fite Smith, deceased. The beneficiaries named in the will were made parties defendant; and, also, “William L. Adrian, Bishop of the Boman Catholic Diocese of Nashville, as Trustee for the Holy Family Church, a resident of Davidson County, Tennessee,” was named a party defendant.
Two paper writings, taken together, had been declared by the circuit court of Davidson County to be the last will and testament of Mary Fite Smith in a will contest suit in that court. It is these two paper writings which the chancery court was asked to construe in this cause.
The paper writings to be construed are:
“September First Nineteen Fourtyfive
‘ ‘ September 1st 1945
“The National American Bank
“Lock Box No. 667
“Nashville Trust Co—
“My Last Will and Testament
“I am this day of my sound good mind and am not influenced by any one what soever by any one what soever:
“I do this day will to my sister and brother Maggie L. Johnson and to Samuel L. Fite of 4235 Parrie Avenue, Chicago, Ill. All Personal Property furniture the home *200farm at Henderedsonville Tennessee and etc eaqueal to Each Brother and sister.
“Maggie L. Buckner Johnson of 4235 Prairrie Ave Chicag’o Ill.
“The residue of my Estate shall be held in Trust by the American National Bank untill all debts are paid after which other estate shall be eaquealy sold and devide between two newphews John R. and Columbus Fite also of Chicago Ill.
“Mary Fite Smith
“119-18th Ave. No.
“Nashville Tennessee.”
“September the First Nineteen Fourtyfive
“September 1st 1945.
“My Last Will and Testament:
“I do this day will to my sister and brother if living all my personal property household furniture and etc to be eaquealy devide to each of them My Sister Maggie L. Johnson and Brother Samuel L. Fite of 4235 Parrie Ave Chicago, Ill. The resuedue of my Estate which shall be held in Trust by the American National Bank shall be sold by Said American National Bank and after all debts are paid shall be Eaquealy devided as follows:
“Between two nephews John and Coulumbus Fite also of Chicago Ill.
“To Hobart Wharton’s a third nephew I will to his daughter Theome Wharton all Jewelry watch two dimond rings which would have been 4he amount willed to Hobart Wharton a Newphew.
“All money shares shall go to pay funeral expenses.
“To the Holy Familey Church I will Five Hundred Dollars and no 500.00 *201and all money if any in Bank after all debts have been paid. This day I am possessed of a bappy good will and a sound frame of mind and bave not been Influenced by any one at borne alone as nseal.
“Mary Fite Smith
“Lock Box No 667 Nashville Trust Co.”
Tbe paper first quoted was written with ink; the other was written with pencil.
The Chancellor decreed:
“And upon consideration of the entire record, as thus amended, the Court is pleased to find that the action of the complainant in filing* this suit asking for a construction of the Last Will and Testament of Mary Fite Smith deceased, was right and proper; that the two paper writings exhibited as having been probated by the County Court of Davidson County, Tennessee as the Last Will and Testament of Mary Fite Smith are not void for indefiniteness as contended in the answer of defendants Maggie L. Johnson and Samuel L. Fite and in the answer of John B. Fite and Columbus Fite (as amended), but do constitute the valid Last Will and Testament of said Mary Fite Smith deceased.
“The Court further finds that the proper construction of the terms and provisions of said Last Will and Testament of said Mary Fite Smith deceased shows it to dispose of her entire estate as follows:
“1. A specific bequest to defendants Maggie L. Johnson and Samuel L. Fite of her household furnishings and other tangible personal effects (other than her watch and two diamond rings);
“2. A specific devise to said Maggie L. Johnson and Samuel L. Fite of the parcel of real estate located at Hendersonville, Tennessee;
*202“3. A specific bequest to Theome Wharton of the jewelry, consisting of a watch and two diamond rings;
“4. A specific bequest to the Holy Family Church, a Roman Catholic Church located on Seventh Avenue, South in Nashville, Tennessee, of $8,088.62, being the balance to the credit of the testatrix at her death, in the American National Bank of Nashville, Tennessee. This bequest however, is subject to being charged with any part of the debts of the testatrix, if any, which may remain unpaid in the event the residuary estate is exhausted before all debts have been paid;
“5. A general bequest to said Holy Family Church of the sum of $500.00;
“6. A direction to the Administrator with the will annexed to apply the proceeds from the sale of the 120 shares of Dividend Shares, Inc. (described in the will as ‘money shares’) to the payment of the funeral expenses of testatrix;
“7. The residue of the personalty, if any, and the two tracts of real estate, located on Patterson Street and Nineteenth Avenue North, in Nashville, Tennessee, to be converted into cash; and after the payment of administration expenses, any balance of the funeral expenses remaining unpaid after application of the proceeds from the sale of the shares in Dividend Shares, Inc. and payment of the $500.00 general bequest to the said Holy Family Church, the remainder to be equally divided between defendants John R. Fite and Columbus Fite.”
Maggie L. Johnson, John R. Fite, and Columbus Fite have appealed to this court. The assignments present three determinative questions:
(1) Was the will of Mary Fite Smith void because its provisions were vague, indefinite, and conflicting?
*203(2) - Was the gift to the Holy. Family Church- void, in whole or in part?
(3) Did Mary Fite Smith intend to give the chnrch the money in bank at the time of her death which she acquired through the sale of a house and lot on October 24, 1945?
There is no dispute about the material facts. Mary Fite Smith was a Negro woman who had lived most of her life in Nashville, Tennessee. She was sixty-nine years old when she executed her will. She was an industrious, frugal woman. She had no children. Her nearest relatives were her sister, Maggie L. Johnson, her brother, Samuel L. Fite and her two nephews, John R. Fite and Columbus Fite.
Mary Fite Smith was a devout member of the Roman Catholic Church, being a member of the Holy Family Church, a local church in Nashville, Tennessee, of the Roman Catholic faith.
Realty which is owned by the Roman Catholic Church stands in the name of the bishop of the church, he being the person who handles the church property under its rules and regulations. Defendant, "William L. Adrian, is the Bishop of the Roman Catholic Diocese of Nashville, and the Holy Family Church is under his jurisdiction and authority. The Roman Catholic Church is not incorporated, and the local church known as the Holy Family Church is not incorporated.
At the time testatrix executed her will, September 1, 1945, she had four pieces of real estate: (1) the home farm near Hendersonville, Tennessee;. (2) one house and lot in Nashville, Tennessee, at Eighteenth Avenue and Church Street; and (3) two houses and lots in Nashville, Tennessee, on Nineteenth Avenue at Patterson Street.
*204On October 24, 1945, testatrix sold the house and lot at Eighteenth Avenue and Church Street for $10,000. Testatrix had carried a savings account in the American National Bank for several years. On September 1, 1945, the day she executed her will, this account was $160.15. On the day she sold her house and lot at Eighteenth Avenue and Church Street testatrix deposited into this savings account $9,200.14 which she acquired through the sale of the house and lot, making a total deposit on that day, October 24, 1945, in the savings account of $9,222.56.
On February 1, 1946, testatrix opened a checking account in the American National Bank by a deposit of $1,000 which she took from her savings account in that bank. On May 11,1946, she deposited $115 to this checking account. By February 3, 1947, this checking account had been reduced to fifty cents; and the account was closed by the bank on February 3, 1947, by a service charge.
Mary Fite Smith died on April 6, 1947, with only one bank account, the savings account in American National Bank, which had $8,088.62 in it.
1. For reasons hereafter stated, we do not think the will of Mary Fite Smith is void for uncertainty of meaning. A will should be construed so as to sustain it, if reasonably possible. Sales v. Southern Trust Co., 182 Tenn. 270, 185 S. W. (2d) 623.
The construction which we shall give to the will sustains it and gives to the beneficiaries the devise or bequest which testatrix intended for each beneficiary to take.
2. Was the bequest to the Holy Family Church void in whole or in part?
*205Appellants contend the beqnest to the chnrch is void because (a) the nnicorporated chnrch cannot take the beqnest for want of capacity; (b) the beqnest was not made to trustees; and (c) the beqnest was not definite in its purposes.
In Green v. Allen, 24 Tenn. 170, this rule is stated: “If the charity be created, either by devise or deed, it must be in favor of a person having sufficient capacity to take as devisee or donee, or, if it be to not such person, it must be definite in its object, and lawful in its creation, and to be executed and regulated by trustees, before the court of chancery can, by virtue of its extraordinary jurisdiction, interfere in its execution.”
This rule was followed by our Supreme Court in many cases, including the following: Daniel v. Fain, 73 Tenn. 319; Reeves v. Reeves, 73 Tenn. 644; Rhodes v. Rhodes, 88 Tenn. 637, 13 S. W. 590; Ewell v. Sneed, 136 Tenn. 602, 191 S. W. 131, 5 A. L. R. 303.
Code Section 9593 provides: “Trusts not to fail for want of trustee. — No trust, having for its object the aid of the poor, or the promotion of religion, morality or education, shall fail because of an attempt to create a perpetuity in same or lack of a trustee.”
Under this statute, which was enacted subsequent to the foregoing decisions, a charitable trust would not be held invalid because no trustee was named. The chancery court will appoint a trustee to administer the trust.
The Code of Tennessee provides:
Code Section 4407. “Eeligious society; power to take and hold land. — Any religious denomination or society, whether incorporated or not, may take, by deed or otherwise, and hold not exceeding five acres of land at one place for purposes of public worship or for a parsonage, and five acres for burial ground.”
*206Code Section 4408. “Title vested in trustees.' — All lands bought or otherwise acquired by any religious denomination or society, shall be vested in a board of trustees or other persons designated by the members of such denomination or society, for the use and benefit thereof.”
Code Section 4409. “When trustees may sell. In all cases where any elders, trustees, or other church officers, in any of the churches or organizations of any religious denomination, shall have any lands conveyed to them for the use of their respective churches or congregations as building sites, or for any other purpose, by deed, grant, devise, or in any other manner, they or their successors in office, according to the regulations of such church or congregation, may sell and convey the same by deed, which deed, when officially signed by such elders, trustees, or other church officers, or their successors in office, shall pass the title, whether for life, for years, or in fee, to such land to the purchaser in as full and ample a manner as if said officers held the same as a corporation, and had conveyed it by deed under the corporate name. ’ ’
These code sections were construed by our Supreme Court in Sales v. Southern Trust Company, 182 Tenn. 270, 185 S. W. (2d) 623, 624. The Court held:
(a) “It cannot be doubted that he intended to make an outright gift to the church.. No trust, charitable or otherwise, is attempted. Upon the death of Mrs. Gibbs the trust in her behalf terminated, the remainder interest being then due and payable to the trustees of the church. Much of the argument relating to charitable trusts and the authorities on that branch of the law to which our attention has been called are without application.”
'(b) “It is now well settled that an unincorporated church organization occupies a corporate status as to *207its acquisition, ownership, improvements, contracts, and dealings concerning the property owned and used by it for public worship, parsonage, and burial ground purposes. ’ ’
(c) “By a line of the decisions of this Court it has been held that these statutes confer a legal existence and entity upon unincorporated religious associations, making of them quasi-corporations with limited capacity and powers. Reeves v. Reeves, 73 Tenn. 644; Rhodes v. Rhodes, 88 Tenn. 637, 13 S. W. 590: Wilson v. Clinton Chapel African M. E. Zion Church, 138 Tenn. 398, 198 S. W. 244, and others.”
The Court quoted with approval from Rhodes v. Rhodes, 88 Tenn. 637, 13 S. W. 590, wherein the Court said:
(d) “ ‘The capacity to take and hold real estate conferred by the sections of the Code quoted, operates to confer upon such a voluntary religious society the corporate right of existing as a legal entity for the purpose of holding and conveying, as defined in the statute; and a devise of land for a church-site, to be conveyed when a church building should be erected thereon, has been sustained as valid. Reeves v. Reeves, 73 Tenn. 644.’ ”
(e) “The legal capacity of a corporation to take and hold such property as is necessary to enable it to accomplish the purposes for which it was created is ascribed to every corporation regardless of expressed statutory sanction. 19 C. J. S., Corporations, sec. 1088, p. 627; 13 Am. Jur., Corporations, Sec. 773, p. 801.”
(f) “So we think these quasi-corporations have authority to take such property as is necessary to the exercise of the functions granted to them by the law.”
*208(g) “The taking of money for such purposes is but a temporary holding of property. These quasi-corporations are not authorized either expressly or by implication to hold personal property permanently, nor are they authorized to hold real estate further than the statute prescribes. Being authorized, however, to take real estate for purposes for which the realty cannot be fitted without the use of money, they are authorized to take money to effectuate such ends.”
(h) “When an unqualified gift is made to any corporation it is contemplated that the gift will be applied to purposes for which the corporation was organized. Indeed, such gift could not properly be applied to any other purposes. So when a gift of personalty is made to one of these quasi-corporations, it is likewise contemplated that it will be used for purposes for which such an organization is authorized to take and use the gift. In the case before us the First Baptist Church of Clarksville has a church house and a parsonage. For the reasons stated, we think it may take this gift of testator’s money, not to be invested nor held, but to be expended for repairs, equipment, or enlargement of its church house or parsonage. ’ ’
In Sales v. Southern Trust Company supra, the Supreme Court extended the rule relating to charitable bequests beyond any former holding in three particulars: (1) outright gifts were distinguished from trusts; (2) it was held that unincorporated religious bodies could take gifts of personalty and use same to improve and maintain realty which such quasi-corporations could hold under our statutes; and (3) the court would presume that a gift of personalty would be used by such quasi-corporations for the purposes for which such corporations were authorized to take and use the gift.
*209We are definitely of the opinion that the Holy Family Church could take the outright gift which Mary Fite 'Smith intended the church to take under her will, and that Bishop Adrian is a proper person under the church organization to receive and apply the gift for the benefit of the Holy Family Church and for purposes for which this church was authorized to take and use the gift.
3. Did the testatrix intend to give the Holy Family Church the money in bank at the time of her death which she acquired through the sale of the realty on October 24, 1945?
Code Section 8133 provides: “Operation of will. — A will shall be construed, in reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator; and shall convey all the real estate belonging to him, or in which he had any interest at his decease, unless a contrary intention appear by its words and context.”
Under this statute a will must speak and take effect, “as if it had been executed immediately before the death of the testator # # * unless a contrary intention appear by its words and context. ’ ’
To ascertain the intention of the testator, however, it is necessary to consider the facts and surrounding circumstances at the time the will was executed.
In Rodgers v. Rodgers, 53 Tenn. 489, the Court said: “The result of all the authorities may be stated to he, that notwithstanding all the nice distinctions which have been taken by the courts on the subject, we must come at last to the plain common sense question, what was the *210intention of the testator, as indicated by his language, viewed in the light of surrounding circumstances.”
In Nashville Trust Co. v. Grimes, 179 Tenn. 567, 167 S. W. (2d) 994, 995, our Supreme Court construed Code Section 8133. In the Grimes case, the testator devised, “My property on the Dickerson Road near Nashville, Tennessee, to my grandnephew, Gilbert Lowe.” When the will was executed Mr. Grimes only owned one hundred twenty acres of land on Dickerson Road; but subsequent to its execution he acquired one hundred seven more acres of land on Dickerson Road, and he owned the two tracts of land at his death.
The chancellor held that Gilbert Lowe took only the one hundred twenty acres under the will. Affirming that decree, the Supreme Court said: ‘ ' The Chancellor looked to the language of the will, in the light of all the relative facts existing at the time of its execution, and the changes which took place before the death of the testator in his personal relations and the investment of his estate, and found that the intention of the testator was plain; that the property passing to Gilbert Lowe was that and that only definitely designated in the will; that the testator could not possibly have intended when he made this will to include in the description £My property on the Dickerson Road’ property which he did not then own, and could not have foreseen subsequent ownership. We think the Chancellor properly followed the rule that for the purpose of construction of the language describing property devised, the will must be considered as of the time of its execution. As was- well said by Chancellor Cooper (Johnson v. Johnson, 1 Tenn. Ch. 621): 'The plainest dictate of common sense would be, it seems to me, to seek the subject-matter of devise, and the object of benefit *211at the date of the will. And so are the authorities.’ So, in 28 R. C. L., Sec. 196, it is said: ‘But for purposes of construction a will must be considered in reference to the circumstances-which existed at the time of its execution. ’ ”
And also: “Viewing this will as a whole and in the light of all the circumstances surrounding its making, we think there can be no doubt that it was the intention of the testator to devise to this grandnephew this property, consisting of 120 acres, on Dickerson Road, and that only. ’ ’
The cardinal rule of construction of wills is to ascertain the intention of the testator and give effect thereto, if possible. All rules of construction are only aids or helps in ascertaining such intention. Hoggatt v. Clopton, 142 Tenn. 184, 217 S. W. 657; East & Collins v. Burns, 104 Tenn. 169, 56 S. W. 830.
Applying these rules to the will in question, we have this situation:
(1) Testatrix specifically disposed of all her personal property.
(2) Specifically devised her “home farm at Henderson-ville, Tennessee.”
(3) She made a specific bequest of $500 to the Holy Family Church.
(4) The paper writing in ink provided: “The residue of my Estate shall be held in Trust by the American National Bank until all debts are paid after which other estate shall be eaquealy sold and devide between two newphews John R. and Columbus Pite also of Chicago, Ill.”
The paper writing in pencil provided: “The resuedue of my Estate which shall be held in Trust by the American *212National Bank shall be sold by Said American National Bank and after all debts are paid shall be eaquealy de-vided as follows: Between two nephews John and Conlnmbus Fite also of Chicago Ill.”
(5) After the specific bequests, the “residue” of the estate of testatrix, at the time the will was executed, was: (a) the house and lot on Eighteenth Avenue and Church Street; and (b) two houses and lots on Nineteenth Avenue at Patterson Street.
It clearly appears that testatrix had no idea of selling this part of the “residue” of her estate at the time she executed her will on September 1, 1945. So, she devised this “residue,” subject to her debts, as effectively to John B-. Fite and Columbus Fite, her nephews, under her residuary clause, as if she had specifically named the three pieces of realty; for these three pieces of realty were all she had left after she had specifically disposed of the rest of her property real and personal in her will.
But testatrix sold the house and lot on Church Street, as stated, about two months after the execution of her will and deposited the proceeds of the sale in her savings account in the American National Bank. When she deposited the proceeds from the sale of her house and lot in this savings account, she had only $22.42 in the account.
Thereafter she drew $1,000 from her savings account and deposited it in the American National Bank in a checking account and used the funds from this checking account until her death. The entire fund in the checking account was used by her before her death. When she died she had $8,088.62 in her savings account, and this entire sum was acquired by her through the sale of the house and lot.
*213Now, did testatrix intend to give the Holy Family Church the specific bequest of $500, and, also, this $8,088.62 under that provision of her will which stated that the church should have, “all money if any in hank after all debts have been paid”? The chancellor held she did. With that construction we cannot agree.
The special bequest of $500' was the main, principal sum which testatrix intended to give the church. We cannot reach the conclusion that she intended to give the specific bequest of $500 to the church; and then intended to give more than fifteen times that amount in addition to the $500 under the words. ‘ ‘ and all money in bank if any. ’ ’ It was her intention that a small nominal sum might he left in bank which she had not disposed of, and she wanted that sum to go to the church, “if any.”
Testatrix had made and acquired her money the hard way, as a laundress and seamstress; and to her, situated as she was, $10,000 was a fortune. Having taken a lifetime to acquire her estate, she would not be expected to spend it in the years she would normally be expected to live from her point of view. She left no money in bank at her death, except money acquired from the sale of her house and lot. We are definitely of the opinion that the Holy Family Church should receive the special bequest of $500' under the will of Mary Fite Smith, and no more, since there was no money in hank at the death of testatrix which she intended should go to the church under her will.
Wherefore, the decree of the chancery court will be modified so as to provide that John R. Fite and Columbus Fite shall receive the $8,088.62 in bank at the death of Mary Fite Smith in her savings account, subject to the debts and costs of administration of the estate; and in *214all other respects the decree of the chancery court is affirmed.
Tax the costs incident to the appeal as follows: Nashville Trust Company, administrator, will pay one-third of such costs and charge same to that part of the estate which goes to John R. Fite and Columbus Fite; Nashville Trust Company, administrator, will pay one third of such costs and charge the same against the special bequest of $500 which goes to the Holy Family Church; and one-third of such costs will be taxed against Maggie L. Johnson and Z. Alexander Looby, the surety on her appeal bond.
The cost in the chancery court will stand as adjudged by that court. Remand the cause to the chancery court for further proceedings.
Howell, J., concurs.
Felts, J., not participating. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2859588/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00138-CR
Eddie Louis Kyser, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 0942988, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING
PER CURIAM
This is an appeal from a judgment of conviction for aggravated robbery. The
punishment is imprisonment for thirty years.
Sentence was imposed in this cause on February 3, 1995. No motion for new trial
was filed. Notice of appeal was filed on March 7, 1995, one day after it was due. Tex. R. App.
P. 41(b)(1). No extension of time for filing notice of appeal was requested. Tex. R. App. P.
41(b)(2). There is nothing in the record to indicate that notice of appeal was properly mailed to
the district clerk within the time prescribed by rule 41(b)(1). Tex. R. App. P. 4(b).
Counsel did not respond to our notice that the notice of appeal was untimely.
Without a timely filed notice of appeal, this Court is without jurisdiction. Rodarte
v. State, 860 S.W.2d 108 (Tex. Crim. App. 1993); Shute v. State, 744 S.W.2d 96 (Tex. Crim.
App. 1988). The appeal is dismissed.
Before Chief Justice Carroll, Justices Aboussie and Jones
Dismissed
Filed: May 3, 1995
Do Not Publish | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1922077/ | 756 A.2d 548 (2000)
360 Md. 1
James V. GRIESI
v.
ATLANTIC GENERAL HOSPITAL CORPORATION.
No. 128, Sept. Term, 1999.
Court of Appeals of Maryland.
July 25, 2000.
*549 Suzanne M. Tsintoas, Silver Springs, for appellant.
Robert H.B. Cawood (Roy L. Mason of Mason, Ketterman & Cawood, P.A., on brief), Annapolis, for appellee.
Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and HARRELL JJ.
HARRELL, Judge.
Mr. James V. Griesi ("Griesi"), Appellant, filed suit in the Circuit Court for Worcester County against Atlantic General Hospital Corporation ("Atlantic General"), Appellee, alleging, among other things, that Atlantic General negligently misrepresented material facts during the course of pre-employment negotiations upon which Griesi relied to his ultimate detriment. Pursuant to Rule 2-322[1] of the Maryland Rules of Civil Procedure, the Circuit Court granted Appellee's motion to dismiss for failure to state a claim upon which relief can be granted. Griesi appealed to the Court of Special Appeals. Before that court considered his appeal, however, we granted certiorari (on our initiative)[2] to consider the following question:
Whether the trial court erred in its determination that Appellant's Second Amended Complaint fails to state a legally cognizable claim of Negligent Misrepresentation upon which relief can be granted, pursuant to Maryland common law and the Maryland Rule 2-322(b)(2) standard of review?
We hold that Griesi's second amended complaint alleges a cognizable claim under Maryland common law and reverse.
I.
Griesi filed suit in the Circuit Court for Worcester County on 13 November 1998. He filed a Second Amended Complaint on 5 March 1999 alleging breach of an employment contract (Count I)[3] and negligent misrepresentation in employment negotiations (Count II). According to the allegations of the Second Amended Complaint[4], Griesi, a resident of Montgomery County, is a trained physical therapist who, in August 1998, forwarded a cover letter and resume to Atlantic General, located in Berlin, Maryland, applying for a *550 position as a physical therapist. On 1 September 1998, Griesi telephoned Atlantic General's then Chief Executive Officer (CEO), Mr. Earl Slater, and scheduled an interview for 3 September 1998.
During the interview, Slater and Griesi spoke at length about Griesi's credentials and Slater's desire to train and mentor him. After receiving from Griesi a list of references, Slater took him on a tour of the hospital facilities.
Griesi and Slater next spoke by telephone on 17 September 1998. Slater stated he expected to be able to make an offer of employment soon. He ended the conversation by telling Griesi, "I want you here!" On 21 September 1998 and again three days later, Griesi called to check on the status of the potential offer, but Slater advised he would have to call him back.
Apparently not having pinned all of his hopes at that time on Atlantic General, Griesi had explored the job market elsewhere. He received an employment offer on 24 September 1998 from an entity called MOST, located in Silver Spring, Maryland. Griesi immediately telephoned Slater to see if Atlantic General was prepared to make an offer. Slater responded that he would let him know no later than the next Monday, 28 September 1998.
Between 28 September and 2 October 1998, Griesi and Slater discussed, on several occasions, a proposed specific starting date and starting salary for a management position in Atlantic General's Physical Therapy Department. Slater stated he would present the proposal to the Board of Directors of Atlantic General and get back to him.
On 5 October, Slater, on behalf of Atlantic General, called Griesi and communicated an oral offer of employment as a Physical Therapy Manager to start on 2 November 1998 at an annual salary of $55,000, plus benefits. Slater stated that the chairman of the Board approved the offer. Griesi responded he had offers from other potential employers[5] and would need to think about the offer from Atlantic General. Slater advised that he would forward a written contract offer by the next week.
The next day, Griesi called Slater and orally accepted the 5 October oral offer of employment. On 10 October, he received the promised written offer from Atlantic General, in a letter signed by Slater, on Atlantic General's letterhead, and dated 7 October 1998. The letter explained, in pertinent part:
As we have discussed, I am pleased to offer you the position of Physical Therapy Manager at a salary of $55,000 per year effective November 2, 1998. In this full-time position, you will be responsible for all facets of departmental operation.
As you know, I have provided notice to the present contractor [6] in accordance with the ninety day provision in the contract. As a result of an exclusivity clause in the contract with the contractor, you will be unable to render patient care during November until December 23 rd. For this reason, another full-time physical therapist will not join us until this period of exclusivity has expired. Once the period expires, both of you will commence clinical assessments for inpatients, outpatients, and patients on our Long Term Care Unit. In addition, I have shared with you the possibility of providing services to the neighboring nursing home in the future.
Please advise me of your decision in writing at your earliest convenience. I am confident that this opportunity will provide mutual growth opportunities for you and the Hospital.
*551
Sincerely,
[signature of Slater]
Earl B. Slater, Jr.
Interim President/Chief Executive Officer
On 15 October, Griesi responded with an unconditional written acceptance in a letter to Slater.[7]
On 20 October 1998, Ms. Kim Justice, a supervisor in the Physical Therapy Department at Atlantic General, telephoned Griesi. She wanted to meet him because the only documentation on him she had were copies of his resume and his 15 October acceptance letter. The next day, Ms. Joan Kindell, Vice President of Human Resources at Atlantic General, telephoned Griesi requesting to join the meeting with Justice. Kindell suggested the three meet on 2 November 1998, the date of Griesi's expected first day of work at Atlantic General. Ostensibly alarmed from these calls about potential delay in starting his employment, Griesi telephoned Mr. Barry Beeman, Atlantic General's new CEO, that same day, but Beeman was unavailable to take the call. Instead, Griesi reached Slater[8], who said he was upset with the way the matter was being handled and assured Griesi that the corporation's Board of Directors approved the offer of employment. Slater asked to be given some time to resolve any misunderstanding.
On 22 October, Slater called Griesi and explained that he spoke with Beeman who expressed concern that Griesi did not have a physical therapy license. Griesi faxed a copy of his license to Slater who said he would forward it to Beeman. On 24 October 1998, Slater telephoned Griesi to say that he had spoken with Beeman again and with the chairman of the Board, and he did not foresee any more confusion between Griesi and Atlantic General. Slater stated that the starting date of Griesi's employment remained valid.
Two days later, Griesi and Beeman discussed the licensing process. Griesi stated he was prepared to begin work on 2 November. Beeman asked if he had scheduled an appointment with Ms. Justice. Griesi replied that an appointment was scheduled for his first day on the job. Beeman responded "we will take it from there."
Griesi met with Justice, Kindell, and a Ms. Soots, Atlantic General's Director of Operations, on 2 November. Soots, speaking for the three, stated that they had no knowledge that physical therapy services at Atlantic General were to be changed from its present outside contractor to in-house employees; no one knew of Griesi other than from his resume and acceptance letter; Slater never consulted them about hiring him; and, therefore, the purpose of the meeting was "fact-finding." They then interviewed Griesi at length, including the details and chronology of the hiring process he underwent with Slater.
Although conceding that Slater and the Chairman of the Board probably did make the decision to hire Griesi, Soots maintained that she ran the hospital and Justice, Kindell, and herself had to approve potential new hires. She explained that, although she was impressed with Griesi's resume, she doubted whether she had the time or resources to train him. She also stated that Atlantic General recently had hired another physical therapist. Soots said she would call Griesi regarding his status by 6 November 1998, after she consulted with other personnel of Atlantic General.
On 6 November, Kindell telephoned Griesi and told him that Atlantic General *552 decided not to hire him. She advised him that she had forwarded his resume for consideration to the hospital's outside consultant for physical therapy services. Apparently the consultant did not offer Griesi employment as, at the time the second amended complaint was filed in the Circuit Court on 5 March 1999, he continued to allege that he was seeking a job comparable with that Atlantic General had offered.
In paragraphs 46 through 52 of his second amended complaint, Griesi specifically alleged the following as to his negligent misrepresentation claim:
46. Defendant Atlantic through its agent, employee, and acting Chief Executive Officer, Earl Slater, owed a duty of care to Plaintiff Griesi, a job applicant.
47. Defendant Atlantic through its agent, employee, and acting Chief Executive Officer, Earl Slater, negligently misrepresented several present facts during Plaintiff and Defendant's employment negotiations regarding Defendant's need for, and desire to employ Plaintiff as, a Physical Therapist Manager.
48. Defendant Atlantic through its agent, employee, and acting Chief Executive Officer, Earl Slater, negligently misrepresented several related present facts at the time the offer of employment was extended to the Plaintiff, including: (1) that Slater was authorized to make an offer of employment and hire employees for Defendant Atlantic; (2) that Defendant's interviewing and selection process was complete; (3) that Defendant Atlantic would not require Plaintiff Griesi to submit [to] further interviews or assessment of his qualifications, or other pre-employment requirements; and (4) upon timely acceptance of Defendant's offer, Plaintiff Griesi could rely on Defendant's performance.
49. Defendant Atlantic made the misrepresentations intending that the Plaintiff would act in reliance on its oral and written representations.
50. Defendant Atlantic could reasonably foresee that the Plaintiff would rely on the misrepresentations.
51. Defendant Atlantic could reasonably foresee that if its representations were false, the Plaintiff would incur injury or loss.
52. Plaintiff Griesi took actions in reasonable and justified reliance on Defendant's negligent misrepresentations, which resulted in his suffering damages.
In the ad damnum portion of the second amended complaint, Griesi sought compensatory damages of "no less than $165,000."
Atlantic General filed a motion to dismiss Griesi's complaint arguing, among other things, that his count of negligent misrepresentation failed to state a claim upon which relief could be granted. The Circuit Court granted the motion on the ground that Maryland does not recognize the tort of negligent misrepresentation in employment at-will situations.
II.
A.
Griesi asserts that he has a valid claim of economic loss due to his reliance on Atlantic General's negligent misrepresentations made to him during pre-employment negotiations. He argues that Slater and he formed a special relationship during employment negotiations which gave rise to Slater's owing him a duty to exercise reasonable care in disseminating information regarding the true employment situation at Atlantic General. Griesi argues that he
made it abundantly clear during his conversations with Atlantic's CEO that he was actively seeking employment and had at least one other offer pending. It is not unreasonable to presume that Griesi would probably rely on information provided to him by Atlantic's CEO in making a career decision about which corporation could best me[e]t his present and future, personal and professional, needs and plans. Businessmen routinely *553 rely on statements made about the workings of a corporation by its Chief Executive Officer. Due to the nature and purpose of the relationship between the parties, it is clear that if the CEO voluntarily gave specific, relevant and persuasive information to Griesi about the corporation in the course of their serious and deliberate negotiations, and Griesi relied on that information to make a decision about whether to enter into a contract with Atlantic, and that information was false, as is alleged in the Appellant's Second Amended Complaint, foreseeable and considerable harm would undoubtedly befall the Appellant.
Appellant's Brief at 17.
Atlantic General responds that Griesi's negligent misrepresentation claim is not cognizable under Maryland's employment at-will jurisprudence. Under the at-will doctrine, the employer or employee may terminate the employment relationship for any reason unless prohibited by law or public policy. This principle, Atlantic General suggests, applies at any time during the course of the employer-employee relationship, including pre-employment negotiations. Atlantic General envisions an assault of "massive litigation in Maryland" if this Court recognizes negligent misrepresentation as a viable cause of action in the present case. We do not share Atlantic General's reasoning or alarm.
We have explained that, in its most general sense, negligent misrepresentation arises when the defendant owes a duty of care in communicating information to the plaintiff and that duty is breached, causing pecuniary or personal injury to the plaintiff. See Village of Cross Keys, Inc. v. U.S. Gypsum Co., 315 Md. 741, 755-57, 556 A.2d 1126, 1131 (1989); Weisman v. Connors, 312 Md. 428, 443-48, 540 A.2d 783, 790-93 (1988)(discussing the history of negligent misrepresentation in Maryland); Martens Chevrolet, Inc. v. Seney, 292 Md. 328, 334-37, 439 A.2d 534, 538-39 (1982). It has been said that "the most common example of the duty to speak with reasonable care is based on a business or professional relationship, or one in which there is a pecuniary interest." Giant Food, Inc. v. Ice King, Inc., 74 Md.App. 183, 190, 536 A.2d 1182, 1185 (1988)(discussing Prosser and Keeton on the Law of Torts § 107, at 105 (5 th Ed.1984, 1988 Supp.)).
In Weisman, we reaffirmed the five elements of negligent misrepresentation as:
(1) the defendant, owing a duty of care to the plaintiff, negligently asserts a false statement;
(2) the defendant intends that his statement will be acted upon by the plaintiff;
(3) the defendant has knowledge that the plaintiff will probably rely on the statement, which, if erroneous, will cause loss or injury;
(4) the plaintiff, justifiably, takes action in reliance on the statement; and
(5) the plaintiff suffers damage proximately caused by the defendant's negligence.
312 Md. at 444, 540 A.2d at 791 (citing Martens Chevrolet, Inc., 292 Md. at 337, 439 A.2d at 537). See also Village of Cross Keys, Inc., 315 Md. at 755-56, 556 A.2d at 1133.
B.
A claim sounding in negligence requires that the defendant owe the plaintiff a duty of care. "[I]t should be recognized that `duty' is ... an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection." Jacques v. First Nat. Bank of Maryland, 307 Md. 527, 533, 515 A.2d 756, 759 (1986)(citing Prosser and Keeton on The Law of Torts § 53, at 357 (1984)). In Williams v. Mayor & City Council of Baltimore, 359 Md. 101, 142, 753 A.2d 41, 63 (2000), we recently had the occasion to reiterate a long held legal principle:
[T]here can be no negligence where there is no duty that is due; for negligence is the breach of some duty that *554 one person owes to another. It is consequently relative and can have no existence apart from some duty expressly or impliedly imposed. In every instance before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which duty would have averted or avoided the injury.... As the duty varies with circumstances and with the relation to each other of the individuals concerned, so the alleged negligence varies, and the act complained of never amounts to negligence in law or in fact; if there has been no breach of duty.
(citations omitted). See also Village of Cross Keys, Inc., 315 Md. at 751-52, 556 A.2d at 1131.
There is no precise formula for determining the existence of a duty of care between two parties. See Williams, 359 Md. at 126-27, 753 A.2d at 54-55; Dan B. Dobbs, The Law of Torts § 472, at 1350 (2000). At a minimum, we have endorsed an analytical approach that encompasses at least two major assessments: examining the nature of legal relationship between the parties and the likely harm that results from a party's failure to exercise reasonable care within that relationship. See Jacques, 307 Md. at 534, 515 A.2d at 759. For claims of economic loss due to negligent misrepresentation, the injured party must prove that the defendant owed him or her a duty of care by demonstrating an intimate nexus between them. See Jacques, 307 Md. at 534-35, 515 A.2d at 759-60.
The intimate nexus may be demonstrated by showing contractual privity or its equivalent. See Weisman, 312 Md. at 446, 540 A.2d at 791; Jacques, 307 Md. at 534-35, 515 A.2d at 759-60. Maryland has found the equivalent of contractual privity in special relationships consummated during the course of pre-contract negotiations. See Weisman, 312 Md. at 448-51, 540 A.2d at 792-94 (holding that negligent misrepresentation is a viable cause of action in pre-contract employment negotiations); Martens Chevrolet, Inc., 292 Md. at 331-338, 439 A.2d at 536-39 (facts were sufficient for a jury to determine negligent misrepresentation in pre-contractual negotiations where defective financial statements were presented to buyer of a car dealership); Lubore v. RPM Assoc., Inc., 109 Md.App. 312, 338, 674 A.2d 547, 560 (1996)(holding that employer could be liable to employee who resigned from former job in reliance of employer's negligent misrepresentation); Giant Food, Inc., 74 Md.App. at 190-91, 536 A.2d at 1185 (formation of actual contract immaterial to finding of duty if facts sufficient for jury to find special relationship developed between buyer and supplier of ice because of extensive and detailed communications).
Finding an intimate nexus requires consideration of numerous factors. Weisman cited International Products Co. v. Erie R. Co., 244 N.Y. 331, 155 N.E. 662, 664 (1927) for guidance in determining whether a duty exists between two parties based on such a nexus:
"Liability [for negligent misrepresentation] arises only where there is a duty, if one speaks at all, to give the correct information. And that involves many considerations. There must be knowledge, or its equivalent, that the information is desired for a serious purpose; that he to whom it is given intends to rely and act upon it; that, if false or erroneous, he will because of it be injured in person or property. Finally, the relationship of the parties, arising out of contract or otherwise, must be such that in morals and good conscience the one has the right to rely upon the other for information, and the other giving the information owes a duty to give it with care. An inquiry made of a stranger is one thing; of a person with whom the inquirer has entered, or is about to enter, into a contract concerning the goods which are, or are to be, its subject, is another."
312 Md. at 447, 540 A.2d at 792.
Furthermore, Dobbs has advised that:
*555 Clarity in stating and applying the duty can also be improved by recognizing that falsity does not by any means prove negligence. The defendant's representation might be erroneous because the defendant (1) did not know the facts he should have known, failed to investigate facts, or investigated them with less than reasonable care; (2) knew the facts but used words or other communicative devices poorly; or (3) unreasonably failed to make statements at all, or failed to make statements needed to clarify the plaintiff's understanding.
Dan B. Dobbs, The Law of Torts § 472, at 1353 (2000).
The Restatement (Second) of Torts § 552, Comment (a), at 128 (1977), in explaining the scope of liability for negligent misrepresentation as being more narrow than that of fraudulent misrepresentation, states, in pertinent part:
[I]t does not follow that every user of commercial information may hold every maker to a duty of care. Unlike the duty of honesty [under a fraudulent misrepresentation action], the duty of care to be observed in supplying information for use in commercial transactions implies an undertaking to observe a relative standard, which may be defined only in terms of the use to which the information will be put, weighed against the magnitude and probability of loss that might attend that use if the information proves to be incorrect. A user of commercial information cannot reasonably expect its maker to have undertaken to satisfy this obligation unless the terms of the obligation were known to him. Rather, one who relies upon information in connection with a commercial transaction may reasonably expect to hold the maker to a duty of care only in circumstances in which the maker was manifestly aware of the use to which the information was to be put and intended to supply it for that purpose.
By limiting the liability for negligence of a supplier of information to be used in commercial transactions to cases in which he [or she] manifests an intent to supply the information for the sort of use in which the plaintiff's loss occurs, the law promotes the important social policy of encouraging the flow of commercial information upon which the operation of the economy rests. The limitation applies, however, only in the case of information supplied in good faith, for no interest of society is served by promoting the flow of information not genuinely believed by its maker to be true.
In the context of an employment relationship, we held in Weisman that an employer may be obligated to exercise reasonable care in making representations to a prospective employee during pre-employment negotiations. See 312 Md. at 449, 540 A.2d at 793. We analogized the duty in an employment situation, where the employer negligently misrepresented facts to a prospective employee before the employee accepted the offer of employment, to the New York case of Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275 (1922), which held that a public weigher of goods, acting on behalf of the seller, can be held liable for negligent misrepresentation to a buyer of goods. See Weisman, 312 Md. at 446, 540 A.2d at 792. In Glanzer, because the weigher and buyer intimately were engaged in a business transaction, the New York Court of Appeals found that the weigher, in order to properly facilitate the transaction, owed a duty of care in conveying accurate information to the buyer. See id. The sharing of such information, the Court held, can create an intimate bond "so close as to approach that of privity, if not completely one with it." Id.
In Weisman we recognized that, like a contract for the sale of goods, the employer-employee relationship is a business transaction, where a special relationship may develop giving rise to a duty to exercise reasonable care in facilitating the transaction. Depending on the market, it is usually the future employer's objective to "sell" the prospective employee, prior to *556 the formation of an employment relationship, on the benefits and wisdom of working for the employer. See 312 Md. at 449, 540 A.2d at 793. We explained that pre-contractual employment negotiations manifestly require the employer to impart, and the prospective employee to digest, relevant and accurate information concerning the place of employment and the position to be occupied by the employee. See id. A prospective employee has a great stake in obtaining accurate information from his or her potential future employer and an employer reasonably should foresee that negligent misrepresentation of employment information may result in economic harm to the prospective employee. See id.
Our decision in Weisman is controlling in the case sub judice. We hold that the allegations in Griesi's second amended complaint, assumed as true for present purposes, are sufficient to make out a prima facie case of negligent misrepresentation. The facts as alleged support a conclusion that an intimate nexus between Atlantic General, in the person of Slater, and Griesi was formed in pre-employment negotiations. The intensive communications between the two parties regarding the physical therapist position were apparently at arm's length. In addition to a personal interview, on 3 September 1998, Slater and Griesi contacted each other several times by telephone before an unequivocal oral offer was extended on 5 October 1998. Prior to 5 October, Slater presented a starting date and salary, and informed Griesi that he was bringing the issue of hiring him to the Board of Directors for approval. The oral offer that followed was made under the further authority of approval by the chairman of the corporation's board. Griesi told Slater that he would need some time to decide whether to accept Atlantic General's offer because he had other job offers. Slater, moving to close negotiations, promptly memorialized Atlantic General's oral offer in a letter to Griesi. Griesi, relying on Slater's representations, ultimately turned down MOST's employment offer and accepted Atlantic General's offer. Unfortunately, as alleged, there may not have been a position at Atlantic General, of the type offered to Griesi, at anytime pertinent to the negotiations.
We weigh heavily in our analysis that Atlantic General had exclusive control of vital and material information necessary for Griesi fully to understand the situation, and that it never disclosed such information to Griesi. See Dan. B. Dobbs, The Law of Torts § 472, at 1353 (2000)(discussing the failure to disclose facts may be a negligent act). Slater may have misrepresented that a position was available and that he had authority to make the offer of employment. Griesi put confidence in the accuracy of Slater's positive and unequivocal representations of an employment opportunity and that he had authority, or apparent authority, to make such an offer, either in his capacity as CEO alone or with the approval of the Board and its chair (and impliedly without approval from Soots, Kindell, and Justice). A reasonable inference to draw from these allegations is that Slater knew or should have known that Griesi, relying on Atlantic General's offer, might turn down other job offers to work for Atlantic General. A jury could find from the facts as alleged, if proven, that Griesi reasonably relied on Slater's special knowledge of the employment situation at Atlantic General and that Slater accepted and was conscious of Griesi's reliance as a basis for the "deal."
We reject Atlantic General's suggestion that Weisman only applies to employment contexts involving high-level executives or to fixed term employment contracts. We did not confine our holding in Weisman so narrowly, nor did we squarely discuss there at-will employment situations. The Court of Special Appeals, in Lubore, considered an argument similar to Atlantic General's in the present case. In Lubore, Jeffrey M. Lubore, appellant, sued RPM Associates, Inc., appellees, for negligently misrepresenting several terms of employment *557 during pre-contractual negotiations that were revealed to him only after he accepted appellees' lucrative offer of employment, resigned from a secure, high salary job, and started working for appellees. Despite finding that the employment contract between appellant and appellees was at-will employment, the court held that appellant's claim of negligent misrepresentation was viable in light of Weisman:
Appellees attempt to distinguish Weisman from the instant case. They point out that in Weisman the employee had a fixed three-year contract, whereas here appellant was an at-will employee. In this regard, appellees argue: (1) that Weisman's holding that an intimate nexus existed was based, in part, on this fact, id. at 450, 540 A.2d 783; and (2) citing Stanley Mazaroff, Maryland Employment Law [9] that the Court's holding would have been different if the employee was merely an at-will employee. Although Weisman considered the fact that the contract was one for long-term employment, we do not read Weisman to eliminate, in all cases, the existence of an "intimate nexus" when the parties are high-level executives negotiating for at-will employment. Weisman simply does not address the issue. We disagree that the overriding (and distinguishing) factor in Weisman was that the contract was for a fixed term of years. Rather, our reading of the case leads us to conclude that the real focus in Weisman was on the importance of the accurate exchange of information in light of the relationship and the nature of the harm that could result from the defendant's negligence. See id. at 446, 449, 540 A.2d 783.
Lubore, 109 Md.App. at 337-38, 674 A.2d at 559-60.
In the context of the present case, we agree with the reasoning in Lubore and its insight as to what was implicit in Weisman. The essence of Griesi's claim against Atlantic General is not whether the parties formed an employment contract, but rather that Atlantic General failed to exercise reasonable care in communicating information to him that was material to his business decision whether to accept the offer for the in-house, managerial physical therapist position, that he relied on those misrepresentations, and suffered injury as a result of that reliance.[10]*558 Contrary to Atlantic General's prediction that allowing Griesi's claim to proceed undermines the employer's right to terminate the master-servant relationship, the employment at-will doctrine nonetheless will retain its full vitality in Maryland. The employment at-will relationship will continue to be viewed as arising from contract, terminable by either the employer or employee at any time. See Adler v. American Standard Corp., 291 Md. 31, 35, 432 A.2d 464, 467 (1981). Atlantic General, however, attempts here to impose the doctrine as a bar to accountability for what may be its negligent conduct. The employer's post-employment right to terminate the employment relationship logically or legally cannot immunize the employer from liability for a tort committed before the termination occurred. Atlantic General's argument in this regard likely will have a substantial bearing on the amount of any damages, but it has no effect whatsoever on whether he has plead a cognizable claim. The issue of the amount of any damages is not before us in the procedural posture in which this case reaches us.
C.
Our discussion supra of the duty of care owed by Atlantic General to Griesi largely pollinates the other elements of the tort of negligent misrepresentation. A jury could find, based on proof of Griesi's allegations, that Slater intended that Griesi act upon Atlantic General's offer of employment, as demonstrated by the offer letter he sent backing up his earlier oral offer. Furthermore, Slater was aware of Griesi's other contemporaneous employment offer (or offers). In reliance on Slater's representations, it was foreseeable that Griesi might suffer some economic injury, having rejected the other offer(s), if his employment offer from Atlantic General was a nullity.
The element of justifiable reliance merits further comment. Atlantic General argues that the statements made by Slater were predictive in nature, rather than a false statement of past or present facts. It states that:
Assuming that the statements made by Slater were true at the time they were made, the appellant has not stated a cause of action for negligent misrepresentation, since any misrepresentation would be for a future event. The only promise made to the appellant was that he would have an at-will job. Since Griesi could be terminated at-will, all of the statements made to him were predictive in nature and simply expected to come true. These statements cannot supply one of the elements of a cause of action for negligent misrepresentations.
We disagree. The alleged statements made by Slater illustrate that he may have made false statements regarding present facts. Slater represented that a job position actually was available during the time he negotiated with Griesi, up to the point he extended an offer, and that he had actual or apparent authority to extend that employment offer. The temporizing allusions in Slater's 7 October letter regarding limitations on Griesi's ability to render patient care between 2 November and 23 December 1998 (because of contractual obligations with the outside consultant) did not mean that Griesi was not offered a job on 2 November. In Griesi's post-acceptance meeting with Soots, Kindell, and Justice, he was informed that these high placed supervisory personnel were unaware that Atlantic General was bringing the provision of physical therapy services in-house, rather than continuing with its outside contractor. An inference could be drawn that no position was available for Slater to offer. Furthermore, Soots stated that no one could be hired by Atlantic General without approval from Soots, Kindell, and Justice. If this is true, Slater's representations as to his actual or apparent *559 authority to extend an offer may have been false.
We conclude, therefore, that Griesi has plead sufficiently facts that, if proven and believed, satisfy the elements of the tort of negligent misrepresentation. On the element of injury, Griesi has plead facts, sufficient to survive a motion to dismiss, that he may have suffered consequential damages in reliance on Slater's representations.
JUDGMENT OF THE CIRCUIT COURT FOR WORCESTER COUNTY REVERSED; CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS; COSTS TO BE PAID BY APPELLEE.
CATHELL, Judge, dissenting:
I respectfully dissent. In my view, the majority strains to expand the holding in Weisman v. Connors, 312 Md. 428, 540 A.2d 783 (1988). Under the majority's holding, had the hospital put Griesi, or any other lower or middle level employee, on the payroll and then terminated him the next day, it may have been insulated from suit. The mere allegation of promises causes the hospital to be subject to suit arising out of the interviewing procedure for an "at will" position, unless it first puts the prospective employee on the payroll, then fires him. It is, as I see it, a nonsensical situation.
There is an even more serious problem that may arise from the holding. Anyone who applies for an "at will" position will have a cause of action if not hired, based solely on allegations of misrepresentation. This decision will open the flood gates. No employer, however ethical, will be safe from the burden of defending itself against frivolous lawsuits. In my view, the adoption of the majority's position will effectively cause the imminent abrogation of the employment "at will" doctrine in Maryland.
Weisman was intended, as I read it, and as it was read by others, prior to the Court of Special Appeals' rush to expand it in Lubore v. RPM Associates, Inc., 109 Md. App. 312, 674 A.2d 547 (1996), to apply only in those rare instances of upper level management employment negotiations. The majority today extends it virtually to all preemployment representationspresumably even representations in employment advertisements.
Every employer, as a result of this opinion, will be well advised to instruct its hiring personnel to hire in silencebased only on written applications and on what an applicant may say. Any representationany statement, by anyone in the employer's hiring process could subject the employer to suit if an applicant is not hired, even though the position at issue is for employment "at will" and even though the person, if hired, could be fired the next day without cause.
If an employer interviews ten people for one "at will" position and hires the one it feels is best qualified, the other nine can now sue for not being hired based on allegations of some misrepresentation. It is only a minor stepan inevitable step, for the same thing to occur in terminations of "at will" employment as, today, has occurred to situations of failure to hire for an "at will" position. Any other result would be simply illogical. With the filing of the majority's opinion, the existence of the employment "at will" doctrine in Maryland has entered its terminal stage.
Moreover, lawyers will be unable to advise employer-clients as to just what their status may be in interviewing prospective employees. If we are going to abolish the doctrine, we should say so; not strain to make exceptions, leaving traps for attorneys and trial judges.
I would affirm.
Judge RAKER has authorized me to state that she joins in the views expressed herein.
NOTES
[1] Rule 2-322 states, in pertinent part:
(b) Permissive. The following defenses may be made by motion to dismiss filed before the answer, if an answer is required: (1) lack of jurisdiction over the subject matter, (2) failure to state a claim upon which relief can be granted, (3) failure to join a party under Rule 2-211, and (4) governmental immunity. If not so made, these defenses and objections may be made in the answer, or in any other appropriate manner after answer is filed.
(c) Disposition. A motion under sections (a) and (b) of this Rule shall be determined before trial, except that a court may defer the determination of the defense of failure to state a claim upon which relief can be granted until the trial. In disposing of the motion, the court may dismiss the action or grant such lesser or different relief as may be appropriate.
[2] See Griesi v. Atlantic General Hosp., 357 Md. 233, 743 A.2d 245 (2000).
[3] Appellant makes no argument on appeal that the court erred in its ultimate dismissal of the breach of contract claim.
[4] When ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, the trial judge's task is to decide a question of law solely on the sufficiency of the pleadings. See Green v. H & R Block, Inc., 355 Md. 488, 501, 735 A.2d 1039, 1046 (1999). The judge must assume the truth of the allegations and well-pleaded facts set forth in the complaint, and all reasonable inferences drawn therefrom, and dismiss the complaint if the law provides no relief to the plaintiff even if the facts were proved at trial. See Morris v. Osmose Wood Preserving, 340 Md. 519, 531, 667 A.2d 624, 630 (1995). Accordingly, our recitation of the factual background is drawn from Appellant's second amended complaint.
[5] It is not clear from the pleading whether Griesi informed Slater specifically of the MOST offer.
[6] Apparently, Atlantic General had been providing physical therapy services to its patients through a contract with an external provider.
[7] The complaint additionally avers that, upon acceptance of the Atlantic General offer, Griesi rejected a pending job offer (apparently the MOST offer) and took steps to move his residency to Ocean City. The allegations do not detail whether he actually moved or incurred any costs in taking those steps.
[8] Griesi did not allege when Beeman replaced Slater as CEO of Atlantic General, nor what Slater's role, if any, with Atlantic General became upon being replaced as CEO.
[9] Atlantic General cites to Stanley Mazaroff, Maryland Employment Law, § 5.6(B), at 401 (1990), for the same proposition that appellees in Lubore did. Mazaroff states:
While the Court in Weisman opened the door to claims of negligent misrepresentation in pre-employment contract negotiations involving high-level executives seeking fixed-term contracts, it is doubtful that the door has been opened as well as to claims for negligent misrepresentation by the rank and file applicants for at-will employment. Because at-will relationships can be terminated by an employer for any reason which does not violate public policy or some statutory prohibition, as a matter of law, applicants for at-will positions cannot claim that they were injured by reason of the employer's failure to satisfy an allegedly negligent representation. Stated otherwise, pre-employment discussions and negotiations between employers and applicants for at-will positions do not create the "intimate nexus" between the parties....
In response to Lubore, the 1998 Supplement of the Mazaroff treatise recognizes that Weisman may not be as confined as once thought. See Stanley Mazaroff, Maryland Employment Law, § 5.6, at 91-92 (1990, 1998 Supp.).
[10] Several federal and state courts have allowed or recognized employee negligent misrepresentation claims against employers in an at-will employment context. See Trytko v. Hubbell, Inc., 28 F.3d 715, 721-22 (7 th Cir. 1994); Abdulrahim v. Gene B. Glick Co., Inc., 612 F. Supp. 256, 263-64 (N.D.Ind.1985); Branch v. Homefed Bank, 6 Cal. App. 4th 793, 8 Cal. Rptr. 2d 182, 184 (1992); D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 520 A.2d 217, 223-24 (1987); Eby v. York-Division, Borg-Warner, 455 N.E.2d 623, 628-29 (Ind.Ct.App.1983); Levens v. Campbell, 733 So. 2d 753, 762-63 (Miss.1999); Miksch v. Exxon Corp., 979 S.W.2d 700, 706 (Tex.App.1998); Pearson v. Simmonds Precision Prod., Inc., 160 Vt. 168, 624 A.2d 1134, 1136-37 (1993).
Some courts have allowed reliance claims by employees against employers under a theory of promissory estoppel. See Comeaux v. Brown & Williamson Tobacco Co., 915 F.2d 1264, 1272-73 (9 th Cir.1990); Grouse v. Group Health Plan, Inc., 306 N.W.2d 114, 116 (Minn.1981). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593403/ | 19 So.3d 274 (2009)
In re AMENDMENTS TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.992(A)CRIMINAL PUNISHMENT CODE SCORESHEET.
No. SC09-1053.
Supreme Court of Florida.
July 16, 2009.
Judge O.H. Eaton, Jr., Chair, Criminal Court Steering Committee, Eighteenth Judicial Circuit, Sanford, FL, for Petitioner.
PER CURIAM.
We have for consideration proposed amendments to Florida Rule of Criminal Procedure 3.992(a), Criminal Punishment Code Scoresheet. We have jurisdiction. See art. V, § 2(a), Fla. Const.
The Supreme Court Criminal Court Steering Committee (Steering Committee) proposes amendments to rule 3.992(a) in light of recent legislation[1] and upon recommendations to the Florida Department of Corrections. After considering the Committee's proposals and reviewing the relevant legislation, we adopt the proposed amendments to rule 3.992(a), as reflected in the appendix to this opinion. New language is indicated by underscoring. The amendments shall become effective immediately upon release of this opinion. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.[2]
It is so ordered.
QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.
*275 APPENDIX
*276
NOTES
[1] In chapter 2009-63, section 1, Laws of Florida, the Legislature amended section 775.082, Florida Statutes, to include a new subsection (10), which affects the sentence computation as follows:
If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third-degree felony but not a forcible felony as defined in s. 776.08, and excluding any third-degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.
Ch. 2009-63, § 1, Laws of Fla. The Legislature also created a new prison diversion program under section 921.00241, Florida Statutes, which may affect the sentence imposed. See ch. 2009-63, § 2, Laws of Fla. The Steering Committee's proposed amendments to the scoresheet are consistent with those legislative revisions.
[2] An original and nine paper copies of all comments must be filed with the Court on or before September 14, 2009, with a certificate of service verifying that a copy has been served on the Committee Chair, Honorable O.H. Eaton, Jr., Circuit Judge, C/O Les Garringer, Office of the General Counsel, 500 S. Duval Street, Tallahassee, Florida XXXXX-XXXX, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until October 5, 2009, to file a response to any comments filed with the Court. Electronic copies of all comments and responses also must be filed in accordance with the Court's administrative order in In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1498730/ | 498 S.W.2d 289 (1973)
STATE of Missouri ex rel. Robert E. LUCAS et al., Relators,
v.
The Honorable Herbert K. MOSS, Judge of the Circuit Court of the County of Jefferson, Missouri, Division No. 1, Respondent.
No. 58142.
Supreme Court of Missouri, En Banc.
September 4, 1973.
Cox & Moffitt, Dallas W. Cox, Jr., St. Louis, for relators.
Goldenhersh & Newman and Leo M. Newman, St. Louis, for respondent.
BARDGETT, Presiding Judge.
This is prohibition. The ultimate issue is whether or not the existing rules of this court prohibit the use of videotape (a sound motion picture technique) in the taking of a deposition and therefore prohibit the use of the videotape in presenting deposition testimony of a witness in court.
*290 The relators, Robert and Sharon Lucas, are plaintiffs in a personal injury suit pending in the circuit court of Jefferson County, Missouri, and Sterling R. Bollinger is defendant therein. Respondent is judge of the circuit court of Jefferson County, Division No. 1.
Relators deposed one of their doctors. The deposition was taken on notice properly served but the notice did not state the deposition would be recorded by videotape in addition to the usual stenographic reporting method. The parties, by their attorneys, appeared at the doctor's office at the appointed time. Counsel for defendant Bollinger objected to the use of videotape for the taking of the deposition on the grounds that "there is available to the plaintiff a court reporter as provided by law, and there is not statute authority for videotape under these circumstances." Defense counsel also objected on the grounds that videotape unduly emphasizes the medical testimony in the case and is prejudicial to the defendant and that videotape is not an accurate representation of the medical testimony in the case.
The doctor's deposition was recorded on videotape, an audiovisual method, and also by a notary public in shorthand and thereafter transcribed into writing. The signature of the witness was waived by the witness and the parties.
On September 25, 1972, the respondent judge notified counsel for the parties that he would, on October 2, 1972, enter an order that the videotape of the deposition would be held inadmissible upon defendant's objection thereto. The basis of the court's threatened order was that either legislation or amendment to the Supreme Court Rules would be necessary in order to permit videotape usage for depositions in a civil case. It is agreed that the judge was of the opinion that, under the existing rules and statutes, the use of videotape on deposition was not permitted and it was therefore, as a matter of law, prohibited.
Relator sought prohibition to prevent the entry of the threatened order and on November 13, 1972, this court entered the following order:
"Provisional rule in prohibition will issue on November 27, 1972, unless prior to that date respondent indicates by order, or otherwise, that he will not exclude the videotape deposition of Dr. George Schoedinger, M. D., on the ground that this means of taking depositions is not permissible under Supreme Court Rule 57, V.A.M.R. Respondent shall advise the Clerk of this Court of any action taken pursuant to this order."
The trial court did not take action to comply with the order and therefore on November 27, 1972, relator's petition for writ of prohibition was sustained and provisional rule issued returnable in 30 days. The return of respondent and the reply of relators have been filed and the case has been briefed and argued.
The issuance of a writ of prohibition is discretionary with the court and is not a writ of right. State ex rel. Woods v. Ratliff, 322 S.W.2d 864 (Mo. banc 1959); State ex rel. Industrial Properties, Inc. v. Weinstein, 306 S.W.2d 634 (Mo. App.1957). In this case the trial court believed it had no jurisdiction to permit the use of the videotape and announced its intention to enter the order noted supra. The proposed action by the trial court was not an exercise of that court's discretion with respect to the admissibility of evidence in the ordinary sense but rather a refusal to entertain the question of the admissibility of the videotape and was premised on the belief that the existing statute and court rules forbade the use of videotape at deposition as a matter of law. The court considers this matter to be one where the public interest in the prompt administration of justice demands a determination of the question; and because of the posture in which the case came here, this court, in the exercise of its discretion, issued an alternative order at the outset and will proceed to determine the question presented. State ex rel. McGaughey v. *291 Grayston, 349 Mo. 700, 163 S.W.2d 335 (banc 1942).
Not only is this a case of first impression, but, considering the burgeoning case-load in the trial courts and the existing necessity to adopt sound techniques that will aid such courts in the administration of justice by providing prompt resolutions of the disputes between people by trial, this case is also one of considerable importance to the trial courts, to the legal profession, and to the general public.
While this case is one of first impression in civil trials, the use of videotape in presenting a defendant's confession in criminal trials has been approved by this court. State v. Lusk, 452 S.W.2d 219, 224-225 (Mo.1970); State v. Hendricks, 456 S.W.2d 11, 13 (Mo.1970).
See State v. Lusk, supra, for a discussion of the evidentiary basis and qualifications for the use of videotape in evidence; for a nationwide analysis of the use of videotaped depositions in civil cases see Rubino v. G. D. Searle & Co., 73 Misc.2d 447, 340 N.Y.S.2d 574 (1973) where the use of videotape on deposition was approved.
The narrow question here, as in Rubino v. G. D. Searle & Co., supra, is whether the Supreme Court Rules prohibit the use of videotape on deposition and sequentially, whether the rules prohibit the admission of that videotape in evidence.
Rule 57.21 provides:
"Every witness whose deposition is taken in pursuance of these Rules, shall be sworn or affirmed to testify the whole truth by the person, judge or other officer before whom the deposition is taken. The examination shall be recorded by a reporter (or recording device) and shall be reduced to writing or typewriting."
Rule 57.22 provides:
"When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them; provided, however, that the answers or responses as originally given, together with the changes made and reasons given therefor, shall be considered as a part of the deposition. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found, or is dead or refuses to sign. If the deposition is not signed by the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness, or death or absence of the witness or the fact of the refusal to sign together with the reasons, if any, given therefor; and the deposition may then be used as fully as though signed, unless, on a motion to suppress, the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part."
Rule 57.21 allows the deposition to be recorded by a reporter or a recording device. It does not require that the deposition be stenographically recorded. The rule does not purport to create an exclusive list of the types of recording devices that are encompassed by the rule nor does it prohibit any specific recording device. Videotape is a recording advice that preserves the existence of the spoken word as well as the visual picture.
As respondent states in his brief, "The videotape machine is merely, and nothing more than, a different form of the stenographer's tape in the stenographic machine, or nothing more than the note pad of a shorthand reporter, or nothing more than a voice disc or tape used by those court reporters who use the oral method of recording." Of course, it also records the visual image in addition to the spoken word.
*292 Rule 57.22 requires the deposition to be transcribed and submitted to the witness for examination by him unless waived by the witness and the parties. In this case the deposition was transcribed and available for examination by the witness, although the witness and the parties waived signature.
Videotape is a recording device the use of which on deposition is not prohibited by Rules 57.21 or 57.22. Its use is therefore permissible.
Rule 57.21 requires that the witness be sworn by the person, judge, or other officer before whom the deposition is taken. In the instant case the witness was sworn by a notary public, an officer before whom depositions may be taken (Rule 57.03), and it is not required that the officer administering the oath be the person who records the deposition. The deposition was transcribed into writing and was available for examination by the witness in accordance with Rule 57.22, but the signature of the witness was waived by the witness and the parties. All of the requirements of the Supreme Court Rules for the taking of a deposition were complied with.
The question here really is whether the rules prohibit the depositional evidence to be placed before the jury by an audiovisual methodvideotape.
Respondent argued that Rule 57.29 requires that the deposition must be "read" into evidence and that the use of videotape would not be "reading" the deposition but would be showing it. This contention places form over substance. Rule 57.29(a) permits the deposition to be read and used as evidence. Videotape does not violate this rule when it is used to present the deposition testimony to the jury.
As stated supra, the deposition was taken in accordance with the rules, but in addition to the usual stenographic recording and typewritten transcription there was an audiovisual recording made on videotape. The court holds that the rules of civil procedure do not prohibit the videotaping of a deposition nor do they prohibit the use of the videotape in trial to present the deposition testimony of the witness to the jury.
The court holds that a party is permitted to utilize videotape at deposition if done in addition to the traditional recording and transcription method. The expense of the videotape will be borne by the party utilizing it. Of course, the parties may agree to dispense with the traditional recording method and utilize videotape alone and may stipulate with respect to taxable costs.
Defendant Bollinger objected to the videotape on the grounds that it unduly emphasized the medical testimony in the case. If defendant means that the presentation of the evidence by photographic and audio means, in itself, unduly emphasizes the testimony of the witness, then the answer is that this method provides as close an approximation to the actual presence of the witness in court as can be done. This, in turn, accomplishes the desirable result of placing the jury in a better position to carry out their function of assessing the credibility of the witness than does the reading of a written deposition.
Whether or not the videotape is an accurate representation of the witnesses' testimony is a matter for the trial court's determination in each case. Technical matters involved in the proper and accurate presentation of testimony by audiovisual means will have to be resolved by the parties and the trial court.
By this ruling the court does not pass upon any objections to the use of the videotape at trial other than those under consideration here.
A rule setting forth the procedures to be employed on audiovisual depositions is being considered by the court. Until such a rule is adopted and becomes effective, the court believes that when a party *293 anticipates the use of videotape at deposition in the future, he should so state in the notice to take depositions or otherwise notify the opposing party. This is desirable in order to avoid embarrassment to the witness and opposing counsel which may arise unless notified that this photographic device will be used. The failure to so notify the opposing party will justify the refusal of the opposing party to proceed on videotape at that time.
Respondent is prohibited from excluding the videotape deposition of Dr. George Schoedinger on the ground that this means of recording deposition testimony or its use in evidence is not permissible under Supreme Court Rule 57.
The provisional rule is made absolute.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593500/ | 19 So.3d 1147 (2009)
Kathryn MOORE, Appellant,
v.
SERVICEMASTER COMMERCIAL SERVICES and The Claims Center, Appellees.
No. 1D08-6059.
District Court of Appeal of Florida, First District.
October 14, 2009.
*1148 Carl A. Feddeler, III of Smith, Feddeler, Smith & Miles, Lakeland, and Susan Fox and Wendy Loquasto of Fox & Loquasto, Tallahassee, for Appellant.
Dennis A. Ross and Juliana L. Curtis of Ross Vecchio, P.A., Lakeland, for Appellees.
HAWKES, C.J.
In this workers' compensation appeal, we are asked to address the applicability *1149 of the common-law concept of sheltered employment to periods of temporary partial disability (TPD); and the forfeiture of benefits under the defense found in section 440.15(6), Florida Statutes (2007). Here, the Judge of Compensation Claims (JCC) rejected Claimant's argument that the concept of "sheltered employment" should apply and denied TPD benefits, along with penalties, interest, costs, and attorney's fees, pursuant to section 440.15(6), based on Claimant's unjustified refusal of suitable employment.
We also reject Claimant's sheltered employment argument. In regard to the requested TPD benefits, Claimant argues the JCC failed to consider the changes in material facts occurring over the course of her claimed period of disability. The record reveals three distinct periods framed by the operative facts. During the first period, Claimant remained on the Employer's payroll but refused suitable employment until she received physical therapy. During the second, Claimant had been terminated but still had not received physical therapy. And during the third, Claimant had completed physical therapy but remained unemployed, and under doctor's restrictions. The record does not support the JCC's application of the section 440.15(6) defense to this last period. Accordingly, we affirm in part, reverse in part, and remand for subsequent proceedings.
Background
Claimant, a commercial housekeeper, suffered a compensable injury to her right (dominant) shoulder. Claimant underwent surgery, and was placed on no-work status for approximately one week. On July 17, 2007, Claimant's authorized orthopedist returned Claimant to work with significant restrictions relative to her right upper extremity and recommended three weeks of physical therapy. The Employer, as part of its return-to-work program, sent Claimant a letter offering a light-duty job, dusting with only the left hand. Claimant called the Employer and advised she would not return to work until she received the recommended physical therapy, she was still in pain, and she could not perform the job because it was too difficult. On August 17, 2007, because Claimant failed to show up for work or call, the Employer terminated Claimant's employment and requested the return of all uniforms.
Claimant eventually underwent physical therapy which she completed on October 4, 2007. Her doctor placed her at maximum medical improvement (MMI) and assigned a permanent impairment rating. Prior to reaching MMI, Claimant secured a job with another employer to begin on November 16, 2007.
Claimant filed a petition for TPD benefits from July 25, 2007, through November 15, 2007. The E/C denied such benefits, alleging Claimant had voluntarily limited her income.
At hearing, Claimant raised several arguments in avoidance of the E/C's defense, including:
1) the job was too difficult for her to perform and thus, her refusal was justified;
2) the job was too easy and was, thus, "sheltered employment" that did not meet the elements of the defense in section 440.15(6); and
3) she was terminated from her employment on August 17, 2008, and thus, she could not have refused employment during the period where there was no offer.
The JCC found the modified position was a legitimate offer of suitable employment made pursuant to the Employer's return-to-work program and was not "sheltered employment." Based on these findings, *1150 the JCC denied all requested TPD benefits due to Claimant's unjustified refusal of suitable employment, the affirmative defense found in section 440.15(6), Florida Statutes (2006).
"Sheltered Employment"
As grounds for reversal, Claimant argues the one-arm duster job was "sheltered employment" because it was light of effort and responsibility and laden with rest and comfort and thus, benefits should be awarded. This argument raises the question as to why Claimant would also advance, as she does in another point on appeal, the difficulty of the job as a justifiable basis for her refusal. The determination of whether a particular job is considered "sheltered employment" is factual in nature and, thus, subject to the competent substantial evidence standard of review. See Wal-Mart Stores, Inc. v. Liggon, 668 So.2d 259, 271-72 (Fla. 1st DCA 1996). The JCC's findings of fact must be upheld if any view of the evidence and its permissible inferences supports them. See Ullman v. City of Tampa Parks Dep't, 625 So.2d 868, 873 (Fla. 1st DCA 1993).
The sheltered employment doctrine does not have a life of its own; rather, it merely serves to vindicate the legislatively imposed parameters of permanent and total disability (PTD). Liggon, 668 So.2d at 271. If an employer creates a job for an employee merely as a litigation tactic in a workers' compensation case, such a job cannot be said to constitute "gainful employment" that would defeat a PTD claim. See id. (citing Shaw v. Publix Supermarkets, Inc., 609 So.2d 683, 686 (Fla. 1st DCA 1992)). Reasonable job modification for the purpose of accommodating an injured or partially disabled employee will not place the job outside of the definition of gainful employment. Id. at 271. Pervasive federal law now requires employers to make reasonable accommodations for their disabled employees. Id. (citing 42 U.S.C. § 12112(a)).
The application of the concept of "sheltered employment" in the manner urged by Claimant is antithetical to the express legislative intent contained in section 440.015 (stating it is the intent of the Legislature that the Workers' Compensation Law be interpreted to facilitate the worker's return to gainful reemployment at a reasonable cost to the employer), and is at odds with the affirmative defense provided for in section 440.15(6) (providing forfeiture of benefits where employee unjustifiably refuses an offer of employment suitable to his or her capacity). Moreover, the Legislature, by including wages earned in sheltered employment as a basis for the calculation of TPD benefits, has expressed its intent as to the applicability of the concept of sheltered employment relative to TPD benefitsit is not applicable. See § 440.15(4)(a), Fla. Stat. (2007) ("The amount determined to be the salary, wages, and other remuneration the employee is able to earn shall in no case be less than the sum actually being earned by the employee, including earnings from sheltered employment.").
To the extent a temporary offer of employment is perceived to be the result of gamesmanship on the part of the employer, section 440.15(6) allows a JCC to excuse an injured worker from accepting such an offer if the JCC finds the job unsuitable, or finds justification in the worker's stated reason for refusing the job. Because the statutory scheme provides a full remedy for a worker who is offered temporary employment which is borne of bad faith or gamesmanship, there is no reason to resort to the common-law concept of "sheltered employment" in such situations. Rather, the appropriateness of an offer of modified employment should be evaluated in accordance with the standards *1151 set forth in section 440.15(6) and consistent with the Legislature's intent that the statute be interpreted to facilitate the worker's return to employment at a reasonable cost to the employer.
We can think of no legislative purpose that would be served by penalizing an employer that has implemented a return-to-work program, even if part of the purpose of the program is to facilitate a reduction in the cost of workers' compensation a legitimate and textual goal of the Act. See § 440.015, Fla. Stat. (2006). Moreover, we can think of no legitimate purpose that would be advanced by awarding disability benefits to a worker who declines an appropriate and suitable offer of employment because the job, although suitable and appropriate to her temporary restrictions, is simply "too easy"a plea that would find few, if any, sympathetic ears in the labor market.
For the foregoing reasons, we affirm the JCC's finding that the modified dusting position was part of a legitimate return-to-work program, and not sheltered employment.
Refusal of Suitable Employment
On appeal, Claimant argues the denial of TPD benefits was legal error because the JCC, instead of considering the totality of circumstances, denied TPD benefits based on one factor, the unjustified refusal of suitable employment. We disagree. It is the intent of the Legislature that the Workers' Compensation Law be interpreted to facilitate the worker's return to gainful reemployment at a reasonable cost to the employer. See § 440.015, Fla. Stat. (2006). If an injured employee refuses an offer of suitable employment, she shall not be entitled to any compensation during the continuance of such refusal unless in the opinion of the JCC such refusal is justifiable. See § 440.15(6), Fla. Stat. (2006). "The legislature clearly intends to strongly encourage injured workers, who are capable, to return to the workplace." A. Duda & Sons, Inc. v. Kelley, 900 So.2d 664, 669 (Fla. 1st DCA 2005). "The method of encouragement chosen by the Legislature was to deny all compensation when the claimant refuses suitable employment." Id.
Claimant's argument that the JCC erred by denying benefits by finding an unjustified refusal of suitable employment, and disregarding the "totality" of the remaining circumstances, fails to appreciate that section 440.15(6) is an affirmative defense. Thus, even if Claimant is otherwise entitled to TPD benefits, the successful assertion of this affirmative defense bars Claimant's entitlement for the relevant periods. See § 440.15(6), Fla. Stat. (2006).
In denying TPD benefits for the period when the offer of employment was extant, the JCC focused on the E/C's affirmative defense based on section 440.15(6) and found, as required by the statute, the Employer offered employment suitable to Claimant and her restrictions, and Claimant unjustifiably refused such employment.
The suitability of the offered employment and the reasonableness of the justifications provided by Claimant as the basis for her refusal are issues of fact which will not be disturbed in the presence of competent substantial evidence supporting such findings.
TPD Benefits after Termination of Employment
Nevertheless, in accordance with the plain language of section 440.15(6), the affirmative defense based on an unjustified refusal of an offer of employment applies only during the continuance of the refusal. See § 440.15(6), Fla. Stat. (2006); see also Kelley, 900 So.2d at 669. Here, the facts establish Claimant was offered the modified duster job on July 24, 2007, Claimant *1152 told the Employer she was waiting to receive physical therapy before returning to work, and Claimant was terminated on August 17, 2007.
Although an employer is not required to continually reoffer a job to avail itself of statutory defenses based on an unjustified voluntary limitation of income, the employer must establish the continued availability of the job for each applicable period to obtain the continued benefit of the defense. See Hyatt Regency Westshore v. Robinson, 629 So.2d 1088, 1089 (Fla. 1st DCA 1994) (interpreting analogous voluntary limitation of income provision found in section 440.15(3)(b)2., Florida Statutes (1990)). Voluntary limitation of income caused by the refusal to accept a suitable job does not permanently foreclose the right to indemnity benefits. See, e.g., Arnold v. Fla. Blood Ctrs., Inc., 949 So.2d 242, 248 (Fla. 1st DCA 2007); Lamazares v. Rinker S.E. Materials Corp., 519 So.2d 34 (Fla. 1st DCA 1987); Bado v. Canteen Corp., 513 So.2d 1364 (Fla. 1st DCA 1987).
At first blush, it would seem that, as a matter of law, Claimant's refusal of the modified-dusting position would cease upon the termination of her employment and the resulting rescission of the offer of suitable employment. Here, however, Claimant made it clear that she would not return to work until after she received physical therapya course of conduct not justified by any medical testimony. Accordingly, we do not agree with Claimant's assertion that, as a matter of law, her refusal of the modified dusting job ceased concurrently with the Employer's termination of her employment.
Claimant's testimony is competent substantial evidence of her refusal to accept suitable employment through the completion of physical therapy (October 4, 2007); and accordingly, the JCC's denial of TPD through October 4, 2007, is affirmed.
Because, however, the JCC failed to make any findings with regard to Claimant's entitlement to TPD benefits after Claimant's refusal of employment ceased, and before she returned to work on November 16, 2007, we reverse. On remand, the JCC should determine whether Claimant proved, based on the evidence presented, entitlement to TPD benefits in accordance with the standards set forth in section 440.15(4), Florida Statutes (2006) from October 5, 2007, through November 15, 2007.
Penalties, Interest, Costs, and Attorney's Fees
In her final point on appeal, Claimant argues because the JCC erred in denying TPD benefits, he also erred in denying penalties, interest, costs, and attorney's fees (PICA). Because we reverse and remand the JCC's denial of TPD benefits subsequent to October 4, 2007, we also reverse and remand the JCC's denial of PICA pertaining to this period. If the JCC finds Claimant has met her statutory burden of proof and establishes entitlement to TPD for that period, PICA should also be awarded. Nevertheless, because we affirm the JCC's denial of TPD from July 25, 2007, through October 4, 2007, the denial of PICA pertaining to this period is likewise, affirmed.
The JCC's denial of TPD benefits from July 25, 2007 through October 4, 2007, and PICA pertaining thereto, is AFFIRMED; the JCC's denial of TPD benefits from October 5, 2007, through November 15, 2007, and PICA pertaining thereto is REVERSED and REMANDED for further proceedings consistent with this opinion.
BENTON and LEWIS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593505/ | 45 F.Supp. 1001 (1942)
UNITED STATES
v.
McKAY.
No. 25947.
District Court, E. D. Michigan, S. D.
July 18, 1942.
*1002 *1003 Nash Adams and Alfred Teton, both of Washington, D. C., for plaintiff.
Eugene L. Garey, of New York City (William R. Rawick, of New York City, of counsel), for defendant.
MILLER, District Judge.
This matter is before me on the defendant's demurrer to the indictment and his motion for a bill of particulars.
The indictment, consisting of two counts, charges the defendant with violations of Section 215 of the Criminal Code, 18 U.S.C. A. § 338, commonly referred to as the Mail Fraud Statute. It alleges in substance that on November 8, 1938, Frank D. Fitzgerald was elected Governer of the State of Michigan; that in both his primary and general election campaigns the major part of the advertising in his behalf was handled and directed by Bass-Luckoff, Inc., a Michigan corporation engaged in the advertising business in Detroit; that on and prior to November 8, 1938, Bass-Luckoff, Inc., had been fully paid for all services rendered and expenditures made by it with respect to both the primary and general election campaigns; that beginning in October, 1938, and continuously thereafter until February, 1939, the defendant Frank D. McKay and one Clarence E. Larson, since deceased, did feloniously devise and intend to devise a scheme and artifice to defraud and for obtaining money by means of false and fraudulent pretenses from Edsel B. Ford by the following means:
(a) By falsely representing that certain political organizations were then heavily indebted to Bass-Luckoff, Inc., for services rendered and amounts expended for campaign advertising in behalf of Fitzgerald, and that moneys obtained from contributors would be used to pay this outstanding indebtedness; where in truth and in fact as the defendant knew said representations were false and fraudulent in that there was at that time no such outstanding indebtedness and that any moneys so obtained from contributors were to be and were actually paid over surreptitiously to the defendant McKay for his own personal use;
(b) that after Bass-Luckoff, Inc., had been paid in full for all amounts owing to it for services rendered and sums expended in connection with said campaigns the defendant would and did cause to be placed on forms bearing the name Bass-Luckoff, Inc., certain invoices purporting to show sums of money then due and owing to Bass-Luckoff, Inc., for services rendered and expenditures made for campaign advertising in behalf of Fitzgerald, and did cause these invoices to be presented to contributors in the false and fraudulent guise of unpaid bills for the purpose of inducing the contributors to pay sums of money to Bass-Luckoff, Inc., in the belief that they were helping to pay off a political indebtedness owing to Bass-Luckoff, Inc.; that Bass-Luckoff, Inc., did not retain the money so paid by contributors but surreptitiously paid it over to defendant McKay for his own personal use:
(c) That the defendant McKay communicated with Harry H. Bennett and requested him to obtain from Edsel B. Ford a contribution towards the expenses of Fitzgerald's campaigns and for the payment of debts allegedly due to Bass-Luckoff, Inc., and presented to Bennett certain of the invoices marked to show indebtedness to Bass-Luckoff, Inc., and represented as being unpaid expenses of the gubernatorial campaigns, whereas in truth and in fact as the defendant knew the amounts represented items of expense previously paid and were false documents prepared for the use in the execution of the scheme described.
The first count then alleges that on or about November 26, 1938, the defendant did cause the United States mails to be used for the purpose of executing said scheme and artifice, specifically referring to and relying upon the mailing by the Union Bank of Michigan of Grand Rapids, Michigan, to the National Bank of Detroit, at Detroit, Michigan, of a cashier's check of the Detroit *1004 Bank of Detroit, Michigan, dated November 18, 1938, in the amount of $5,000 payable to the order of Frank McKay and endorsed by him. The second count charges the same scheme and artifice to defraud and then alleges that on or about the 1st of December, 1938, the defendant caused the United States mails to be used for the purpose of executing said scheme and artifice to defraud, specifically referring to and relying upon a mailing by the Union Bank of Michigan at Grand Rapids, Michigan, to the National Bank of Detroit, at Detroit, Michigan, of a check of Bass-Luckoff, Inc., drawn on the Detroit Bank of Detroit, Michigan, in the amount of $3,068 payable to the order of cash and endorsed by McKay. Photostatic copies of the two checks together with the endorsements on the reverse sides thereof are made parts of the respective counts of the indictments.
The motion for a bill of particulars consists of 15 separate requests, set out in separately numbered paragraphs. The purpose of a bill of particulars is largely to advise the defendant of what facts, more or less in detail, he will be required to meet. Thereafter in the trial of the case the Court will limit the Government in its evidence to those facts set forth in the bill of particulars. United States v. Adams Express Co., D.C., 119 F. 240; Kettenbach v. United States, 9 Cir., 202 F. 377, 383. Where the charges in the indictment are so general that they do not advise the defendant of the specific acts with which he is charged, it is proper for the Court upon motion by the defendant to order the filing of a bill of particulars, but it is not the purpose of such procedure to compel the Government to disclose in detail the evidence upon which it expects to rely. The application is one which is addressed to the discretion of the trial court, which should keep in mind and balance one against the other both the fact that the defendant is entitled to enough detail to enable him to meet the charges and prepare for trial and the fact that the Government should not be unduly limited in the scope and presentation of its evidence offered at the trial in support of the offense charged in the indictment. Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545. In the present case the allegations of the indictment are rather full and complete with references to the nature and scope of the alleged scheme to defraud and state specifically the use of the mails relied upon in each count. Most of the 15 requests call for details of evidence and in the opinion of the Court should be denied. The oral argument upon the demurrer showed, however, that as a practical matter it was advisable to have the Government state more definitely the details involved in the passage of the money from Edsel B. Ford through various channels until it came into the possession of the defendant McKay. These details are matters of documentary evidence and show facts which are apparently agreed upon by both counsel for the Government and for the defendant. Accordingly, the Government can not be prejudiced in any way by being required to state the facts in this particular phase of the case upon which it will rely, and such undisputed facts may as a practical matter materially aid in promptly disposing of this indictment. Accordingly, the Court overrules defendant's requests 1 through 9 inclusive and sustains his requests 10 through 15 inclusive, all as set out in his motion for a bill of particulars.
The Court indicated to counsel at the close of the oral argument its views as above set out and Government counsel has accordingly tendered its bill of particulars complying with this ruling. The Government contends, however, that the bill of particulars forms no part of the indictment and can not be considered by the Court in ruling upon the demurrer heretofore filed to the indictment itself. This position is technically sound. United States v. Comyns, 248 U.S. 349, 39 S.Ct. 98, 63 L. Ed. 287; United States v. Norris, 281 U.S. 619, 50 S.Ct. 424, 74 L.Ed. 1076; United States v. Fawcett, 3 Cir., 115 F.2d 764, 766, 132 A.L.R. 404; United States v. Rintelen, D.C., 233 F. 793, 799; United States v. Reisley, D.C., 32 F.Supp. 432, 434. But as a practical matter such a rule under circumstances as they exist in this case serves no useful purpose. On the contrary, it impedes and delays the administration of justice. Because if the uncontroverted facts upon which the Government relies do not constitute the crime charged by the indictment there is no good purpose served in causing both the Government and defendant to make extensive and expensive trial preparations, to impanel a jury, to spend several weeks in hearing many witnesses, some no doubt from distant points, and then being compelled to direct a verdict for the defendant because the facts proven, and already conceded by the defendant to be the facts, do not constitute *1005 the offense charged. See United States v. Adams Express Co., supra, 119 F. 240, 241. Accordingly, as a practical matter it seems advisable for the Court to rule on the demurrer to the indictment without considering the bill of particulars, and in case that ruling should be erroneous, considering the language of the indictment instead of the actual facts, to also indicate its present views based on the facts as set out in the bill of particulars.
It is well settled that under Section 215 of the Criminal Code it is not sufficient to merely allege and show that the defendant devised a scheme or artifice to defraud. The statute specifically provides that the United States mail must be used "for the purpose of executing such scheme or artifice or attempting so to do." It is vital to the commission of the offense that the use of the mail relied upon by the Government be in furtherance of the alleged scheme. The demurrer to the indictment attacks its validity on the ground that the indictment shows on its face that the use of the mails relied upon by the Government in each count was not for the purpose of executing the scheme or artifice charged, but on the contrary occurred after the completion of the alleged scheme and at a time when the fraud, if any existed, had been fully perpetrated. Defendant relies upon the well settled rule that the mailing of a letter or check, even though connected with or relating to a scheme to defraud, if not for the purpose of executing the scheme, will not support an indictment under the statute. If the scheme charged was completed before the mail was used the offense denounced by Section 215 of the Criminal Code does not exist. Stapp et al. v. United States, 5 Cir., 120 F.2d 898; Spillers v. United States, 5 Cir., 47 F.2d 893; Dyhre v. Hudspeth, 10 Cir., 106 F.2d 286; McNear v. United States, 10 Cir., 60 F.2d 861; McLendon v. United States, 6 Cir., 2 F.2d 660; United States v. Dale, D.C., 230 F. 750; United States v. Leche, D.C., 34 F.Supp. 982, 986; United States v. Siebricht, 2 Cir., 59 F.2d 976; Mitchell v. United States, 10 Cir., 118 F.2d 653.
The scheme charged in the indictment was one to defraud Edsel B. Ford. Count 1 relies upon the mailing on November 26, 1938, of a cashier's check for $5,000 dated November 18, 1938, payable to Frank McKay and endorsed by him. This is obviously the proceeds of the alleged fraudulent scheme; it is equally obvious that it is not the check of the victim. It follows that any money obtained from the victim by means of any fraudulent scheme had been obtained and was a completed transaction when the cashier's check was issued by the Detroit Bank on November 18, 1938, and when the mailing of the cashier's check in question took place eight days later on November 26, 1938. At that time the victim had parted with his money without power to retract.
In Count 2 the Government relies upon the mailing of a check issued by Bass-Luckoff, Inc., for $3,068 dated November 29, 1938, payable to the order of cash and endorsed by Frank McKay. This check is also obviously not the check of the victim, although representing the proceeds of the alleged scheme. When it was issued on November 29, 1938, the fraud upon Ford, if any existed, had already been completed. Bass-Luckoff, Inc., had already obtained the money from the victim before issuing its own check. The mailing of the Bass-Luckoff check on December 1, 1938, was not for the purpose of defrauding the victim.
Even if the foregoing analysis of the situation, as derived from the allegations of the indictment and the exhibits made a part thereof, is not correct there are nevertheless additional facts which support the defendant's contention. In Count 1 the cashier's check of the Detroit Bank of Detroit, Michigan, carries on its reverse side two separate stamps of the Union Bank of Michigan, of Grand Rapids, Michigan, which bank the indictment charges mailed the check in question from Grand Rapids to Detriot. One stamp carries the letters "P.T." while the other stamp is the usual stamp endorsing the check for collection through usual banking channels. In Count 2 the Bass-Luckoff, Inc. check likewise carries on its reverse side two separate stamps of the Union Bank of Michigan one carrying the letters "P.T." and the other being the usual endorsement of the bank for collection through banking channels. Defendant claims that the Court can take judicial notice that in each instance the stamp of the bank carrying the letters "P.T." means that it was cashed by the bank's paying teller, and that after being so cashed the other stamp is the act of the bank in putting it through for collection to reimburse itself for the money so paid out. See 20 American Jurisprudence, page 91, Section 69; Belford v. *1006 Beatty, 145 Ill. 414, 34 N.E. 254; United States v. Heinze, C.C., 161 F. 425, 427; Potter v. United States, 155 U.S. 438, 444, 15 S.Ct. 144, 39 L.Ed. 214; Farmers, etc., Bank v. Butchers & Drovers' Bank, 28 N.Y. 425; Towler v. Carithers, 4 Ga.App. 517, 61 S.E. 1132; State v. Mullin, 78 Ohio St. 358, 85 N.E. 556, 18 L.R.A.,N.S., 609, 125 Am.St.Rep. 710; In re Charles T. Stork & Co., 2 Cir., 271 F. 279. It is apparent that such an interpretation by the Court under the doctrine of judicial notice would be in accord with the undisputed facts in the case, since the bill of particulars filed by the Government states that both the cashier's check and the Bass-Luckoff check were cashed by the defendant McKay at the Union Bank of Michigan in Grand Rapids, which bank thereafter forwarded them for collection to the National Bank of Detroit. The Court will accordingly take such judicial notice of the bank stamps referred to and accept it as being shown by the indictment that the checks were cashed by the defendant McKay instead of being deposited by him for credit to his account. Under the authorities above referred to, and with particular reliance upon the recent decision of the Circuit Court of Appeals for the 5th Circuit in Stapp v. United States, supra, the Court holds that the subsequent mailing of the check by the bank in question in order to reimburse itself for the funds it had paid out does not constitute a mailing in furtherance of the scheme charged in the indictment, and that the demurrers to the two counts of the indictment should be sustained.
In relying upon and following the decision in the case of United States v. Stapp, supra, the Court is not unmindful of the earlier ruling of the same Court in Hart v. United States, 112 F.2d 128, 131, which apparently is in conflict with its later ruling in the Stapp case. But the apparent conflict does not really exist when the opinion in the Hart case is carefully considered. It expressly recognized the rule that a use of the mail after the fraud was complete fails to bring the case within the statute, but held that the scheme to defraud in that case "was not at an end when Hart indorsed and presented the check to the bank for no one had yet been defrauded." Its ruling was expressly based upon its interpretation of the law as applied to the facts before it, which, whether it was correct or incorrect, was that the drawer of the check "might have intervened to stop payment and the fraudulent scheme would have been frustrated." In both the Stapp case and the present case, it was beyond the power of the victim to intervene and stop payment on the check which was the subject of the mailing, first, because it was not the victim's check, and second, because after it was cashed by the bank the bank became a holder in due course whose rights against the drawer of the check could not be thus defeated.
It may be contended by the Government that the foregoing ruling is based upon facts not disclosed by the allegations of the indictment or from any reasonable construction of them. Such a contention is not in the Court's opinion well founded, but even if it should be well taken the final disposition of this case upon its subsequent trial would be the same. The bill of particulars filed by the Government states with reference to Count 1 that on November 18, 1938, Edsel B. Ford and Harry Bennett caused to be purchased from the Manufacture's National Bank a cashier's check for $5,000 payable to Bass-Luckoff, Inc.; that this check was deposited in the special account of Bass-Luckoff in the Detroit Bank; that on the same day Bass-Luckoff used the proceeds of this deposit to buy from the Detroit Bank a cashier's check of $5,000 payable to Frank D. McKay, which check was delivered to McKay who cashed it at the Union Bank of Michigan in Grand Rapids; that the Union Bank transmitted the cashier's check for collection to the National Bank of Detroit by first-class United States mail. With reference to Count 2 of the indictment the bill of particulars states that on November 25, 1938, Harry Bennett and Edsel B. Ford caused to be bought at the Manufacture's National Bank a cashier's check for $4,918 payable to Bass-Luckoff, Inc.; that this check was deposited in a special account of Bass-Luckoff in the Detroit Bank; that on November 25, 1938, a check for $3,068 payable to Frank D. McKay was issued against the special account and sent directly to McKay; that McKay cashed this check at the Union Bank of Michigan which transmitted it for collection to the National Bank of Detroit by first-class United States mail. The facts so stated include the facts considered by the Court as being shown by the indictment and the exhibits made a part thereof. In presenting its case to the jury the Government would be compelled to prove those facts to support the charge that the mails *1007 were used in furtherance of the alleged scheme. Accordingly, at the close of the Government's case this Court would, following the principles hereinabove announced as being applicable to such facts, sustain the defendant's motion for a directed verdict. If the Court's application of the law to the facts is correct, no useful purpose would be served in proceeding with the trial of this indictment.
The defendant's demurrer to each count of the indictment is sustained and it is ordered that the indictment be dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593523/ | 215 S.W.3d 327 (2007)
STATE of Missouri, Plaintiff-Respondent,
v.
Xavier V. ARTIS, Defendant-Appellant.
No. 27128.
Missouri Court of Appeals, Southern District, Division Two.
February 27, 2007.
*331 Craig A. Johnston, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen. and Stephanie Morrell, Assistant Attorney General, Jefferson City, for respondent.
PHILLIP R. GARRISON, Judge.
Xavier V. Artis ("Defendant") was convicted following a jury trial of the class C felony of assault in the second degree, a violation of Section 565.060,[1] and forcible rape, a violation of Section 566.030. On appeal, Defendant contends that the trial court erred in: (1) overruling his motion for continuance; (2) overruling his objection to the admission of a videotape deposition of a State witness; (3) overruling his request for the disclosure of J.K.'s ("Victim") psychological and psychiatric records; and (4) failing to sua sponte declare a mistrial or issue a curative instruction when the State's expert witness commented on Victim's credibility. We affirm.
Defendant does not challenge the sufficiency of the evidence supporting his convictions. Viewed in the light most favorable to the verdict, the record reveals the following. On May 11, 2000, Victim met Defendant while at a Laundromat. Defendant said his name was "Darrum" and after talking awhile, the two drove around in Defendant's car. Defendant eventually dropped Victim off at home, but they made plans to go out to a club the following night.
The next evening, Defendant arrived at Victim's house, which she shared with her aunt, Shonna Walker, ("Walker") and her brother, Terry Kingcade ("Terry"). Defendant drove the three around to various places, including Wal-Mart and Ryan's Steakhouse. Ultimately, Defendant and Victim decided not to go out, instead opting to watch a movie in Victim's upstairs bedroom.
Later that night, Defendant again agreed to drive everyone to Wal-Mart. When they returned, Defendant and Victim went back upstairs to watch the rest of the movie. Victim eventually fell asleep but was awakened when Defendant asked her for a kiss.[2] When Victim said she would not give him a kiss, Defendant leaned over her as if he was going to give her a hug, but instead he began choking her with his arm around her neck. Victim passed in and out of consciousness, but at one point awoke to find Defendant sitting on top of her choking her with his hands. When she told Defendant that she could not breathe, he said he knew and "that it'd be okay." After Victim regained consciousness, her eyes were sore and her vision was blurry. She also discovered that she was lying on her back with her arms, legs, and mouth duct taped.
Defendant told Victim that "he was just looking at [her]," and "that he had a surprise for [her]." He then pulled a butcher knife out from under the bed, and asked Victim if she knew that he could kill her. Defendant removed the duct tape from Victim's mouth and started asking about Terry. Defendant told her that he had been hired to kill Terry, but that he had seen her and was interested in her. Defendant asked Victim if she would have sex *332 with him, saying that if she did, she would not die. He then rolled Victim over on her stomach, pulled down her pajama bottoms and inserted his penis in her anus, while hitting her shoulder with the butcher knife. While Victim at times passed in and out of consciousness, she remained conscious during this portion of the assault. Afterwards, Victim again asked Defendant if she was going to die, and he told her that he would have to think about it.
Defendant then wrapped Victim up in a sheet, sat her on the bed against the wall, and told her that he was going to let her live if she did not go to the police. He cut the duct tape off of Victim with the butcher knife, placing it, along with several of Victim's things that he had touched, in a bag. He then told Victim to take a shower. Victim had trouble standing so Defendant helped her into the bathroom, telling her that "he wasn't a bad guy." Before getting into the shower, Victim looked into the mirror and noticed that her eyes were red and puffy. After she had taken a shower, Defendant told Victim to put on her makeup, and to tell everyone that the reason her eyes were red and puffy was because her "allergies [were] bothering [her]."
Before he left, Defendant told Victim to "stay in her room for two hours," because he would know if she went downstairs, and he would break in and kill everyone. After Defendant left, Victim remained in her bedroom, but she saw Defendant drive by her home three times through her bedroom window. Approximately two hours later, Victim's parents drove up and her mother ("Kathy") came to the door. Initially, Kathy did not recognize Victim, because her face was so swollen and bruised, but upon recognizing Victim's voice, Kathy screamed for Victim's father to come into the house. Kathy took Victim into the bathroom to see if she would tell her what had happened. Victim showed Kathy her wrists and ankles, which still had adhesive from the duct tape. Kathy also noticed adhesive in Victim's hair. Eventually, Victim told her father a little of what Defendant had done to her and she asked him to take her to Wal-Mart, where she thought that both she and Defendant were on a surveillance tape from the night before.
Victim's parents took her to Wal-Mart, where they viewed the surveillance tapes, after which they called the police and paramedics. Victim was interviewed by Officer Nina Sala-Gault ("Officer Sala-Gault"), and was eventually taken to the hospital where a medical examination was performed, and a "rape kit" was collected.
The medical examination revealed that: Victim's face had bruising; she had bleeding in the white part of her eyes; she had a black eye; her face and neck had numerous burst blood vessels; and her eardrums were bleeding. Victim's injuries were serious and were consistent with her having been strangled over several minutes.
On May 15, 2000, Corporal Doug Thomas ("Corporal Thomas") interviewed Victim at the Springfield Police Department. Victim told Corporal Thomas that Defendant had told her his name was "Darrum." She described Defendant to Corporal Thomas and told him some of the locations she had visited with Defendant. Corporal Thomas visited those locations and discovered that Defendant's true name was Xavier Artis. Using Defendant's real name, Corporal Thomas was able to obtain a photograph of Defendant from the Department of Revenue, which Victim was able to identify from a photographic lineup.
On March 21, 2001, Corporal Thomas met with Defendant at the Springfield Police Department, where he collected a reverse rape kit, which was compared to the rape kit collected from Victim. While Victim only recalled being anally sodomized, *333 Defendant's DNA profile was found on the vaginal swab from Victim. Victim's anal swab from her rape kit contained no semen.
Defendant was arrested and charged with the class B felony of assault in the first degree, a violation of Section 565.050, the class B felony of kidnapping, a violation of Section 565.110, forcible sodomy, a violation of Section 566.060, and forcible rape, a violation of Section 555.030. Defendant was also charged as a prior and persistent offender.
This is the second trial of Defendant stemming from these charges. Following the first trial, we reversed Defendant's convictions and remanded the case for a new trial, because Defendant was denied the right to represent himself. See State v. Artis, 146 S.W.3d 460 (Mo.App. S.D. 2004). In his second trial, Defendant waived his right to counsel and proceeded pro se. In that trial, the jury found Defendant guilty of assault in the second degree and forcible rape, but acquitted Defendant of assault in the first degree, kidnapping and forcible sodomy. Defendant was sentenced as a prior and persistent offender to fifteen years for second degree assault, and life for forcible rape with the sentences to run consecutively. This appeal followed.
Defendant brings four points on appeal. For the sake of clarity, we will first address his second point, which challenges the trial court's admission of the videotaped deposition of Corporal Thomas. Defendant alleges that the admission of the videotaped deposition violated his right to confrontation and cross-examination. We disagree.
The facts relevant to this point are as follows. On December 7, 2004, while Defendant was still represented by counsel, the State filed a motion to preserve the testimony of Corporal Thomas by videotaped deposition. The motion alleged that Corporal Thomas was leaving the country for Iraq in January 2005, to train Iraqi police officers, and would not return until April or May of 2005, making him unavailable to testify at trial, which was then set for March 14, 2005. After holding a hearing, the trial court sustained the State's motion. In doing so, the trial court found that, pursuant to Rule 25.14, "the deposition is necessary to preserve the testimony of [Corporal] Thomas in two respects, one is his prospective training mission that he's going on to Iraq for purposes of training the civil police in that country; and then secondly, . . . that he is in fact going into a war zone." The trial court further found that Defendant would have "sufficient time to adequately prepare for the deposition as required by [Section] 492.303."
Defendant waived his right to be present at the deposition of Corporal Thomas, but Defendant's counsel was present and cross-examined Corporal Thomas. Corporal Thomas testified that he was leaving for Iraq in mid to late January 2005 to train Iraqi police officers. He expected to be gone for three to four months, which would include the week of the scheduled trial.
On February 15, 2005, Defendant waived his right to counsel and elected to represent himself. At a motions hearing held on March 9, 2005, the State informed the trial court that Corporal Thomas planned to be on a three-month tour, which would bring him back "sometime in May," but that his tour could be extended an additional two months. The trial court told the State to continue monitoring the situation, and requested that the State keep the trial court informed as to whether a "firm date" existed for Corporal Thomas' return. The trial court stated that if Corporal Thomas was unavailable at *334 the time of trial, his deposition may be used by the State in lieu of testimony.
On May 2, 2005, Defendant filed a motion to suppress the videotaped deposition of Corporal Thomas, which was denied. The trial was held on May 2-5, 2005. The State offered the videotaped deposition into evidence on May 4, 2005. In Defendant's motion for new trial, he argued that the trial court erred in allowing the deposition of Corporal Thomas and in denying his motion to suppress the deposition.
The trial court has broad discretion in admitting or excluding evidence at trial. State v. Bryan, 60 S.W.3d 713, 718 (Mo.App. S.D. 2001). The trial court's ruling concerning the admission or exclusion of evidence will not be disturbed absent a clear abuse of that discretion. Id. The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before it and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. State v. Woodson, 140 S.W.3d 621, 629-30 (Mo.App. S.D. 2004).
The Sixth Amendment of the United States Constitution provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against him. . . ." U.S. CONST. amend. VI; see Bryan, 60 S.W.3d at 718. Similarly, the Missouri Constitution provides that "in criminal prosecutions the accused shall have the right to . . . meet the witnesses against him face to face. . . ." MO. CONST. Art. I, § 18(a). The Sixth Amendment applies to criminal proceedings in state courts through application of the Fourteenth Amendment which prohibits the deprivation of life or liberty without "due process of law." State v. Glaese, 956 S.W.2d 926, 930 (Mo.App. S.D. 1997). "Therefore, a criminal defendant is constitutionally guaranteed the right under the Sixth Amendment to confront the witnesses against him or her and to have the opportunity for effective cross[-]examination of any witnesses who appear and testify against him or her." Id. "Of these guarantees, the `primary interest' secured by `the confrontation clause' is the right of cross-examination.'" State v. Foust, 920 S.W.2d 949, 955 (Mo.App. E.D. 1996) (quoting Kentucky v. Stincer, 482 U.S. 730, 736, 107 S.Ct. 2658, 2662, 96 L.Ed.2d 631 (1987)).
Although depositions may be taken by the State in accordance with the rules of civil procedure, their use is governed by the rules of criminal cases. See Rules 25.14 and 25.16; see also Section 492.303. The State cannot use a deposition as substantive evidence at trial unless the witness deposed is unavailable and the defendant has had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177, 203 (2004). "To show unavailability, the [S]tate has the burden of proving a good faith effort, exercising reasonable diligence, to obtain the presence of the witness at trial." Glaese, 956 S.W.2d at 931.
Rule 25.14 authorizes the State to take depositions to preserve the testimony of a witness. Where the witness is an "essential witness," Section 492.303 authorizes the use of a videotaped deposition. Consistent with the protections of the Sixth Amendment, Rule 25.16 conditions admissibility of deposition testimony on the unavailability of the witness. That rule provides, in relevant part, as follows:
[A]ny deposition obtained in accordance with Rules 25.12, 25.14 or 25.15, so far as it is otherwise admissible under the rules of evidence, may be used by the state if:
(a) The defendant:
*335 (1) Was personally present at the deposition and had the right of confrontation and cross-examination at the deposition, or
(2) Personally waived that right to be present and the right of confrontation in writing or in open court . . .; and
(b)(4) The witness . . . [i]s otherwise unavailable and the state has made a good faith effort to obtain the presence of the witness at the hearing or trial, but has been unable to procure the attendance of the witness.
Here, Defendant asserts that the State did not meet its burden of showing that Corporal Thomas was unavailable. Particularly, Defendant argues that the State failed to show "that it had made a good faith effort, exercising reasonable diligence, to obtain [Corporal] Thomas' presence at trial, because the State knew that [Corporal] Thomas was voluntarily leaving the country yet it failed to serve him with a subpoena before he left[.]"
We reject Defendant's argument. In doing so, we find Bryan, 60 S.W.3d 713, instructive. In that case, the trial court sustained the State's motion to preserve the testimony of a witness by videotaped deposition because he was leaving the country. Id. at 717. The defendant was present at the deposition with his counsel. Id. On appeal, the defendant alleged error in the admission of the deposition of the witness, arguing, inter alia, that the State failed to use diligence to obtain the witness' presence at trial. Id. We noted, in that case, "that during the course of the deposition [the witness] testified that he was to `go to Germany for a couple of weeks [for deployment] off of Kosovo.'" Id. at 718 (alteration in original). In rejecting the defendant's argument, we explained that "[t]his testimony obviated the requirement of Rule 25.15 [now Rule 25.16] to show a `good faith effort to obtain the presence of the witness at the hearing or trial.'" Id.
Similarly, in the present case, the State filed a motion to preserve the testimony of Corporal Thomas pursuant to Rule 25.14 and Section 492.303, because he was leaving the country and was not returning until after the scheduled trial date. Defendant waived his right to be present at the deposition but was represented by counsel. At the deposition, Corporal Thomas testified that he would be in Iraq from January through April or May of 2005. The trial was reset several times, but was ultimately held on May 2-5, 2005. Throughout this time, the State monitored the whereabouts of Corporal Thomas. As of the time of Defendant's trial, Corporal Thomas had not returned from Iraq. As in Bryan, Corporal Thomas' presence in Iraq throughout the course of the trial "obviated the requirement of Rule [25.16] to show a `good faith effort to obtain the presence of the witness at the hearing or trial.'" 60 S.W.3d at 718.
The admission of Corporal Thomas' deposition testimony did not violate Defendant's right to confrontation and cross-examination, because Corporal Thomas was unavailable and Defendant, through his counsel, had a prior opportunity to cross-examine Corporal Thomas. See Crawford, 541 U.S. at 68, 124 S.Ct. 1354. Defendant's second point is denied.
We now turn to Defendant's first point, where he maintains that the trial court abused its discretion in overruling his motion for continuance to secure the presence of Corporal Thomas at trial. Defendant argues that by overruling his motion for continuance, "his rights to due process, a fair trial, and confrontation and cross-examination" were violated. We disagree.
*336 Defendant first requested a continuance on March 9, 2005, because he had not yet received the case file from his previous attorney, and he also wished to have the trial set on a date when Corporal Thomas would be able to testify. The trial court granted Defendant's motion for continuance so that he would have time to receive the case file from his former attorney and prepare for trial. The trial court told the State to continue monitoring the situation regarding Corporal Thomas, and requested that the State keep the trial court informed as to a whether a "firm date" existed for Corporal Thomas' return. The trial court stated that if Corporal Thomas was unavailable at the time of trial, his deposition may be used by the State in lieu of testimony. The trial was then set for May 23, 2005.
At a hearing held on March 16, 2005, the State requested that the trial date be moved up, because one of its witnesses was pregnant and her due date was close to the date of the then current trial setting. Defendant, who had done most of his pre-trial preparation, said that he would be ready for a May 2, 2005 trial date, so the trial was reset for that date.
On April 28, 2005, during the pretrial conference, the trial court heard another motion for continuance filed by Defendant, which stated that he would like to confront Corporal Thomas "face to face" and have an opportunity to cross-examine him. The State informed the trial court that it had attempted to serve a subpoena on Corporal Thomas at his house, and was informed that he would not be back until May 6, 2005. The trial court denied Defendant's motion for continuance, stating that, "I want the record to be clear that the setting of this case has not revolved around the availability of [Corporal] Thomas, and those issues having been previously decided by the Court."
"The decision to grant or deny a continuance is within the sound discretion of the trial court." Woodson, 140 S.W.3d at 629. Defendant must make a very strong showing to prove abuse of that discretion. Id. The party requesting the continuance also bears the burden of showing prejudice. Id.
When a continuance request is based upon the absence of a witness, Rule 24.10 requires the application show the materiality of the potential testimony, the particular facts the witness will prove, due diligence on the part of the defendant to obtain the testimony, and reasonable grounds to believe the attendance or testimony of the witness will be procured within a reasonable time.
State v. Patton, 84 S.W.3d 554, 556 (Mo. App. S.D. 2002). "[T]he refusal to grant a continuance for a missing witness will not be reversed on appeal unless the witness's testimony would probably result in a different outcome." Id.
Assuming arguendo that the trial court abused its discretion in denying Defendant's motion for continuance, Defendant has not shown prejudice by this denial. This is not a case where the jury was unable to hear the testimony of an absent witness. As previously related, Corporal Thomas's testimony was preserved via videotaped deposition and was properly admitted at trial. This case is unique in that Defendant sought a continuance, not to ensure the availability of his own witness, but to obtain the presence of the State's witness. In his application for continuance, Defendant provided the following: "[Corporal] Thomas has impeaching information of the complaining witness[;]" and "[Corporal] Thomas under oath said . . . [D]efendant waived his [M]iranda rights and chose not to talk which was untrue." It is clear from Defendant's application for continuance and in his argument *337 on appeal that Defendant sought a continuance so he could cross-examine Corporal Thomas at trial.
As previously related, Defendant, through counsel, had the opportunity to cross-examine Corporal Thomas at the deposition. Because that testimony was properly before the jury, as discussed earlier in this opinion, Defendant has not identified any testimony which would have resulted in a different outcome. This point is denied.
In his third point, Defendant asserts the trial court abused its discretion in overruling Defendant's request for the disclosure of Victim's medical records, and in failing to conduct an in camera inspection of those records, because Defendant made a plausible showing how those records might be relevant to his defense. Defendant maintains that the trial court's ruling violated his "rights to confront the witnesses against him, to due process and a fair trial, to compulsory process, and to present a defense[.]" We disagree.
The abuse of discretion standard applies when reviewing claims of denial of meaningful discovery and concerning the relevancy and admissibility of evidence. . . . When reviewing a claim that a defendant was denied meaningful discovery, the appellate court will determine whether the trial court abused its discretion in such a way as to result in fundamental unfairness. Fundamental unfairness occurs when the state's failure to disclose results in defendant's genuine surprise and the surprise prevents meaningful efforts to consider and prepare a strategy for addressing the evidence. However, a defendant is not entitled to information on the mere possibility that it might be helpful, but must make some plausible showing how the information would have been material and favorable.
State v. Taylor, 134 S.W.3d 21, 26 (Mo. banc 2004) (internal citations and quotations omitted).
For records which may contain privileged information, such as psychiatric records, the trial court may conduct an in camera review to determine if the records are actually privileged. State v. Davis, 186 S.W.3d 367, 372 (Mo.App. W.D. 2005). "The material that does not fall under the privilege is discoverable if it is relevant to the subject matter involved in the pending action." Id. However, to be entitled to an in camera review, the requesting party must make an adequate showing. Id. "A showing must be more than a mere possibility that the material contains relevant or exculpatory evidence. There must be a showing of a factual predicate as to relevancy and materiality to justify a review." Id.
In the present case, Defendant filed a "Supplemental Motion for Disclosure" seeking "Psychiatric or other medical records of [Victim]. Since 1998 to 2005." That motion provided in relevant part that "[i]t has been brought up in Court that [Victim] has cut on herself, and seeked [sic] help. Also a mental problem from fact or fiction, also has had problems in the past." During a pre-trial hearing on Defendant's motion, the State objected to Defendant's motion, but informed the court that it had provided Defendant all of Victim's psychiatric records, that it had in its possession. At that time, the trial court denied Defendant's motion, noting that it was overly broad, but stated that it would consider a more specific motion.
The issue was raised again at a later hearing, and the State again noted that it had disclosed all of Victim's records that were in the State's possession. Defendant argued at that hearing that he was entitled *338 to Victim's psychiatric records, so he could "see what type of person she really is" and that he believed "she ha[d] a problem." The trial court again denied Defendant's request for disclosure, noting that Defendant had failed to show materiality or relevancy.
At another motion hearing, Defendant requested an in camera inspection of Victim's psychiatric records, claiming that he believed records existed regarding Victim, but he did not know "in fact" whether they existed. The State argued that it did not believe that there were any psychiatric records to be disclosed. Defendant's request was again denied.
Here, the State informed the trial court that it had provided Defendant with all the records it had in its possession. Defendant has never claimed otherwise.
The State is obligated to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment. The State has no obligation under the Due Process Clause to disclose information that it does not have. Nor does the State have the obligation to disclose evidence that it does not possess under Missouri's rules of discovery.
State v. Stewart, 18 S.W.3d 75, 92 (Mo. App. E.D. 2000) (internal citations omitted). To the extent that Defendant is complaining that he was not provided with records outside of the State's possession, his point must fail.
In addition, we note that Defendant has never established the existence of any records that were not provided through discovery. At one of the pre-trial motions hearings, Defendant told the trial court that he believed there were records regarding Victim's psychiatric history, but he did not know "in fact" whether they existed. This distinguishes the present case from those relied on by Defendant: Davis, 186 S.W.3d 367, and State v. Newton, 925 S.W.2d 468 (Mo.App. E.D. 1996).
In Davis, the defendant subpoenaed two treatment facilities and one physician, requesting the victim's counseling and psychiatric records. 186 S.W.3d at 371. In response to motions filed by the State and the Department of Mental Health, the trial court quashed the subpoenas. Id. On appeal, the defendant argued that the trial court erred in refusing to review in camera the victim's records. Id. The Court held that "[t]he trial court should have determined if the records were actually privileged before quashing the subpoenas." Id. at 372. Finding that the defendant had made the required showing as to both materiality and relevancy, the Court held that the victim's records should be reviewed in camera for relevancy and materiality after a determination of their privileged status. Id. at 372-73.
Similarly, in Newton, the defendant argued that the trial court erred in quashing his subpoena requesting the psychological records of a State's witness. 925 S.W.2d at 469. The defendant contended that the witness's psychological records contained vital impeachment evidence. Id. at 471. Recognizing that "[t]he generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal case," Id. at 471, the Court held that the trial court erred in quashing the defendant's subpoena and remanded the case to the trial court for an in camera inspection of the witness's records. Id. at 472.
In both Davis and Newton, the defendant subpoenaed an entity or person, requesting the records of a particular witness. In the present case, Defendant simply filed with the trial court a motion requesting the disclosure of Victim's psychological records. After reviewing the *339 record, we find no indication that Defendant subpoenaed any physician or health care facility seeking the production of Victim's records. If Defendant knew of the existence of records that were not provided through discovery and were not in the State's possession, he could have subpoenaed those records but failed to do so.[3] Because, the trial court in this case was never presented with a motion to quash a subpoena, we are not presented with the same scenario as the Courts in Davis and Newton.
Defendant does not dispute that the State turned over all records in its possession. Neither has Defendant shown that he subpoenaed any records that the State did not have in its possession which were subject to an in camera review. The trial court did not err in denying Defendant's motion for disclosure of Victim's psychiatric records. This point is denied.
In Defendant's final point, he argues that the trial court plainly erred in failing to sua sponte intervene and declare a mistrial or issue a curative instruction when the State's witness, Dr. Patrick Connor ("Dr. Connor"), testified that it was his opinion that the history Victim gave him seemed credible. Defendant argues that Dr. Connor's testimony constituted an impermissible opinion of another witness's credibility, thereby depriving him of his rights to due process of law and to a fair trial before a fair and impartial jury. We disagree.
Dr. Connor, who examined Victim after the attack, testified as follows in response to the State's questioning:
Q: During your contact with [Victim], did you make any observations about her demeanor?
A: She was obviously emotionally distraught and she seemed to be, her history was, seemed to be credible to me.
Defendant made no objection, and did not ask the trial court for any relief such as requesting a curative instruction, asking that the answer be stricken, or moving for a mistrial. Recognizing that his allegation of error is not preserved for appeal, Defendant requests that we review pursuant to Rule 30.20 to determine if the trial court's failure to act sua sponte amounted to plain error.
Rule 30.20 provides, in pertinent part, that "plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." If in our discretion we decide to review for plain error, Defendant must show that the trial court's error so substantially violated his rights that manifest injustice or a miscarriage of justice would result if the error is left uncorrected. State v. Taylor, 166 S.W.3d 599, 604 (Mo.App. S.D. 2005). Plain error is to be applied sparingly and may not be used to justify a review of every point that has not been otherwise preserved for appellate review. State v. Roberts, 948 S.W.2d 577, 592 (Mo. banc 1997). Finally, we observe that a trial judge should act sua sponte in the trial of a case only in exceptional circumstances. State v. Thomas, 965 S.W.2d 396, 401 (Mo. App. S.D. 1998).
"When determining the admissibility of opinion testimony, expert witnesses should not be allowed to give their opinion as to the veracity of another witness's statement, because in so doing, they invade the province of the jury." State v. Churchill, 98 S.W.3d 536, 538-39 (Mo. banc 2003). "When an expert witness testifies *340 that a particular witness is telling the truth, prejudice often arises because the expert's testimony invests scientific cachet to an issue (credibility) that the jury is capable of determining without an expert's help." State v. Price, 165 S.W.3d 568, 572 (Mo.App. S.D. 2005).
In arguing that the trial court plainly erred in this case, Defendant relies solely on Churchill, 98 S.W.3d at 538, in which an examining physician testified, over defendant's objection, that the sexual abuse described by the victim "was real." The Court reversed the defendant's conviction, in that case, holding that the testimony was "particularized," rather than a "generalization," and that the trial court committed reversible error by refusing to sustain the defendant's objection. Id. at 539.
Churchill, however, involved an erroneous evidentiary ruling, rather than a review for plain error. State v. Thompson, 985 S.W.2d 779 (Mo. banc 1999), on the other hand, did involve a review for plain error. There, the trial court sustained the defendant's objection to a question posed to the sheriff about whether it was his opinion that the defendant had feigned a memory loss. Id. at 788. Noting that the defendant requested no relief beyond making an objection, our Supreme Court held that the trial court did not err in failing to sua sponte declare a mistrial. Id. at 788.
Likewise, in State v. Davenport, 5 S.W.3d 547, 550 (Mo.App. E.D. 1999), the defendant complained that the trial court failed to sua sponte declare a mistrial or instruct the jury to disregard a statement by the prosecutor during argument. The defendant's objection to the statement was sustained, but no further relief was requested. Id. The appellate court denied relief. Id.
Unlike Churchill, both Thompson and Davenport involved instances where the defendant's objection was properly sustained. The appellate court in both cases found that there was no plain error in the trial court's failure to sua sponte grant further relief. In the present case, Defendant argues that the trial court committed plain error in failing to sua sponte grant a mistrial or issue a curative instruction, even where Defendant made no objection to Dr. Connor's statement.
The Supreme Court of Missouri, in State v. Nolan, 872 S.W.2d 99, 103 (Mo. banc 1994) (overruled on other grounds by Deck v. State, 68 S.W.3d 418, 427 (Mo. banc 2002)), stated:
Manifest injustice or miscarriage of justice is not an easy phrase to define. Indeed the cases give the distinct impression that "plain error" is a concept appellate courts find impossible to define, save they know it when they see it. Whether an appellate court should take notice of an error not raised below must be made on the facts of the particular case, and there are no hard and fast classifications in either the application of the principle or the use of a descriptive title. (internal quotations and citations omitted).
In addition to the authorities cited above, there are factual considerations in this case that lead us to deny relief for plain error. First, Dr. Connor's comment was brief and was made without further elaboration. His comment was unsolicited, and there is no evidence that the State intentionally tried to inject this testimony into the case. "Unsolicited statements that are brief and limited in substance do not amount to reversible error in the absence of evidence that the prosecutor intentionally tried to inject unfair prejudice into the trial." State v. Johnston, 957 S.W.2d 734, 749 (Mo. banc 1997). Additionally, the jury was instructed that "you alone must decide upon the believability of *341 the witnesses and the weight and value of the evidence." Finally, there was no reference made to the comment during argument. In short, we are unable to discern that the trial court committed plain error under the applicable standards discussed above by failing to inject itself into the trial and take action that was not requested by Defendant. This point is denied.
The judgment of the trial court is affirmed.
BARNEY, and LYNCH, JJ., concur.
NOTES
[1] All statutory references are to RSMo (2000), and all references to rules are to Missouri Rules of Criminal Procedure (2005), unless otherwise indicated.
[2] At this point, nothing romantic or sexual had taken place between Victim and Defendant.
[3] See Rule 26.02(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593545/ | 215 S.W.3d 36 (2006)
Bobbi PILE (as Executrix of the Estate of Theresa Ann Foltz, Deceased), Appellant,
v.
CITY OF BRANDENBURG and John Miller, Officer, Appellees.
No. 2005-SC-0047-DG.
Supreme Court of Kentucky.
December 21, 2006.
As Corrected on Denial of Rehearing March 22, 2007.
*38 Brett Butler, Louisville, Counsel for Appellant.
David Paul Bowles, Landrum & Shouse LLP, Robert Thomas Watson, Landrum & Shouse LLP, Louisville, Counsel for Appellees.
Opinion of the Court by Justice WINTERSHEIMER.
REVERSING
This appeal is from an opinion of the Court of Appeals affirming the summary judgment of the trial court for the city and a police officer in a wrongful death action.
The questions presented are whether the controlling decision in this case is Jones v. Lathram; whether the Court of Appeals erred in not considering discretionary acts as distinguished from ministerial acts; whether a special relationship is necessary for negligence claims of this nature; whether the officer was negligent per se; whether the active operating, controlling and ownership of a motor vehicle is ministerial, and whether there was a superseding cause for the injury to and death of the victim.
Theresa Ann Foltz was killed on July 12, 2000 when she drove around a curve on Highway 1638 and was struck head-on by a motor vehicle owned by the City of Brandenburg and assigned to Officer John Miller. The vehicle was operated at the time of the accident by Timothy Blackwell, a handcuffed prisoner in the vehicle.
Officer Miller had been dispatched to the scene of an accident at about 9:45 p.m. on July 12. Off-duty Meade County Deputy Jailer Embrey witnessed the accident in which intoxicated driver Blackwell *39 wrecked his van and traveled backwards down an embankment near the Embrey residence. The 39-year-old Blackwell attempted to flee the scene by foot, but Embrey managed to apprehend him and then place him in handcuffs before summoning police. Officer Miller, a young policeman with several months of experience, answered the call in his city police cruiser.
When preliminary breath testing of Blackwell revealed a reading of at least .287, Blackwell allegedly was secured in handcuffs and was placed in a 3 point restraint in the back of the police cruiser which was separated from the front seat by a plexiglass shield. Officer Miller was driving the cruiser and Embrey was a passenger in the front seat as they left the Embrey residence enroute to the jail. Officer Miller stopped the police cruiser in the highway, got out to go down the embankment to gather information regarding the van, and left the keys in the ignition with the engine and the emergency lights on. This in effect left the cruiser in running condition. Shortly thereafter, Embrey also got out and went to assist with traffic control on the highway. As the sole remaining occupant of the cruiser, Blackwell somehow was able to maneuver into the front seat and proceeded to drive the cruiser away at a high rate of speed. Within minutes, the police cruiser crossed the center line and crashed head on into the car driven by 57-year-old Theresa Ann Foltz. Both the still handcuffed Blackwell and Mrs. Foltz died at the scene.
The circuit judge granted the motion of the city and the officer for a summary judgment based on the reasoning of City of Florence v. Chipman, 38 S.W.3d 387 (Ky.2001), as to foreseeability. The circuit judge also determined that the taking of the vehicle by Blackwell was a superseding intervening cause of the death of Mrs. Foltz, thereby precluding recovery from the city or Officer Miller, citing Frank v. Ralston, 145 F.Supp. 294 (W.D.Ky.1956)
Both the circuit judge and the majority of the Court of Appeals panel acknowledged no duty on the part of either of the defendants absent any "special relationship" as considered in the 42 U.S.C. § 1983 case of Ashby v. City of Louisville, 841 S.W.2d 184 (Ky.App.1992). The majority opinion of the Court of Appeals held that there is a public policy limiting the tort liability of officers. This Court accepted discretionary review.
Standard of Review
Summary judgment procedure authorized by CR 56.01 et seq. is intended to expedite the disposition of cases and if the grounds provided by the rule are established, it is the responsibility of the trial judge to render an appropriate decision. The grounds for such a judgment are: 1) there is no genuine issue as to any material fact; and 2) the moving party is entitled to a judgment as a matter of law. The summary judgment procedure is not a substitute for trial. See Paintsville Hospital Co. v. Rose, 683 S.W.2d 255 (Ky.1985); Steelvest Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky.1991); James Graham Brown Foundation, Inc. v. St. Paul Fire & Marine Ins. Co., 814 S.W.2d 273 (Ky.1991).
The circuit judge must examine the evidentiary matter, not to decide an issue of fact, but to discover if a real or genuine issue exists. All doubts are to be resolved in favor of the party opposing the motion. The movant should not succeed unless a right to judgment is shown with such clarity that there is no room left for controversy and it is established that the adverse party cannot prevail under any circumstances. Here, the facts are not in question. Thus, we must consider the second *40 prong of the rule as to whether the moving party is entitled to a judgment as a matter of law.
It has long been considered that it is necessary to base a case of negligence on a showing of a breach of duty and causative factors. In order to determine whether a duty exists and has been breached, foreseeability of harm is an essential element. It is not necessary to know the identity of the person endangered or the scope of such danger.
The obligation of a police officer in regard to individual citizens is not founded on foreseeability alone but rather upon the existence of a special relationship to the person likely to be injured. Two conditions are required. 1) The victim must have been in state custody or otherwise restrained by the state at the time the injury producing act occurred, and 2) the violence or other offensive conduct must have been committed by a state actor.
Here, there is no question that Blackwell was in custody. Then our inquiry must proceed to whether the violence was committed by what can be defined as a state actor. Our examination focuses on the police officer and his responsibilities to third parties in the performance of his duty. The operation of a police cruiser is ministerial in nature. The operation of the vehicle is a daily routine responsibility, not a discretionary act and is subject to the applicable regulations of the city police department as well as statutory traffic regulations. Negligent operation of an emergency vehicle by a police officer who violates existing police procedures and regulations, or appropriate statutes, is actionable and is clearly outside of the scope of the "special relationship doctrine." KRS 189.430, provides in pertinent part that "no person operating or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition and removing the key. . . ." The clear purpose of the statute is to prevent the theft or unauthorized use of the vehicle and for the protection and safety of the general public. The victim here was a member of that protected class.
I. Jones v. Lathram
In Jones v. Lathram, 150 S.W.3d 50 (Ky.2005), Officer Lathram was operating a police cruiser at the time of the fatal collision. This Court determined that the officer undertook a ministerial act in responding to an emergency call for assistance from a fellow officer. The court stated that the act of safely driving a police cruiser, even in an emergency, is not an act that typically requires any deliberation or exercise of judgment. This court in a unanimous decision reversed the affirmance of a summary judgment and held that the officer was not entitled to qualified official immunity from liability.
The act of safely controlling a police cruiser is not a discretionary act, but rather a ministerial function. In this case, Officer Miller had control of the operation of his police cruiser. Thus, it would be a ministerial act requiring reactive decisions based on duty, training and overall consideration of public safety. The question of whether Officer Miller was negligent in operating his police cruiser under all the facts and circumstances is a matter for the jury or trier of fact. Thus, summary judgment was inappropriate in this case. The Court of Appeals also acknowledged that Officer Miller was obviously negligent in the performance of his duty at the time in question.
II. Discretionary versus Ministerial Acts
In Jones v. Lathram, the language of Yanero v. Davis, 65 S.W.3d 510 (2001) provides in part that an officer or employee *41 is afforded no immunity for tort liability for the negligent performance of a ministerial act, i.e., one that requires only obedience to the orders of others or whether the officer's duty is absolute, certain and imperative, involving merely execution of specific acts arising from a fixed and designated fact.
Any local government such as the City of Brandenburg could be liable for negligence arising out of the acts or omissions of its employees in the discharge of their ministerial duties. See KRS 65.2003(3). The negligent operation of an emergency vehicle by a police officer which violates existing police procedures or regulations or statutory traffic regulations is certainly actionable and outside the scope of the common law doctrine of "special relationship" relied on by the City and Officer Miller.
KRS 189.430(3) states in pertinent part: No person operating or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition and removing the key. . . .
The clear purpose of this statute is to prevent theft or unauthorized use of a motor vehicle as well as for the protection and safety of the general public. Cf. OAG 79.559. If this statute had been properly followed, the tragic accident would not have occurred. As noted in the dissent by Judge Taylor, police officers are exempt in certain emergency situations from the application of traffic regulations as noted in KRS 189.940. Specific statutes give police exemptions from certain other traffic regulations as noted in KRS 189.450(7). However, in this case there is no statutory exception or exemption that relieves Officer Miller from KRS 189.430(3). The "special relationships" doctrine has no application to the issue of whether Officer Miller may disregard applicable traffic laws and regulations that he was obligated to obey in the performance of his duties.
The question of whether Officer Miller was negligent in the operation of his police cruiser is reserved for the jury.
III. Negligence Per Se
As urged by the Foltz estate, negligence per se is merely a negligent claim with a statutory standard of care substituted for the common law standard of care. See Real Estate Marketing, Inc. v. Franz, 885 S.W.2d 921 (Ky.1994). Clearly, Officer Miller violated the statute by leaving the vehicle without first stopping the engine or removing the ignition key. KRS 446.070 provides that "a person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation, although a penalty of forfeiture is imposed for such violation."
IV. Superseding Cause
The appellees argue that even if it was determined that the officer owed a duty of care to the deceased victim, the tortious conduct of Timothy Blackwell was a superseding cause of the injury and death. They contend that but for the unlawful conduct of Blackwell, the victim would not have died in this accident and that the fatal consequences were outside of the control of Miller after Blackwell stole the police cruiser and drove it in a reckless manner so as to crash head on. They further claim that the question of foreseeability is without merit because the officer could not contemplate that the prisoner would steal the cruiser and kill someone. The appellees maintain that a superseding cause is an independent force that relieves the original actor from liability. See NKC Hospitals, Inc. v. Anthony, 849 S.W.2d 564 (Ky.App.1993); Bruck v. Thompson, 131 *42 S.W.3d 764 (Ky.App.2004). We do not agree.
Com., Transportation Cabinet v. Babbitt, 172 S.W.3d 786 (Ky.2005), provides an instructive analysis of the superseding cause doctrine. Babbitt, supra, involves the claims of three individuals denied by the Board of Claims. The case involved the erection of guardrails, barriers and rumble strips that were intended as warnings to motorists. It states that the rationale for the doctrine of superseding cause has been substantially diminished by the adoption of comparative negligence, and ultimately holds that the negligence of a motorist in driving a vehicle off the roadway was not a superseding cause so as to prevent liability on the part of the transportation cabinet. Quoting the Restatement (Second) of Torts § 440 (1965), the opinion asserts that a superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a factor in bringing about. See also Donegan v. Denney, 457 S.W.2d 953 (Ky.1970).
Bruck, supra, is distinguishable on its facts. As noted in Anthony, supra, the intervening act or event must be of independent origin, unassociated with the original act. Here, the officer had an intoxicated person handcuffed in the back of his cruiser. The officer left the cruiser with the key in the ignition and the engine running, arguing that it was necessary to leave the vehicle so that the air conditioner would be in operation and to power the emergency lights on the vehicle. Another guide in assessing these situations noted in Anthony is that the intervening act or event must, itself, be capable of bringing about the injury, and that the intervening act must not have been reasonably foreseeable by the original actor.
It is clear that leaving the key in the vehicle was a negligent act which created the opportunity for the prisoner to escape with the vehicle and operate it in the fashion which caused the ultimate fatality. Bruck involved a situation where the key was left in the ignition while the vehicle was in the driveway and determined that the statute did not apply to a private driveway. Here, the officer backed out of the driveway and stopped to pick up a tennis shoe belonging to the prisoner. The officer then drove further up the road to check on the van to obtain license information. He then left the motor running with the key in the ignition so as to allow the air conditioning to continue because the temperature was in the mid-70's and to keep the battery from running down.
Under all the circumstances, we must conclude that the tortious conduct of Blackwell was not an intervening or superseding cause of the fatal accident.
V. Chipman, Fryman and Ashby
The cases cited by the majority of the Court of Appeals involve different issues and are clearly distinguishable on their facts. Reliance on the City of Florence v. Chipman, supra, and Fryman v. Harrison, 896 S.W.2d 908 (Ky.1995), is misplaced. All owners, operators and persons in control of motor vehicles owe a duty to all other persons using the roadway pursuant to KRS 304.39, the Motor Vehicle Reparations Act. There is nothing in that Act that exonerates police officers from the duty of care not to be negligent in the operation or control of their vehicle.
Chipman has to do with whether or not an officer should have arrested someone. The fact that the officer has no duty to protect another person from a crime or accident is not an issue here. The negligence of Officer Miller and the violation of the statute made it possible for Blackwell *43 to take the vehicle and cause it to crash. This is not a question of whether the police should have arrested someone. The case here raises the issue of ordinary care in violation of the statute.
Fryman, supra, relates to a criminal defendant being released from jail without a bail bond being properly posted. The defendant was released from jail and approximately two months later assaulted the victim. Harrison argued that the jailer and the clerk were negligent in the completion of the bond revocation documents and that the jailer was negligent in releasing the prisoner. Once again, in this situation, Officer Miller violated the statutory requirement of leaving the keys in the ignition. Ashby notes that in Kentucky personal liability for a public officer's or public employee's negligent performance of the duty depends in part on whether the powers or duties in question were ministerial or discretionary. We believe the responsibilities here were ministerial rather than discretionary. Thus, we further conclude that the authorities cited do not apply.
The decision of the Court of Appeals and the circuit court is reversed. The public duty doctrine does not provide a shield for the city or the officer from liability. The responsibility of the officer was to remove the key from the vehicle, and the ultimate theft of the car by the prisoner and resulting fatal accident was not an intervening or superseding event. Summary judgment was improper because the moving party was not entitled to a judgment as a matter of law.
This matter is remanded to the circuit court for trial.
LAMBERT, C.J., GRAVES and SCOTT, JJ., concur.
McANULTY, J., dissents by separate opinion and is joined by NOBLE, J.
MINTON, J., not sitting.
McANULTY, Justice, dissenting.
Respectfully, I dissent. I believe that the major difficulty in resolving this case stems from the fact that the wrong party was sued. Officer Miller had placed the prisoner in the custody of Deputy Embrey, and Deputy Embrey assumed control of the prisoner. It follows that Officer Miller cannot be regarded as a cause of the accident. Additionally, the actions of the prisoner were a superseding act which precludes liability for the accident on the part of Officer Miller or the City.
The rule is stated that, "[a] superseding cause is an intervening independent force; however, an intervening cause is not necessarily a superseding cause. . . . if the resultant injury is reasonably foreseeable from the view of the original actor, then the other factors causing to bring about the injury are not a superseding cause." NKC Hospitals, Inc. v. Anthony, 849 S.W.2d 564, 568 (Ky.App.1993). In the case at bar, the resulting injury was not foreseeable to the original actorthat being Officer Miller. He handcuffed his prisoner, put him in the back seat of the police vehicle with a Plexiglas divider in place, and left him in the custody of another law enforcement officer. It was not foreseeable to Officer Miller that the prisoner would then be left alone and allowed to escape and cause the ensuing accident. He did not leave the prisoner completely alone. He thus did not commit an act of negligence. Therefore, the events which followed must surely be considered an independent chain of events which were not foreseeable.
Further, I do not believe the majority opinion convincingly distinguishes this case from those in which the special relationship *44 test was applied. The special relationship test is an additional test when the issue is whether law enforcement failed to protect by their acts or omissions. I regard the real issue in the case at bar as whether Mrs. Foltz was not protected by the law enforcement officials from a drunk driver. Thus, the special relationship test must be considered for this case. Under the special relationship test, the victim, Mrs. Foltz, was not in state custody or otherwise restrained at the time the injury-producing act occurred. Therefore, the police officer had no affirmative legal duty to act on behalf of Mrs. Foltz. Fryman v. Harrison, 896 S.W.2d 908, 909-10 (Ky. 1995).
I believe the trial court's decision was sound in granting summary judgment to the City and Officer Miller. I would affirm the Court of Appeals' opinion.
NOBLE, J., joins this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593559/ | 215 S.W.3d 380 (2006)
Joseph Wayne PALANKI, a Minor by Next Friend and Mother, Michelle Elizabeth PALANKI
v.
VANDERBILT UNIVERSITY, et al.
Court of Appeals of Tennessee, Middle Section, at Nashville.
August 18, 2006 Session.
November 13, 2006.
*383 Todd A. Rose, Paris, Tennessee; Les Jones, Memphis, Tennessee; Rosella M. Shackelford, Clarksville, Tennessee, for the appellant, Joseph Wayne Palanki, a Minor by Next Friend and Mother, Michelle Elizabeth Palanki.
Andree Sophia Blumstein, Steven D. Hurd, Steven E. Anderson, Sara F. Reynolds, Nashville, Tennessee, for the appellee, Vanderbilt University.
Published Pursuant to Rule 11, Tennessee Court of Appeals.
*384 OPINION
WILLIAM B. CAIN, J., delivered the opinion of the court, in which WILLIAM C. KOCH, JR., P.J., M.S., and FRANK G. CLEMENT, JR., J., joined.
Minor, through mother and next friend, filed a medical malpractice action against hospital for the admittedly negligent removal of ninety percent of the minor's bladder. The jury rendered a verdict in favor of Plaintiff for $16,000,000.00. The trial court suggested a remittitur that reduced the amount of Plaintiff's judgment to $6,500,000.00. Plaintiff accepted the remittitur under protest and filed the instant appeal, seeking a reinstatement of the jury's verdict and prejudgment interest. The hospital cross-appealed seeking an increase in the trial court's suggested remittitur, arguing that the judgment was excessive in light of other medical negligence actions and that the trial court erred in admitting testimony about improbable risks of medical complications as a result of infant's injuries and admitting evidence of pre-majority medical expenses. The decision of the trial court is affirmed in all respects.
Joseph Palanki was born without complication on February 8, 1999, to Ms. Michelle Craig. His pediatrician described him as a healthy child during his first eleven months. In December 1999, Ms. Craig took Joseph to visit Dr. John Pope, a pediatric urologist at Vanderbilt, for treatment of a condition known as a hydroceles. On January 20, 2000, Dr. Pope was scheduled to perform outpatient surgery on Joseph in order to correct the hydroceles. However during the procedure, Dr. Pope removed ninety percent of Joseph's bladder.
On January 22, 2000, Dr. Pope attempted to repair Joseph's bladder by closing the remaining bladder tissue. On February 18, 2000, Joseph underwent another surgery at Vanderbilt to augment his bladder in which a cross-section of Joseph's large intestine, small intestine, and appendix, were sewn to the remaining portion of Joseph's bladder. In addition, Dr. Pope attached Joseph's appendix to his belly button in order to form a tube running from his bladder to his belly button. The tube, known as the Mitrofanoff Channel, now provides a catheter access to Joseph's bladder in order to drain urine from the bladder.
Following the two corrective surgeries, Joseph experienced chronic urinary tract infections and a failure to thrive. His pediatrician attributed his low weight to his body's need to use digested calories to fight his chronic urinary tract infections rather than using the calories to grow. Since January 20, 2000, Joseph has been unable to urinate spontaneously and must void by catheterization through a permanent opening in his navel. Joseph has also experienced kidney reflux which involves the urine moving backwards from the bladder to the kidneys. In order to combat the complications resulting from his condition, Joseph has taken prescription medications everyday since his injury on January 20, 2000. His prescriptions have included Bactrim, Macrodantin, and Gentamicin to prevent infections and Ditropan for kidney reflux.
Joseph, through his mother and next friend, filed the instant action against Vanderbilt on January 16, 2003. Although Vanderbilt admitted vicarious liability and did not seriously contest the negligence of Dr. Pope, the amount of damages was disputed. On May 18, 2005, the jury rendered a verdict in favor of Plaintiff in the amount of $16,400,000.00. The verdict included $300,000.00 for medical expenses until the age of eighteen, $1,100,000.00 for medical expenses after the age of eighteen, and $15,000,000.00 in non-economic damages. *385 The trial court directed Plaintiff to draw the judgment for $16,0000,000.00, the amount sought in the complaint.
On August 15, 2005, the trial court denied Defendant's motion for a new trial but suggested a remittitur that reduced Plaintiff's award to $6,500,000.00. The court also denied Plaintiff's motion for prejudgment interest. Plaintiff accepted the remittitur under protest and filed this notice of appeal seeking a reinstatement of the jury's verdict and prejudgment interest. Defendant cross-appeals claiming that the amount of remittitur suggested by the trial court should be increased because (1) the verdict is excessive when compared with other medical negligence cases; (2) the trial court erred in admitting testimony about improbable risks of medical complications; and (3) the trial court erred in admitting evidence of pre-majority medical expenses.
I. REMITTITUR
The remittitur statute contained in Tennessee Code Annotated section 20-10-102(b) provides the standard of review for a trial court's suggestion of remittitur. The statute states:
The court of appeals shall review the action of the trial court suggesting a remittitur using the standard of review provided for in Rule 13(d) of the Tennessee Rules of Appellate Procedure applicable to decisions of the trial court sitting without a jury. If, in the opinion of the court of appeals, the verdict of the jury should not have been reduced, but the judgment of the trial court is correct in other respects, the case shall be reversed to that extent, and judgment shall be rendered in the court of appeals for the full amount originally awarded by the jury in the trial court.
Tenn.Code Ann. § 20-10-102(b).
According to Tennessee Rule of Appellate Procedure 13(d), "review of findings of fact by the trial court in civil actions shall be de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise." However, conclusions of law are not afforded the same presumption. Langschmidt v. Langschmidt, 81 S.W.3d 741, 744-45 (Tenn.2002).
The primary issue on appeal concerns whether the trial court erred in suggesting a remittitur which reduced Plaintiff's verdict from $16,000,000.00 to $6,500,000.00. We first note that:
[A]ppellate courts customarily conduct a three-step review of a trial court's adjustment of a jury's damage award. First, we examine the reasons for the trial court's action since adjustments are proper only when the court disagrees with the amount of the verdict. Burlison v. Rose, 701 S.W.2d [609] at 611 [(Tenn.1985)]. Second, we examine the amount of the suggested adjustment since adjustments that "totally destroy" the jury's verdict are impermissible. Foster v. Amcon Int'l, Inc., 621 S.W.2d [142] at 148 [(Tenn.1981)]; Guess v. Maury, 726 S.W.2d 906, 913 (Tenn.Ct. App.1986). Third, we review the proof of damages to determine whether the evidence preponderates against the trial court's adjustment. See Tenn.Code Ann. § 20-10-102(b).
Long v. Mattingly, 797 S.W.2d 889, 896 (Tenn.Ct.App.1990).
By order dated August 15, 2005, the trial court clearly disagreed with the amount of the judgment rendered by the jury and reduced such amount accordingly. Said the court:
Having weighed the evidence in support of all the categories of damages to which Plaintiff was legally entitled, see Overstreet *386 v. Shoney's Inc., 4 S.W.3d 694 (Tenn.Ct.App.1999), having determined that the award of medical expenses was excessive, and having determined that the evidence on both economic and non-economic damages was insufficient to support the award of $16,000,000.00, the Court suggests a remittitur of the judgment in the amount of $9,500,000.00, thereby resulting in a judgment of $6,500,000.00 in favor of Plaintiff.
We also note that Plaintiff does not contend on appeal that the amount of the remittitur "totally destroys" the jury's verdict and we cannot make such a finding here. Therefore, we will now review the proof of damages to determine whether the evidence preponderates against the trial court's adjustment.
In a civil jury trial, the trial court acts as the thirteenth juror and therefore may set aside a jury's verdict and order a new trial when justice so requires. James E. Strates Shows, Inc. v. Jakobik, 554 S.W.2d 613, 616 (Tenn.1977). Alternatively, the court may suggest a remittitur of the jury award, Tenn.Code Ann. § 20-10-102(a), to correct an excessive jury verdict without the time and expense of a new trial. Hunter v. Ura, 163 S.W.3d 686, 705 (Tenn.2005). Although the amount of an award is primarily a consideration for the jury to determine, the trial court may suggest a remittitur when the amount of the verdict is excessive, beyond the range of reasonableness, or is excessive as the result of passion, prejudice, or caprice. Poole v. Kroger Co., 604 S.W.2d 52, 54 (Tenn.1980). However, there is no precise mathematical formula which the court can use to assure that judgments in negligence cases are uniform. S. Ry. Co. v. Sloan, 56 Tenn.App. 380, 407 S.W.2d 205, 211 (1965). Said the Court:
There is no exact yardstick, or measurement, which this court may use as a guide to determine the size of verdicts which should be permitted to stand in cases of this kind. Each case must depend upon its own facts and the test to be applied by us is not what the amount the members of the court would have awarded had they been on the jury, or what they, as an appellate court, think should have been awarded, but whether the verdict is patently excessive. The amount of damages awarded in similar cases is persuasive but not conclusive, and, in evaluating the award in other cases, we should note the date of the award, and take into consideration inflation and the reduced value of the individual dollar.
S. Ry. Co., 407 S.W.2d at 211.
The standard of review applicable on appeal in cases where the trial judge has suggested a remittitur (or an additur) has been the subject of diverse appellate opinions. This problem is discussed at length by the Supreme Court in Smith v. Shelton, 569 S.W.2d 421 (Tenn.1978). As Smith reveals, older decisions applied an abuse of discretion standard, and later cases adopted a de novo review standard. 569 S.W.2d at 423. In Speight v. Newport, 503 S.W.2d 202, 205 (Tenn.Ct.App.1973), the Court of Appeals reviewed the trial court's additur suggestion pursuant to then Tennessee Code Annotated section 27-303, which was applicable to trials without the intervention of a jury, using a de novo review with a presumption of correctness of the trial court's findings. Speight was specifically overruled in Smith, but nine years later, the legislature of Tennessee enacted Chapter 232 of the Public Acts of 1987 wherein Tennessee Rule of Appellate Procedure 13(d) was legislatively interposed *387 to reinstate the rule in Speight.[1]
Thus, the presently existing standard of review is that provided by Tennessee Rule of Appellate Procedure 13(d) wherein the factual findings of the trial judge are presumed to be correct unless the evidence in the record preponderates against such factual findings.
A trial judge is authorized under Tennessee law to grant a remittitur if that trial judge determines that the verdict of the jury is excessive. Poole, 604 S.W.2d at 54. It is not necessary that the trial judge find that the verdict of the jury is tainted by corruption or that the jury was influenced by "passion, prejudice or caprice." Jenkins v. Commodore Corp. S., 584 S.W.2d 773, 778 (Tenn.1979).
In Ala. Great S.R. Co. v. Roberts, 113 Tenn. 488, 82 S.W. 314 (Tenn.1904), the Supreme Court discussed at length the circumstances under which a remittitur might be granted, and in summing up those holdings in a later opinion, the Supreme Court held:
In short, Roberts held that trial courts had the authority to use remittiturs to cure excessive jury verdicts (1) where the verdict was merely excessive or (2) where it was so excessive that it evinced passion, prejudice or caprice, and it also affirmed the trial judge's option to simply order a new trial without suggesting a remittitur, if he found the verdict so excessive as to evince passion, prejudice or caprice.
Pitts v. Exxon Corp., 596 S.W.2d 830, 833 (Tenn.1980).
There is no assertion in the case at bar that the verdict is tainted by corruption of the jury, but merely that it is excessive. Confronted with a situation analogous to the case at bar, the Supreme Court held:
Therefore, from our examination of this record, any emotion in the minds of the jurors legitimately and naturally flowed from the tragic facts of the case or from tactics employed by counsel for the defense and cannot be categorized as improper or unjustified. It is not every "passion" or emotion which is tantamount to jury misconduct. As stated by this Court many years ago, in the case of Reeves v. Catignani, 157 Tenn. 173, 176, 7 S.W.2d 38, 39 (1928):
"The right to revise even the amount of the verdict by the process of suggesting a remittitur is a delicate one and one that a court should be slow to adopt; and if it should appear that there was in the verdict an element of actual corruption, we think the proper course would be to set it aside. The words `passion, prejudice or caprice' indicate that the jury was, in the opinion of the court, swayed to a more or less extent by their feelings, which after all are human and are not inconsistent with an honest intention, while, on the other hand, a verdict that is infected with the corruption of one or more of the jurors is to that degree a dishonest verdict."
Jenkins, 584 S.W.2d at 778.
In this case, we believe that the evidence does not preponderate against the trial court's suggestion of remittitur. With respect to economic damages, Plaintiff's expert economist, Dr. Ralph Scott, testified that Plaintiff would incur pre-majority medical expenses in the amount of $154,952.35 and post-majority medical expenses in the amount of $262,480.59. However, the jury awarded Plaintiff $300,000.00 for pre-majority medical expenses and $1,100,000.00 for post-majority *388 expenses. Plaintiff argues that a jury may consider "inflation, the high cost of living, and the impaired purchasing power of money" when deciding the amount of damages, Waller v. Skeleton, 31 Tenn.App. 103, 212 S.W.2d 690, 698 (1948), and that the difference in the amount of economic damages proven and the amount of economic damages awarded in this case was a result of this consideration. Although Plaintiff correctly asserts that a jury may consider inflation, Dr. Scott testified that inflation was accounted for when he made his calculations. Because we can find no basis in the record for the discrepancy in the amount of economic damages proven and economic damages awarded, we find that the evidence of economic damages does not preponderate against the trial court's suggestion of remittitur.
We also believe that the evidence of non-economic damages does not preponderate against the trial court's suggestion of remittitur. Non-economic damages include "pain and suffering, permanent impairment and/or disfigurement, and loss of enjoyment of lifeboth past and future." Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 715 (Tenn.Ct.App.1999). Damages for pain and suffering include both the physical and mental discomfort caused by an injury. Overstreet, 4 S.W.3d at 715. In this case, Defendant does not dispute that Plaintiff is entitled to be compensated for the pain and suffering which he incurred as a result of Dr. Pope's negligence. Plaintiff's physical injuries include the negligent removal of ninety percent of his bladder, two additional surgeries, chronic urinary tract infections, kidney reflux, extensive testing, and daily medication. However, it appears from the record that Plaintiff will experience little ongoing physical pain as a result of Dr. Pope's negligence. Mrs. Craig testified at trial that the daily catheterizations which Plaintiff would experience were painless. Damages for pain and suffering also include a "`wide variety of mental and emotional responses' that accompany the pain, characterized as suffering, such as anguish, distress, fear, humiliation, grief, shame, or worry." Overstreet, 4 S.W.3d at 715 (internal citations omitted). Although we can only surmise the psychological impact of Plaintiff's injuries, Plaintiff's psychological expert, Dr. Thomas Burns, testified that if future psychological issues arose, the issues could be managed in six to twelve counseling sessions. Plaintiff's expert physician, Dr. Curtis Sheldon, also testified that catheterized patients tend to do very well from a psychiatric perspective.
Permanent injuries are injuries "from which the plaintiff cannot completely recover." Overstreet, 4 S.W.3d at 715. A permanent injury "prevents a person from living his or her life in comfort by adding inconvenience or loss of physical vigor." Overstreet, 4 S.W.3d at 715. "Disfigurement is a specific type of permanent injury that impairs a plaintiff's beauty, symmetry, or appearance." Overstreet, 4 S.W.3d at 715. Here, the removal and augmentation of Plaintiff's bladder is clearly a permanent injury. There is little likelihood that Plaintiff will ever urinate spontaneously and therefore he must continue to void by self-catheterization through a permanent opening in his navel. This injury also affects Plaintiff's appearance in that a stoma site has replaced his belly button so that a catheter may enter his body. Although the stoma site is easily hidden beneath a shirt, any activity which causes Plaintiff to remove his shirt will provide visual access of the disfigurement.
Finally, "[d]amages for loss of enjoyment of life compensate the injured person for the limitations placed on his or *389 her ability to enjoy the pleasures and amenities of life." Overstreet, 4 S.W.3d at 715-16. "This type of damage relates to daily life activities that are common to most people." Overstreet, 4 S.W.3d at 716. It is undisputed that Plaintiff's injuries will not prevent him from engaging in normal life activities, with the exception of heavy contact sports. Specifically, Dr. Sheldon testified that the injuries would not inhibit Joseph from having friends, getting married, having a normal sex life, fathering children, receiving an education, or earning a living. Mrs. Craig claims that Plaintiff's injuries have deprived him of the opportunity to attend public school, and that instead, Plaintiff must be home-schooled. However, it is clear from Mrs. Craig's testimony that the decision to home-school Plaintiff was voluntary and not based entirely on his injuries but rather in an effort to adhere to her religious convictions.
"The role of the appellate courts is to determine whether the trial court's adjustments were justified, giving due credit to the jury's decision regarding the credibility of the witnesses and due deference to the trial court's prerogatives as thirteenth juror." Long, 797 S.W.2d at 896. A trial court's remittitur must be upheld unless the remittitur is contrary to the preponderance of the evidence. McCollum v. Huffstutter, No. M2002-00051-COA-R3-CV, 2002 WL 31247077, at *10 (Tenn.Ct.App. Oct. 8, 2002). After analyzing the injuries incurred and the judgment awarded in this matter, we believe that the trial court's suggestion of remittitur is clearly within the range of reasonableness and supported by a preponderance of the evidence.
II. PREJUDGMENT INTEREST
Plaintiff also contends that the trial court erred in refusing to award prejudgment interest. The question of whether prejudgment interest should be awarded rests within the sound discretion of the trial court, Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn.1998), and will not be disturbed on appeal absent an abuse of discretion. Spencer v. A-1 Crane Serv., Inc., 880 S.W.2d 938, 944 (Tenn. 1994). "While Tennessee law permits the award of prejudgment interest in certain instances, see Tenn.Code Ann. § 47-14-123 (2005), an award of prejudgment interest in a personal injury action by negligence is not allowed." King v. Gen. Motors Corp., No. M2004-00616-COA-R3-CV, 2005 WL 3508016, at *7 (Tenn.Ct.App. Dec. 22, 2005); see also McKinley v. Simha, No. W2001-02647-COA-R3-CV, 2002 WL 31895715, at *22 (Tenn.Ct.App. Dec. 31, 2002). The Tennessee Supreme Court explained the rationale behind this disallowance in Louisville & N.R. Co. v. Wallace, 91 Tenn. 35, 17 S.W. 882, 882-83 (1891). Said the Court:
This involves a consideration of the question, what is the true measure of damages for such personal injury? The rule for determining damages for injuries not resulting in death, (where the statute fixes the measure,) and not calling for exemplary punishment, deducible from the decisions of this court since its organization in this state, is that of compensation for mental suffering and physical pain, loss of time, and expenses incident to the injury, and, if it be permanent, the loss resulting from complete or partial disability in health, mind, or person thereby occasioned. And this is the rule most consonant to reason adopted in other states. 3 Sedg. Dam. (8th Ed.) § 481 et seq.; 5 Amer. & Eng. Enc. Law, pp. 40-44, and notes; Railroad Co. v. Read, 87 Amer. Dec. 260 [37 Ill. 484]. As this sum in gross includes all the compensation which is requisite to cover pain, suffering, and *390 disability to date of judgment, and prospectively beyond, it is intended to be and is the full measure of recovery, and cannot be supplemented by the new element of damages for the detention of this sum from the date of the injury. The measure of damages being thus fixed, it is expected that in determining it juries and courts will make the sum given in gross a fair and just compensation, and one in full of amount proper to be given when rendered, whether soon or late after the injury; as, if given soon, it looks to continuing suffering and disability, just as, when given late, it includes that of the past. It is obvious that damages could not be given for pain and suffering and disability experienced on the very day of trial, and then interest added for years before. These are items considered to make up the aggregate then due, and the gross sum then for the first time judicially ascertained.
Louisville & N.R. Co., 17 S.W. at 882-83.
The trial judge in this case had serious questions as to his authority to grant prejudgment interest in a personal injury case. To the extent that controlling law might allow him discretion as to prejudgment interest, he made it clear that in the exercise of such discretion he would not grant prejudgment interest. Unless, and until, the Tennessee Supreme Court alters the rule in Hollis v. Doerflinger, 137 S.W.3d 625, 630 (Tenn.Ct.App.2003), which it declined to do in Francois v. Willis, 205 S.W.3d 915, 916-17 (Tenn.Ct.App.2006), perm. app. denied (Tenn. Sept. 25, 2006), prejudgment interest is not recoverable in a personal injury action. Accordingly, we cannot find that the trial court erred in refusing to award prejudgment interest.
III. INCREASE IN REMITTITUR
Defendant contends on appeal that the amount of remittitur suggested by the trial court should be increased. According to Defendant, Plaintiff's award should be reduced to somewhere between $900,000.00 and $1,600,000.00 in order to bring the judgment within the range of reasonableness in light of comparable negligence cases. However, as the court noted in S. Ry. Co., "[t]he amount of damages awarded in similar cases is persuasive but not conclusive, and, in evaluating the award in other cases, we should note the date of the award, and take into consideration inflation and the reduced value of the individual dollar." 407 S.W.2d at 211. Upon a review of the record we find that the evidence does not preponderate against the amount of the trial court's remittitur suggestion.
Defendant also argues that the trial court erred in admitting allegedly inadmissible and prejudicial testimony and that such error supports an increase in the amount of remittitur suggested by the trial court. According to Defendant, Dr. Sheldon testified as to certain risks of medical complications that are unlikely to occur as a result of Dr. Pope's negligence and that the inadmissible testimony evoked passion, prejudice and caprice on behalf of the jury. We review decisions concerning the admission or exclusion of evidence under an abuse of discretion standard. Mercer, 134 S.W.3d at 131. Dr. Sheldon testified:
Q. Doctor, is thereor do you know of a reason why patients with augmented bladders have an increased risk of cancer?
A. You know, the real answer is no. There have been experimental models that have been created where basicallyone thing we know is if we put urine into the intestinal tract that there is a substantial incidence of malignancy. Now, in our population of patients thus far, we have *391 not had a malignancy develop. I have had variations of this type of reconstruction, like what we call ureterosigmoidostomy which is where you out urine into an intact valve where they have created malignancy and I have treated those patients. And there are experimental models based on that that seem to have indicated that there's certain metabolic changes that can occur that makes the animal at increased risk of malignant or premalignant changes. In the setting of this particular surgical preparation, I don't know that anyone really has a specific scientific answer for the exact etiology of this, it's more of a clinical observation.
Q. Do you see a risk as serious enough to require lifelong testing?
A. Oh yes, without a question. Now, there may be thingssome things like psychology that may come to play a role. And that would be helpful. It's awfully hard to come up with good therapeutic guidelines for things thatwhere thethe numerator and the denominator, we're talking about such small numbers and such a long-term follow-up, it's hard to get a handle on exactly what the risk is going to be, but I don't think that anyone has any question but that surveillance cystoscopy is warranted in these patients. I'm not aware of anyone who's made an argument against that.
Defendant argues that because Plaintiff's injuries admittedly pose little risk of causing cancer, testimony about this medical risk was inadmissible. See Hunter, 163 S.W.3d at 703-04. However, Plaintiff contends that Dr. Sheldon's testimony was admitted solely to show the necessity of a yearly cystoscopy examination as a preventative measure due to the increased risk of cancer in bladder augmentation patients.
The parties agree that the cost of future testing is a compensable element of Plaintiff's damages. In order to establish a claim for future medical expenses, plaintiff must show that additional medical treatment is "reasonably certain to be required in the future." Henley v. Amacher, No. M1999-02799-COA-R3-CV, 2002 WL 100402, at *14 (Tenn.Ct.App. Jan. 28, 2002) (quoting T.P.I. 3Civil 14.11). "This `reasonable certainty' standard requires more than a mere likelihood or possibility." Henley, 2002 WL 100402, at *14. "It requires the plaintiff to establish with some degree of certainty that he or she will undergo future medical treatment for the injuries caused by the defendant's negligence." Henley, 2002 WL 100402, at *14. "[T]he `reasonable certainty' standard requires the plaintiff to prove that he or she will, more probably than not, need these medical services in the future." Henley, 2002 WL 100402, at *14.
Because Plaintiff had the burden of showing that the yearly cystoscopy examination was reasonably certain to be required in the future and because Dr. Sheldon's testimony showed the importance and necessity of the future medical examinations, we can find no error in the admission of this testimony. Furthermore, the trial court's jury charge rendered any prejudice which may have resulted from Dr. Sheldon's testimony harmless. The charge provided:
In determining damages in this case, you may not award damages for medical conditions that might develop in the future as a result of the damaged bladder, nor may you award damages for the fear of development of any possible future medical conditions. This does not preclude *392 damages for necessary future medical testing.
Defendant alleges that the trial court erroneously admitted portions of Dr. Sheldon's deposition testimony which addressed improbable risks of medical complications but did not support Plaintiff's claim for future testing. Defendant claims the trial court's admission was erroneous because in a medical malpractice case, experts may only testify as to what is medically probable not merely what is medically possible. See Hunter, 163 S.W.3d at 703-04. Dr. Sheldon testified:
Q. Okay. And thisand to your knowledge, this injury will have little or no impact on his life expectancy, correct?
A. You know, I don't know how you answer that. You know, I can give you a list of several life-threatening things that he's at increased risk for. Whether we're able toI mean he's gotgosh, he's got sixty years ahead of him, you know, to deal with these risks. I don't know how someone answers that question. He's got risk to his kidneys. He's got an increased risk of malignancy. He's got issues that can be life-threatening and, you know, I think in general we do a pretty good job, but what you won't find is someone who's had this surgery and is now seventy-two. You're not going to find those patients out there and seeyou can't find a hundred of them to see how they did.
This testimony was elicited from Dr. Sheldon on cross-examination by counsel for Defendant. By his question, Defendant's counsel sought to establish that the injury would have no impact on the life expectancy of Plaintiff. The answer of Dr. Sheldon was responsive, though not in the "yes or no" manner posed by the question. The rule is long settled in Tennessee and is apparently universal that a party cannot generally be heard to complain about testimony elicited by his own cross-examination of an opposing party or a witness. Bakery Servs., Inc. v. Thornton Chevrolet, Inc., 224 Ga.App. 31, 479 S.E.2d 363, 365 (1996), Doucette v. Doucette, 168 Vt. 626, 725 A.2d 901, 904 (1998), Dorfman v. Schwabl, 777 So.2d 427, 429-30 (Fla.Dist.Ct.App.2000). The Supreme Court has held:
It was assigned as error that the Court, over the objection of defendant's counsel, permitted the plaintiff to testify in regard to a rent contract which was a wholly independent matter, and said contract, if admissible, being in writing, it should have been produced.
In answer to this assignment of error it may be stated that this evidence was brought out by defendant's counsel in his cross-examination of plaintiff. Not one word was said about it in the original examination.
Cartwright v. Smith, 104 Tenn. 688, 58 S.W. 331, 332 (Tenn.1900).
The rule is based upon the general principle that a party cannot take advantage of errors which that party has induced or invited. Gentry v. Betty Lou Bakeries, 171 Tenn. 20, 100 S.W.2d 230, 231 (1937).
On this type of issue, the Court of Civil Appeals of Texas long ago held:
The questions and answers are as follows: "Q. Are you willing to state that the witnesses Brockman, Dashield, Glass, and Martin swore that the diagram was lost? A. I really have no recollection of the four of them. Q. That is your answer? A. My recollection is that two of the conductors did." Thus it is seen that the assignment presents the absurdity of predicating error upon answers made to questions propounded by *393 the party complaining of them, and of asking a reversal of the judgment because the answers were not categorical, when it is apparent that the questions could not have been answered "Yes" or "No," and were of such nature that the witness could only answer from his recollection.
Pullman Co. v. Vanderhoeven, 48 Tex.Civ. App. 414, 107 S.W. 147, 150 (1908).
In a similar context, the Court of Appeals of Georgia held:
In Scott v. State, 57 Ga.App. 187(1), 194 S.E. 844, this court said: "The ground of the motion for new trial, complaining of the admission of certain testimony of a witness for the State, is without merit, since the ground discloses that the testimony was elicited from the witness (presumably, on cross-examination) by counsel for the movant. Where counsel on the cross-examination of a witness takes a chance by propounding a dangerous question, he will not be heard to object to the answer, no matter how prejudicial it may be, if the answer is a direct and pertinent response to the question." See also Brown v. Wilson, 55 Ga.App. 262(2), 189 S.E. 860; Foster v. State, 72 Ga.App. 237(2), 33 S.E.2d 598; and Anderson v. Brown, 72 Ga. 713, 714(8).
Gaddy v. State, 96 Ga.App. 344, 99 S.E.2d 837, 838 (1957).
A later restatement of this rule by the Court of Appeals of Georgia occurred in Volkswagen of Am., Inc. v. Gentry, 254 Ga.App. 888, 564 S.E.2d 733 (2002). Said the Court:
[W]e note that at least some of the evidence to which Volkswagen now objects was elicited by its own counsel on cross-examination. For example, William Muzzy, the Gentrys' engineering expert, testified during direct examination that a number of design changes in the VWRA system might have saved Lori Gentry's life. Included among these suggestions was the addition of a "lap strap." The Gentrys' counsel then addressed the other factors, but did not elicit further testimony regarding a lap belt. On cross-examination, however, Volkswagen's counsel elicited an opinion from Muzzy that all two-point passive restraint systems were defective and worked to elicit an opinion that the only way to make them nondefective was to add a lap belt. This cross-examination went beyond the Gentrys' position, venturing into the area prohibited by Gentry I. Volkswagen cannot claim error from evidence it elicited during its own cross-examination. See generally Moody v. Dykes, 269 Ga. 217, 220(3), 496 S.E.2d 907 (1998) (a party cannot induce error and then benefit from it).
Volkswagen of Am., Inc., 564 S.E.2d at 738.
The same rule is stated by the Ohio Court of Appeals in Rhodes v. Rhodes Indus., Inc., 71 Ohio App.3d 797, 595 N.E.2d 441 (1991). Said the Court:
Appellant also alleges that the trial court impermissibly allowed Douglas Albers to explain the term "consultant" to include salesman, goodwill ambassador, cheerleader and manager. However, we must point out that it was appellant who elicited this testimony from Douglas Albers on cross-examination. Therefore, appellant's assignment of error objecting to the admission of parol testimony concerning Douglas Albers' explanation of the term "consultant" is an invited error for which appellant cannot now complain. Under the "invited error" doctrine, "[a] party will not be permitted to take advantage of an error which he himself invited or induced the trial court to make." Center Ridge Ganley, Inc. v. *394 Stinn (1987), 31 Ohio St.3d 310, 313, 31 OBR 587, 590, 511 N.E.2d 106, 108.
Rhodes, 595 N.E.2d at 446-47.
We therefore find that the trial court did not err in refusing to strike the testimony of Dr. Sheldon.
IV. PRE-MAJORITY MEDICAL EXPENSES
As a final matter, Defendant contends that the trial court erred in admitting evidence of Plaintiff's pre-majority medical expenses since a minor does not having standing to assert a claim for expenses incurred on his behalf and Mrs. Craig was not a party to the suit. Tennessee Code Annotated section 20-1-105 provides that a claim for medical expenses incurred by a minor during his or her minority does not belong to the minor, but rather to the minor's parents. See also Burke v. Ellis, 105 Tenn. 702, 58 S.W. 855, 857 (1900). However, in Smith v. King, No. Civ.A. 958, 1984 WL 586817, at *2 (Tenn.Ct.App. Sept. 21, 1984), the court addressed a substantially similar issue and determined that a minor plaintiff may maintain his or her own cause of action for medical expenses and include the amount of medical expenses incurred on behalf of the minor as an element of his or her damages.
In Smith, Barbara Ellen Smith, a minor, by and through her parents as next friends, sued defendant for personal injuries received when the school bus in which she was a passenger was struck by defendant's vehicle. Smith, 1984 WL 586817, at *1. Because the suit was filed more than a year after the accident, the parent's cause of action for pre-majority medical expenses was barred by the statute of limitations. Smith, 1984 WL 586817, at *1. Instead of precluding any recovery for the minor's pre-majority medical expenses, the court adopted the waiver rule and held that "a child under circumstances where the parent has acted as next friend may maintain an action for his medical expenses provided that [the parent] has paid for them . . . or is legally obligated to pay them." Smith, 1984 WL 586817, at *2. The court reasoned that pursuant to the waiver rule, "the parent by bringing the suit on behalf of the minor has waived any claim that he might have" thereby eliminating the concern of double recoveries for pre-majority medical expenses. Smith, 1984 WL 586817, at *2.
Applying the holding in Smith, we find that Plaintiff could properly maintain his own action for pre-majority medical expenses incurred or likely to be incurred by Mrs. Craig on his behalf and thus the trial court did not err in admitting evidence of Plaintiff's pre-majority medical expenses. Since the jury awarded Plaintiff $300,000.00 in pre-majority economic damages, Mrs. Craig is precluded from any further individual recovery under the waiver rule enunciated in Smith.
V. CONCLUSION
The trial court, the parties and the jury faced a human tragedy of epic proportions in this case. A healthy eleven-month-old child entered a medical facility for outpatient correction of a relatively minor problem. By error based upon proximate negligence, which is not contested, the doctor removed ninety percent (90%) of the boy's bladder. While heroic and innovative measures were taken to remedy the injury and restore quality of life to the infant, great damage had been done to the child which could not be remedied. It was Omar Khayyam's admonition that "The Moving Finger writes; and, having writ, Moves on: nor all thy Piety nor Wit Shall lure it back to cancel *395 half a Line, Nor all thy Tears wash out a Word of it." Edward Fitzgerald, The Rubaiyat of Omar Khayyam (1859). One cannot consider the record in this case without feeling the strong emotional pull and acknowledging that no amount of money would be sufficient for any parent to allow such an injury to be visited upon his or her child. Even in granting the remittitur in this case, the trial judge observed:
I also might mention, though, I mean I still consider the injuryI mean the this is a case of a terrible tragedy. I guess we call it a medical accident in terms of the law, medical malpractice which was admitted. And I don't want to undervalue the damages to this young man. And in the defendant's brief, I think they concentrate too much on the physical pain. And I want to make reference to the discussion by Judge Koch in Overstreet versus Shoney's at 4 southwest second specifically at Page 715 where Judge Koch discusses in detail pain and suffering and what that means; loss of enjoyment of life, what that means; permanent injury and what that means, all of which can be taken into consideration by the judge.
It's a difficult decision in weighing this matter. . . .
While there is no statutory limit on the amount of damages that may be awarded, there must of necessity be some limit on damages allowed, and it is the duty of both the trial judge and the appellate courts to be certain that just limits are not exceeded. Garis v. Eberling, 18 Tenn.App. 1, 71 S.W.2d 215, 231 (1934).
The system of trial by jury remains the best fact-finding process ever conceived in the genius of the human mind, but trial and appellate courts must exercise the duties imposed upon them by law.
Juries intend to be both just and reasonable but often inexperienced in the trial of such questions, excited inclinations of pity for those suffering, and sympathy with present distress, which does so much honor to our better nature under other circumstances, and so much to defeat the course of justice when operating to obscure the judgment in so serious a situation as the trial of any issues of human rights, combine to bring them to conclusions which are inconsistent with law and justice; and in such cases the court should always interpose, and preserve the rights of the parties under his more experienced and dispassionate apprehension of the law.
Louisville N.R. Co. v. Stacker, 86 Tenn. 343, 6 S.W. 737, 741 (Tenn.1887).
The simple fact is that monetary damages are a totally inadequate remedy for the kind of injury involved in this case, but such is the only remedy available at law, and the learned trial judge has performed his sworn duty. The record before this Court mandates that we affirm the action of the trial judge because the evidence certainly does not preponderate against his decision.
Costs of appeal are assessed in equal shares to the parties, and the case is remanded to the trial court for such further proceedings as may be necessary.
NOTES
[1] Chapter 232 of the Public Acts of 1987 was codified as Tennessee Code Annotated section 20-10-101(b)(2) and as Tennessee Code Annotated section 20-10-102(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593562/ | 896 F.Supp. 1216 (1995)
Jose GARCIA, Jr., Plaintiff,
v.
AEROVIAS DE MEXICO, S.A., etc., et al., Defendants.
No. 94-0435-CV.
United States District Court, S.D. Florida.
February 1, 1995.
Joseph S. Rosenbaum, P.A., Miami, FL, for plaintiffs.
Francis A. Anania and Amy S. Marcus, Anania, Bandklayder & Blackwell, Miami, FL, for defendants.
ORDER DENYING MOTION TO REMAND AND MOTION FOR RULE 11 SANCTIONS
HOEVELER, District Judge.
This cause comes before the court on plaintiff's motion to remand to state court and plaintiff's motion for Rule 11 sanctions. The court heard oral argument on plaintiff's motions on January 25, 1995. After consideration and review of the relevant cases, it is ORDERED AND ADJUDGED that plaintiff's motion to remand is DENIED and that plaintiff's motion for Rule 11 sanctions is also DENIED.
FACTS
Plaintiff Jose Garcia filed suit against defendant airline Aerovias de Mexico ("Aeromexico") in Florida Circuit Court on February 7, 1994. Garcia's complaint alleges assault and battery, false imprisonment, and slander.
In May 1993, Garcia purchased a round trip airline ticket in Miami aboard an Aeromexico flight traveling from Miami to Cancun. When Garcia boarded the return flight from Cancun to Miami, however, an Aeromexico flight attendant allegedly assaulted him because she mistook him for a thief. Garcia believes many other passengers on the airline heard the flight attendant call him a thief. After the flight attendant, with help from coworkers, forcibly removed Garcia from the aircraft and called Mexican police, she realized he was not the thief she was *1217 looking for and released him. Garcia reboarded the plane and returned to Miami.
DISCUSSION
I. MOTION TO REMAND
Aeromexico filed a notice of removal from state court pursuant to 28 U.S.C. § 1331 on March 7, 1994. Aeromexico believes this action is removable because Garcia's claims arise out of international air transportation and are therefore governed by the terms of an international treaty, the Convention for the Unification of Certain Rules Relating to International Transportation by Air ("Warsaw Convention").
The Warsaw Convention generally regulates international air transportation. Article 1 of the Convention defines "international transportation" as transportation where "a passenger's place of departure and place of destination are ... located within the territory of two ... contracting parties to the treaty. ..." The United States and Mexico have signed and ratified the Warsaw Convention.
Garcia objects to removal, however, on the grounds that his claims arise from state tort law, not federal law or the Warsaw Convention. Garcia further argues that the cause of action created by the Warsaw Convention does not require exclusive federal jurisdiction. State law tort claims, therefore, may also be prosecuted in state court. Garcia contends that his state claims are not removable under the well-pleaded complaint rule because no federal question is raised on the surface of his complaint. Instead, Aeromexico raises the Warsaw Convention as a source of federal jurisdiction by way of affirmative defense.
United States Code Section 1331 provides that "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." For purposes of the motion to remand, Garcia concedes that the Warsaw Convention is an international treaty applicable to the facts of this case. He correctly points out, however, that the Eleventh Circuit has not decided whether the Warsaw Convention creates exclusive federal jurisdiction over intentional tort claims for assault, battery, false imprisonment, and slander.
A few Southern District of Florida cases conclude that the Warsaw Convention does not create an exclusive federal cause of action. In Rhymes v. Arrow Air, 636 F.Supp. 737, 741 (S.D.Fla.1986), for example, the court granted a motion to remand and held that a wrongful death action against an international air carrier could be brought in state court on a state law theory. See also Clark v. United Parcel, 778 F.Supp. 1209, 1211 (S.D.Fla.1991); Alvarez v. Aerovias Nacionales de Colombia, 756 F.Supp. 550, 554-55 (S.D.Fla.1991). The court concluded that the Warsaw Convention "may be exclusive as to limitation on damages allowed by the Convention but ... the cause of action is not exclusive and may be based in state law." The court reasoned that "[a] distinction must be drawn between an exclusive remedy and exclusive cause of action.... The language of the Convention itself implies that the cause of action created by the Convention is not exclusive", except as to damages.
The court relied on Warsaw Convention Article 24, which provides that "any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention." Noting the "however founded" clause, the court stated that Article 24 "contemplates the application of the Convention limitations to actions founded on a basis other than that of the convention." Pursuant to this analysis, the court found the action was not removable under the well-pleaded complaint rule because the plaintiff chose to plead only state law claims.
In another carefully reasoned opinion, Velasquez v. Aerovias Nacionales De Colombia, 747 F.Supp. 670, 676-78 (S.D.Fla.), however, the court reached a contrary result. In Velasquez, the court held that the Warsaw Convention conferred removal jurisdiction under 28 U.S.C. § 1331 because the Convention's primary objective is uniform regulation of international air traffic. In that case, the plaintiff filed a claim in state court against the defendant airline under Florida's Wrongful Death Statute. The defendant then sought to remove to federal district court on *1218 the grounds that the Warsaw Convention provided for exclusive federal question jurisdiction. After consideration of the history and intent of the Warsaw Convention, the court denied the plaintiff's motion to remand and concluded that the defendant had the right to remove. In particular, the court reviewed in detail the extensive commentary by other courts and legal scholars, and the Minutes from the Second International Conference on Private Aeronautical Law where national delegations debated the merits of the Convention.
From these materials, the court reasoned that the Warsaw Convention creates an exclusive cause of action for death and personal injury because "the overriding objective of the Convention [is] to establish a uniform system of liability.... Given this concern for uniformity, it would make little sense to hold that the Convention allows separate state law causes to supersede its exclusivity." Id. at 676. The court further concluded that "a holding that abandons the primary objective of uniformity would undoubtedly open the floodgate to both plaintiff forum shopping and inconsistent verdicts. Such devastating consequences would not only serve to ignore but would ultimately destroy the intent of the Convention's drafters." Id.
Several other circuits also conclude that the Warsaw Convention creates an exclusive federal cause of action. In In re Air Disaster at Lockerbie Scotland, 928 F.2d 1267, 1274-75 (2d Cir.1991), for example, the court addressed the "however founded" language in Article 24. Despite this language, the court concluded that the history of the Convention and its interpretation by other countries required a holding that the "Convention cause of action is exclusive." Id. at 1274. The court reasoned that "[t]he basic unit of international law is the nation-state and it is fair to assume, absent clear indications to the contrary, that [the Convention] was written with reference to nation-states, not to areas and subdivisions of nation-states." Id. (quoting Mertens v. Flying Tiger Line, Inc., 341 F.2d 851, 855 (2d Cir.), cert. denied, 382 U.S. 816, 86 S.Ct. 38, 15 L.Ed.2d 64 (1965)). Moreover, "... there is no drafting history to indicate that the contracting parties intended this section to have any effect on the specific question of whether local law should govern...." Id. at 1282-83.
In another line of analysis not specifically discussed in Rhymes or its progeny, the Second Circuit further ruled that the Warsaw Convention preempts state law causes of action. A federal statute or international treaty may "preempt state law when the subject matter demands uniformity vital to national interests such that allowing state regulation `would create potential frustration of national purposes.'" Id. at 1275 quoting San Diego Building Trades Council v. Garmon, 359 U.S. 236, 244, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959). The court applied the following test: whether the treaty's "goals of uniformity and certainty are frustrated by the availability of state causes of action for death and injuries suffered by passengers on international flights." Id. Under this test, the court could "not see how the existence of state law causes of action could fail to frustrate these purposes." Id.
Like the Second Circuit in the Lockerbie case, this court finds that the existence of many different state law claims for intentional torts like assault, battery, and false imprisonment would frustrate the purposes of the Warsaw Convention. As noted in Velasquez, such a holding would subject Aeromexico to over fifty distinct causes of action for assault, for example, in this country alone. In contrast to the court in Rhymes and Alvarez, this court does not believe that "concerns about uniformity" are satisfied by the Warsaw Convention's exclusive remedy. Instead, the Warsaw Convention preempts state law claims and provides an exclusive federal cause of action and remedy for cases involving international air transportation.
It is accordingly ORDERED AND ADJUDGED that plaintiff's motion to remand to state court is DENIED.
II. MOTION FOR RULE 11 SANCTIONS
Garcia moved for Rule 11 sanctions on March 16, 1994 on the grounds that Aeromexico's notice of removal was "counter to well-established case law" and has "unnecessarily delay[ed]" trial. The court finds, however, that the case law supports removal of *1219 this action to federal court. For this reason, it is ORDERED AND ADJUDGED that plaintiff's motion for Rule 11 sanctions is DENIED.
It is also hereby ORDERED AND ADJUDGED that plaintiff's motion to stay the response to defendant's motion to dismiss is DENIED as MOOT. Defendant shall have TEN days from the date of this order to respond to plaintiff's motion to dismiss. Defendant shall also have TEN days from the date of this order to respond to plaintiff's motion to compel.
DONE AND ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3070455/ | Order entered July 21, 2014
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00978-CR
No. 05-13-00979-CR
ROY CURTIS STUART JR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause Nos. F13-52718-Y, F13-52719-Y
ORDER
The Court ORDERS the trial court to conduct a hearing to determine why appellant’s
brief has not been filed. In this regard, the trial court shall make appropriate findings and
recommendations and determine whether appellant desires to prosecute the appeals, whether
appellant is indigent, or if not indigent, whether retained counsel has abandoned the appeals. See
TEX. R. APP. P. 38.8(b). If the trial court cannot obtain appellant’s presence at the hearing, the
trial court shall conduct the hearing in appellant’s absence. See Meza v. State, 742 S.W.2d 708
(Tex. App.–Corpus Christi 1987, no pet.) (per curiam). If appellant is indigent, the trial court is
ORDERED to take such measures as may be necessary to assure effective representation, which
may include appointment of new counsel.
We ORDER the trial court to transmit a record of the proceedings, which shall include
written findings and recommendations, to this Court within THIRTY DAYS of the date of this
order.
The appeals are ABATED to allow the trial court to comply with the above order. The
appeals shall be reinstated thirty days from the date of this order or when the findings are
received, whichever is earlier.
/s/ CAROLYN WRIGHT
CHIEF JUSTICE | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1922061/ | 756 A.2d 1047 (2000)
334 N.J. Super. 62
RYCOLINE PRODUCTS, INC., Plaintiff-Appellant, Sun Graphic, Inc., Plaintiff,
v.
Michael WALSH, Steven Pauloski, Bernard Bush, and Eric Berliner, individually and as employees, shareholders, officers, and/or directors of C & W Unlimited, Defendants-Respondents, C & W Unlimited, a corporation, and Carl Kaiser, individually and as an employee of C & W Unlimited, Defendants/Third-Party Plaintiffs-Respondents,
v.
Norman J. Nichol, Third-Party Defendant.
Superior Court of New Jersey, Appellate Division.
Argued April 11, 2000.
Decided August 15, 2000.
*1049 Richard F. Collier, Jr., Somerset, argued the cause for plaintiff-appellant (Collier, Jacob & Mills, attorneys; Robert J. Basil, on the brief).
Mark H. Sobel, Woodbridge, argued the cause for defendants-respondents (Greenbaum, Rowe, Smith, Ravin, Davis & Himmel, attorneys; Mr. Sobel and Sabrina A. Kogel, Iselin, of counsel; Christine F. Marks, Woodbridge, on the brief).
Before Judges KIMMELMAN, CIANCIA and ARNOLD.
*1048 The opinion of the court was delivered by ARNOLD, J.A.D.
Plaintiff Rycoline Products, Inc. (Rycoline) manufactures chemical products for use in the printing industry. It appeals from certain pretrial rulings and from an order entered after the presentation of plaintiff's case dismissing its claims pursuant to R. 4:37-2(b).[1] Defendant C & W Unlimited (C & W) is a competitor of Rycoline and is owned and operated by defendants Michael Walsh and Eric Berliner.
Defendant Karl Kaiser began his employment with Rycoline in 1976 and by 1995 held the position of East Coast District Manager. Testimony introduced at trial indicated that he was responsible for the local manufacturing facility as well as for manufacturing chemical products according to the proper formula and within Rycoline's quality control guidelines. In October 1985, Kaiser executed a "confidentiality *1050 agreement" with Rycoline. It provided that he would not disclose certain information that was deemed "confidential" by Rycoline. Pursuant to this agreement, Kaiser agreed not to reveal to others "during and after my employment ... so long as any such information may remain confidential, secret or otherwise wholly or partially protectable" plaintiff's "formulas, processes, methods, manufacturing techniques, discoveries, mixes, compounds" or other such matter including "production or sales activities." Kaiser had not, however, entered into either a restrictive covenant not to compete or a formal written employment agreement with Rycoline.
In 1995, defendants Steven Pauloski and Bernard Bush were members of the sales staff of Rycoline's East Coast District. Other members of the sales staff included Morton Altholz and Frank Kreppel.
In April and May 1995, Kaiser, Pauloski, and Bush left their employment with Rycoline and began working for C & W. Shortly thereafter, C & W began to manufacture a product called Safe 200+ that is similar to one manufactured by plaintiff known as ACFS 276. Both ACFS 276 and Safe 200+ are so-called fountain solutions which are admittedly inferior to a product called Anchor MXEH manufactured by a third company, Anchor Lithkemko, (Anchor) which is not a party to this litigation. There is no patent on Anchor MXEH. It is protected only as a trade secret.
Evidence introduced at trial established that Rycoline tried to discover the formula for Anchor MXEH through "reverse engineering," i.e., by analysis of MXEH. They hired chemists, set up a laboratory and spent somewhere between nine hundred thousand and one million dollars in 1993 and 1994 in an effort to discover the formula for Anchor MXEH. Despite this effort, Rycoline could not discover the formula for MXEH. But, as a result of this reverse engineering effort, they did develop ACFS 276. While a better product than what Rycoline had been selling, it still was concededly not as good as Anchor MXEH. For example, ACFS 276 only worked about 70% of the time. Nevertheless, it was a successful product. Evidence was introduced that ACFS 276 was manufactured in Rycoline's plant in Clifton at a time when Kaiser was the East Coast district manager. Evidence was also introduced that Kaiser may have had access to a hard copy of the formula for ACFS 276.
However, no evidence was introduced of any effort by C & W and Walsh to reverse engineer Anchor MXEH. They did produce a product called SAFE in 1991, SAFE 100 shortly thereafter and SAFE 200 in April 1993. Significantly, in April 1995, there was a big change in SAFE 200 when Kaiser resigned from Rycoline and was hired by C & W. Within just eight days after Kaiser began his employment at C & W, C & W began purchasing chemicals found in Rycoline's product ACFS 276. Several months later, C & W formulated SAFE 200T which included a three-part buffering system as well as a two-part synthetic gum/natural gum system, like the systems found in Rycoline's ACFS 276. By July 1995, Walsh had formulated SAFE 300, which included a so-called three-part acid buffering system found in ACFS 276.
This case has an extensive procedural history. By the time of trial, the only issues remaining to be resolved concerned Rycoline's claim for employee piracy against C & W, Walsh, Berliner, and Kaiser; Rycoline's claim against those same defendants for the misappropriation of plaintiff's trade secret concerning ACFS 276; Rycoline's claim against Kaiser for alleged breach of his confidentiality agreement with Rycoline and his duty of loyalty to Rycoline; and conspiracy claims relating to those three claims. Following the presentation of plaintiff's case, the trial judge dismissed those claims pursuant to R. 4:37-2(b). Plaintiff appeals.
In addition, Rycoline appeals the following rulings by the trial judge: (1) barring *1051 the admission into evidence of certain testimony and excluding evidence of other alleged prior wrongful conduct of C & W and Walsh; (2) the denial of Rycoline's motion to amend its complaint to add claims for negligent hiring and supervision and for breach of the Racketeer Influenced and Corrupt Organizations Act (RICO Act) 18 U.S.C.A. §§ 1961 to 1968, as well as its New Jersey counterpart ("New Jersey RICO Act") N.J.S.A. 2C:41-1 to -6.2; (3) refusing to allow Rycoline to file a brief in opposition to defendants' motion to dismiss its claim for industrial sabotage/product tampering; (4) dismissing Rycoline's claim under 15 U.S.C.A. § 1125(a) the Lanham Act, 15 U.S.C.A. §§ 1051-1127(Lanham Act), and refusing to permit Rycoline to amend its Lanham Act claim. Furthermore, Rycoline contends that the trial judge erred, when in the course of granting the involuntary dismissal of its claims, he commented that plaintiff's salesmen were dissatisfied with plaintiff's compensation plan for them. Finally, plaintiff requests that, if the case is remanded for a new trial, it be assigned to a different judge.
Specifically, Rycoline raises the following points on appeal:
A. RYCOLINE PRESENTED SUFFICIENT EVIDENCE AT TRIAL TO EASILY SURVIVE DISMISSAL UNDER R. 4:37-2(b)
i. Standards For Dismissal Under R. 4:37-2(b)
ii. Rycoline Presented Sufficient Evidence At Trial To Permit The Jury To Find That Defendants Had Induced Kaiser To Breach His Duties of Loyalty To Rycoline, Had Illegally Raided Rycoline's Sales Force, And Had Tortiously Interfered With Rycoline's Employee Relations
iii. Rycoline Presented Sufficient Evidence To Establish That Rycoline's Formula For ACFS 276 Was Protected By New Jersey Law Against Misappropriation By Kaiser and C & W
iv. Rycoline Presented Sufficient Evidence To Prove That ACFS 276 Was Misappropriated By Kaiser And Given To C & W
v. Rycoline Presented Sufficient Evidence To Prove That Berliner Had Conspired With The Other Defendants, Participated In The Wrongful Conduct, Or, At A Minimum, Ratified The Misconduct Resulting In The Loss of Rycoline's Key Manager, Sales Staff and Formula
B. KAISER, BUSH AND PAULOSKI BREACHED THEIR DUTIES OF LOYALTY JUST BEFORE LEAVING IN APRIL/MAY 1995, BY ACTING ON BEHALF OF C & W BEFORE THEIR RESIGNATIONS
C. JUDGE PLECHNER ERRED IN BARRING THE TESTIMONY OF DR. EDWIN HARTMAN, AN EXPERT IN BUSINESS ETHICS
D. JUDGE PLECHNER ERRED IN HOLDING THAT RYCOLINE FAILED TO STATE A CLAIM FOR NEGLIGENT HIRING AND SUPERVISION
E. JUDGE PLECHNER ERRED IN REFUSING TO GRANT RYCOLINE'S REQUEST TO FILE BRIEFS IN OPPOSITION TO DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT TO DISMISS A CLAIM OF INDUSTRIAL SABOTAGE AT THE BERGEN RECORD
F. RYCOLINE STATED A CLAIM BASED UPON THE LANHAM ACT, § 43, 15 U.S.C. § 1125(a)(1)(B)
G. JUDGE PLECHNER ERRED WHEN HE DENIED RYCOLINE'S TIMELY MOTIONS TO AMEND, AND TO ASSERT RICO CLAIMS *1052 H. EVEN IF THE AMENDMENTS TO ALLEGE WRONGDOING FROM 1980-1993 WERE PROPERLY EXCLUDED, IT WAS ERROR TO BAR ALL EVIDENCE OF THAT WRONGDOING AT TRIAL, AS THE EVIDENCE DIRECTLY CONTROVERTED DEFENDANTS' CLAIM THAT THEY WERE CAPABLE OF CREATING SOPHISTICATED CHEMICAL PRODUCTS WITHOUT STEALING RYCOLINE'S FORMULA
I. JUDGE PLECHNER ERRED IN PRECLUDING RYCOLINE FROM READING THE TRANSCRIPT OF LARRY ERWIN TO THE JURY, AS ERWIN'S TESTIMONY DEMONSTRATED THAT KAISER WAS INTENDING TO LEAVE RYCOLINE IN 1995 AND TAKE HIS SALESMEN WITH HIM
J. THE MAIN "DEFENSE" TO RYCOLINE'S ILLEGAL RECRUITING CLAIMS, THAT THE RYCOLINE SALESMEN WHO WORKED UNDER KAISER WERE UNHAPPY WITH THEIR COMPENSATION, WAS IRRELEVANT TO THIS ACTION
K. ON REMAND, THIS CASE MUST BE ASSIGNED TO A NEW JUDGE, AS JUDGE PLECHNER HAS ALREADY MADE CREDIBILITY DETERMINATIONS PREJUDICIAL TO RYCOLINE
We reverse the involuntary dismissal of the four claims by the trial judge. In all other respects we affirm the trial court's orders and decisions.
Preliminarily, a trial court evaluating a motion for involuntary dismissal under R. 4:37-2(b), must accept as true all evidence which supports the position of the party opposing the motion and accord that party the benefit of all reasonable inferences. Dolson v. Anastasia, 55 N.J. 2, 5, 258 A.2d 706 (1969). The motion must be denied "if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." R. 4:37-2(b). The trial court should not rely on credibility findings in deciding the motion for an involuntary dismissal except where the testimony is so persuasive that no reasonable person could disbelieve it. Caliguire v. City of Union, 104 N.J.Super. 210, 217, 249 A.2d 603 (App.Div.1967), aff'd sub nom, Caliguire v. City of Union City, 53 N.J. 182, 249 A.2d 577 (1969) (relying on Ferdinand v. Agricultural Ins. Co. of Watertown, N.Y., 22 N.J. 482,126 A.2d 323 (1956)). Thus, the essential issue in evaluating a motion for dismissal under R. 4:37-2(b) is "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." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995); Kelly v. Bally's Grand, Inc., 285 N.J.Super. 422, 435, 667 A.2d 355 (App.Div.1995).
To prevail in New Jersey upon a claim for misappropriation of a trade secret, a trade secret owner must establish that:
(1) a trade secret exists;
(2) the information comprising the trade secret was communicated in confidence by plaintiff to the employee;
(3) the secret information was disclosed by that employee and in breach of that confidence;
(4) the secret information was acquired by a competitor with knowledge of the employee's breach of confidence;
(5) the secret information was used by the competitor to the detriment of plaintiff; and
(6) the plaintiff took precautions to maintain the secrecy of the trade secret.
Rohm and Haas Co. v. Adco Chem. Co., 689 F.2d 424, 429-30 (3d Cir.1982); Stone *1053 v. Goss, 65 N.J. Eq. 756, 759-60, 55 A. 736 (E. & A.1903). There is no requirement that a trade secret owner establish that the competitor used the secret information to make a product which is identical to the product which is a trade secret. Pioneer Hi-Bred Int'l v. Holden Found. Seeds, 35 F.3d 1226 (8th Cir.1994). The trial court's determination that ACFS 276 and SAFE 200 + are not identical is not dispositive of the issue as to whether there was misappropriation of a trade secret.
To establish the first element of a misappropriation claim, plaintiff is required to show the existence of a trade secret. The trial judge found that plaintiff had not established a trade secret. In reaching that conclusion he erred in a number of ways. First, he misinterpreted the decision in Hammock by Hammock v. Hoffmann-LaRoche, Inc., 142 N.J. 356, 383-84, 662 A.2d 546 (1995), and the cases relied on by the Court therein. In Hammock, supra, 142 N.J., at 383-84, 662 A.2d 546, the Court cited with approval the Restatement of Torts, § 757 (1939), and two Third Circuit Court of Appeals cases interpreting Pennsylvania's definition of a trade secret. Specifically, the opinion of the court in Hammock supra, 142 N.J. at 383-84, 662 A.2d 546 stated:
[T]he Third Circuit has been instructive in establishing standards for defining the not-so-obvious trade secrets. For example, in upholding a protective order for trade secrets regarding design, safety and quality test information, but denying a protective order to limit discovery of other accident or claims information for the Bic butane lighter, that court referred to Comment b of the Restatement of Torts § 757 (1939) which provides:
A trade secret may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers.
[Smith v. BIC Corp., 869 F.2d 194, 199 (3d Cir.1989) (quoting Restatement of Torts § 757 comment b (1939)).]
That court also stated that "information that is in the public domain or which has been `reverse engineered,' i.e., garnered by beginning with the finished product and determining the process used to manufacture itcannot be protected as trade secrets." Id. at 199-200. Relying on its prior decision in SI Handling Systems, Inc. v. Heisley, 753 F.2A2d 1244, 1256 (1985), the Third Circuit articulated some additional considerations that we find useful:
(1) the extent to which the information is known outside of the owner's business; (2) the extent to which it is known by employees and others involved in the owner's business; (3) the extent of measures taken by the owner to guard the secrecy of the information; (4) the value of the information to the owner and to his competitors; (5) the amount of effort or money expended by the owner in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.
[Smith, supra, 869 F.2d at 200 (citing Restatement of Torts § 757, comment b (1939)).]
In granting defendant's motion for an involuntary dismissal, the trial judge concluded that ACFS 276 was not a trade secret because it resulted from Rycoline's efforts to reverse engineer Anchor MXEH. In ruling on the motion the trial judge stated:
But I don't think that Rycolineand I get thefrom reading these casesthe three cases that we've discussed, in particular Smith versus Bic, Hammock by Hammock versus Hoffman LaRoche and S.I. Handling Systems versus Heisly, *1054 the feeling that I get from these cases is you cannot protect as your trade secret that product which was taken from another manufacturer through reengineering of his trade secret.
[Emphasis added.]
We disagree with the trial court's conclusion that ACFS 276 could not be a trade secret because it resulted from Rycoline's effort to reverse engineer the formula for Anchor MXEH. None of the cases relied upon by the trial judge stand for that proposition.
In SI Handling Sys., Inc. v. Heisley, 753 F.2d 1244, 1254 (3d Cir.1985) the court interpreted Pennsylvania's law of trade secrets in the context of defendant's contention that plaintiffs CARTRAC product could be reverse engineered and, therefore, was not a trade secret.
In pertinent part the opinion of the court stated:
Matters which are fully disclosed by a marketed product and are susceptible to "reverse engineering"i.e, "starting with the known product and working backward to divine the process which aided in its manufacture," Kewanee Oil Co., v. Bicron Corp., 416 U.S. 470, 476, 94 S.Ct. 1879, 1883, 40 L.Ed.2d 315 (1974) cannot be protected as trade secrets. See Air Products and Chemicals v. Johnson, 296 Pa.Super. 405, 432, 442 A.2d 1114, 1128 (1982).
[Id. at 1255.]
Thus, under Pennsylvania law, a trade secret will not be found to exist and a plaintiff's misappropriation action will be dismissed if it can be proven that, at the time the misappropriation occurred, the defendant could have learned plaintiff's trade secret because the marketed product was susceptible to reverse engineering. SI Handling Sys., Inc. v. Heisley, supra, 753 F.2d at 1262; Henry Hope X-Ray Prods., Inc. v. Marron Carrel, Inc., 674 F.2d 1336, 1341 (9th Cir.1982). The Court in SI Handling did not hold that a trade secret cannot exist in a product (ACFS 276) just because it was developed by attempts to reverse engineer a product which is a trade secret (Anchor MXEH.)
In Smith v. BIC Corp., 869 F.2d 194 (3d Cir.1989), the court paraphrased the above stated portion of the opinion in SI Handling and stated that "[c]onsequently, information that is in the public domain or which has been reverse engineered,i.e., garnered by beginning with the finished product and determining the process used to manufacture itcannot be protected as trade secrets." Id. at 199-200. Smith was not a trade secret misappropriation case. It was a personal injury and wrongful death action to recover for injuries sustained when a cigarette lighter manufactured by the BIC Corporation exploded causing severe second and third-degree burns resulting in death. The issue before the court was whether BIC Corporation was entitled to a protective order as to discovery given to plaintiff because the design of the lighter was a trade secret.
Thus, neither SI Handling nor Smith stand for the proposition that ACFS 276 could not be a trade secret because it was developed through efforts to reverse engineer MXEH. See Commissioners' Comments at § 1 of the Uniform Trade Secrets Act which reads in relevant part as follows:
Information is readily ascertainable if it is available in trade journals, reference books, or published materials. Often, the nature of the product lends itself to being readily copied as soon as it is available on the market. On the other hand, if reverse engineering is lengthy and expensive, a person who discovers a trade secret through reverse engineering can have a trade secret in the information obtained from reverse engineering.
[Unif. Trade Secrets Act § 1, 14 U.L.A. 433 (1985).]
Furthermore, even under the trial court's formulation of the principle of law from the Hammock, SI Handling and *1055 Smith cases, Rycoline's formula for ACFS 276 could still constitute a trade secret because there was no evidence that ACFS 276 could be reverse engineered or that ACFS 276 was itself the successful reverse engineering of the trade secret formula for Anchor MXEH. See Berkla v. Corel Corp., 66 F.Supp.2d 1129, 1145 (N.D.Cal.1999). A review of proofs adduced duringplaintiff's case in chief shows no evidence that the formula for ACFS 276 was reverse engineered or that SAFE 200+ could be reverse engineered from either ACFS 276 or Anchor MXEH. Thus, the trial judge's primary reason for determining that plaintiff's formula for ACFS 276 did not constitute a trade secret was in error.
Furthermore, we hold that once plaintiff introduces evidence of similarity in the products (ACFS 276 and SAFE 200+) the burden shifts to defendant to show that it could have arrived at its product by reverse engineering some product in the public domain. Henry Hope v. X-Ray Prods., Inc., supra, at 1341. But See SI Handling, supra, 753 F.2d at 1255 (where the court assumed that plaintiff has the burden of proving that its product is not readily ascertainable). In determining whether ACFS 276 could be reverse engineered, defendant must demonstrate that it is "quickly reverse engineerable." See Electro-Craft Corp. v. Controlled Motion, Inc., 332 N.W.2d 890 (Minn.1983). The more difficult, time consuming and costly it would be to develop the product, the less likely it can be considered to be "reverse engineerable." See Zotos International, Inc. v. Young, 830 F.2d 350 (D.C.Cir.1987); ILG Industries, Inc. v. Scott, 49 Ill.2d 88, 273 N.E.2d 393 (1971).
Another reason given by the trial judge for concluding that plaintiff's formula for ACFS 276 could not be a trade secret was his conclusion that the three secret technologies used in ACFS 276 were well known outside of Rycoline's business. We disagree. In Sun Dial Corp. v. Rideout, 16 N.J. 252, 257, 108 A.2d 442 (1954), the New Jersey Supreme Court discussed the ideas and information that can constitute a trade secret and commented that "the fact that every ingredient is known to the industry is not controlling for the secret may consist of the method of combining them which produces a product superior to that of competitors." The selection of particular ingredients for a formula from a vast array of publicly known possible ingredients may result in trade secret protection for the specific selection made. See National Starch and Chem. Corp. v. Parker Chem. Corp., 219 N.J.Super. 158, 160-62, 530 A.2d 31 (App.Div.1987). Thus, a secret selection and combination of ingredients may constitute a trade secret even though the separate parts of that combination are known to the industry.
Still another reason given by the trial judge for determining that ACFS 276 was not a trade secret concerned his conclusion that Rycoline's use of a twopart gum system in ACFS 276 was "not a great step in imagination" and represented a lack of "meritorious discovery" on Rycoline's part. In short, he concluded that Rycoline's gum system in ACFS 276 was not novel enough to merit protection as a trade secret. However, only a very minimal novelty requirement is imposed for a trade secret. See Kewanee Oil Co. v. Bicron Corp., supra, 416 U.S. at 476, 94 S.Ct. at 1884, 40 L.Ed.2d at 322-33. "Novelty and invention are not essential for the trade secret as they are for patentability." Sun Dial Corp. v. Rideout, supra, 16 N.J. at 257, 108 A.2d 442. Furthermore, our review of the record indicates that the trial judge misperceived the trade secret involved in ACFS 276. The use of the known two-part gum system technology was only a part of the secret. The complete secret was the combination of the three known technologies, including the gum-system technology along with the other ingredients in ACFS 276 to produce a marketable product. See Rohm and Haas Co. v. Adco Chem. Co., 689 F.2d 424 (3d *1056 Cir.1982). Under the criteria of Rohm and Haas Co. and Sun Dial Corp., the formula for ACFS 276 could constitute a trade secret. Thus, we conclude that the trial judge erred in finding that there was insufficient "meritorious discovery" in ACFS 276 to support finding a trade secret.
Another reason given by the trial judge for deciding that ACFS 276 could not be a trade secret concerned the circumstance that no proof had been presented showing that Walsh was unable to formulate a product like SAFE. However, plaintiff does not have the burden of proving such inability as an element of a misappropriation claim. See Rohm and Haas Co. v. Adco Chem. Co., supra, 689 F.2d at 429-30. Plaintiff need only prove that defendants learned the formula for ACFS 276 through improper means. That is, through disclosure by Kaiser. Ibid.
Because the evidence and the inferences which could be drawn therefrom presented a jury question as to whether the formula for ACFS constituted a trade secret, we hold that the trial court erred when he granted defendants' motion pursuant to R. 4:37-2(b). Accordingly, we reverse the trial court's determination that there was no trade secret and remand that matter for determination by a jury.
[The court here addressed other issues not germane to trade secret.]
NOTES
[1] Plaintiff Sun Graphic entered into a consent order under which its claims were voluntarily dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1549354/ | 462 Pa. 322 (1975)
341 A.2d 101
COMMONWEALTH of Pennsylvania
v.
Robert HAMPTON, a/k/a, Robert Smith, Appellant.
Supreme Court of Pennsylvania.
Argued November 15, 1974.
Decided July 7, 1975.
*323 *324 A. Harry Levitan, Herman Weiner, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., James Garrett, Judy Dean, Asst. Dist. Atty., Abraham J. Gafni, Deputy Dist. Atty. for Law, Philadelphia, for appellee.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION OF THE COURT
POMEROY, Justice.
Appellant was convicted by a jury of murder in the first degree. His post-trial motions were denied and he was sentenced to life imprisonment. He now appeals from that judgment of sentence.
The appellant asserts two grounds for reversal: that the evidence was insufficient to support a finding of murder in the first degree, and that he was denied the effective assistance of trial counsel.
The evidence, viewed as it must be in the light most favorable to the Commonwealth as verdict winner, Commonwealth v. Long, 460 Pa. 461, 463, 333 A.2d 865, 866 (1975), Commonwealth v. Rife, 454 Pa. 506, 509, 312 A.2d 406 (1973), Commonwealth v. Rankin, 441 Pa. 401, 404, 272 A.2d 886 (1971), established the following: On the evening of March 1, 1972, the defendant was sitting with his wife in Mr. Chip's Bar located on Columbia Avenue in the City of Philadelphia. They were soon joined by another couple, James Robinson and his wife, Dolores. The Robinsons were looking for Henry Hampton, the defendant's *325 brother, who earlier that day had sold the Robinsons six bags of heroin. After sampling the heroin, the Robinsons had concluded that it was of poor quality and determined to recover their money from Henry.
Not finding Henry in the bar, and knowing Robert Hampton to be Henry's brother, Robinson demanded that Robert refund the purchase price. The defendant replied that he would give Robinson the money after he, Robert, had sold some more drugs. After the Robinsons had been waiting for several hours, an argument broke out between the Robinsons and the Hamptons. The defendant's wife at one point swung at Robinson with a glass in her hand, but missed. Robinson then asked Robert Hampton to calm his wife down; Hampton replied that he couldn't control her; Robinson again demanded a return of his money, and a struggle then erupted between the two men.
During the course of this fight, Robinson knocked Hampton over several bar stools and onto the floor. Regaining his feet, Hampton thereupon vaulted the bar, grabbed a gun out of his wife's pocketbook, (which she had earlier given the bartender to place behind the bar) and aimed it at Robinson. Dolores Robinson jumped in front of her husband and begged Hampton not to shoot him. At this moment the defendant's brother Henry entered the barroom and promptly jumped on Robinson's back. Robinson, a man of considerable strength and size, was able to exit the barroom even with Henry Hampton on his back. Once outside the barroom, he shook free of Henry, ran across the street and down Columbia Avenue.
The defendant, his wife, Mrs. Robinson and several other bar patrons, including one Frank Miller, followed Robinson out of the bar. Upon reaching the street, the defendant aimed the gun at the fleeing Robinson, but again did not shoot, apparently because of the importunities of Mrs. Robinson. Miller then said to the defendant, *326 "Give me the gun. I'll show you how it's done." According to Mrs. Robinson's testimony at trial, the defendant thereupon "reached over and gave him [Miller] the gun." Thus armed, Miller ran in pursuit of Robinson, firing two shots at him. One bullet struck the victim in the head, killing him instantly.
Appellant has made two arguments in regard to his claim of insufficiency. First, he contends that Mrs. Robinson's testimony as to the manner in which Miller obtained the gun from the defendant could not be reasonably believed because it was contrary to a portion of her testimony at the preliminary hearing. We are unable to say, as a matter of law, that her testimony was so inherently incredible that it could not be believed.
The appellant's counsel, for the purpose of impeachment, was permitted to read into the record portions of Mrs. Robinson's testimony at the preliminary hearing. She had there stated that Miller had "snatched" the gun from the appellant's hand, an account which the defendant himself gave at trial. The jury thus had before it two conflicting versions as to how Miller had obtained the gun from the defendant. These inconsistencies went to the issue of Dolores Robinson's credibility, an issue for the jury, after being properly charged, to pass on. Long, supra; Commonwealth v. Karchella, 449 Pa. 270, 273, 296 A.2d 732 (1972); Commonwealth v. Harris, 444 Pa. 515, 281 A.2d 879 (1971). See also Commonwealth v. Rankin, 441 Pa. 401, 404, 272 A.2d 886 (1971). The court's charge, which is not challenged, put the matter to the jury squarely and adequately. By its verdict, the jury obviously chose to believe that the defendant voluntarily gave the gun to Miller and as a consequence was guilty of murder in the first degree as an aider and abettor.
Appellant further claims that even if Mrs. Robinson's testimony is to be believed, the evidence showed that the killing was in "hot blood"; or, alternatively, did not rise *327 any higher than murder in the second degree. Our scope of review in passing on such claims is well-settled: "`the test of sufficiency of evidence is whether accepting as true all the evidence, together with all reasonable inferences therefrom, upon which the jury could properly have based its verdict, such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt.'" Commonwealth v. Carbonetto, 455 Pa. 93, 95, 314 A.2d 304, 305 (1974). See also Commonwealth v. Clark, 454 Pa. 329, 311 A.2d 910 (1973); Commonwealth v. Oates, 448 Pa. 486, 295 A.2d 337 (1972). We are thus not to act as fact-finders ourselves, but to determine whether there is sufficient support in the record for the jury's verdict. Measured by this standard, we must conclude that there is.
The jury was properly instructed on the degrees of murder and on the requirements for voluntary manslaughter. Based upon the evidence before it, the jury could well have concluded that the defendant in handing the gun to Miller possessed both the malice and intention to kill which is necessary for murder in the first degree. Likewise, the jury could have decided that the appellant's passion, engendered by Robinson's striking of him, had had ample time to cool, thus negating one of the essential requirements for voluntary manslaughter. See Commonwealth v. McCusker, 448 Pa. 382, 390, 292 A.2d 286 (1972). Under these circumstances, we will not disturb the jury's verdict.
The next ground for reversal urged by the appellant is that he was denied the effective assistance of counsel at trial.[1] Essentially, appellant points to three areas of ineffectiveness. The first is lack of sufficient time to prepare for trial. This argument is without merit. Trial counsel was appointed on February 26, 1973, after appellant's first appointed counsel had suffered a *328 heart attack. Trial was originally scheduled for March 27, 1973, but appellant's request for a ten day continuance was granted and the trial did not actually commence until April 6, 1973. This was ample time to prepare a case such as this, where the only real issue in dispute was the manner in which the actual shooter obtained the murder weapon from the defendant.
The next reason given to show ineffectiveness of counsel is that trial counsel was unaware of plea bargain negotiations which had taken place between prior defense counsel and the district attorney's office. It is argued that had trial counsel been aware of the plea bargain which defendant had purportedly agreed to, he would have been obliged to consult with his client concerning it, and might have seen that it was carried out.
This contention hardly adds up to a claim of ineffective counsel in the constitutional sense, and in any case is not supported by the record. A hearing was held on this claim at the time of appellant's sentencing. At that hearing, appellant's former counsel testified that the plea bargain[2] offered by an assistant district attorney had been agreed to by the defendant. The assistant district attorney involved, however, denied that Hampton ever accepted a plea bargain, although both his own counsel and the assistant district attorney had strongly urged that he do so. The assistant further testified that a plea bargain had again been offered the defendant shortly before trial and that appellant's trial counsel was in fact present on that occasion. The trial court, in rejecting appellant's post-trial motions, concluded that the appellant had personally rejected all "deals", including an offer by the Commonwealth to certify that the homicide *329 rose no higher than second degree murder in exchange for a waiver of a jury trial. As noted by that court, in its opinion, appellant's decisions in this regard were "motivated, no doubt, by the not unreasonable possibility that he would be completely exonerated." Since it was the appellant who, against the strenuous advice of his own previous counsel and that of the prosecutor, chose to proceed to a jury trial, we fail to see how trial counsel's lack of knowledge of the plea negotiations, assuming there was such lack, rendered his representation inadequate in any respect.
The third aspect of appellant's claim of ineffectiveness is based on an alleged misrepresentation by the district attorney's office that there were no notes of testimony of the preliminary hearing. Such notes did in fact exist, but counsel did not have them prior to the questioning of Mrs. Robinson, and so was not able to cross-examine Mrs. Robinson effectively as to any inconsistencies between her testimony at the preliminary hearing and her testimony at trial.
We note preliminarily that there is nothing in the record to substantiate appellant's claim of misrepresentations by the district attorney's office. Furthermore, it has been held that the inability to obtain a transcript of a preliminary hearing does not, per se, constitute a denial of due process. Commonwealth v. Minifield, 225 Pa.Super. 149, 310 A.2d 366 (1973). See also United States v. Carella, 411 F.2d 729 (2d Cir. 1969) cert. denied sub nom., Erhart v. United States, 396 U.S. 860, 90 S. Ct. 131, 24 L. Ed. 2d 112 (1969). But see Roberts v. LaVallee, 389 U.S. 40, 88 S. Ct. 194, 19 L. Ed. 2d 41 (1967). In some instances, however, such a transcript may be essential for effective trial preparation. See Britt v. North Carolina, 404 U.S. 226, 232, 92 S. Ct. 431, 30 L. Ed. 2d 400, 406 (1971) (dissenting opinion of Douglas, J.).
*330 In the case at bar it does not appear that the inability to procure a transcript prior to trial in fact resulted in prejudice to the defendant. Appellant's counsel at trial was apparently aware of the substance of Mrs. Robinson's testimony at the preliminary hearing, for on cross-examination he asked her if she had then testified that Miller had grabbed the gun from the defendant's hands. Mrs. Robinson denied having so testified, and counsel chose not to pursue the matter at that point. The transcript was in fact obtained later in the trial, and, as noted above, counsel read into the record for impeachment purposes relevant portions of Dolores Robinson's testimony at the earlier hearing. Thus the same purpose was achieved as could have been accomplished had the transcript been available earlier. Under these circumstances, there was no prejudice and we cannot conclude that counsel's representation was rendered inadequate in this regard.
Judgment of sentence affirmed.
NOTES
[1] The appellant is represented on appeal by the same counsel as he had at trial.
[2] The plea bargain offered by the district attorney, apparently, was that in exchange for the appellant's plea of guilty and the giving of testimony at Miller's trial, the prosecution would certify that the homicide rose no higher than murder in the second degree and would recommend a sentence of from one to ten years imprisonment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1549374/ | 146 F.2d 232 (1944)
BROWN PAPER MILL CO., Inc.,
v.
IRVIN.
No. 12820.
Circuit Court of Appeals, Eighth Circuit.
December 11, 1944.
*233 L. J. Benckenstein, of Beaumont, Tex., and Gordon E. Young, of Pine Bluff, Ark. (Clyde R. Brown, of Monroe, La., on the brief), for appellant.
John Baxter, of Dermott, Ark. (Will J. Irvin, of Dermott, Ark., and Lee Cazort Jr., of Little Rock, Ark., on the brief), for appellee.
Before GARDNER, THOMAS, and RIDDICK, Circuit Judges.
RIDDICK, Circuit Judge.
The appellee, Irvin, brought this action against the appellant, the Brown Paper Mill Company, Inc., alleging that under an oral agreement made by the parties in 1937 he was entitled to a broker's commission of 25 cents an acre on the purchase by the appellant from J. L. Williams & Sons, Inc., of 53,363.27 acres of Arkansas timber land. This is the second appeal in this action from a judgment in favor of the appellee for the full amount of the commission claimed by him, with interest from November 1, 1940, the date of the purchase contract. On the first appeal the case was remanded to the district court with directions to vacate its judgment, to make definite and certain findings on the issues of fact in dispute between the parties, to declare the law in accordance with the findings, and to enter the appropriate judgment. Brown Paper Mill Company, Inc., v. Irvin, 8 Cir., 134 F.2d 337. The district court has restated its findings of fact and conclusions of law and has entered the same judgment in favor of appellee.
On this appeal, as on the first, the appellant challenges the sufficiency of the evidence to support the district court's findings of fact and judgment. It contends that there is no substantial evidence to show that the appellee was authorized by the alleged contract of 1937 to act as agent for appellant in the purchase of the Williams land; and denies that there is any evidence in the record to support either the finding that appellant at any time agreed to pay appellee a commission on the purchase of the Williams land, or the conclusion that appellee was the procuring cause of the purchase. Appellant also contends that, if the appellee ever had a contract with appellant, such as he claims, its rescission prior to the purchase of the Williams land is conclusively established, and that this action was prematurely brought. The district court resolved all of these issues in favor of appellee, being influenced in its decision on the facts by the conduct of the parties from the time of the appellee's alleged employment as broker until the purchase of the Williams land by appellant, and by testimony of the admissions of appellee's agency by officers of appellant.
*234 The burden was upon the appellee to prove by substantial evidence not only the fact of his employment as broker, but also the terms of that employment, performance of the contract on his part, the amount of his commission earned and payable under the contract at the time of the trial of the action, and appellant's breach of the contract. Whether the district court's finding that appellee was employed by appellant as its agent in the purchase of the Williams land and its conclusion that appellee was the procuring cause of the purchase are correct, we find it unnecessary to decide. For, conceding that the court was right on each of these issues, there is no evidence in the record to show that any part of the commission sued for was due and payable to appellee either at the time of the institution of this action or at the time of its trial. On the contrary, the proof is that appellee's compensation under the contract, conceding that a contract as claimed is established by the evidence, was not payable when this action was begun; and there is a total absence of evidence to show what part, if any, of his commission was payable at the time of the trial.
The contract of November 14, 1940, between the Williams Company and appellant for the purchase of the Williams land is summarized in the record. It recites that the Williams Company, at the time of the execution of the contract, was the owner of approximately 30,000 acres of Arkansas land, and that it had contracted to purchase another tract of approximately 25,000 acres from a Minnesota corporation. The Williams Company agreed to sell all of the lands mentioned to the appellant, delivery and conveyance of the lands from seller to buyer to be made over a twelve-year period from January 15, 1941, with a minimum of seven and one-half per centum of the total acreage to be conveyed annually. The Williams Company was also obligated to furnish complete abstracts of title for examination by the appellant, with the further agreement that all lands, titles to which were disapproved by appellant, should be discharged from the contract. Appellee testified that prior to his negotiations with the Williams Company he had learned of the purchase by appellant of lands in Louisiana under a contract of like terms and conditions. He said that before beginning negotiations with the Williams Company he was advised by appellant that it would be interested in the purchase of the Williams land under a similar contract. This testimony of appellee shows that the purchase contract in this case was the one which he alleges he was employed to procure.
The contract under which appellee claims he was employed as an agent of appellant in the purchase of the Williams land was oral. Appellee testified that, by the terms of the contract, he was not entitled to the payment of his commission on any purchase of land procured by him until the appellant had accepted title and bought the land. He said that, if the title was defective and for that reason a sale did not go through, he was to get no commission, and that his commission was not due and payable to him until the sale was actually completed and the title actually passed on by the company; that he was to be paid 25 cents an acre on any lands that he could buy for appellant, subject to their inspection and approval by appellant; that if the titles were defective or if the sale did not go through he was not entitled to a commission. He said that sometimes it takes a long time to work out sales of large tracts of land, and that he was not entitled to the payment of his commission until the title to the lands located by him was actually vested in the appellant. This version of the terms of his contract was given by the appellee in his deposition taken more than two months before the trial and again at the trial. Later, in his redirect examination at the trial appellee said that he "considered" that his commission was "due" when the purchase contract "was made," but at the same time he admitted that the amount of his commission and the time it became payable were dependent upon acceptance of title by the appellant. Aside from the fact that the burden here was on the appellee, this attempt at a favorable interpretation of an unambiguous contract previously stated by appellee affords no basis for the court's finding that appellee's commission was payable when the purchase contract was signed nor for its conclusion that this action was not prematurely brought. Moreover, appellant and appellee admitted that appellee was employed by appellant as its agent in the purchase of certain small tracts of land under the very contract sued on in this case. While the purchase of the Williams tract was being negotiated, the appellee procured the purchase *235 by appellant of several small tracts of land under the contract sued on. Appellee's letters to appellant concerning these purchases show that his commission was not claimed nor paid until appellant had approved the title to the land and accepted conveyance of it. It is apparent from appellee's letters that in the instances mentioned his commission was paid either at the time of the delivery of the seller's deed to appellant or after that delivery. During the final negotiations between appellant and the Williams Company for the purchase of the Williams land, appellee wrote to appellant suggesting a meeting "to work out plans and terms for payment of the commission on the sale of this tract of lands." If, under the alleged contract between appellee and appellant, the amount of appellee's commission was certain and payable on the conclusion of a purchase of which he was the procuring cause, there was no necessity for further negotiations to determine either a plan or terms for its payment. This letter shows appellee's understanding that the amount of his commission, as well as the time of its payment, was not determined at the execution of the purchase contract which he claims to have procured.
It is said that the customary business of a real estate broker is to find for his principal a buyer or seller, ready, able, and willing to buy or sell, on terms satisfactory to his principal, and that, in the absence of a special contract between the broker and his principal providing otherwise, when the principal enters upon an executory contract for the purchase or sale of land upon terms satisfactory to him, the broker is entitled to the commission agreed upon whether or not the contract is fully executed. Moore v. Irwin, 89 Ark. 289, 116 S.W. 662, 20 L.R.A.,N.S., 1168, 131 Am. St.Rep. 97; Nelson v. Stolz, 197 Ark. 1053, 1058, 127 S.W.2d 138. The broker and principal, however, may make such a contract for the broker's services as is agreeable to them, and may make the payment of the broker's commission dependent upon the full performance of the contract of purchase or sale, or postpone the payment of the commission, or make the broker's right to the commission contingent upon the happening of future events, as is the case in the appellee's contract. Operators' Oil Co. v. Barbre, 10 Cir., 65 F.2d 857, 860.
Conceding, without deciding, that appellee's employment as a broker and the terms of that employment as stated by him are established by the evidence, the record is still barren of proof to support the judgment in this case. It is true, as the district court stated in its opinion, that the contract between the appellant and the Williams Company constituted a present purchase of the Williams land by the appellant, and that the appellant was bound to a faithful performance of the purchase contract according to its terms. But neither the amount nor the time of payment of the commission sued for was controlled by this purchase contract. These matters were governed by the contract between the appellee and the appellant, which, according to appellee's own testimony, postponed the payment of the commission to a time in the future and made the final determination of the amount of the commission dependent upon the happening of future events. There is no evidence in the record to show that any of the Williams land had been conveyed to the appellant at the time of the trial. The time for the first conveyance of lands by the Williams Company had not then expired. So far as the record goes, no abstracts of title had been tendered to or approved by appellant. There is no evidence of default in, or refusal of, performance of the purchase contract by either party to it. The purchase contract does not provide for the conveyance of a definite number of acres on which to compute appellee's commission of 25 cents an acre. Under appellee's statement of the terms of his contract, the amount of his commission was contingent upon the number of acres eventually conveyed to appellant. Moreover, his commission was payable only as and when the portions of the land were conveyed and title vested in appellant. The time for the payment of any part of appellee's commission was contingent upon the time of acceptance by appellant of title to portions of the land to be conveyed annually over a period of possibly twelve years. At the time of the trial of the case it was impossible to determine the total amount of appellee's commission, the amount of any installment of his commission, or the number of annual installments in which he would eventually be paid. In these circumstances the most that can be said for the appellee, at the time of the trial, is that the appellant had denied the existence of a contract binding appellant to pay appellee certain sums of money at some then undetermined dates in the future. We can find no authority for the proposition *236 that one obligated by contract to pay money on a day in the future becomes liable to immediate payment by denying the existence of the contract. To so hold would be to substitute for appellant's actual obligation another which it never assumed. Appellant's contention that this action was prematurely brought is sustained.
Appellee argues that, since the appellant has repudiated the contract by denying its existence, the appellee is entitled to maintain the present action under the rule allowing such actions for an anticipatory breach of contract. By the weight of authority, however, such actions are maintainable only in cases in which the contract involved is executory, as where, at the time of the repudiation, there remained under the contract mutually dependent covenants to be performed by both parties. The rule allowing such actions does not apply to a bilateral contract which has become unilateral by complete performance on the part of the plaintiff, as is the situation here. 1 Restatement of the Law of Contracts, § 316 et seq.; 5 Williston on Contracts, Revised Edition, §§ 1296-1337; Roehm v. Horst, 178 U.S. 1, 20 S. Ct. 780, 44 L. Ed. 953; Central Trust Co. v. Chicago Auditorium Association, 240 U.S. 581, 36 S. Ct. 412, 60 L. Ed. 811, L.R.A. 1917B, 580; Moore v. Security Trust & Life Ins. Co., 8 Cir., 168 F. 496, interpreting and applying the Roehm case; Hawkinson v. Johnston, 8 Cir., 122 F.2d 724, 725, 728, 729, 137 A.L.R. 420, approving the doctrine of anticipatory breach of contract as stated in the Restatement, supra; Operators' Oil Co. v. Barbre, supra; Brimmer v. Union Oil Co., 10 Cir., 81 F.2d 437, 440, 105 A.L.R. 454. Especially is this true where, in addition to the fact that the time for performance of the party sued has not arrived, the amount of the recovery is also dependent upon future contingencies. Operators' Oil Co. v. Barbre, supra; 5 Williston on Contracts, § 1328, where the author also says: "The general rule is certainly that no unilateral promise for an executed agreed exchange to pay money at a future day can be enforced until that day arrives."
Our investigation of the Arkansas law which controls on the issue under discussion leads to the conclusion that the rule stated above prevails in that State. Manufacturers' Furniture Co. v. Read, 172 Ark. 642, 290 S.W. 353, 354, was an action to recover a broker's commission on an oral contract whereby the broker was employed by the defendant to negotiate a lease of real estate for a period of three months, with an option to renew the lease for a further definite term, on the agreement of the defendant to pay the broker as commission $15 per month during the rental period of three months, and the further sum of $10 per month payable monthly for the remainder of the lease if the option was exercised. The defense was a denial of the contract to pay any commission during the term of the lease acquired under the option. The broker sued to recover the full amount of the installments of his commission for that term. In denying recovery for any except the installments which had become due, the court said: "Counsel for appellee invoke the rule that where one party to a contract incapacitates himself from performance or unequivocally refuses to perform, the other party may sue for the whole of the anticipated damages resulting from the breach. Counsel cite authorities in support of that rule, but the rule does not apply to contracts, either written or verbal, to pay money at specified times." In support of its ruling the Arkansas court cited Roehm v. Horst, supra, and the decision of this court in Moore v. Security Trust & Life Ins. Co., supra. In Van Winkle v. Satterfield, 58 Ark. 617, 25 S.W. 1113, 23 L.R.A. 853, the court held that on a repudiation by an employer of a contract of employment before expiration of the term, the servant may bring suit at once only for the injury suffered by the loss of wages down to the day of trial.
Appellee relies on the Arkansas case of Mutual Life Ins. Co. v. Marsh, 186 Ark. 861, 56 S.W.2d 433. There are a number of decisions of the Supreme Court of Arkansas involving the question decided in this case. See Ætna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S.W. 335; National Life & Accident Ins. Co. v. Whitfield, 186 Ark. 198, 53 S.W.2d 10; Atlas Life Ins. Co. v. Bolling, 186 Ark. 218, 53 S.W.2d 1; Metropolitan Life Ins. Co. v. Harper, 189 Ark. 170, 70 S.W.2d 1042; Equitable Life Assurance Society v. Pool, 189 Ark. 101, 71 S.W.2d 455; Jefferson Standard Life Ins. Co. v. Slaughter, 190 Ark. 402, 79 S.W.2d 58; Metropolitan Life Ins. Co. v. McNeil, 192 Ark. 978, 96 S.W.2d 476. These are decisions in actions on contracts of insurance for the payment of disability benefits in monthly installments over a period of years. *237 In some of them recovery was allowed for the present value of future installments, and in others, recovery was limited to the amount of the installments due at the time of the bringing of the suit or at the time of its trial. All of them, however, are distinguishable from the present case on the facts, since in all of them the insurance company had been guilty of some breach of its contract prior to the institution of the suit. In the cases in which recovery for future installments was allowed, the insurance company had not only breached its contract prior to the institution of the suit, but had also repudiated it in its entirety. In the cases of limited recovery, the insurance company had breached its contract by refusing to pay an installment benefit when it was due under the insurance contract, but it had not repudiated the contract. What has just been said applies also to those Arkansas insurance cases in which the insurance company breached its contract by demanding a premium greater than that provided in the contract, and, on the insured's refusal to pay, repudiated the whole contract. Mutual Relief Association v. Ray, 173 Ark. 9, 292 S.W. 396; Liberty Life Ins. Co. v. Olive, 180 Ark. 339, 21 S.W.2d 405. And, although in some of the Arkansas cases there is a reference to the doctrine of anticipatory breach of contract, it was not actually applied nor really involved. See 5 Williston on Contracts, § 1317, and comment on Barneby et al. v. Barron G. Collier, Inc., 8 Cir., 65 F.2d 864, in Note 1; New York Life Ins. Co. v. Viglas, 297 U.S. 672, 682, 56 S. Ct. 615, 618, 80 L. Ed. 971.
In the present case, on appellee's version of his contract, his obligations under the contract were fully performed. There remains only the obligation of the appellant to pay money to the appellee in installments over a period of years. At the trial of the action the time for payment of the first installment of appellee's compensation under his contract had not arrived. These facts distinguish the present case from the Arkansas cases just discussed.
The judgment of the district court is reversed, and the case is remanded with directions to dismiss the complaint without prejudice to the right of the plaintiff to further proceedings against the defendant when his cause of action shall have accrued. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1549378/ | 146 F.2d 466 (1944)
COMMISSIONER OF INTERNAL REVENUE
v.
JOHN KELLEY CO.
No. 8426.
Circuit Court of Appeals, Seventh Circuit.
December 21, 1944.
J. P. Wenchel and John M. Morawski, Bureau of Internal Revenue, both of Washington, D. C., and Samuel O. Clark, Jr., Sewall Key, Robert N. Anderson, and Muriel Paul, all of Washington, D. C., and Maryhelen Wigle, Asst. Atty. Gen., for petitioner.
Frank J. Albus, of Washington, D. C., for respondent.
Before EVANS, KERNER, and MINTON, Circuit Judges.
MINTON, Circuit Judge.
The Commissioner of Internal Revenue determined deficiencies in income and excess profits tax against the taxpayer, the John Kelley Company for the calendar years 1937, 1938, 1939. The Tax Court refused to sustain the assessment, and the *467 Commissioner has petitioned for review. The alleged deficiencies arose from the taxpayer's deduction of payments made on income debentures as interest on indebtedness. The Commissioner contends that the payments were dividends within the meaning of section 115(a) and not interest within the meaning of section 23(b) of the Revenue Act of 1936, Chap. 690, 49 Stat. 1648, 26 U.S.C.A. Int.Rev.Code, §§ 23(b) and 115(a).
The sole question presented is whether the payments were interest. There is no dispute as to the facts, and the evidence in the record before us is documentary. Thus a question of law is presented, and its review is clearly authorized by statute. 44 Stat. 110, 26 U.S.C.A. Int.Rev.Code, § 1141(c) (1). Commissioner of Internal Revenue v. Meridian & Thirteenth Realty Co., 7 Cir., 132 F.2d 182, 188.
In deciding cases of this kind the various provisions of the instrument evidencing the obligation in the light of the surrounding circumstances in each case determine whether the relationship created is proprietary or that of debtor-creditor. Each case stands on its own feet. As we said in Commissioner of Internal Revenue v. Meridian & Thirteenth Realty Co., supra, 132 F.2d at page 185:
"Precedents are abundant, but because of the widely-varying fact bases upon which the conclusions are reached, they serve only as guides. Many are the criteria named to aid in the determination. Sometimes a particular one is called decisive, or the most important test, sometimes a combination of the elements sways the determination."
The following are the pertinent facts. The taxpayer is an Indiana corporation operating a retail furniture store. Its books were kept on an accrual basis. On January 1, 1937, taxpayer had authorized 1,500 shares of no par common stock and 3,000 shares of 6% cumulative preferred stock of $100 par value, of which 1,110 of the common and 1,124 of the preferred were outstanding. The business was a closely held family corporation. All the outstanding common stock was owned by Roy Kelley, his wife, and his sister, Mabel Kelley Ronald. The latter was president of the company, and Roy Kelley was secretary. The preferred stock was all owned either individually or as trustee by Roy Kelley and his sister.
On January 11, 1937, the corporation adopted resolutions authorizing a so-called plan of reorganization. Under this plan, the common stock was changed to $100 par value and increased to 6,000 shares. Twenty year "income debenture bonds" aggregating $250,000 and bearing interest at 8% per annum were authorized. At the same time, and as part of the same scheme, a trust agreement was executed, setting forth the terms upon which the debentures were issued and outlining the powers and duties of the trustee. The trust agreement was signed on behalf of the company by its president, Mabel K. Ronald, and by her brother, Roy Kelley, as secretary. Then they moved to the other side of the table and signed the agreement as trustees. It was all a little arrangement between them. The same people represented both sides of the transaction. This is enough to inspire hesitation in calling it a bona fide trust agreement.
Under the scheme the "income debentures" were exchanged for the preferred stock at $102 per share. Also, for the purpose of raising additional capital to expand the business "in the field of finance," as the resolution recited, the trustees were authorized to sell additional debentures at par, but only to the shareholders of the corporation. Mabel K. Ronald and Berdina Kelley, the wife of Roy Kelley, subscribed for $24,408 and $10,944, respectively, of the debentures. They did not pay cash for these debentures, but the subscriptions were charged to the purchasers on the books of the company and were later wiped out by the credit of dividends paid on the common stock held by each.
The dividends of this little corporation, even in these slack business years, were exceptionally good. A cash dividend of $55 per share and a stock dividend of 3½ shares for one was paid on the common stock in 1937. Attention is called to the fact that Mabel K. Ronald who, as a trustee, was obligated to promote the sale of the debentures in order to raise additional capital to expand the business, herself bought some debentures without paying cash for them. Such a transaction did not put a penny of new money into the treasury of the corporation. It may further be observed that in a slack business year such as 1937 a corporation which was able to *468 pay $55 a share cash dividends and a stock dividend of 3½ shares for one, ought not to have had to pay 8% interest on its debentures. In our opinion, the 8% rate of interest was not fixed with any regard to the money market in 1937 but was fixed to drain off 8% interest on debentures which had retired 6% stock.
The 8% interest on the debentures was payable only out of the net income of the company. If there was no income, there were no payments, and defaulted payments did not accumulate. At liquidation or insolvency, the debenture holders were superior in rank only to the common stockholders, just as were the former preferred stockholders. All other creditors had preference. The preference of the debenture holders over the stockholders meant nothing, because all the debentures were held by stockholders, either individually or as trustees. The debenture holders had no voice in management. That, too, was of little moment, for the same reason.
On the books of the company the income debentures were referred to variously as "stocks," "bonds," and "notes." In the capital stock tax returns for 1938 and 1939, the "debentures" and "debenture notes" were listed as capital stock. They were not reflected as indebtedness in the balance sheets appearing in the income and excess profits tax returns filed by the respondent for 1937, 1938, and 1939, but appeared under the heading, "Capital Stock: Debenture Notes." On most of the checks drawn to make the income payments on the debentures, the nature of the payment was described as "Interest, income debenture stock."
While the name given to the document is not controlling[1] it may be persuasive, if consistently used, as indicative of the intent and purpose of the corporation issuing the document. On the other hand, if there has been inconsistent use of such names, it may be considered in determining whether the corporation did what it professed to do.
In 1937, $6,000 was paid as income on the debentures and $12,000 was paid in each of the years 1938 and 1939. The taxpayer deducted these payments as interest on indebtedness pursuant to section 23(b).
From this statement of the facts, it becomes apparent that these debentures had every aspect of preferred stock except one: they had a definite maturity date. It is not, however, unusual today for preferred stock to have a maturity or retirement date. In fact, such is authorized by Indiana corporation law. Burns Ind.Stat. Ann.1933, § 25-205. Commissioner of Internal Revenue v. Meridian & Thirteenth Realty Co., supra, 7 Cir., 132 F.2d 182, at page 186, note 6. The presence of a maturity date, however, is not controlling. Kentucky River Coal Corporation v. Lucas, D.C., 51 F.2d 586, 588, affirmed, 6 Cir., 63 F.2d 1007. Especially is this true where, as in the case at bar, debentures were unsecured and were inferior to the claims of any creditor.
The scheme to convert the preferred stock into debentures left the debentures resembling preferred stock rather than indebtedness. "In the business world `interest on indebtedness' means compensation for the use or forbearance of money." Deputy v. Du Pont, 308 U.S. 488, 498, 60 S. Ct. 363, 368, 84 L. Ed. 416. The taxpayer "hired" no money here. Its owners merely swapped papers and wound up in relatively the same position.
Stockholders take the risks of a business while creditors must be paid whether the corporation has a net income or not. The distinguishing feature of one is risk, and of the other, security. In the case at bar, the debenture owners were not to be paid in any event but were to be paid only after all other creditors were paid; and the "interest" on the debentures was to be paid only if sufficient net income was earned within the period. Such debentures obviously evidenced risk capital, not creditor capital. In short, it was all a matter of accounting hocus-pocus, guided by a little too clever legal planning which eventuated in a rather flimsy scheme to avoid paying of taxes. As far as we are concerned, it will not succeed.
No case has been decided where the facts so clearly characterized the document as stock. A consideration of cases in the Circuit Courts of Appeals and the District Courts discloses none where noncumulative payments, payable out of earnings *469 only, have been held to be interest.[2] Every provision of these debentures is a frequent and authorized clause familiar to preferred stock. Viewing this transaction from any angle, it has all the aspects of an issue of restricted preferred stock. In our opinion, payments made on the so-called "debentures" were dividends within the meaning of section 115(a) and not interest on indebtedness.
The judgment of the Tax Court is reversed.
NOTES
[1] "Law of Federal Income Taxes," Merten, § 26.10; Commissioner of Internal Revenue v. Schmoll Fils Associated, Inc., 2 Cir., 110 F.2d 611, 613; Jewel Tea Co., Inc., v. United States, 2 Cir., 90 F.2d 451, 452, 112 A.L.R. 182.
[2] Helvering v. Richmond, F. & P. R. Co., 4 Cir., 90 F.2d 971; Commissioner of Internal Revenue v. Palmer, Stacy-Merrill, Inc., 9 Cir., 111 F.2d 809; Arthur R. Jones Syndicate v. Commissioner of Internal Revenue, 7 Cir., 23 F.2d 833; Commissioner of Internal Revenue v. O. P. P. Holding Corporation, 2 Cir., 76 F.2d 11; Commissioner of Internal Revenue v. H. P. Hood & Sons, Inc., 1 Cir., 141 F.2d 467; Commissioner of Internal Revenue v. J. N. Bray Co., 5 Cir., 126 F.2d 612; Commissioner of Internal Revenue v. Proctor Shop, Inc., 9 Cir., 82 F.2d 792; United States v. Title Guarantee & Trust Co., 6 Cir., 133 F.2d 990; Diamond Calk Horse Shoe Co. v. United States, 40-2 USTC ¶ 9641, appeal dismissed, 8 Cir., 116 F.2d 284. The only holding to the contrary is a Tax Court memorandum decision, S. Glaser & Sons, Inc., v. Commissioner of Internal Revenue, CCH Dec. 14,006 (M). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1549390/ | 146 F.2d 824 (1945)
MOORE
v.
COMMISSIONER OF INTERNAL REVENUE.
No. 3.
Circuit Court of Appeals, Second Circuit.
January 18, 1945.
Courtland Kelsey, of New York City (Whitney North Seymour and Richard D. Duncan, both of New York City, of counsel), for petitioner.
Henry Maynard Kidder, of New York City (Gove B. Harrington, of New York City, of counsel), amicus curiae.
Samuel O. Clark, Jr., Asst. Atty. Gen. (Sewall Key, Helen R. Carloss, and Helen Goodner, Sp. Assts. to Atty. Gen., of counsel), for respondent.
Before SWAN, AUGUSTUS N. HAND, and FRANK, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
This is an appeal from the Tax Court of the United States which imposed a tax of $104,864.73 upon Evelyn N. Moore, a transferee of her husband Edward S. Moore, for a deficiency to that amount in gift taxes due from him in the year 1935.
During the year 1935 Edward S. Moore made taxable gifts of securities to the petitioner Evelyn Moore of the value of $410,500. On March 11, 1936 he filed a gift tax return with the Collector and paid the amount of the tax therein shown to be due. Although the donor has always been financially able to satisfy any deficiency in gift taxes for 1935 the Commissioner never made an assessment against him with respect to his liability for gift taxes for that year but assessed the taxes against his transferee, in spite of the fact that the three year statutory period for determining any deficiency against him had expired on March 11, 1939. On February 20, 1940 the Commissioner sent a notice to the petitioner of her alleged liability as a transferee of the property of her husband. In determining her tax deficiency he made no change in the gifts of the donor in 1935, but found the 1935 gifts subject to higher rates of tax because there were increases in gifts over those he had reported for prior years, and assessed the deficiency of $104,864.73 accordingly. This assessment by the Commissioner was sustained by the Tax Court. We think that its decision was required by the terms of the Revenue Act and should be affirmed.
The petition for review by the taxpayer raises three questions:
1. Whether the assessment against her is barred by the statute of limitation.
2. Whether she ever became personally liable for any gift tax.
3. Whether if any gift tax was due the amount of her tax should be applied to reduce the value of the gift to her.
*825 Section 510 of the Revenue Act of 1932, 26 U.S.C.A. Int.Rev.Code, § 1009, provided as follows:
"Sec. 510. Lien for tax.
"The tax imposed by this title shall be a lien upon all gifts made during the calendar year, for ten years from the time the gifts are made. If the tax is not paid when due, the donee of any gift shall be personally liable for such tax to the extent of the value of such gift. * * *"
Section 517, 26 U.S.C.A. Int.Rev.Code, § 1016, fixes the period of limitation upon assessment and collection in 517(a) thus:
"(a) General rule. Except as provided in sub-section (b), the amount of taxes imposed by this title shall be assessed within three years after the return was filed, and no proceeding in court without assessment for the collection of such taxes shall be begun after the expiration of three years after the return was filed."
Section 526, 26 U.S.C.A. Int.Rev.Code, § 1025, contains the following provisions as to "Transferred Assets":
"(a) Method of Collection. The amounts of the following liabilities shall, except as hereinafter in this section provided, be assessed, collected, and paid in the same manner and subject to the same provisions and limitations as in the case of a deficiency in the tax imposed by this title * * *
"(1) Transferees. The liability, at law or in equity, of a transferee of property of a donor, in respect of the tax (including interest, additional amounts, and additions to the tax provided by law) imposed by this title.
* * * * *
"Any such liability may be either as to the amount of tax shown on the return or as to any deficiency in tax.
"(b) Period of Limitation. The period of limitation for assessment of any such liability of a transferee or fiduciary shall be as follows:
"(1) Within one year after the expiration of the period of limitation for assessment against the donor.
* * * * *
"(f) Definition of `Transferee.' As used in this section, the term `transferee' includes donee, heir, legatee, devisee, and distributee. * * *"
In view of the terms of the Revenue Act of 1932 it seems impossible for the petitioner to escape gift tax liability. We start out with the definition in Section 526(f) defining "transferee" as including "donee," and the provision of Section 510 that "the donee of any gift shall be personally liable for such tax to the extent of the value of such gift." There is also the provision of Section 526(a) (1) for assessment and collection of: "The liability, at law or in equity, of a transferee of property of a donor, in respect of the tax * * *." Clearer language could hardly be used to impose a tax liability upon the transferee.
In respect to the statute of limitations, Section 517(a) governing any assessment against the donor and providing that it should be "within three years after the return is filed" is carefully denominated the "General Rule," while subdivision (b) (1) of Section 526 specifies a different period for assessing the tax liability of a transferee, namely, "Within one year after the expiration of the period of limitation for assessment against the donor," from the period generally prescribed. Such explicit language leaves nothing for interpretation and requires affirmance of the deficiency determined by the Tax Court. Such has been the conclusion reached by the Circuit Courts of Appeals of the Third and Seventh Circuits in Baur v. Commissioner, 3 Cir., 145 F.2d 338, 340, and Fletcher Trust Co. v. Commissioner, 7 Cir., 141 F.2d 36, 39, 40. In the case at bar the statute imposed a liability "at law" upon the transferee to the extent of the value of the gift she received, which was quite independent of any liability of the donor although the latter had failed to pay the tax and the time for assessment had expired as against him.
The petitioner argues that before any liability arose against the donee under Section 510 there must first have been a tax due from and unpaid by the donor and that a deficiency could not have been due until it was assessed against the latter. However, a "deficiency" is defined in Section 512(1) of the Revenue Act of 1932, 26 U.S.C.A. Int.Rev.Code, § 1011(1), as:
"The amount by which the tax imposed by this title exceeds the amount shown as the tax by the donor upon his return; but the amount so shown on the return shall first be increased by the amounts previously assessed (or collected without assessment) as a deficiency * * *."
*826 The tax in the present case was payable by the donor on March 15, 1936, the personal liability of the donee arose at that time and the interest would run from that date. There is nothing in the statute to indicate that the continuance of the donee's liability would depend upon the existence of the donor's liability or that the donee's liability would terminate as soon as the donor's liability became barred. On the contrary, since Congress gave an additional year after expiration of the period of limitation against the donor in which to assert the donee's liability in transferee proceedings, it seems evident that her liability was meant to continue after the statute of limitations had barred assessment against the donor.
It is further argued by the donee that the extension of one year allowed the Commissioner under Section 526(b) (1) in making assessments against a transferee was only to cover cases where fraudulent transfers, insolvencies or other special circumstances had made a longer time appropriate. But we find nothing in the statute to justify such an interpretation and its terms are unambiguous and mandatory. Undoubtedly it is hard to see why a longer period should have been allowed for assessment of the tax against the donee than against the donor where, as in the present case, the obligation of the donee arises under the provisions of a statute requiring her to pay taxes of her donor as soon as they become due from him, but that was a matter for congressional legislation and Congress has clearly spoken.
The final argument that if any tax was due from the petitioner it should be determined by reducing the gross value of the gift to the extent of the tax lien requires little consideration. While a tax lien is imposed by Section 510 a personal liability is also imposed by the same section. The property transferred was not subject to a lien such as a mortgage or a pledge existing at the time of transfer, but the gift was of the whole property upon which a lien was only imposed to the amount of the gift tax which became due thereafter. The liability is personal and existed irrespective of any lien. The argument would result in the donee being liable for a tax less than that payable by the donor and the introduction and use of a complicated algebraic formula in computing the donee's tax. As Judge Hough said more than twenty years ago in Edwards v. Slocum, 2 Cir., 287 F. 651, 654, "algebraic formulae are not lightly to be imputed to legislators" a remark repeated by Mr. Justice Holmes in Edwards v. Slocum, 264 U.S. 61, 63, 44 S. Ct. 293, 68 L. Ed. 564, when the case was on appeal.
For the foregoing reasons the order is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1023038/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-2236
SUSAN AVJIAN; ROBERT AVJIAN; D. A., a minor,
by her parents and next friends,
Plaintiffs - Appellants,
versus
JERRY D. WEAST, (officially as),
Superintendent, Montgomery County Public
Schools; MONTGOMERY COUNTY BOARD OF EDUCATION,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. William Connelly, Magistrate Judge.
(CA-03-3629-WGC)
Submitted: May 16, 2007 Decided: July 12, 2007
Before WILLIAMS, Chief Judge, WILKINSON, Circuit Judge, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael J. Eig, Haylie M. Iseman, MICHAEL J. EIG & ASSOCIATES, PC,
Chevy Chase, Maryland, for Appellants. Jeffrey A. Krew, JEFFREY A.
KREW, LLC, Ellicott City, Maryland; Zvi Greismann, MONTGOMERY
COUNTY PUBLIC SCHOOLS, Rockville, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
The Appellant parents and their child appeal the district
court’s order that granted summary judgment in favor of the
Montgomery County School System in their action under IDEA. Under
the IDEA, the federal government provides qualifying states with
funding for the education of disabled children. States must make
available a “free appropriate public education . . . to all
children with disabilities residing in the State.” 20 U.S.C.
§ 1412(a) (2000). A “free appropriate public education” (FAPE)
consists of special education and related services tailored to the
specific child’s educational needs according to an Individualized
Education Plan (“IEP”). See 20 U.S.C. § 1401(8), (11) (2000).
These services must be provided to a disabled child in the least
restrictive and appropriate environment. 20 U.S.C.
§ 1412(a)(5)(A).
The IEP is prepared by an IEP Team, which consists of a
representative of the school district, the child’s teacher, the
parents or guardian and, where appropriate, the child herself. 20
U.S.C. § 1414(d)(1)(B). Parents who are dissatisfied with the
education their disabled child is receiving or the IEP that is
presented, are entitled to an administrative due process hearing.
See 20 U.S.C. § 1415(f)(1) (2000). The IDEA permits a party
adversely affected by an administrative decision to obtain judicial
review and gives courts “broad discretion,” Sch. Comm. of
- 2 -
Burlington v. Dep’t of Educ., 471 U.S. 359, 369 (1985), to grant
“such relief as the court determines is appropriate.” 20 U.S.C.
§ 1415(i)(2)(B)(iii). In a judicial proceeding under the IDEA, a
reviewing court is obliged to conduct a de novo review, while
giving due weight to the state administrative proceedings. See 20
U.S.C. § 1415(i)(2)(B); MM ex rel. DM v. Sch. Dist. of Greenville
County, 303 F.3d 523, 530-31 (4th Cir. 2002) (citing Doyle v.
Arlington County Sch. Bd., 953 F.2d 100, 105 (4th Cir. 1991)).
The parents of D.A. initiated a due process hearing,
claiming that Montgomery County Public School System (“MCPS”)
failed to provide D.A. with a FAPE. The issues on appeal are:
(1) Whether defendants’ failure to fully fund D.A.’s placement
denied her a FAPE; (2) Whether the ALJ erred in failing to consider
evidence; and (3) Whether the Avjians’ due process rights were
violated. The district court granted summary judgment in favor of
the defendants.1 We affirm.
I.
It is undisputed by the parties that D.A. is a child with
emotional and educational disabilities who is entitled to special
education and related services under the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq.
D.A.’s parents pursued the option of a FAPE through MCPS. In
1
The parties consented to exercise of the district court’s
jurisdiction by a U.S. Magistrate Judge.
- 3 -
response to the parents’ inquiry, an IEP Team meeting was held, at
which D.A.’s parents, D.A.’s psychologist, and MCPS personnel were
present. D.A.’s psychologist testified the only placement that
could meet D.A.’s needs was a therapeutic, residential school.
D.A.’s parents expressed their desire for a residential placement
as well. The Team explained to the Avjians that the John L.
Gildner Regional Institute for Children and Adolescents (“RICA”)
had a residential program available to some students and that it
would be up to RICA to decide if D.A. was eligible. It was the
Avjians’ impression from the meeting that the IEP team supported
their request to have D.A. placed in a residential facility.
However, the Team recommended only a private day school both at the
meeting and on the written IEP. D.A.’s parents did not object.
Financing for either type of placement was never discussed. The
team identified several possible schools that would provide this
service, including RICA.2
On September 3, 2002, D.A.’s parents signed a form
indicating their approval of the IEP, which clearly recommended
only a day school placement. D.A. interviewed and was accepted at
RICA as a residential student in the Fall of 2002. In November
2002, D.A.’s parents received a bill from the Maryland State
Department of Health and Mental Hygiene (“DHMH”) for the
2
RICA had both a day school and residential component,
however, the IEP clearly recommended only the day school.
- 4 -
residential component of D.A.’s placement at RICA, at a cost of
$571 per day. D.A.’s parents disputed the charges, believing that
MCPS should pay for the residential service as part of D.A.’s free
public education.
On March 10, 2003, D.A.’s parents requested a due process
hearing and mediation, claiming that there was a disparity between
the written IEP and the IEP meeting proceedings. The Avjians
further asserted that they were never told that they would be
liable for the residential costs of any potential placement. Their
request for mediation was denied. In June 2003, an Administrative
Law Judge (“ALJ”) heard the parents’ claim that D.A. was denied a
FAPE because MCPS failed to provide necessary residential
services.3 George Moore, an MCPS official present at the IEP Team
meeting, testified the team decided D.A. did not need residential
placement for educational purposes. He further testified D.A.’s
parents did not object to the written IEP at the meeting. The ALJ
found his testimony credible.
The ALJ concluded the written IEP accurately reflected
the IEP team meeting proceedings and that MCPS’ failure to explain
that the Avjians would be responsible for paying any residential
placement costs did not constitute a violation of due process.
Having exhausted all administrative remedies, D.A.’s parents filed
an action in the district court. The Avjians requested permission
3
D.A.’s parents were not represented by counsel.
- 5 -
to depose George Moore. The court allowed the deposition over
defendants’ objections, however, the district court refused to
consider the deposition testimony as additional evidence under
Springer v. Fairfax County Sch. Bd., 134 F.3d 659 (4th Cir. 1988).
The district court concluded MCPS complied with all
procedures in the IDEA and that D.A. was not denied a FAPE. The
court further found that MCPS was not financially liable for D.A.’s
residential treatment costs since the IEP team had referred D.A.
only for special education day school. The parents’ desire to see
D.A. placed in a residential facility did not make MCPS liable for
the cost. Accordingly, the district court granted defendants’
motion for summary judgment.
II.
This court reviews de novo an order granting summary
judgment. Bond v. Blum, 317 F.3d 385, 394 (4th Cir. 2003).
Summary judgment is appropriate only if there are no genuine issues
of material fact and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). The evidence is viewed in the light
most favorable to the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). However, a party cannot create a
genuine issue of material fact through mere speculation or
compilation of inferences. Runnebaum v. Nationsbank of Md., 123
F.3d 156, 164 (4th Cir. 1997). When a moving party has met its
- 6 -
burden, the non-moving party must convince the court that, upon the
record as a whole, a rational trier of fact could find for the
non-moving party. Anderson, 477 U.S. at 248-49.
A.
The Avjians’ first argument on appeal is that the
district court erred in accepting the factual findings made by the
ALJ. The Avjians contend that the ALJ misunderstood or ignored the
facts on several material issues. They further claim that the
district court should have cured this error by considering their
additional evidence obtained in the Moore deposition.
Whether the district court has accorded “due weight” to
the administrative proceeding is a mixed question of law and fact
reviewed by this court de novo. MM, 303 F.3d at 531. This court
need not defer to factual recitations made by a district court from
the administrative record. Id. This court, however, must examine
the entire record, including any additional evidence considered by
the district court, and afford due weight to the administrative
determinations.
We find the district court did not err in accepting the
factual findings of the ALJ. The majority of facts relied upon by
the ALJ were supported by the record through corroborating
documents, letters, and witness testimony. The ALJ found Moore’s
testimony comprehensive and credible. To the extent the Avjians
are challenging the ALJ’s credibility findings, this court will not
- 7 -
reverse a trier of fact who had the advantage of hearing the
testimony on the question of credibility. Doyle, 953 F.2d at 104.
Nor is there any evidence in the record to suggest that this court
should do so.
The Avjians claim the outcome would have been different
had the district court considered Moore’s deposition as additional
evidence. Whether to allow additional evidence under § 1415(e)(2)
“must be left to the discretion of the trial court which must be
careful not to allow such evidence to change the character of the
hearing from one of review to a trial de novo. Town of
Burlington v. Dep’t of Educ., 736 F.2d 773, 791 (1st Cir. 1984).
This court announced its strict approach in Springer, 134 F.3d at
667, that “‘testimony from all who did, or could have, testified
before the administrative hearing’ would be ‘an appropriate limit
in many cases.’” (citing Town of Burlington, 736 F.2d at 790). We
disagree with the Avjians’ contention that Moore’s testimony was
unavailable at the administrative hearing because the ALJ refused
to let the Avjians question Moore in the areas of instructions from
his superiors, quality assurance issues, and experiences of the
average family. Moreover, these issues were not addressed in the
deposition. We therefore affirm the district court’s refusal to
consider the deposition testimony.
B.
The Avjians next argue that requiring them to pay for
D.A.’s residential placement constitutes a failure to provide D.A.
- 8 -
with a FAPE. Whether a child is receiving a FAPE is a two-part
inquiry. A court must determine first whether the state has
“complied with the procedures set forth in the Act,” and second,
whether the IEP is “reasonably calculated to enable the child to
receive educational benefits.” Bd. of Educ. v. Rowley, 458 U.S.
176, 206-07 (1982). Courts are reluctant to second-guess the
judgment of educational professionals once a procedurally proper
IEP has been formulated. See id.
The Avjians first contend that although the IEP team
decided a residential treatment was best for D.A., this decision
was not reflected on the written IEP. The written IEP clearly
stated that D.A. did not need residential treatment to meet her
educational needs. It appears that in response to her parents’
requests for residential treatment, the IEP Team recommended the
RICA program, but clearly documented on the IEP that D.A. was only
referred to a day program. D.A.’s parents indicated their
agreement with the IEP by signing it. This Court has found that
when evaluating whether a school district offered a FAPE, a court
generally must limit its consideration to the terms of the IEP
itself. See A.K. ex rel. J.K. v. Alexandria City Sch. Bd., No. 06-
1130, F.3d , 2007 WL 1218204, at *7 (4th Cir. Apr. 26,
2007). Expanding the scope of the offer to include comments made
during the IEP process undermines the important policies served by
requiring a formal written IEP. Id. Accordingly, we reject the
- 9 -
Avjians’ invitation that we ignore the plain terms of the written
IEP to which they give their written assert.
The Avjians next assert that the IEP team did not
properly consider D.A.’s educational and non-educational needs. We
disagree. The IDEA clearly states that its purpose is to determine
the “educational needs of [a child with a disability].”
1414(a)(1)(C)(i)(II) (emphasis added). Nowhere does it state that
the IEP team should evaluate a child’s non-educational needs and/or
make any determination as to treatment for those needs. The
purpose of the IEP Team meeting was to determine D.A.’s educational
needs and how to meet those needs in the least restrictive
environment.
The IDEA establishes a “basic floor of opportunity” for
every handicapped child. Rowley, 458 U.S. at 201. “States must
provide specialized instruction and related services ‘sufficient to
confer some educational benefit upon the handicapped child.’”
Hartmann v. Loudoun County Bd. of Educ., 118 F.3d 996, 1001 (4th
Cir. 1997) (citing Rowley, 458 U.S. at 200-01). The IDEA, however,
does not require a school district to provide the best education.
MM, 303 F.3d at 527. In other words, once a FAPE is offered, the
school district need not offer additional educational services.
Id.
Finally, the Avjians assert the IEP team did not provide
them with adequate information and notice regarding the parents’
- 10 -
financial responsibility. Nowhere does the statute require the IEP
Team to discuss financing. Under the IDEA, D.A. is entitled to a
FAPE, which is determined through the IEP process. That FAPE was
a private day school. Any additional treatment, even if requested
by the parents, is not the financial responsibility of MCPS.
C.
The Avjians set forth a detailed argument that the MCPS
has adopted a pervasive and longstanding process for recommending
residential placements, referring students to RICA, and then
abdicating their responsibility to fund the residential placements.
As the Government notes, both the ALJ and the district court have
refused to allow the Avjians to develop this argument through
additional evidence. We agree with this determination.
III.
In sum, the IEP Team clearly recommended a day school
placement and the Avjians indicated their agreement by signing the
written plan. MCPS followed the statutory procedures set forth in
the IDEA. Accordingly, we find there is no genuine issue of
material fact. We therefore affirm the judgment of the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
- 11 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1023047/ | Vacated by Supreme Court, January 7, 2008
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4052
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTWYON SKIPPER,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (2:06-cr-00157)
Submitted: May 25, 2007 Decided: July 11, 2007
Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Edward H. Weis, Assistant Federal Public Defender, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, John J. Frail, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antwyon Skipper appeals from his 100-month sentence
imposed pursuant to his guilty plea to possession with intent to
distribute cocaine base. On appeal, he asserts that the district
court utilized the wrong standard in choosing his sentence, that
the court erred by failing to consider whether the “unique”
circumstances of his case warranted use of the 100:1 cocaine
powder/cocaine base guidelines ratio (“100:1 ratio”), and that his
sentence was unreasonable. We affirm.
Skipper first claims that the district court applied the
improper standard at his sentencing. Specifically, he asserts that
the district court attempted to impose a “reasonable” sentence,
applying a presumption that a reasonable sentence would be one
within the advisory guideline range. Skipper contends that the
proper standard should have been to impose a sentence sufficient,
but not greater than necessary, to fulfill the purposes of
sentencing, giving no undue weight to the guidelines range.
Skipper correctly states that the district court’s
mandate is “to impose a sentence sufficient, but not greater than
necessary, to comply with the purposes of section 3553(a)(2).”
United States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006).
“Reasonableness is the appellate standard of review in judging
whether a district court has accomplished its task.” Id.
(emphasis in original). However, our review of the record reveals
- 2 -
that the district court understood and applied the correct
standard. Thus, this issue is without merit.
Next, Skipper contends that the district court improperly
failed to consider whether, under the specific facts of his case,
the guidelines’ tougher treatment of crack cocaine crimes resulted
in a sentence greater than necessary to advance the goals of
sentencing in his case. In United States v. Eura, 440 F.3d 625,
634 (4th Cir. 2006), petition for cert. filed (June 20, 2006), we
concluded that a “district court’s categorical rejection of the
100:1 ratio impermissibly usurps Congress’s judgment about the
proper sentencing policy for cocaine offenses.” However, Skipper
points to the Eura Court’s further conclusions that “it does not
follow that all defendants convicted of crack cocaine offenses must
receive a sentence within the advisory sentencing range. We
certainly envision instances in which some of the § 3553(a) factors
will warrant a variance from the advisory sentencing range in a
crack cocaine case.” Id. (emphasis in original).
Skipper asserts that his is such a case. He points to
his non-violent record and the fact that he was a low-level dealer.
He contends that, because the 100:1 ratio was adopted to target
major drug dealers, the facts in his case would justify a variance
sentence, as the 100:1 ratio resulted in a harsher sentence than
necessary.
- 3 -
Skipper has misread Eura. Eura does not conclude that,
in given cases, the court may alter or disregard the 100:1 ratio;
rather, the language Skipper points to in Eura stands for the
unremarkable conclusion that the court must consider the guidelines
range as well as the 18 U.S.C.A. § 3553 (West 2000 & Supp. 2007)
factors in fashioning a sentence and that, in an appropriate case,
the § 3553 factors may warrant a lower sentence, even for a
defendant convicted of a crack cocaine offense. Eura does not say
that one of the considered factors can be the unfairness of the
ratio in certain cases. In fact, Eura plainly states that “in
arriving at a reasonable sentence, the court simply must not rely
on a factor that would result in a sentencing disparity that
totally is at odds with the will of Congress.” 440 F.3d at 634.
Thus, the district court properly declined to impose a variance
sentence based on any perceived unfairness in the 100:1 ratio.
Finally, Skipper contends that his sentence was
unreasonable because the district court did not properly take into
account relevant factors, including the non-violent nature of the
crime, his cooperation, and his relatively innocuous criminal
history. In addition, Skipper claims that the purposes of the
100:1 ratio, which drove the guideline calculations, are not
present in his relatively minor, non-violent conviction. Skipper’s
sentence, which was within the proper advisory guidelines range, is
- 4 -
presumptively reasonable. See United States v. Johnson, 445 F.3d
339, 341 (4th Cir. 2006).
The issues Skipper raises to support his claim that his
sentence is unreasonable were raised at sentencing and considered
by the district court. The court noted that Skipper posed a risk
of future substance abuse, that he had a long history of using and
selling drugs, and that the amount of drugs involved in the instant
crime was greater than in his prior convictions. In addition, the
non-violent nature of his crime and the fact that he accepted
responsibility were already considered in the calculation of the
guideline range.
Neither Skipper nor the record suggests any information
so compelling as to rebut the presumption that a sentence within
the properly calculated guideline range is reasonable. Congress
has never stated that the 100:1 ratio is only applicable in certain
cases, and as discussed above, district courts are not permitted to
consider any unfairness in application of the ratio when
determining a sentence. Accordingly, we find that Skipper’s
sentence, which was well under the statutory maximum and at the low
end of the properly calculated guideline range, was reasonable.
Accordingly, Skipper’s sentence is affirmed. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
- 5 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1023051/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5251
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIE MACK PURNELL, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:05-cr-00770-TLW)
Submitted: May 30, 2007 Decided: July 11, 2007
Before WILLIAMS, Chief Judge, and MOTZ and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kathy Price Elmore, ORR, ELMORE & ERVIN, LLC, Florence, South
Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, Columbia, South Carolina, Alfred William Walker Bethea,
Jr., Assistant United States Attorney, Florence, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Willie Mack Purnell, Jr. appeals his 118-month sentence
imposed following his guilty plea and convictions for robbery,
aiding and abetting a carjacking, and a firearm offense. His
attorney filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967). Though notified of his opportunity to file a pro se
supplemental brief, Purnell has not done so. The Government has
declined to file a reply brief. Finding no reversible error, we
affirm.
Purnell suggests that the district court erred by not
fully complying with Fed. R. Crim P. 11 at the guilty plea hearing.
Contrary to this assertion, the district court meticulously
followed Rule 11 to ensure that Purnell fully understood the
significance of his guilty plea and that the plea was knowing and
voluntary. After questioning Purnell about the charges, his
attorney’s services, the rights that he was giving up by pleading
guilty, the advisory guidelines ranges, the maximum penalties, and
relevant conduct, the court found Purnell fully competent and
capable of entering an informed plea. The district court fully
complied with its Rule 11 obligations, and we find this issue
meritless.
Purnell also suggests that the district court erred by
violating the requirements of 18 U.S.C. § 3553(a) in fashioning a
sentence. After United States v. Booker, 543 U.S. 220 (2005), a
- 2 -
district court is no longer bound by the range prescribed by the
sentencing guidelines. However, in imposing a sentence
post-Booker, courts still must calculate the applicable guideline
range after making the appropriate findings of fact and consider
the range in conjunction with other relevant factors under the
guidelines and § 3553(a). United States v. Moreland, 437 F.3d 424,
432 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). This court
will affirm a post-Booker sentence if it “is within the statutorily
prescribed range and is reasonable.” Id. at 433 (internal
quotation marks and citation omitted). “[A] sentence within the
proper advisory Guidelines range is presumptively reasonable.”
United States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006).
“The district court need not discuss each factor set
forth in § 3553(a) ‘in checklist fashion;’ ‘it is enough to
calculate the range accurately and explain why (if the sentence
lies outside it) this defendant deserves more or less.’” Moreland,
437 F.3d at 432 (quoting United States v. Dean, 414 F.3d 725, 729
(7th Cir. 2005)).
Here, the district court sentenced Purnell post-Booker
and appropriately treated the guidelines as advisory. The court
sentenced Purnell after considering and examining the sentencing
guidelines and the § 3553(a) factors, as instructed by Booker.
Purnell’s seventy-eight-month sentence for the robbery and
carjacking convictions is below both the appropriate guidelines
- 3 -
range and twenty-year statutory maximum sentence. See 18 U.S.C.A.
§ 1951(a) (West Supp. 2006). Purnell’s sentence of forty months
for the firearms offense is likewise below guidelines range and the
statutory maximum. The court determined that it should depart
based upon Purnell’s willingness to cooperate and assist the
Government in its case against his relative, his immediate remorse
and withdrawal from the criminal activity, his lack of criminal
history, and his youth. Neither Purnell nor the record suggests
any information so compelling to rebut the presumption that his
sentence was reasonable. We accordingly conclude the sentence was
reasonable and affirm.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Purnell’s convictions and sentence. This court
requires that counsel inform Purnell, in writing, of the right to
petition the Supreme Court of the United States for further review.
If Purnell requests that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Purnell.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
- 4 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593620/ | 896 F.Supp. 292 (1995)
In the Matter of the Arbitration of Certain Controversies Between BIG R FOOD WAREHOUSES, Royal Farms, Inc., Petitioners,
v.
LOCAL 338 RWDSU, Respondent.
No. 93 CV 5259.
United States District Court, E.D. New York.
August 15, 1995.
*293 *294 Finkel Goldstein Berzow & Rosenbloom (Richard M. Howard, of counsel), New York City, for petitioners.
Friedman & Levine (Jennifer D. Weekley, of counsel), New York City, for respondent.
MEMORANDUM AND ORDER
NICKERSON, District Judge:
Petitioner brought this action seeking to vacate an arbitration award pursuant to 29 U.S.C. § 185 and 9 U.S.C. § 10. On September 2, 1994 the court granted summary judgment confirming and enforcing the award. By Memorandum and Order dated December 28, 1994 the court granted respondent's motion for costs and attorney's fees and referred the matter to Magistrate Judge A. Simon Chrein to hear and report on the issue of the appropriate amount.
In a Report and Recommendation dated July 28, 1995 the Magistrate Judge recommended that respondent be awarded $20,850.00 in attorney's fees and $451.80 in costs. Because petitioner timely filed objections, the court reviews de novo those portions of the Report and Recommendation to which objections were made. 28 U.S.C. § 636(b)(1)(B).
The court agrees with the reasoning of the Magistrate Judge and adopts the Report and Recommendation.
So ordered.
REPORT AND RECOMMENDATION
CHREIN, United States Magistrate Judge.
By order dated December 28, 1994 the above referenced matter was referred to the undersigned Magistrate Judge by the Honorable Eugene H. Nickerson for a report and recommendation. Respondent, Local 338 RWDSU, has been awarded costs and attorney's fees by the District Court. See Memorandum and Order of Honorable Eugene H. Nickerson, dated December 28, 1994. This matter has been referred to this Court solely for a determination as to the reasonableness of respondent's attorney's fees and costs.
BACKGROUND:
Petitioner, Big R Food Warehouses ("Big R"), sought to vacate an arbitration award in *295 favor of Local 338 RWDSU ("the Union") pursuant to 29 U.S.C. § 185 and 9 U.S.C. § 10. Petitioner claimed that the arbitrator based her decision on matters not entered into evidence. The petitioner, however, had agreed to be bound by the arbitrator's decision.
As there was no transcript of the arbitrator's hearing to support petitioner's allegation, Judge Nickerson granted summary judgment in favor of the respondent on September 2, 1994, confirming and enforcing the arbitration award. Respondent was consequently awarded attorney's fees and Judge Nickerson referred the matter to the undersigned to hear and report on the issue of the appropriate amount of costs and attorney's fees. A more in depth discussion of the circumstances surrounding the arbitration dispute can be found in Judge Nickerson's decision. See Memorandum and Order of Honorable Eugene H. Nickerson, dated December 28, 1994. Friedman & Levine billed a total of 191 hours concerning this matter and requested a sum of $31,135.00 for attorney's fees plus $451.80 for costs incurred. Petitioner objects to the amount of attorney's fees requested.
DISCUSSION:
Petitioner alleges that respondent's attorney's fees are not realistic, "are disproportionate to the value of the subject matter, [and that] ... the services could have been performed in a more efficient manner." See Affidavit in Opposition to Respondent's Request for Attorney's Fees, dated March 31, 1995 ("Opposition"). The petitioner argues that the respondent did not submit original time slips, that duplication of time by attorneys should not be compensated, and that the fees requested do not bear a proportionate relationship to the value of the proceeding at bar. Petitioner further questions the amount of time expended by Friedman & Levine attorneys on various stages of this litigation.
ORIGINAL TIME SLIPS:
Petitioner notes that Friedman & Levine has not submitted "original" time sheets in its computation of hours billed. It is not clear what petitioner means by "original", however I assume petitioner's contention is that the time slips submitted by respondent's counsel in support of the fee request were inadequate, and therefore not in accord with the mandate for contemporaneous time records in computing attorneys fees as set forth in New York Ass'n For Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1154 (2d Cir. 1983). Attorneys at Friedman & Levine keep time records by directly inputting their hours worked into a computer system. A printout of this information has been submitted to the Court. See Declaration of Jennifer D. Weekley, dated September 23, 1994 and Supplemental Declaration of Jennifer D. Weekley, dated February 28, 1995. Chronological computer printouts satisfy the contemporaneous time record requirements of New York Ass'n for Retarded Children, Inc. v. Carey. See Pastre v. Weber, 800 F.Supp. 1120, 1125 (S.D.N.Y.1991); Meriwether v. Coughlin, 727 F.Supp. 823, 826-27 (S.D.N.Y. 1989). Therefore petitioner's claim in this respect is meritless.
Petitioner also contends that Friedman & Levine's contemporaneous time records lack the detail necessary to determine the propriety of the requested attorney's fees. Contemporaneous time records should specify the date, hours expended and the nature of the work done by each attorney. Carey, 711 F.2d at 1148. This court had no problems in evaluating respondent's billing invoice as respondent's invoices were clearly labeled and dated. The invoices provided a clear description of the work performed, the time spent on the respective matter, the attorney who rendered services, and the date the services were performed. Indeed, petitioner's own affidavit challenging the amount of time spent by opposing counsel on each stage of this litigation is testament to the clarity of respondent's billing invoice.
DUPLICATION:
Secondly, petitioner states that respondent should not be reimbursed where on two separate occasions two attorneys for the respondent billed for court appearances even though only one attorney addressed the *296 court.[1] Petitioner cites Kipper v. Kipper, 151 A.D.2d 377, 542 N.Y.S.2d 617 (1st Dep't. 1989), as holding that duplication of time by attorneys is not compensable. Kipper however, held that the sending of two attorneys to a deposition was duplicative. Id. at 378, 542 N.Y.S.2d 617. In the instant case, Friedman & Levine sent two attorneys not to a simple deposition, but rather for attendance at oral argument. The attorney at Friedman & Levine most familiar with this litigation and who addressed the court at oral argument, Jennifer Weekley, Esq., was at the time in her second year as a labor lawyer. I find nothing wrong with Friedman & Levine sending a more experienced attorney to lend guidance to Ms. Weekley at oral argument. See Seigal v. Merrick, 619 F.2d 160, 164 (2d Cir.1980) (dicta showing reluctance in depriving a lawyer the aid of even one associate in court appearances). While duplicative hours are certainly not compensable, this is not an instance where staffing was unnecessary and resulted in duplicative charges. Compare United States v. Bedford Assoc., 548 F.Supp. 748, 752 (S.D.N.Y.1982) (finding that work done by fifteen full time associates, five summer associates and various legal assistants on a simple mortgage foreclosure was unnecessary and thus led to duplicative charges). Therefore, I would allow the hours billed by the respective attorneys who attended oral argument.
RATIO OF REQUESTED COMPENSATION TO AMOUNT IN DISPUTE:
Petitioner contends that respondent should not be compensated $30,000.00 for attorney's fees when the amount in dispute was only $11,000.00. Notwithstanding the fact that a correct "lodestar" figure should not be reduced because of a low damage award, Cowan v. Prudential Ins. Co. of America, 935 F.2d 522, 526 (2d Cir.1991), it is important to note that petitioner initiated this action over the disputed sum. To permit a reduction in attorney's fees because of the small sum at stake in the instant case would effectively create a disincentive for a respondent to fully litigate this action. Thus, I find this argument has no merit.
REASONABLE TIME EXPENDED BY FRIEDMAN & LEVINE:
The amount of an award of reasonable attorney's fees is often determined by using the lodestar approach set forth in Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). The lodestar approach calculates attorney's fees by multiplying the number of hours that the prevailing party's attorneys reasonably expended on the litigation by a reasonable hourly rate. Pastre v. Weber, 800 F.Supp. 1120, 1123 (S.D.N.Y.1991), citing Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). The lodestar amount can be augmented or truncated depending upon other factors such as the "the risk of the litigation, the complexity of the issues, and the skill of the attorneys." New York Ass'n For Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1140 (2d Cir.1983). See also Pennsylvania v. Delaware Valley Citizens' Counsel for Clean Air, 483 U.S. 711, 729-731, 107 S.Ct. 3078, 3088-90, 97 L.Ed.2d 585 (1987) (Lodestar amount may be reduced or enhanced by the circumstances of the particular litigation).
Petitioner does not challenge any of the hourly rates charged by the various attorneys of Friedman & Levine associated with this litigation. In any case, I find that for purposes of computing the lodestar figure, the hourly rates charged by Friedman & Levine ($140-$250 per hour)[2] are reasonable and comparable to that of other New York City law firms. See Ramos v. Patrician Equities Corp., No. 89 Civ. 5370 (TPG), 1993 WL 58428, at *29 (S.D.N.Y. March 3, 1993) (Attorney hourly billing rates between $150-$425 per hour are in line with other New York City firms. In addition the court held *297 that hourly billing rates between $98 and $280 are modest). In a particular case, the hourly rates charged by counsel may be reasonable, however the time devoted to the litigation may not be. Anschutz Petroleum Marketing Corp. v. E.W. Saybolt & Co., Inc., 112 F.R.D. 355 (S.D.N.Y.1986), citing Tedeschi, v. Smith Barney, Harris Upham & Co., Inc., 579 F.Supp. 657, 663-664 (S.D.N.Y. 1984), aff'd, 757 F.2d 465 (2d Cir.1985), cert. denied, 474 U.S. 850, 106 S.Ct. 147, 88 L.Ed.2d 122 (1985).
Petitioner's final argument hinges on the reasonableness of the time expended by Friedman & Levine on various aspects of the litigation. A court is allowed to reduce a request for attorney's fees to an amount it considers reasonable. Grant v. Grenadier Realty Corp., No. 84 Civ. 4433 (WK), 1986 WL 8223, at *3 (S.D.N.Y. March 17, 1986), aff'd, 810 F.2d 1160 (2d Cir.1986) (court only awarded defendant's counsel $1,000.00 instead of the requested $4,621.25 because the court felt the request was excessive), citing North American Foreign Trading Corp. v. Zale Corp., 83 F.R.D. 293 (S.D.N.Y.1979). Any assessment of fees against a non-prevailing party must be fair and reasonable depending upon the circumstances of this case. See Tedeschi, 579 F.Supp. 657 (the court awarded $10,000.00 in fees instead of the requested $49,235.75 in a case that did not go to trial, but involved numerous motions requiring time for research, preparation of briefs and court appearances). See also Browning v. Peyton, 123 F.R.D. 75, 79 (S.D.N.Y.1988); Mid-Hudson Legal Services v. G & U, Inc., 465 F.Supp. 261, 270-71 (S.D.N.Y.1978); Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983) (counsel should make a good faith effort to exclude excessive, redundant or unnecessary hours from the fee request).
As a rule of fairness, when counsel fees are to be charged to the opposing party, services should be charged at the rate of the available person who can most cheaply qualify to complete the task: cost-conscious clients would expect such practices. Browning, 123 F.R.D. at 79.
In determining the number of reasonable hours expended on a particular case, the court should consider "its own familiarity with the case and its experience with the case generally as well as to the evidentiary submissions and arguments of the parties." Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir.1992), citing DiFilippo v. Morizio, 759 F.2d 231, 236 (2d Cir.1985). The court uses the time records submitted as a benchmark and should exclude any hours expended that are excessive, duplicative or inadequately documented. Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir.1993), on remand, 852 F.Supp. 542 (S.D.Miss.1994), aff'd, 49 F.3d 728 (5th Cir.1995).
Supporting the notion that the fees requested are reasonable is that the Union in fact paid for the bills submitted by Friedman & Levine. However, this argument loses much of its persuasiveness when it is noted that respondent, in its counterclaim, requested attorney's fees at the outset of this litigation. Thus, the Union, in anticipation of an award of attorney's fees, may have been more willing to pay the bill as charged, instead of scrutinizing the hours spent on each task. After careful examination of the time charged for this action, I find that some of the hours billed by Friedman & Levine are excessive.
The attached Exhibit A is a list of each attorney's requested and allowed hours and the recommended awards.
Interrogatory Answers:
Petitioner claims that the 15.25[3] hours billed by respondent's counsel in answering six interrogatory responses is unreasonable. I recognize that time is needed to examine the questions and determine the proper responses, however 14.5 hours to answer six straightforward interrogatory questions seems unreasonable. Four of the six responses are virtually identical and state that the respondent will not respond because the question seeks irrelevant and immaterial information. See Defendant's Response to *298 Plaintiff's First Set of Interrogatories, annexed as Exhibit A to "Opposition". Therefore, 7.5 hours is deducted from Jennifer Weekley's requested hours and respondent should only be allowed 7 hours for answering the interrogatory questions.
Default Motion:
Petitioner claims that since the default judgment was not successful, the respondent should not be compensated for a "futile" effort. However, at a February 1, 1994 conference before the undersigned Magistrate Judge the default judgment was discussed and there was no suggestion that the motion was frivolous. See Calendar of February 1, 1994 conference before A. Simon Chrein, United States Magistrate Judge. Petitioner claims that respondent should not be reimbursed for the effort put into this motion. I do not agree with petitioner's claim that the respondent should not be reimbursed for the effort expended on this motion for default. Respondent, having been subjected to this lawsuit should not be penalized for undertaking a reasonable legal recourse. See Seigal, 619 F.2d at 164 (holding that time expended on "unfruitful" legal theories is compensable as long as the theories are not frivolous).
The hours billed in preparation of this default motion, however, must be within reasonable parameters. Respondent's attorneys billed a total of 31.25 hours for moving and arguing the default motion. Jennifer Weekley, billed approximately 22.25 hours for the preparation and drafting of a default motion concerning petitioner's failure to timely reply to respondent's counterclaims. Approximately 3 hours were spent by a number of respondent's attorneys appearing at conferences and conducting meetings. Two attorneys billed 6 hours for appearances at the oral argument concerning the default motion. As previously indicated, these hours should be allowed.
The research required and the documents submitted to this court do not support an award of 22.5 hours. Respondents filed a one-page notice of motion, three page memorandum of law in support of defendant's motion for default with four cases cited, a four page declaration by Jennifer Weekley, Esq. reciting the relevant facts, and a five and one half page reply memorandum filed in opposition to plaintiff's motion to vacate the default judgment. After careful review of these submissions, I note that this issue was relatively simple and can not justify the expenditure of 22.5 hours for this default motion. Accordingly, 10 hours should be disallowed from the time expended by Jennifer Weekley, Esq. In recommending this deduction I have recognized the possibility that the four cases cited may have been distilled from substantial research.
Answer:
The petitioner argues that the respondent's billing of 4.5 hours for the preparation of the answer in this case is also unreasonable. I find, however, that the time spent preparing the answer was a reasonable expenditure and the time should be awarded.
Letter to the Court:
Counsel for respondent billed 6.25 hours for writing and preparing a letter to this Court in opposition to petitioner's letter requesting a response to petitioner's interrogatories. See Letter to Magistrate Judge A. Simon Chrein dated May 24, 1994. Petitioner contends that "respondent's counsel should not be compensated for a futile, wholly unnecessary and wasteful effort," since respondent was forced to answer the interrogatories. See Opposition, p. 3. Unsuccessful legal efforts are compensable as long as they are not frivolous. Seigal, 619 F.2d at 164. Although not successful, respondent's letter consisted of two and one-half pages of single spaced, well reasoned, and well researched argument. The hours spent on drafting this letter are within reason, thus, respondent should be awarded 6.25 hours for preparing the letter to this court dated March 24, 1994.
Removal Petition:
Petitioner's counsel billed 8.25 hours for the researching, drafting and reviewing of a removal petition. Petitioner claims that the removal petition was unnecessary because had respondent asked, petitioner would have acquiesced to the removal petition. I find no merit to this claim, and indeed feel *299 that there is nothing in the record that would have lead respondent's counsel to such a belief.
Respondent, however, has given this court no justification as to why a standard removal petition should necessitate the expenditure of 8.25 hours. The notice of removal was four pages long and set forth the relevant facts and applicable code sections which could not necessitate extensive research. I find that spending 8.25 hours on this petition is an excessive expenditure of time and would disallow 3 hours billed by Jennifer Weekley, Esq.
Summary Judgment Motion:
Respondent billed 31.5 hours for the researching, drafting and reviewing of a fourteen page summary judgment motion. Although the brief was well written and researched, I find this amount excessive given that the issue involved was not complex or novel and accordingly would reduce this claim by 5 hours, allowing a total of 26.5 hours for the summary judgment motion. These hours will be deducted from the time spent by Jennifer Weekley, Esq. I find that the combined total of 4.5 hours spent by Bruce Levine, Eugene S. Friedman, and Elizabeth O'Leary on consultation, revision and preparation of the brief should be awarded.
Reply to Summary Judgment Motion:
Respondent billed 47.75 hours for drafting, researching and reviewing an eleven page reply brief to petitioner's opposition for summary judgment. After careful review of the respondent's time sheets it appears that Jennifer Weekley, Esq., billed approximately 26.5 hours to research and draft the reply, as well as confer with other attorneys on the brief. In addition William Anspach billed 19.75 hours researching and drafting the reply brief. I have considered the hours billed by William Anspach, a first year associate, and recognize that a certain latitude should be allowed in consideration of the fact that a first year associate requires a greater expenditure of time than a more experienced attorney. Nonetheless having reviewed the reply brief it appears that the work by the two attorneys in this matter was excessive and duplicative, and accordingly would reduce the amount billed by 32.75 hours. I have deducted 13.75 hours from the 19.75 hours billed by William Anspach and deducted 19 hours from the 26.5 hours billed by Jennifer Weekley, Esq. I would award 1.50 hours billed by B.S. Levine, Esq., for review of the reply brief and conferences with the other attorneys working on the brief, thus, an award of 15 hours for the reply brief should be allowed.
Preparation of Attorney's Fees:
Respondent billed 20 hours[4] for the preparation of attorney's fees, which includes a five page supporting brief, a three page reply brief, preparation of the fee application, and oral argument before Judge Nickerson. While work done in preparation of attorney's fees is compensable, such fees must be reasonable. See Mid Hudson Legal Serv., 465 F.Supp. at 273 (allowing over 200 hundred hours in preparing attorney's fees because of the "novelty, complexity and importance of the underlying issues"); Browning, 123 F.R.D. at 78-79 (holding that "services reasonably required to prepare a motion for an award of attorney's fees ... may properly be claimed as a compensable service"). In the instant case, the issue involved was not complex, nor did it require extensive or exhaustive research. The submissions illustrate that the attorneys recited the facts which have already been cited in previous court documents, reiterated the attorneys' personal background, and most importantly, did not state why the time spent was reasonable. See Peterson v. Foote, No. 83 Cv. 153, 1995 WL 118173, at *2 (N.D.N.Y. March 13, 1995) (burden of proving entitlement to attorney's fees is on the party seeking the award). Accordingly, I would award 12 hours for the preparation of attorney's fees and deduct 7.5 hours from the time Jennifer Weekley, Esq. billed on this matter.
COSTS:
In his September 2, 1994 order Judge Nickerson granted costs incurred in this litigation to the respondent. These costs include a $120.00 filing fee, $276.80 for LEXIS, *300 and $55.00 for service of process. These costs are reasonable, thus, the petitioner should pay a total of $451.80 to the respondent for costs incurred. The attached Exhibit B is a list of the costs requested by the respondent and the recommended awards.
CONCLUSION
For the reasons set forth above it is the respectful recommendation of the undersigned that the respondent be awarded $20,850.00 in attorney's fees and $451.80 in costs. Any objections to the recommendations contained herein must be filed with the Honorable Eugene H. Nickerson on or before August 11, 1995. 28 U.S.C. § 636; Fed. R.Civ.P. 6, 72. Failure to object will preclude appellate review.
July 28, 1995.
EXHIBIT A ATTORNEY'S FEES
$/HR. # HRS. # HRS.
AWARDED REQUESTED $ REQUESTED AWARDED $
Weekley
$160 149.00 $23,840.00 96.75[5] $15,480.00
Anspach
$140 19.75 $ 2,765.00 6.00 $ 840.00
Levine
$225/185[6] 15.25 $ 3,131.25 15.25 $ 3,131.25
Friedman
$250 2.00 $ 500.00 2.00 $ 500.00
Levy-Warren
$225 1.50 $ 337.50 1.50 $ 337.50
O'Leary
$ 70 .75 $ 52.50 .75 $ 52.50
Wolfe
$185 2.75 $ 508.75 2.75 $ 508.75
TOTALS 191.00 $31,135.00 125.00 $20,850.00
EXHIBIT B COSTS INCURRED
AMOUNT AMOUNT
COSTS REQUESTED AWARDED
Filing Fee $120.00 $120.00
Service of Process $ 55.00 $ 55.00
LEXIS $276.50 $276.50
TOTALS $451.80 $451.80
NOTES
[1] The total amount of alleged duplication in these instances was at most 4 hours and 15 minutes. Both Bruce Levine, Esq. and Jennifer Weekley, Esq. billed 3 hours for oral argument on February 11, 1994 and both William Wolf, Esq. and Jennifer Weekley billed 1 hour and 15 minutes for oral argument on September 19, 1994.
[2] These rates do not include those charged by Elizabeth O'Leary, a law student who clerked at Friedman & Levine and billed at $70.00/hour.
[3] A review of respondent's submissions illustrates that in fact respondent billed a total of 14.5 hours for interrogatory responses, as opposed to the 15.25 hours cited by the petitioner.
[4] A review of the time sheets illustrates that in fact respondent's counsel spent 19.5 hours on preparing submissions on attorney's fees and for the time arguing this issue before Judge Nickerson.
[5] In addition to the deductions cited supra .25 hours were deducted for a consultation between Jennifer Weekley and Bruce Levine on April 29, 1994 in which Weekley billed for .5 hours and Levine billed for .25 hours.
[6] Billed at the rate of $225.00/hr. after 7/94 (total 7.75 hrs.) and 185/hr. before (total 7.5 hrs.). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596216/ | 28 So.3d 998 (2010)
STATE of Louisiana
v.
Carl OSMENT.
No. 2009-KP-0757.
Supreme Court of Louisiana.
March 5, 2010.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1023076/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4920
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARVIN EDWARD PATRICK,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (2:05-cr-00016-D-ALL)
Submitted: June 4, 2007 Decided: July 10, 2007
Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Terry F. Rose, Smithfield, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P.
May-Parker, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marvin Edward Patrick appeals his conviction and life
sentence following a jury trial for possession with intent to
distribute more than fifty grams of cocaine base. For the reasons
discussed below, we affirm.
Patrick was convicted on February 26, 1996, in the
Superior Court of Currituck County, North Carolina, of possession
with intent to distribute cocaine and again on May 6, 2002, of
possession of a Schedule II controlled substance. The 1996
conviction was a Class H felony, and Patrick was sentenced to
eleven to fourteen months in prison. The 2002 conviction was a
Class I conviction, and while Patrick was sentenced to nine to
eleven months is prison, under North Carolina law his conviction
was punishable by up to fifteen months in prison. See N.C. Gen.
Stat. §§ 90-95(a)(3) and (d)(2); § 15A-1340-17(d)(2005). The
Government filed a notice of its intent to seek an enhanced penalty
based upon Patrick’s prior state felony drug convictions. Before
sentencing, Patrick filed objections and a response to the
Government’s notice to enhance his sentence based upon his two
felony drug convictions, arguing that his sentence should not be
enhanced because he did not receive a sentence exceeding one year
on his 2002 conviction. The district court overruled the
objections, concluded that both convictions were felony drug
- 2 -
offenses, and sentenced Patrick to the enhanced sentence of life
imprisonment.
The question of whether an individual has previously been
convicted of a felony is a legal determination reviewed de novo.
United States v. Haynes, 961 F.2d 50, 51 (4th Cir. 1992).
Patrick’s sole argument on appeal is that he, as an individual with
his particular characteristics, could not have received more than
one year for the 2002 drug conviction under the North Carolina
structured sentencing scheme; therefore, he asserts that offense
was not “punishable by imprisonment for a term exceeding one year.”
According to Patrick, the legal determination of whether a
conviction is punishable by imprisonment for a term exceeding one
year is directly impacted by case law beginning with Apprendi v.
New Jersey, 530 U.S. 466 (2000), and culminating with United
States v. Booker, 543 U.S. 220 (2005). Patrick asserts that those
cases define the parameters of the Sixth Amendment’s guarantee to
trial by jury as applied to sentence-enhancing facts, whether
characterized as offense elements or sentence elements.
Under the North Carolina structured sentencing scheme,
Patrick received a sentence in the presumptive range for his 2002
drug conviction. Because the offense was a Class I felony, the
aggravated minimum sentence Patrick could have received under the
structured sentencing tables was ten to twelve months’
imprisonment. See N.C. Gen. Stat. § 15A-1340.17(c) and(d). At
- 3 -
sentencing for the current federal offense, however, the district
court found Patrick’s 2002 conviction was punishable by more than
one year, based on the maximum sentence that could be imposed for
that crime upon any defendant. In other words, the district court
concluded the offense was punishable by more than one year based on
the maximum aggravated sentence of fifteen months that could be
imposed under the North Carolina structured sentencing scheme for
a defendant with the worst criminal history category. This,
Patrick argues, is precisely what is prohibited by Apprendi,
Blakely and Booker.
Patrick’s argument is foreclosed by United States v.
Harp, 406 F.3d 242 (4th Cir.), cert. denied, 126 S. Ct. 297 (2005).
In Harp, the defendant argued that one of his Armed Career Criminal
Act predicate convictions (possession with intent to distribute
marijuana, a Class I felony) did not qualify as a “crime punishable
by more than one year” because the maximum “non-aggravated
punishment is only twelve months.” Id. at 245, 246. Declining to
apply an “individualized analysis,” the Court held that “to
determine whether a conviction is a crime punishable by a prison
term exceeding one year . . . we consider the maximum aggravated
sentence that could be imposed for that crime upon a defendant with
the worst possible criminal history.” Id. at 246.
Patrick complains that this interpretation mandates an
increase in punishment based not on the defendant’s actual criminal
- 4 -
history, but the potential criminal history of any person in the
class of people who committed the same crime as the defendant.
Patrick relies on United States v. Plakio, 433 F.3d 692 (10th Cir.
2005), and argues that this Court should follow the Tenth Circuit’s
reasoning. In Plakio, the defendant pled guilty to being a felon
in possession, but contested the finding that he had a prior Kansas
conviction that was punishable by a term exceeding one year. Id.
at 693. Under the Kansas sentencing guidelines, without a finding
of aggravating factors, Plakio’s maximum sentence based upon his
offense severity level and his criminal history score was eleven
months. Id. at 694. Rejecting the analysis applied in Harp, the
Tenth Circuit concluded that “Plakio’s offense never qualified as
a felony for purposes of the sentencing guidelines, regardless of
state terminology, because he was never subject to a sentence
greater than a year under Kansas law.” Id. at 695. Based on
Plakio, and in light of Blakely, Patrick asserts that Harp cannot
stand.
Despite Patrick’s argument to the contrary, the law in
this Circuit is settled by Harp. Because the statutory maximum
penalty for Patrick’s prior offense exceeded one year of
imprisonment, the offense was a felony under 21 U.S.C.
§ 841(b)(1)(A) warranting the enhanced sentence.
Accordingly, we affirm Patrick’s conviction and sentence.
We dispense with oral argument because the facts and legal
- 5 -
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
- 6 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594020/ | 400 N.W.2d 744 (1987)
Craig R. HILLE, Appellant,
v.
COUNTY OF WRIGHT, Respondent.
No. C5-86-783.
Court of Appeals of Minnesota.
February 3, 1987.
Review Denied April 17, 1987.
*746 Peter J. Krieser, Krieser & Auron, Minneapolis, for appellant.
Michael J. Ford, Quinlivan, Sherwood, Spellacy & Tarvestad, P.A., St. Cloud, for respondent.
Heard, considered and decided by HUSPENI, P.J., and SEDGWICK and LANSING, JJ.
OPINION
LANSING, Judge.
This appeal is from entry of judgment for Wright County in Craig Hille's action for personal injuries suffered in the Wright County jail. We affirm.
FACTS
Craig Hille was stopped on December 9, 1983, on suspicion of driving under the influence of alcohol. He failed the field sobriety tests and was described by Deputy Heaton, the arresting officer, as "highly intoxicated." A breathalyzer test taken at 6:33 p.m. at the Wright County jail showed a blood alcohol content of .20.
Deputy Heaton began the booking sheet on Hille at 6:50 p.m. Heaton did not contact a friend or relative to pick up Hille from the jail. He turned Hille over to Deputy Gerald Mitlyng at 7:00 or 7:05. Mitlyng, the second-shift jailer, photographed Hille, attempted to fingerprint him, and then placed him in the "overnight" cell block with three other inmates.
The individual cells in the overnight block were left unlocked, with each inmate having access to the common walkway area. Approximately eight to ten feet above the walkway floor, unscreened metal heating duct-work was suspended from the ceiling. Hille crawled up on the duct-work and began kicking it in an attempt to "escape." The other inmates treated this as a joke. Hille fell once and at approximately 8:00 fell again, hitting his head on the floor. The duct-work also fell. Mitlyng, who was in the dispatch area discussing investments and IRAs and trying to sell life insurance to the other deputies, heard the crash and, with the other deputies, went to investigate. Hille was taken to the hospital and then to the St. Cloud Detoxification Center. He suffered a skull fracture and total loss of hearing in one ear.
The watch commander stated Mitlyng was in the dispatch area more than 30 minutes. Deputy Miller estimated Mitlyng was in the dispatch area from 30 to 45 minutes. Mitlyng, however, testified he was in the dispatch area only 15 to 20 minutes. Deputy Walker gave a similar estimate. An inmate estimated Hille's activities in the cell block continued for about 30 to 45 minutes. The deputies in the dispatch area heard yelling in the jail and some assumed it was Hille, but only Deputy Walker testified to hearing other noises, such as pounding and rattling of cell bars.
The Wright County jail manual required "[v]isual contact with the [intoxicated] resident every 30 minutes" logged by the jailer on duty. State administrative rules require half-hour checks of all inmates. Minn. Rules pt. 2910.4700H. The daily log-in sheet was not introduced at trial.
Wright County followed a policy of sending intoxicated drivers to the detoxification center at St. Cloud. The detoxification center, however, would not take uncooperative or belligerent persons. All the witnesses agreed that Hille was loud, uncooperative and belligerent.
At trial Hille presented the expert testimony of Joseph Rowan, who had 30 years experience in penal administration and consulting, including jail design and the training of jail staff, in Minnesota and elsewhere. Rowan testified that the Wright County jail, with the exposed heating *747 ducts, was not a reasonably safe place to incarcerate an intoxicated person.
Rowan, quoting an ABA standard, testified that a detained person who is drunk should be under constant observation. He concluded that the Wright County jail was not adequately staffed because it was unable to provide constant observation. Rowan was not allowed to give an opinion on whether the "observation and monitoring" of Hille met general professional standards. This testimony was excluded because Rowan did not have personal knowledge of the actual monitoring practices of Minnesota county jails.
The trial court concluded that the county was not negligent and that its agents' conduct, whether or not negligent, did not cause Hille's injuries. The court also found that the jail's policy required half-hour periodic checks of intoxicated prisoners and that Hille had engaged in an escape attempt between 7:30 and 8:00 p.m., causing his injuries.
ISSUES
1. Did the trial court clearly err in finding that the county was not negligent?
2. Did the trial court clearly err in finding the county's acts were not a cause of the injury?
3. Was the trial court's finding of appellant's negligence clearly erroneous?
4. Did the trial court commit reversible error in excluding certain expert testimony?
ANALYSIS
I
Hille's complaint alleged the county was negligent in failing to adequately supervise the overnight cell block, failing to make frequent checks, failing to take preventive or restraining measures, and in failing to respond to noises from the cell block. Hille also claimed in a post-trial motion that the county failed to provide a physically safe facility. Evidence at trial raised the issue of whether Hille should have been placed in the overnight cell block. The trial court's findings address only the issue of adequate observation.
When trial is to the court sitting without a jury, the findings of the court are entitled to the same weight on review as a jury verdict. Rehberger v. Project Plumbing Co., Inc., 295 Minn. 577, 578, 205 N.W.2d 126, 127 (1973). The trial court's findings are not to be set aside unless clearly erroneous. Matter of Estate of Serbus, 324 N.W.2d 381, 385 (Minn.1982).
Courts generally have recognized a duty to take reasonable action to protect prisoners even from self-inflicted injury or suicide. See, e.g., Annotation, 79 A.L.R. 3d 1210; Falkenstein v. City of Bismarck, 268 N.W.2d 787, 792 (N.D.1978). There is a general duty to protect a person taken into one's custody. Restatement of Torts (Second), § 314A. The standard is reasonable care. See, e.g., Griffis v. Travelers Insurance Co., 273 So. 2d 523, 526-27 (La. 1973).
The witnesses disagreed on how long Hille remained unobserved by Mitlyng. All witnesses agreed that Hille fell at approximately 8:00 p.m. They did not agree, however, on how long Mitlyng had been at the dispatch desk, or other administrative areas outside the jail area, when the crash was heard. The trial court was in the best position to resolve this conflict, which involved a determination of credibility.
There was also disagreement on whether those in the dispatch area heard noises other than Hille's yelling before he fell. Although Rowan, Hille's expert witness, testified that any noises should have been immediately checked, there was evidence Hille was almost continually yelling, and one deputy stated only significant changes in noise level warranted checking.
Even though the trial court's findings on adequate observation are not clearly erroneous, placing Hille in the general jail population in a cell block with exposed ducts, without significant measures to prevent injury, presents a separate basis for negligence. Although this issue was not *748 fully pled in the complaint, it was raised at trial. Rowan testified that Hille should have been placed in a locked cell, either under the observation of the other inmates or directly observable by the jailer from his office. Rowan testified that the exposed heating duct was below standards for a jail. Minnesota, however, does not have administrative standards for existing jail facilities. Cf. Minn.Rules pt. 2900.0600, subp. 7 (no prisoner access to heating fixtures in new facilities). The jail's "drunk tank," designed to minimize the possibility of self-inflicted as well as accidental injury, had been turned into a library and exercise room.
There is a risk involved in confining highly intoxicated, belligerent persons in common areas inadequate for that purpose, even if they do not violate applicable building standards. See Hall v. Midwest Bottled Gas Distributors, Inc., 532 S.W.2d 449, 451 (Ky.1975) (gas line exposed on common cell area broken by very intoxicated prisoner). Because of the restrictive policy of the detoxification center, the county was taking into custody only the most difficult and belligerent drunk drivers. Yet it had no separate facilities or significant preventive measures for handling them. The presence of other prisoners may, to some extent, have lessened the risk, but did not satisfy the standard of care.
II
The trial court found no causation, apparently treating Hille's "escape" attempt as a superseding cause. In order to be a superseding cause, an event must not be reasonably foreseeable. Regan v. Stromberg, 285 N.W.2d 97, 100 (Minn. 1979).
Even if Hille's reaction to confinement were considered an escape attempt, the criminal act of another, if reasonably foreseeable, is not a superseding cause. Hilligoss v. Cross Companies, 304 Minn. 546, 547, 228 N.W.2d 585, 586 (1975). If there is a generally foreseeable risk of harm to the highly intoxicated Hille, it is not necessary that the jailers foresee his specific act of climbing on the air duct. See Rieger v. Zackoski, 321 N.W.2d 16, 21 (Minn.1982) (specific conduct of third party need not be foreseeable). Hille's loss of self-control was foreseeable as a "normal consequence" of incarceration in his inebriated condition. Id.
III
Hille contends the trial court's finding that he was negligent is contrary to law. He argues that he was so intoxicated that he was unable to form the intent required for negligence, that the county had the "last clear chance" to avoid injury, and that its "willful and wanton negligence" bars the claim of comparative fault. Alternatively, he argues that statutory regulations impose on the county absolute liability for his injuries.
The doctrine of "last clear chance," or "discovered peril," does not apply because Hille's "position of danger" was not his intoxicated state, but his position on the heating duct. See, e.g., Thorn v. Glass Depot, 373 N.W.2d 799, 805 (Minn. Ct.App.1985), pet. for rev. denied (Minn. Nov. 1, 1985) (intoxicated pedestrian's dangerous position was his presence in the traffic lane of the highway). For the same reason, there was no "willful and wanton" negligence. The exact risk of harm was not known or discovered by the county prior to the injury.
Hille's negligence is not a defense if a statute imposes absolute liability. The statute Hille cites, however, establishes only a general duty of attendance owed to all prisoners. Minn.Stat. § 641.01 (1984). It establishes no standard of observation, monitoring, or placement of prisoners.
The trial court's finding that Hille was negligent is supported by the evidence. A voluntarily intoxicated person is required to exercise the same degree of care for himself as a sober individual. Kedrowski v. Czech, 244 Minn. 111, 118, 69 N.W.2d 337, 342 (1955). The apportionment of negligence between the parties is *749 generally for the finder of fact, unless there is no dispute in the evidence and the factfinder can come to only one conclusion. Riley v. Lake, 295 Minn. 43, 58, 203 N.W.2d 331, 340 (1972). The trial court, having found no causation, did not apportion the negligence. See Ferguson v. Northern States Power Co., 307 Minn. 26, 35, 239 N.W.2d 190, 196 (1976) (under comparative negligence law, causal negligence is compared). Having found error in the causation and negligence findings, however, we must address the apportionment of negligence. We believe the evidence leads inescapably to the conclusion that Hille's negligence was greater than that of the county.
There is no dispute in the evidence on Hille's detention in the overnight cell block or the precautionary measures taken. The observation of other prisoners was a helpful but insufficient preventive measure. Given that observation, however, and the trial court's finding that Hille was checked at half-hour intervals, we conclude that the county's negligence was, as a matter of law, less than Hille's negligence. In reaching that conclusion, we note the highly unusual nature of Hille's actions. Not only was he climbing on the duct-work, he was also kicking vigorously the sections on which he was sitting.
IV
The trial court excluded testimony from Rowan on a possible violation of the applicable standard of "observation and monitoring" of inmates. Rowan was allowed to express his opinion of the physical facility, specifically the exposed air duct in the overnight cell block, and of the proper observation of an intoxicated prisoner. He stated the Wright County jail was not adequately staffed.
Rowan had trained jail personnel in Minnesota, but had not monitored jail practices. Practical experience is one qualification for an expert witness. See Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983) (pathologist could not testify on methods of treatment). The trial court was within its discretion in requiring it here, where Rowan had already testified on administrative and advisory standards.
DECISION
The trial court erred in finding the county was not causally negligent. Appellant's negligence, however, was, as a matter of law, greater than that of the county. There was no error in excluding expert testimony.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596436/ | 530 N.W.2d 207 (1995)
In re David A. DIRKS.
No. C2-94-2200.
Court of Appeals of Minnesota.
March 14, 1995.
*208 Ronald L. Greenley, Nicol & Greenley, Ltd., Anoka, for appellant Dirks.
Robert M.A. Johnson, Anoka County Atty., Paul C. Clabo, Asst. County Atty., Anoka, for respondent County.
Considered and decided by NORTON, P.J., and PETERSON and MANSUR, JJ.
OPINION
MARTIN J. MANSUR, Judge.[*]
Appellant stipulated to his initial commitment as mentally ill and dangerous to the public. After the security hospital filed its report, a review hearing was held. The trial court concluded appellant was chemically dependent and continued to be mentally ill and dangerous to the public. It committed appellant to the Minnesota Security Hospital for an indeterminate period. David Dirks appeals; we affirm.
FACTS
After appellant went on a "rampage" at the house in which he was living, and attempted suicide by shooting himself in the chest, a social worker filed a petition for his commitment as mentally ill and dangerous and chemically dependent. A hearing was held, and the trial court committed appellant to the Minnesota Security Hospital as mentally ill and dangerous pursuant to stipulation.
The security hospital filed a report. Appellant was diagnosed with bipolar mood disorder, in remission, and alcohol dependence syndrome. The hospital reported that because appellant took medication and abstained from alcohol while at the hospital, his symptoms were largely in remission and he was not assaultive or threatening. The report recommended treatment at a facility designed to treat mental illness and chemical dependency. Because the security hospital does not provide formal chemical dependency treatment, it was not considered the best *209 treatment alternative. Finally, the report concluded that appellant's commitment as mentally ill and dangerous should be continued, based on his history of physical violence, to provide motivation to comply with treatment recommendations, and to expedite a return to a secure facility should appellant fail to comply with treatment.
A review hearing was held. The court found appellant physically assaulted and threatened girlfriends, family members, and law enforcement officers. He made death threats directed at various individuals and his assaultive behavior resulted in criminal assault charges and restraining orders.
The court also made findings as to testimony by Lynn Barager, appellant's former housemate, in which she described a rampage appellant went on in her home in early April. While appellant denied and minimized Barager's account of the events, he admitted shooting her cat and shooting himself. The court found Barager's account was corroborated by the police reports, which described bullet holes in the living room, basement, and bedroom walls of her home, broken dishes and furniture, and upset plants and flower pots throughout the house. The police reports indicated that Barager had a black eye at the time of the investigation. The court found that whether or not the physical assault on Barager was on the whole as she described it, it evidenced the danger appellant posed to her and others. It found that appellant's discharge of firearms as part of a rampage of the house posed a substantial likelihood of physical harm to Barager and others.
Appellant suffers from a bipolar mood or affective disorder, an antisocial personality disorder and chemical dependency. Dr. James Gilbertson, a licensed psychologist and court-appointed examiner, and Kenneth Martens, a psychologist at the security hospital, testified appellant is largely in remission from the bipolar disorder due to medication. He continues to display some symptoms of mood instability, anger, and control and behavior problems, and recently was involved in an altercation with another patient, and also broke a window. Without the structure of the hospitalization and medication, his prior symptoms would recur, and he would be likely to start drinking and unlikely to continue with his medication and therapy. Dr. Gilbertson believed security could be guaranteed only with a commitment as mentally ill and dangerous. Likewise, Martens testified that without such a commitment, appellant's mental illness posed a substantial likelihood of harm to others.
The court was presented with extensive testimony as to treatment options. Dr. Gilbertson testified that the ideal placement would be a secure combined mental illness/chemical dependency unit, but no such facility exists in Minnesota. He recommended treatment at a secure unit on a regional treatment center campus with a mentally ill and dangerous commitment. If appellant were committed to the security hospital, special arrangements would have to be made to provide him with chemical dependency treatment.
Martens testified that the hospital staff recommended commitment to a locked chemical dependency unit where appellant's medication and blood levels could be supervised. Appellant's mental illness is sufficiently in remission so that his treatment can focus on chemical dependency. Anoka Metro Regional Treatment Center was one option, although Martens was unaware of its security provisions. Fergus Falls Regional Treatment Center, which has a locked chemical dependency unit, as well as psychiatric staff to monitor medication, was another option. If appellant were committed directly to the security hospital, he would be moved from the evaluation/assessment unit to a treatment unit. Staff would monitor his mental illness improvement and prepare him for chemical dependency treatment. If his mental illness continued to be in remission, the hospital would petition the special review board for transfer to Anoka or Fergus Falls.
Dennis Larson, a social worker at the security hospital, testified that if appellant were committed directly to the security hospital, he could petition the special review board for transfer after six months, or the security hospital could initiate a transfer sooner. If the transfer were to occur, a very specific discharge plan would provide conditions *210 by which appellant would have to abide, and violation of these conditions could lead to revocation and transfer back to the security hospital. If appellant were committed directly to Fergus Falls or Anoka, no such discharge plan would be developed. Larson was unable to recommend whether appellant should be committed directly to Fergus Falls or Anoka, or whether he should be committed to the security hospital and then ultimately be transferred to another facility through the special review board.
Jeffrey Cheyne, a social worker with Anoka County Social Services, testified that while Anoka has a locked unit, it is not very secure. Appellant's chemical dependency needs could be met at the locked Fergus Falls chemical dependent unit, but to obtain mental illness treatment there he would have to be transferred from the locked unit for some of the time. To treat mental illness and chemical dependency and provide the necessary security, Cheyne believed appellant should remain at the security hospital. Appellant could receive chemical dependency treatment by being escorted to the St. Peter Regional Treatment Center campus.
The trial court committed appellant as chemically dependent. It also committed him for an indeterminate period to the security hospital as mentally ill and dangerous.
David Dirks appeals. He challenges his commitment as mentally ill and dangerous, and contends he should be committed only as mentally ill and chemically dependent.
ISSUES
1. Did the trial court have clear and convincing evidence to commit appellant as mentally ill and dangerous?
2. Did the trial court have clear and convincing evidence to determine that the Minnesota Security Hospital was the least restrictive treatment alternative for appellant?
ANALYSIS
1. The trial court committed appellant for an indeterminate period as mentally ill and dangerous. Minn.Stat. § 253B.18, subd. 3 (1994). Commitment as mentally ill and dangerous requires a determination that the person is mentally ill and presents a clear danger to the safety of others. Minn.Stat. § 253B.02, subd. 17 (1994). The latter requires a showing that:
(i) the person has engaged in an overt act causing or attempting to cause serious physical harm to another and (ii) there is a substantial likelihood that the person will engage in acts capable of inflicting serious physical harm on another.
Id., subd. 17(b).
The trial court found appellant engaged in overt acts causing or attempting to cause physical harm to others when he physically assaulted and threatened girlfriends, family members, and law enforcement officers. It specifically found his discharge of firearms as part of the rampage posed a substantial likelihood of physical harm to Barager and others.
Appellant argues that the overt act requirement of section 253B.02, subdivision 17(b)(ii) was not met. While acknowledging he committed inappropriate acts in the past, he notes they occurred before he was receiving medication and while he was still drinking. He argues that his suicide attempt cannot be used to meet the overt act requirement because he did not cause or attempt to cause serious physical harm to another.
The fact that the incidents occurred when appellant was experiencing the symptoms of his mental illness, and while he was drinking and before he was on medication, does not lessen their importance. Instead, it shows the necessity for the commitment. Appellant's actions in discharging the firearm in the house and the other assaults meet the overt act requirement of causing or attempting to cause serious physical harm to another. See Minn.Stat. § 253B.02, subd. 17(b)(i); In re Jasmer, 447 N.W.2d 192, 196 (Minn. 1989) (shooting gun towards boy from distance of 65 to 80 feet but missing him constitutes overt act causing or attempting to cause harm).
Appellant also argues that the evidence does not show he is likely to engage in any acts capable of inflicting serious physical harm on another, because his mental illness *211 is in remission as long as he continues to take his medication. Minn.Stat. § 253B.02, subd. 17(b)(ii).
"Dangerousness may be demonstrated by past conduct together with a determination the person is likely to engage in future violent conduct." In re Lufsky, 388 N.W.2d 763, 766 (Minn.App.1986). Where the patient is symptom-free while hospitalized and receiving medication, the court may consider precommitment dangerous behavior. In re Malm, 375 N.W.2d 888, 891 (Minn.App.1985).
The trial court found that appellant's dangerous behavior and psychiatric symptoms have been largely brought under control due to a combination of the medication, group and milieu therapy, and the secure controlled structure at the security hospital that discourages aggressive behavior. However, the court cited the testimony by the experts that it was unlikely appellant would continue to take his medications or obtain treatment outside of the hospital setting, and absent medication, other forms of therapy, and the controlled hospital environment, it was highly likely he would return to his out-of-control, dangerous behavior. Id. It noted that appellant, while admitting he is mentally ill, has only marginal insight and does not appreciate how it affects his behavior or the necessity for treatment, blaming his problems on chemical dependency, and found no assurance that appellant would not abscond from an open hospital.
Appellant is continuing to experience residual symptoms, and has been involved in an altercation with another patient and a rock throwing episode while at the security hospital. The medical opinion is united that appellant continues to be dangerous as well as mentally ill. The experts predicted that appellant, if free from the structure and supervised environment of the security hospital, would cease to take his medication, begin consuming alcohol, and return to his dangerous behavior. In light of these undisputed facts, there was clear and convincing evidence to show a substantial likelihood that appellant would engage in acts capable of inflicting serious physical harm on another. Id.; Minn.Stat. § 253B.02, subd. 17(b)(ii).
2. Appellant also challenges his placement at the security hospital, contending it is not the least restrictive alternative available to meet his treatment needs.
If the court finds at the review hearing that the patient continues to be mentally ill and dangerous, the court shall order commitment of the proposed patient for an indeterminate period of time. Minn.Stat. § 253B.18, subd. 3. The special security concerns in mentally ill and dangerous commitments are well recognized. See Lidberg v. Steffen, 514 N.W.2d 779, 784 (Minn.1994) (state owes community higher degree of protection from someone committed as mentally ill and dangerous than as mentally ill). The burden of proof is on the proponent of commitment to establish by clear and convincing evidence that "[t]here is no appropriate less restrictive alternative available." Minn. R.Civ. Commitment 12.06(b); In re Schauer, 450 N.W.2d 194, 198 (Minn.App.1990).
Where a district court is presented with conflicting expert testimony as to the patient's treatment, the discretion accorded to the district court takes on special significance, and will not be reversed unless clearly erroneous. In re Kellor, 520 N.W.2d 9, 12 (Minn.App.1994), pet. for rev. denied (Minn. Sept. 28, 1994).
In this case, appellant's treatment placement was problematic because there was no facility which was sufficiently secure and provided both chemical dependency and mental illness treatment. The trial court was presented with various recommendations, and in a thoughtful analysis of the evidence, determined that appellant should be committed to the Minnesota Security Hospital. It recognized that the best treatment was found at the open hospitals, but that those programs do not provide adequate security. The court found that if committed to the security hospital, appellant could receive adequate chemical dependency counseling of a more limited preparatory nature until he progresses to a security level which would allow him to be escorted to the St. Peter open hospital for more intense chemical dependency treatment or until he can be transferred to another open hospital for treatment. Further, appellant could receive intensive *212 mental illness treatment while at the security hospital.
Appellant argues the evidence showed that his primary treatment need was for chemical dependency treatment, which the security hospital does not offer, and that the security hospital is not the least restrictive treatment program which can meet his treatment needs. He contends that even if the court were to consider a reasonable degree of safety for the public, it would be an abuse of discretion to place the safety of the public above the concerns for treatment of appellant.
This court has recognized the need for the structure and security provided by the security hospital for mentally ill and dangerous patients. See In re Clemons, 494 N.W.2d 519, 521-22 (Minn.App.1993) (security hospital placement appropriate to address unique aspects of assault and concerns as to continued mental illness, possible episodic alcohol use, and uncertain medication compliance); Schauer, 450 N.W.2d at 198 (security hospital provided closer supervision and tighter security, while meeting patient's treatment needs, than Veterans Hospital). The trial court in its well-reasoned and thoughtful findings provided the rationale for its decision, and its decision is supported by the evidence and is not clearly erroneous.
DECISION
The trial court decision to commit appellant to the Minnesota Security Hospital as chemically dependent and for an indeterminate period as mentally ill and dangerous is affirmed.
Affirmed.
NOTES
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2480284/ | 932 N.E.2d 1221 (2007)
369 Ill. App. 3d 1048
PEOPLE
v.
MARTIN.
No. 1-05-3649.
Appellate Court of Illinois, First District.
January 16, 2007.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1549430/ | 146 F.2d 817 (1944)
HALLIBURTON OIL WELL CEMENTING CO.
v.
WALKER et al. WALKER et al.
v.
HALLIBURTON OIL WELL CEMENTING CO.
No. 10513.
Circuit Court of Appeals, Ninth Circuit.
December 28, 1944.
*818 Frank L. A. Graham, of Los Angeles, Cal., and Earl Babcock, of Duncan, Okl., for appellant Halliburton Oil Well Cementing Co.
Harold W. Mattingly and Robert W. Fulwider, both of Los Angeles, Cal., for appellant Cranford P. Walker et al.
Before DENMAN, STEPHENS, and HEALY, Circuit Judges.
HEALY, Circuit Judge.
Involved here are cross appeals from a decree in an infringement suit. The court held valid and infringed two patents of Walker, these being No. 2,156,519 and reissue No. 21,383. It adjudged invalid Walker's patent No. 2,209,944.
For convenience we shall refer to the adverse parties as Walker and Halliburton, Walker being the plaintiff. The several patents will be discussed in turn.
Patent No. 2,156,519.[1] The object of this invention is to measure the location of obstructions in oil wells, with particular reference to apparatus for determining the location below the well head of the fluid surface, or the location of tools, pipe sections or couplings which constrict the well bore. The patent is avowedly an improvement on a prior invention covered by Patent No. 2,074,974 issued to Lehr and Wyatt, July 21, 1936. The latter is both a method and an apparatus patent. Some discussion of its nature is essential to an understanding of the character and extent of the refinements thereon claimed by Walker.
The Lehr and Wyatt patent has as its object the ascertaining of the distance from the well head to the fluid surface.[2] It employs what is called the "impulse wave" principle, which consists in generating a wave by causing a sudden change in pressure at the well head. A quick-opening valve releases gas into the well and the impulse, moving with the speed of sound, travels down the well until it reaches the fluid surface from which point it returns after the manner of an echo. According to the specifications, the total elapsed time between the release of the impulse wave and its return may be observed or indicated "in any desired manner," it being said that the puff may be felt with the bare hand and the elapsed time measured with a stop watch. The inventors suggested the employment of a recording system such as a microphone, an amplifier, and an indicating or recording device, but they did not specify or claim any system of recording.
A difficulty with the Lehr and Wyatt method lies in the variations in the velocity at which the impulse wave travels down and back. An elaborate formula is given for computing the velocity so as to take into account the temperature and pressure of the gas in the well; but the formula is not very accurate since it makes no allowance for variations of temperature and pressure in different parts of the well.
Among the stated objects of the Walker patent now under discussion are included several not mentioned by Lehr and Wyatt. These have to do with the location of obstructions in the well other than the fluid surface; the providing of a recording system which is specified and claimed; and the measurement of the velocity of the impulse wave by checking its elapsed time against that of an echo received from some obstruction the location of which (that is, its distance from the well head) is exactly known. Walker points out that one may determine the velocity of the impulse by timing the interval between its release and the return of the echo from, for example, the tubing catcher, the location of which happens to be known. Given the distance and the time, the velocity may be determined with great accuracy. The process obviates the employment of formulas and the necessity of making corrections for variations of pressure and temperature within the well. The success of the system depends upon the operator's obtaining an identifiable echo from an obstruction of known location, that is, an echo which may be differentiated from the echo sent back by the fluid surface or other obstruction the location of which is not known but which it is desired to determine.
Walker provides a recording apparatus and describes it in much detail. The apparatus *819 or system claimed is old, as indeed are all the other elements of his combination. For present purposes the recording apparatus need not be described further than to say it utilizes a diaphragm, a mirror, a light beam, and a strip of film which moves along in the manner of a recording barometer. Peaks of varying amplitude will be shown on the record, each representing an echo.
We are chiefly concerned here with the step precedent to that of recording. It will be appreciated that in the typical oil well there is a plurality of obstructions, each capable of receiving and reflecting a pressure wave. These include the fluid surface, the collars of the sections of the tubing string through which the oil is brought to the surface, and what is termed the tubing catcher. Walker provides a means of amplifying those echoes desired to be recorded and of damping or filtering out those not desired to be recorded.
There are 17 claims. Claims 1 and 14, being among those in suit, are typical. These are as follows:
"1. In an apparatus for determining the location of an obstruction in a well having therein a string of assembled tubing sections interconnected with each other by coupling collars, means communicating with said well for creating a pressure impulse in said well, echo receiving means including a pressure responsive device exposed to said well for receiving pressure impulses from the well and for measuring the lapse of time between the creation of the impulse and the arrival of said receiving means of the echo from said obstruction, and means associated with said pressure responsive device for tuning said receiving means to the frequency of echoes from the tubing collars of said tubing sections to clearly distinguish the echoes from said couplings from each other."
"14. In an apparatus for determining the unknown location of an obstruction in a well having a string of assembled tubing sections therein connected by couplings, means communicating with said well for creating a pressure impulse in said well to produce echoes of said impulse from couplings and other obstructions in said well, pressure responsive echo receiving and registering means coupled to said well to expose said receiving and registering means to pressure variations in said well produced by echoes from said obstructions, and interference eliminating means associated with said receiving and registering means for limiting the response of said receiving and registering means to the registration of echoes from actual obstructions in the well whereby the registered echoes of the tubing couplings may be readily distinguished from each other and from the echoes from other actual obstructions in the well."
The means provided by Walker for amplifying those vibrations desired to be shown as peaks on the chart, and of damping out those not desired to be recorded, is an adjustable tuning pipe, that is, one that may be adjusted by lengthening or shortening it. As is well known, the length of the pipe determines the frequency of the vibrations and the diameter determines their amplitude. The operator of the apparatus watches the echoes as they are thrown in the form of wavy peaks on the ground-glass screen of the recording device, and adjusts the pipe until he has it of such length that it amplifies the harmonics from the tubing collar echoes while at the same time damping out the peaks caused by echoes of different frequencies.
The trial court found that the only part of this patent constituting invention over the prior art is the "tuned acustical means which performs the functions of a sound filter." It will be noted that Walker's acoustical tuned resonator is a purely mechanical device.
Halliburton, in its allegedly infringing device, employs an electrical filter. The court found that this electrical filter is the equivalent of the acoustical tuned resonator of Walker, and that when the electrical filter is used by Halliburton its apparatus infringes claims 1, 13, 14, 15 and 17 of the patent in suit. Halliburton contests the validity of the Walker patent and denies infringement.
Walker made a very substantial improvement over Lehr and Wyatt, notwithstanding it is conceded that both his recorder and his amplifier, considered by themselves, are old in the art. We think the patentee displayed a measure of inventive genius entitling him to patent protection. He has combined features which achieve a new result, or at least an old result in a better way. Cf. Bates v. Coe, 98 U.S. 31, 39, 25 L.Ed. 68; Walker on Patents (Deller's Ed.) Vol. 1, p. 255, and cases there cited. While Lehr and Wyatt suggest an amplifier, they neither suggest nor claim any device which would enable the operator to tune up certain desirable *820 echoes while tuning out undesirable ones. The utility of this feature of Walker's patent is not denied.
Other prior patents cited by Halliburton, as for example the patent of Tucker, No. 1,351,356, which was to aid in locating the source of gunfire, were not designed to perform the same function as Walker's tuning device, and would not, without the addition of other elements, serve the purposes of the Walker patent. The Tucker patent mentioned was among the examples of the prior art cited by the examiner. We think, too, that Walker specified and claimed his improvements with sufficient distinctness and clarity to comply with the statute.
We turn now to the question of infringement. Halliburton's device is called the "Echo-Meter Field Manual." Briefly, the echo-meter consists of a Y-pipe into which a gun is fired to create an acoustical wave, which is the pressure impulse. The wave goes down the well and upon its return enters the other branch of the Y, where it impinges upon a microphone which changes the pressure variations into variations of electrical current. This current is of sufficient strength to move a pen-and-ink recorder over a tape, upon which it makes a permanent record consisting of wavy lines the peaks of which indicate the echoes from the various obstructions and the fluid level.
Between the microphone and the recorder itself is an electrical system which performs some, at least, of the filtering and echo-differentiating functions of Walker's acoustical system. It consists first of a hot-wire microphone, which is a grid of fine wire electrically heated. The wire is of a kind which is very responsive to temperature changes. The reflected waves from the tubing collars and the fluid level pass across these wires, and the cooling effect of these slight tremors changes the resistance of the wires markedly. The minute electrical signal caused by the change in resistance is introduced into the input of the amplifier and amplifies the current to a level high enough to operate the recorder. The microphone is most responsive to the low frequency changes in pressure such as are caused by the firing of a blank cartridge. The amplifier not only amplifies the small electrical variations in the circuit, but also suppresses to some extent the high-frequency waves which result from extraneous disturbances not desired to be recorded.
Halliburton's argument of noninfringement is based primarily on the indisputable fact that it uses an electrical apparatus, whereas Walker's is mechanical. Where different means are used to accomplish the same end or to perform the same function, the question of infringement depends upon the mode of operation as well as on the sameness of the result.[3] While identity of result is of course not a sufficient test of infringement, nevertheless an infringing device, generally speaking, is one which "does the same work in substantially the same way and accomplishes substantially the same result." Walker on Patents (Deller's Ed.) Vol. 3, pp. 1707, 1751. The question is whether Halliburton's device is substantially the equivalent of Walker's.
In a measure the problem here is one of appraising the advance in the art effected by Walker. The generalities of the problem have not been better stated than by the Court in Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45, 63, 43 S.Ct. 322, 328, 67 L.Ed. 523: "In administering the patent law, the court first looks into the art, to find what the real merit of the alleged discovery or invention is, and whether it has advanced the art substantially. If it has done so, then the court is liberal in its construction of the patent, to secure to the inventor the reward he deserves. If what he has done works only a slight step forward, and that which he says is a discovery is on the border line between mere mechanical change and real invention, then his patent, if sustained, will be given a narrow scope, and infringement will be found only in approximate copies of the new device. It is this differing attitude of the courts toward genuine discoveries and slight improvements that reconciles the sometimes apparently conflicting instances of construing specifications and the finding of equivalents in alleged infringements."
A detailed comparison of the mode of operation, function, and result achieved by the respective devices with which we are here concerned would expand this opinion to undue lengths. The overall picture already attempted is perhaps more helpful than a piecemeal analysis of the several *821 elements of the combinations. It is certain that there is a substantial identity of function between the two. Both the tuning pipe and the electrical filter have the property of amplifying certain vibrations and eliminating others. The result to be achieved is likewise the same in both cases in that only certain vibrations, which will cause certain peaks to appear on a graph, are permitted to reach the recording apparatus.
The trial court's finding of substantial identity between the tuned acoustical means of Walker and the electrical filter of Halliburton is supported by the testimony of experts. We are not disposed to say that the finding is clearly erroneous. While Halliburton's device is by no means a Chinese copy of Walker's, we think the Walker patent is entitled to a liberal construction and to a fair range of equivalents.
Apart from expert testimony, the finding of equivalency appears to have support in statements of the Patent Office Examiner made during the course of repeated rejections of an application of Walker's for an electrical impulse receiving and tuning device. The Examiner referred to No. 2,156,519, which had already issued, saying: "The Walker patent discloses means for tuning mechanically to the selected echo, but it is obvious that electrical tuning could be used instead in a system comprising an electrical receiving circuit * * *. The equivalence of electrical tuning and mechanical tuning for selective reception was thought to be so generally recognized that citation of an illustrative reference was not considered necessary."
Patent No. 2,209,944.[4] The court held this patent invalid for want of invention, finding that its novelty lay only in the performance of certain mental steps.
This is a method patent. The steps involved are described in the claims by the following descriptive words "determining," "registering," "counting," "observing," "measuring," "comparing," "recording," "computing." There are 9 claims, all of which are in suit. Claim 2, copied below, may be taken as typical:
"2. The method of determining the unknown location of an obstruction in a well having a string of tubing therein, which consists in creating an acoustical impulse in the annular space between the tubing and the well casing to produce echoes from portions of the tubing string distinguishable from each other and from the echo from the unknown obstruction, observing the lapse of time between the arrival at a predetermined point of the echoes from successive portions of the tubing string to thereby determine the velocity of the pressure wave through the particular well under measurement, and measuring the lapse of time between the creation of the pressure impulse and the arrival at said predetermined point of the echo from the unknown obstruction."
In substance, Walker's method here claimed consists in setting down three knowns in a simple equation and from them determining or computing an unknown. The three knowns are: (a) the distance from the well head to the tubing catcher (for example); (b) the length of time it takes an echo to return from that obstruction; and (c) the length of time it takes an echo to return from the fluid surface. From these three knowns can then be determined the distance of the fluid surface from the well head.
We think these mental steps, even if novel, are not patentable. Cf. Don Lee, Inc. v. Walker, 9 Cir., 61 F.2d 58. A patent may be obtained only upon an invention of a "new and useful art, machine, manufacture, or composition of matter." 35 U.S.C.A. § 31. As said in Cochrane v. Deener, 94 U.S. 780, 788, 24 L.Ed. 139: "A process is a mode of treatment of certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing. If new and useful, it is just as patentable as is a piece of machinery. In the language of the patent law, it is an art." Cf. also Corning v. Burden, 15 How. 252, 267, 14 L.Ed. 683.
It must be remembered that this is purely a method patent. No apparatus is claimed. Given an apparatus for initiating an impulse wave in a well and a means for differentiating between and for recording echoes returned from obstructions in it, anybody with a rudimentary knowledge of arithmetic will be able to do what Walker claims a monopoly of doing. If his method were patentable it seems to us that the patentee would have a monopoly much broader than would the patentee of a particular apparatus. To sum the matter *822 up, we think Walker's apparatus patent No. 2,156,519 gives him all the protection his inventive genius entitles him to.
Reissue No. 21,383. This is a method patent, held valid and infringed by the trial court. It is a reissue, dated March 5, 1940, of No. 2,161,733 on methods of determining the fluid density, fluid pressure and potential production capacity of oil wells. The claims, of which there are 11, are all in suit. They include five claims on methods for determining the density of the fluid in the standing column, four for determining the pressure at any desired point below the fluid surface while the pump is operating, and two, numbers 8 and 11, for determining the potential production capacity of the well. One claim typical of each group is set out in the footnote.[5] The steps involved in carrying out the methods are described, as were those in No. 2,209,944, by descriptive words.
Fluid pressure had previously been determined by methods which required the removal from the well bore of pump and tubing. Walker eliminates this difficulty very simply. He first determines the pressure on the fluid surface, in this fashion: He locates the fluid surface in the manner described by Lehr and Wyatt or by No. *823 2,156,519; he notes the specific gravity and pressure of the gas at the casing head, and a few simple arithmetical steps and the use of a formula avowedly old in the art then give the pressure on the fluid surface in terms of whatever units of measurement are desired to be used. The operator next determines the fluid density: building up the gas pressure above the fluid surface forces down the latter, and the pressure on the new fluid surface is determined in the manner just outlined; the difference between the two pressure is divided by the difference between the two fluid levels, and the quotient is the density of the fluid, that is, the pressure exerted by the fluid per unit of height of the standing column.
The fluid pressure at any point below the fluid surface, as for instance at the pump inlet, may now be found either by plotting the information already obtained on a graph and extrapolating, or by the use of a rather involved, but mathematically elementary, formula.
Potential production capacity is found in this manner: pump inlet pressure is determined when the pump is operating at two different known rates, and the relation between the two rates of production and the two pressures at the inlet gives a constant which indicates that there exists a fixed ratio between pressure and production. This constant is then employed at a theoretical zero pump inlet pressure, and the corresponding production rate will be the maximum for that well. That this must be so will be readily understood, for the oil cannot be pumped out of the well any faster than it flows in, while if it is removed less fast than it flows in from the oil-bearing sands, the flow in must buck the pressure downwards which results from the slower removal of the oil. This determination may also be made graphically, according to the patent.
What we have said about the mental steps detailed in No. 2,209,944 applies with equal force to the steps we have described here. While their compilation may have elements of novelty, we do not think it involves patentable invention.[6] Thus ascertaining the fluid density involves making a preliminary determination (the location of the fluid surface) by a method old in the art, and then making a series of the simplest sort of arithmetical steps based on the assumption, of dubious validity, in that the density of the fluid column is constant throughout its height.[7] Pressure below the fluid surface is then found by applying the information already obtained to the performance of other simple computations, aided by the use of formulae old in the art. Finally, finding the potential production capacity of the well involves neither formulae nor further observations, but simply a little more elementary arithmetic. In fact, it appears to us that claims 8 and 11 are but statements of the ultimate objects sought to be accomplished by the patent, and summaries of that which had been detailed in the claims having to do with pressure and density.
Walker argues strenuously in defense of this patent that the use of the word "determining", the key participle both in this and in the method patent No. 2,209,944, does not limit him to mere arithmetical processes. The difficulty with this argument is that no other method of making the determinations of pressure, density and production capacity is suggested except the graphic one, and it is well understood that a graph may be used to define mathematical formulae and processes as accurately as numbers or symbols.
The judgment, insofar as it adjudges Reissue No. 21,383 valid and infringed, is reversed. In all other respects it is affirmed.
NOTES
[1] Applied for September 7, 1937; issued May 2, 1939.
[2] "This, of course, can be done mechanically, but the doing of it usually entailed the removal from the well of tools, pumping apparatus, etc.
[3] Cf. Walker on Patents (Deller's Ed.) Vol. 3, pp. 1745, 1750.
[4] Applied for September 25, 1939; issued July 30, 1940.
[5] "5. The method of determining the density of the standing column of fluid in an oil well having a casing and a mechanical pump suspended therein upon pump tubing and without requiring the removal of pump parts, which consists in the steps of operating the pump under one stable condition of gas pressure in the casing until the fluid level becomes stable, measuring the distance between the casing head and the surface of the fluid under this stable condition, altering the casing pressure to a new condition, operating the pump at the same rate of production under the new condition of gas pressure to again stabilize the fluid level, measuring the distance between the casing head and the new level of the fluid surface under said new stable condition, and measuring the casing head pressures under the two stable conditions, whereby the pressure exerted by the fluid per unit of height of the fluid is represented by comparing the difference in height of the fluid surface levels and the difference between the pressures on the fluid surface required to maintain the fluid surface at the two levels."
"7. In a well having a casing and a pump suspended therein, the method of determining the unknown pressure exerted in the standing column of fluid at any desired level below the normal surface of said column while the pump is operating to remove fluid from the well, which comprises measuring the actual stable level of the fluid under one known condition of gas pressure in the well by sonic sounding method, determining the pressure on the fluid surface at that level, changing the pressure of the gas in the well to move the surface of the column to a new actual level, continuing to operate the pump at the same production rate as for the first condition of gas pressure in the well until the fluid level again becomes stable, measuring the new stable level and determining the pressure upon the fluid surface at this new level, determining the pressure exerted per unit of height of the fluid column by dividing the change in gas pressure on the fluid surface required to effect the change in the fluid level by the difference in height of the two levels, and computing the unknown pressure at the desired level by adding to the gas pressure upon the fluid surface at either of the actual levels the effect in pressure of the fluid column between the selected actual level and the desired level."
"11. The method of determining the potential production capacity of a well having a casing and a pump suspended therein, which comprises: determining the pressure exerted by the well fluid at some selected point below the normal surface thereof under one known rate of production, by determining the location of the fluid surface under one condition of gas pressure on the surface, determining the gas pressure on the fluid surface under said one condition, changing the gas pressure to move the fluid surface to a new stable level under the same production rate, determining the new gas pressure on the fluid surface, determining the location of the new surface level, comparing the difference in said gas pressures with the corresponding change in height of the surface level, to thereby ascertain the pressure exerted at said selected point under said one rate of production; changing the rate of production from said well; repeating the steps of determining the location of the fluid surface at two stable levels and the gas pressures on said surface to maintain said levels under the new production rate to ascertain the pressure exerted at the same selected point; and comparing the difference in the production rates with the corresponding difference in pressures at said selected point to determine their relation from which the maximum rate of production from the well may be determined."
[6] Prior art publications by Hawthorn (Subsurface Pressures in Oil Wells and Their Field of Application, 1933) and Vietti (Density of Oil-Gas Columns from Well Data, 1930), among others, deal with the determination of the specific gravity and density of the fluid column. Indeed, Hawthorn describes a method of extrapolating the density curve in order to learn fluid pressure which is very close to the method described in the patent in suit. It seems clear that only the non-existence at the time these articles were written of a good method of locating the fluid surface prevented the authors from working out every step described in No. 21,383, and it will be recalled that it was Lehr and Wyatt, not Walker, who taught how to locate the fluid level.
[7] Walker alleges that he was the first to discover this phenomenon; it is agreed that petroleum engineers had theretofore thought fluid density increased with the distance from the fluid surface. Halliburton controverts the validity of the alleged discovery, and Walker cites no authority except his own observations to prove his thesis. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1549439/ | 146 F.2d 874 (1945)
UNITED STATES
v.
FLAKOWICZ, and four other cases.
Nos. 172-176.
Circuit Court of Appeals, Second Circuit.
January 22, 1945.
Hayden C. Covington, of Brooklyn, N. Y. (Carl A. Mears, of New Haven, Conn., on the brief for Arpaia), for appellants.
Nathan T. Elliff, Sp. Asst. to Atty. Gen. (T. Vincent Quinn, U. S. Atty., and Vine H. Smith and Matthew F. Fagan, Asst. U. S. Attys., all of Brooklyn, N. Y., on the brief for the United States; Robert P. Butler, U. S. Atty., of Hartford, Conn., and Thomas J. Dodd, Jr., Sp. Asst. to Atty. Gen., on the brief for Myrl E. Alexander, Warden, and Francis Biddle, Atty. Gen.), for appellees.
Before HUTCHESON, SIMONS, and CLARK, Circuit Judges.
*875 PER CURIAM.
These separate appeals were heard together and may be disposed of likewise upon the single issue they present. They are all cases of members of the religious order of Jehovah's Witnesses who sought exemption from selective service as regular and duly ordained ministers under 50 U.S.C.A.Appendix, § 305(d), and who were classified for service by their respective draft boards against their objections and appeals. Thereafter they all failed to report for induction, and were prosecuted and convicted for such failure. At their respective trials, they each took steps appropriate for the purpose to show that refusal of exemption was invalid and improper; and in each instance the District Court ruled that the decision of the appropriate draft boards against exemption could not be inquired into or reviewed on a criminal prosecution for failure to obey an order for induction. On this appeal they challenge these rulings and also urge constitutional objections to the Act as thus construed by the courts. But the case of Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, settled the law against them, as had, indeed, been previously ruled by many circuit courts of appeals, including this one in United States v. Kauten, 2 Cir., 133 F.2d 703. Indeed, the cases are now numerous involving Jehovah's Witnesses alone with respect to this issue; among fifteen or more cases which might be cited, we refer to United States v. Nelson, 2 Cir., 143 F.2d 584; Harris v. Ross, 5 Cir., 146 F.2d 355; and United States ex rel. Trainin v. Cain, 2 Cir., 144 F.2d 944, certiorari denied Trainin v. Cain, 65 S.Ct. 439, for statement of relevant principles, and United States v. Madole, 2 Cir., 145 F.2d 466, as settling the issue of good faith in law violation also presented by the accused. This disposes of the cases of Parsons, Johnson, and Jensen. In the habeas corpus case involving Kluz, the still more doubtful course was followed of attempting to reverse the conviction by a habeas corpus, a course held illegal in a further hearing of the Falbo case, United States ex rel. Falbo v. Kennedy, and United States ex rel. Lohrberg v. Nicholson, 4 Cir., 141 F.2d 689, certiorari denied 322 U.S. 744, 745, 64 S. Ct. 1154; see also Albert ex rel. Ravin v. Goguen, 1 Cir., 141 F.2d 302.
The case of Flakowicz is asserted to be different in that he was ordered to report for induction after an amendment of the Act, December 5, 1943, 50 U.S.C.A. Appendix, § 304a, and a change in the regulations to provide for physical examination of selectees before, rather than after, they are called to report for service. The argument is that in the earlier cases the draft process was not completed, and hence the administrative remedies not exhausted, until the physical examination had been had, whereas Flakowicz had been found physically acceptable, thus completing the selective process, before he was ordered to report for induction. But Billings v. Truesdell, 321 U.S. 542, 64 S.Ct. 737, which he cites, does not sustain the point; it held that induction cannot be forced upon a person, to make him subject to military justice, where he refuses to take the oath as a soldier, and that induction is necessary to complete the civil procedure of the selective service. And the Falbo case states more than a mere procedural requirement; it is based upon a view of congressional intent that "a prompt and unhesitating obedience to orders" issued in the selective service process is "`indispensable to the complete attainment of the object' of national defense." 320 U. S. at page 554, 64 S.Ct. at page 349.
Judgments affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/790390/ | 409 F.3d 213
Rawls R. HAWES, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.
No. 04-1736.
United States Court of Appeals, Fourth Circuit.
Argued February 1, 2005.
Decided May 26, 2005.
ARGUED: H. Jan Roltsch-Anoll, Szabo, Zelnick & Erickson, P.C., Woodbridge, Virginia, for Appellant. Leslie Bonner McClendon, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee.
ON BRIEF: Paul J. McNulty, United States Attorney, Alexandria, Virginia, for Appellee.
Before WIDENER, MOTZ, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge GREGORY wrote the majority opinion, in which Judge WIDENER joined. Judge MOTZ wrote a dissenting opinion.
GREGORY, Circuit Judge.
1
Before this court, Rawls R. Hawes appeals the dismissal of his tort action, pursuant to Fed.R.Civ.P. 12(b)(1), against the United States of America. Specifically, the district court held that the discretionary function exception to the Federal Torts Claims Act covered all of the allegedly negligent actions undertaken by the United States. Given that the claims were not actionable, the district court found that it had no subject matter jurisdiction and dismissed the case.
2
Finding no error on the part of the district court, we affirm.
I.
3
Rawls R. Hawes ("Hawes") accompanied his younger brother and father, a retired member of the United States Coast Guard, to the Quantico Marine Corps Base ("Base") located in Quantico, Virginia. The Base is home to multiple man-made obstacle courses. The NATO obstacle course, located in the Camp Barrett section of the Base, consists of approximately twenty man-made obstacles in an open field. According to Major Darin Clarke, "[i]t was put together to have obstacles that you may want-you may need to negotiate during combat. It is a variety of climbing, jumping, skills...." J.A. 774 (emphasis added). The Scale of Integrity is one of these obstacles. It consists of a twenty-two foot long, four-inch thick wooden beam held seven feet in the air by four iron posts. Just prior to Hawes's visit, Major Clarke had ordered maintenance on the Scale of Integrity. According to Major Clarke, "[t]he board that was on there started to splinter and so I wanted to get a new board up there to reduce the splinters when that course is being negotiated." J.A. 776. Major Clarke made a request to the Base's Range Management Detachment, who in turn assigned Staff Sergeant John Raventos ("SSgt.Raventos") to perform the requested repairs. SSgt. Raventos received the work order and shortly thereafter visited the course with Major Clarke to determine exactly what repairs needed to be made. SSgt. Raventos ordered a new wooden beam for the Scale of Integrity, which was delivered to the Base on January 8, 2001.
4
On January 12, 2001, the Friday before the Martin Luther King Jr. holiday, SSgt. Raventos took a crew to the obstacle course with the intention of installing the new wooden beam. After pulling the old beam down and placing the new beam on the iron poles, the forklift used to place the beam on these poles was needed elsewhere on the Base and was taken from the NATO obstacle course. Then, while attempting to drill the holes to secure the new beam in place, the portable drill the crew was using ran out of power. The marines left the beam unfastened on top of the poles, and went to determine if another power generator was available. Upon determining that there was not, the marines were dismissed because it was a holiday weekend and their holiday started at noon. SSgt. Raventos then returned to the course to place four safety cones at the obstacle.1 SSgt. Raventos planned to return on Tuesday, January 16, 2001 with proper equipment to secure the beam.
5
However, on Sunday, January 14, 2001, Hawes attempted to navigate the Scale of Integrity. As Hawes attempted to pull himself up onto the unbolted beam, it shifted causing Hawes to fall to the ground. The beam then fell off the iron poles and onto Hawes's leg, crushing his femur and causing permanent damage.
6
Hawes subsequently brought this action, alleging both negligence and gross negligence on the part of the Government during the maintenance of the Scale of Integrity. The Government moved for dismissal under Fed.R.Civ.P. 12(b)(1), or in the alternative Fed.R.Civ.P. 56. The district court granted the Government's 12(b)(1) motion, finding that the challenged actions were covered by the discretionary function exception to the Federal Torts Claims Act ("FTCA"), 28 U.S.C. § 2680(a) (2005), which divested the court of subject matter jurisdiction. Applying the test enunciated by the Supreme Court in United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991), and Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), for identifying discretionary government functions protected from the reach of the FTCA, the district court first found that the decision was discretionary because no federal standard governed the Government's maintenance of the obstacle. The district court next found that the decision to stop the maintenance, leaving the unbolted beam on the posts, even if there was no adequate warning, was tied to the exercise of judgment based upon considerations of public policy. Because the court found that the military was balancing technical, military, and social considerations, it found that the second prong of the discretionary function exception test was satisfied.
7
From that decision, Hawes brings this appeal.
II.
8
The dismissal of an action under Rule 12(b)(1) is a matter of law reviewed de novo. Robb v. United States, 80 F.3d 884, 887 (4th Cir.1996). As a general matter, "the plaintiff bears the burden of persuasion if subject matter jurisdiction is challenged under Rule 12(b)(1), because [t]he party who sues the United States bears the burden of pointing to ... an unequivocal waiver of immunity." Williams v. United States, 50 F.3d 299, 304 (4th Cir.1995) (internal citations omitted).
9
Multiple district courts in this Circuit have read this ruling as placing the burden of persuasion to defeat the assertion of an exception to the FTCA waiver on the plaintiff. See Hostetler v. United States, 97 F.Supp.2d 691, 695 (E.D.Va.2000); Jackson v. United States, 77 F.Supp.2d 709, 712 (D.Md.1999). We agree, and note that this approach is in line with that enunciated by the First Circuit. See Hydrogen Technology Corp. v. United States, 831 F.2d 1155, 1162 n. 6 (1st Cir.1987) (noting "when an exception to the FTCA applies, sovereign immunity is still intact and federal courts have no subject matter jurisdiction to entertain an action.").2
III.
10
The FTCA constitutes a waiver of the sovereign immunity of the United States, allowing the government to be liable in tort "in the same manner and to the same extent as a private individual under like circumstances, but [the government] shall not be liable for interest prior to judgment or for punitive damages." 28 U.S.C. § 2674. However, the FTCA is subject to a number of exceptions, the discretionary function exception being one. Baum v. United States, 986 F.2d 716, 719 (4th Cir.1993). The discretionary function exception excludes from the FTCA's waiver:
11
Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
12
28 U.S.C. § 2680(a) (2005). This exception "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984).
13
As this court has recognized, "[t]hough the purpose underlying the discretionary function exception is well accepted, courts have encountered some difficulty in applying its rather general terms to the myriad of fact patterns that predictably present themselves...." Baum, 986 F.2d at 719-20. However, two recent Supreme Court decisions, United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) and Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), laid out a two-part test that somewhat clarified the application of this important statute. First, a court must determine whether the governmental conduct challenged involves an element of judgment or choice. Baum, 986 F.2d at 720 (citing Gaubert, 499 U.S. at 322-23, 111 S.Ct. 1267; Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954). The essential inquiry here is whether the challenged conduct "is the subject of any mandatory federal statute, regulation, or policy prescribing a specific course of action." Baum, 986 F.2d at 720. Where there is such a statute, regulation, or policy, there is no discretion, and therefore no exception, "because `the employee has no rightful option but to adhere to the directive.'" Gaubert, 499 U.S. at 322, 111 S.Ct. 1267 (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954).
14
However, upon finding an element of discretion, the court must then determine whether the judgment is "of the kind that the discretionary function exception was designed to shield." Id. at 322-23, 111 S.Ct. 1267. As the Supreme Court stated in Gaubert:
15
Because the purpose of the exception is to "prevent judicial `second guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort, when properly construed, the exception `protects only governmental actions and decisions based on considerations of public policy.'"
16
Id. at 323, 111 S.Ct. 1267 (citations omitted). As enunciated by Gaubert, this second element of the test grants broad latitude to the government. First, Gaubert enunciated a presumption that "[w]hen established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion." Id. at 324, 111 S.Ct. 1267. Next, the policy analysis looks not toward the actual considerations of a government agent in undertaking the conduct in question, but instead to whether the actions "are susceptible to policy analysis." Id. at 325, 111 S.Ct. 1267 (emphasis added). Finally, "it is the nature of the conduct, rather that the status of the actor that governs whether the exception applies." Id. In so stating, the Court was clearly rejecting the notion that the exception did not reach decisions made at the operational or management level. See id. As this circuit has read Gaubert, "a reviewing court in the usual case is to look to the nature of the challenged decision in an objective, or general sense, and ask whether that decision is one which we would expect to be grounded in considerations of policy." Baum, 986 F.2d at 720-21.
17
Upon satisfaction of these two elements, the FTCA's waiver of sovereign immunity is no longer applicable.
A.
18
First, we must determine whether the challenged conduct involved an element of judgment or choice. The essential inquiry here is whether the challenged conduct "is the subject of any mandatory federal statute, regulation, or policy prescribing a specific course of action." Id. at 720. "If no such mandatory statute, regulation, or policy applies to remove the challenged conduct from the choice and judgment of the government, then we move to the second tier of the Berkovitz-Gaubert analysis." Id.
19
Before this Court, Hawes makes only a token effort at identifying a statute, regulation, or policy that prescribes a specific course of action that SSgt. Raventos should have followed. In full, Hawes argues that SSgt. "Raventos was subject to the MCB Safety Program that expressly required him to be responsible for `using normal caution, common sense, and foresight' in his work and to warn others of known hazards." Appellant's Brief 14. However, this effort is herculean compared to that put forth before the district court. There, the district court found that Hawes admitted "that no federal standard directly governs the maintenance and repair of the obstacle course." Hawes v. United States, 322 F.Supp.2d 638, 641 (E.D.Va.2004). Hawes, in his "Memorandum in Opposition to Defendant's Motion to Dismiss or For Summary Judgment", did "not dispute that the Marine Corps did not have a specific regulation requiring the posting of signs for the general public warning of repairs or maintenance on the obstacle." J.A. 913. Further, Hawes argued the internal rules and regulations of the Base, of which the MCB safety program would be one, "are irrelevant to the determination of this case." J.A. 913. Thus, we find that the argument that the MCB Safety Program constitutes a statute, regulation, or policy that prescribes a specific course of action that SSgt. Raventos should have followed was not raised before the district court, and therefore refuse to address it here. See e.g. Skippy, Inc. v. CPC International, Inc., 674 F.2d 209, 215 (4th Cir.1982)("In the absence of exceptional circumstances, questions not raised and properly preserved in the trial forum will not be noticed on appeal.").
20
As such, we limit our review of this matter to the specific issue considered by the district court: whether considerations of public policy were the basis for decisions regarding repairs to the obstacle?
B.
21
Here, we must determine whether the challenged decisions are of the kind that the discretionary function exception was designed to shield. In other words, were these decisions based on public policy? In essence, Hawes argues that the proper focus of the inquiry is not on the Government's decision to repair the Scale of Integrity, but solely on the decisions made by SSgt. Raventos while repairing the obstacle itself. Hawes concedes that the decision to replace the beam on the Scale of Integrity involved policy considerations. For Hawes, however, any considerations of public policy ended with that decision.
22
"Public policy," as used in this specific context, is defined as involving considerations of economic, social, or political policy. See Gaubert, 499 U.S. at 323, 111 S.Ct. 1267. This court has interpreted Gaubert to require that we look to the nature of the challenged decision in an objective or general sense. See Baum, 986 F.2d at 720-21. However, this does not mean that we ignore the actual conduct challenged. The Gaubert Court listed and examined the specific allegations made by the plaintiffs in that case. See Gaubert, 499 U.S. at 327-28, 111 S.Ct. 1267. There, examining charges that federal regulators assumed day-to-day decision making authority and negligently discharged their duties, the Court examined challenged conduct such as government regulators mediating salary disputes. Id. at 328, 111 S.Ct. 1267. "The question in this case is whether the governmental activities challenged by petitioners are of this discretionary nature." Berkovitz, 486 U.S. at 539, 108 S.Ct. 1954 (emphasis added). Therefore, while we focus on SSgt. Raventos's decisions to cease the repair of the Scale of Integrity until after the weekend holiday and the alleged failure to warn adequately, we view these decisions in an objective or general sense, keeping in mind the context within which they were made. Viewing the decisions in question through that lens, we then seek to determine whether the decisions in question were based on considerations of public policy.
23
In this circuit, we have interpreted the phrase "public policy" broadly to include a wide variety of government judgments. In Baum, we held that the National Park Service's judgments regarding the maintenance of its bridges and guardrails were covered by the discretionary function exception because they pertained to the allocation of government resources, a consideration "inherently bound up in considerations of economic and political policy." Baum, 986 F.2d at 724. Similarly in Bowman v. United States, 820 F.2d 1393, 1395 (4th Cir.1987), we held that the failure of the National Park Service to erect a guardrail was a policy determination. There, we stated that:
24
[w]hether the decision grew out of a lack of financial resources, a desire to preserve the natural beauty of the vista, a judgment that the hazard was insufficient to warrant a guardrail, or a combination of all three is not known. What is obvious is that the decision was the result of a policy judgment.
25
Id. Further, in Smith v. WMATA, 290 F.3d 201, 205, 212 (4th Cir.2002), we applied FTCA principles to a case in which the plaintiffs challenged WMATA's alleged failure to repair and maintain its escalators and "conclude[d] that the [WMATA] is entitled to be accorded immunity under the discretionary function exception for its decisions at the Bethesda station... (1) to brake escalator one and utilize it as a stationary walker; (2) to leave escalator three disassembled; and (3) to provide no specific warning to its patrons of the situation at the station." There, we found that the repair/maintenance decisions regarding the escalators "implicated the ecopolicy of the METRO, i.e., whether it was more cost-effective to reassemble Escalator Three pending repair, or whether to wait until replacement parts arrived." Id. at 210.3
26
In the face of this broad, unflinching history, Hawes charges that the challenged decisions do not constitute the types of decisions intended to be covered by the discretionary function exception because they are not susceptible to a policy analysis. Hawes relies heavily on our language in Baum, where we stated that "we do not suggest that every maintenance decision of every government actor is so policy-based as to fall within the discretionary function exception," Baum, 986 F.2d at 724, and argues that SSgt. Raventos's decisions to leave the plank unbolted and not provide an adequate warning are exactly the types of decisions the above language contemplates.4
27
However, it is well established in this circuit that "when discretionary decisions are ones of professional military discretion, they are due the courts' highest deference." Minns, 155 F.3d at 451 (citing Tiffany v. United States, 931 F.2d 271, 277 (4th Cir.1991)). Given that level of deference, in combination with this circuit's broad discretionary function exception jurisprudence, we believe it is plain that SSgt. Raventos's actions are covered by the exception. SSgt. Raventos, a Marine, was charged with repairing military equipment used to train marines for combat on a military base. In order to complete this task SSgt. Raventos had military resources, including four marines, at his disposal. Because the repair of military equipment on a military base involves the allocation and management of scarce military resources, we find that the underlying decisions implicate economic policy.
28
Critically, SSgt. Raventos was also acting with an eye toward military policy when he made the discretionary decisions to leave the plank unbolted and to dismiss his marines for the day. It must be reiterated that the purpose of this military equipment was to train marines for combat. As Major Clarke testified: "[The NATO obstacle course] was put together to have obstacles that you may want—you may need to negotiate during combat. It is a variety of climbing, jumping, skills...." J.A. 774 (emphasis added). Thus, this military equipment is integral to the Marine Corps' policy of effectively training Marines for combat while reducing unnecessary risks.5
29
Finally, SSgt. Raventos's decisions were grounded in Base policy. SSgt. Raventos testified that "[m]ost Marines and Navy personnel know that they need authorization to go to these courses and need a Navy corpsman available just in case injury happens." J.A. 900. He further testified that these rules constituted a "standing order." Id. at 901. In fact, Maj. Clarke had closed the obstacle course when the new plank was received. Id. at 780. As a result, anyone who, in accordance with military policy, made a formal request to use the course, would be denied. Id. Still further, the Base's Standard Operating Procedures for training areas, implemented to ensure the safe use and maintenance of the training areas, mandated that anyone who runs "any of the course, whether it's the NATO Obstacle or Confidence Course ... needs to inspect the course before they run it." J.A. 664, 783.
30
Contrary to Hawes's assertions, we cannot view SSgt. Raventos's decision in a vacuum. Nor can we engage in the academic exercise of breaking down the completion of a task into pieces so infinitesimal that we lose sight of the context in which those decisions were made. As was stated earlier, we must view any challenged decisions through the tinted lense of context to determine whether they are susceptible to policy analysis. In Smith we did just that. There, after finding that the repair/maintenance decisions regarding the escalators "implicated the ecopolicy of the METRO, i.e., whether it was more cost-effective to reassemble Escalator Three pending repair, or whether to wait until replacement parts arrived," Smith, 290 F.3d at 210, we found that the discretionary function exception protected not only the decisions to use one escalator as a stationary walker and the decision to leave another escalator disassembled, but also the decision "to provide no specific warning to its patrons of the situation at the station." Id. at 212. The same broad coverage must be applied in this case.
31
SSgt. Raventos was charged with repairing military equipment, which was a discretionary function. This fact mandates that we protect the underlying decisions integral to the exercise of that discretion.6 Otherwise, we say to the military "you have the discretion to maintain military equipment but you don't have the discretion to determine how you do so." Importantly, we note that there is no allegation that Hawes's injuries were caused by actions or decisions falling outside the scope of said repairs. Thus, the result Hawes seeks would inject this court within the military chain of command and have us second guess SSgt. Raventos's decisions concerning the completion of a military task and the marines within his charge. We see no sound reason to navigate that minefield.
32
As such, we find that the district court did not err in finding that the decisions in question were protected by the discretionary function exception. The decision of the district court is therefore
33
AFFIRMED.
Notes:
1
According to SSgt. Raventos, he placed two cones on top of the beam and two cones at the foot of the beam. J.A. 897
2
InZielinski v. United States, 89 F.3d 831, 1996 WL 329492, at *3 (4th Cir. June 6, 1996), this court endorsed the Ninth Circuit's view that the plaintiff bears the initial burden of persuading the court that it has jurisdiction under the FTCA's general waiver of immunity. After this burden is satisfied, the burden falls on the government to prove the applicability of an exception to the FTCA. Prescott v. United States, 973 F.2d 696, 701 (9th Cir.1992). However, because unpublished opinions have no precedential value in this circuit, see Local Rule 36(c), we rely on Williams.
3
See alsoPatton Electric Co. v. United States, 64 F.Supp.2d 580, 583 (E.D.Va.1999) ("Deciding when a product safety alert should be issued, how the alert should be communicated to federal customers, and how to identify, gather, and repair the defective products are essentially cost-benefit economic and political decisions.").
4
InGaubert, the Court stated:
There are obviously discretionary acts performed by a Government agent that are within the scope of his employment but not within the discretionary function exception because these acts cannot be said to be based on the purposes that the regulatory regime seeks to accomplish. If one of the officials involved in this case drove an automobile on a mission connected with his official duties and negligently collided with another car, the exception would not apply. Although driving requires the constant exercise of discretion, the official's decisions in exercising that discretion can hardly be said to be grounded in regulatory policy.
Gaubert, 499 U.S. at 325, 111 S.Ct. 1267. The dissent analogizes the conduct in question here to the above example, and argues that the conduct in question here was not grounded in regulatory policy.
However, the conduct in this case, unlike that in the Gaubert example, was not tangential, but instead directly related to the completion of the task at hand. It is undisputed that the military possessed the discretion to maintain military equipment. While maintaining the Scale of Integrity, SSgt. Raventos exercised this discretion with an eye toward military and economic policy. The challenged decisions were integral to the completion of the task for which the discretion in question existed. Because of this, we are not persuaded that the cited Gaubert example is on point here.
5
This critical fact is an important distinction between the facts of this case andGotha v. United States, 115 F.3d 176 (3d Cir.1997), which the dissent cites to support its position. In Gotha, the Third Circuit faced a challenge to the Navy's failure to provide a stairway with handrails and sufficient lighting on a public road. Id. at 178. There, where an employee of an independent contractor hired by the Navy to perform maintenance such as plumbing, carpentry, and roofing on the United States Naval UnderWater Tracking Range fell and was injured, Gotha v. United States, 929 F.Supp. 207, 209 (D.Vi.1996) (overruled), the Third Circuit held that the discretionary function exception was not applicable. Gotha, 115 F.3d at 182.
However, the maintenance in Gotha, unlike that before us today, had no relation to the military or to national security, except that the roofs the independent contractors were hired to maintain were located on a military base. As the Third Circuit correctly found, "[t]his case is not about a national security concern, but rather a mundane, administrative, garden-variety, housekeeping problem that is about as far removed from the policies applicable to the Navy's mission." Id. at 181. Given that the purpose of the NATO obstacle course was to train marines for combat and not to simply facilitate exercise, the maintenance here clearly was related to national security. The Marine Corps' policy of effectively training Marines for combat while reducing unnecessary risks was implicated. Because of this distinction, this case is not about "mundane, administrative, garden variety, housekeeping" problems, and the result reached here is not at odds with that reached by the Gotha court. Id.
Further, we would note that Gotha appears to be somewhat at odds with our decision in Bowman v. United States, 820 F.2d 1393, 1395 (4th Cir.1987), where we held that the failure of the National Park Service to erect a guardrail was a policy determination protected by the discretionary function exception. In fact, the Third Circuit recognized the factual similarity between the two cases. Id. at 182. While the Third Circuit was under no binding obligation to follow Bowman, its precedential value is obviously much greater in this court.
6
As theGaubert court noted, the fact that they are operational in nature is of no consequence. See Gaubert, 499 U.S. at 325, 111 S.Ct. 1267.
34
DIANA GRIBBON MOTZ, Circuit Judge, dissenting.
35
Because the majority applies the discretionary function exception in a way that drains the Federal Tort Claims Act of all meaning, I must respectfully dissent.
I.
36
The Federal Tort Claims Act specifically authorizes suits against the United States for "personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment," when the United States, "if a private person, would be liable." 28 U.S.C.A. § 1346(b)(1) (West 1993 & Supp.2004). Thus, by enacting this legislation, Congress determined that "the United States should waive its historic defense of sovereign immunity and accept liability for the negligent conduct of government employees who are acting within the scope of their official duties." 14 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 3d § 3658, at 529 (1998) (footnotes omitted).
37
To "prevent judicial `second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy," United States v. Varig Airlines, 467 U.S. 797, 814, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984), the Act provides an exception to this waiver of sovereign immunity when government employees exercise a "discretionary function." 28 U.S.C.A. § 2680(a) (West 1994). The statute does not define what constitutes a discretionary function. But, the Supreme Court has established a two-step inquiry to discern whether the discretionary function exception applies. See Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988).1
38
As the first step, the court must determine whether the challenged conduct of a government employee "involves an element of judgment or choice" or whether "a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Id. (citation omitted). The parties agree that no statute, regulation, or policy mandated the course of action taken here; thus the challenged acts involve some "matter of choice." See id.
39
Therefore, we must move to the second step of the Berkovitz inquiry, i.e., the determination of whether the challenged conduct is "of the kind that the discretionary function exception was designed to shield." Id. The exception "protects only governmental actions and decisions based on considerations of public policy." Id. at 537, 108 S.Ct. 1954 (citation omitted). Moreover, in order to obtain the discretionary function shield, discretionary acts must further a public policy that the particular "regulatory regime seeks to accomplish." United States v. Gaubert, 499 U.S. 315, 325 n. 7, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991).
40
With these principles in mind, I turn to the case at hand.
II.
41
In this case, Rawls R. Hawes alleges that he suffered severe and permanent injuries because, as a result of the negligence of government employee Staff Sergeant Raventos, the Scale of Integrity's wooden plank was not firmly secured to its posts and there was inadequate warning of the danger. Hawes challenges SSgt. Raventos' decisions to: (1) place the heavy plank on, but unsecured to, posts ten feet above ground, even though the bolts he had ordered were too short; (2) dismiss the work crew at noon without remedying this situation, leaving the plank in an unreasonably "unsafe and hazardous condition" over a long holiday weekend; and (3) fail to provide "adequate and reasonable warnings" of this hazardous condition. See Am. Compl. ¶¶ 11-16.2
42
Rather than argue that these allegedly negligent decisions of SSgt. Raventos were grounded in regulatory policy, the Government asserts that "the decisions made by the Marine Corps" were grounded in policy. Brief of Appellee at 22 (emphasis added). According to the Government, the proper focus is not "on the actions performed by one individual," id. at 36, but on the "broader framework" of the Marine Corps' decisions, id. at 46, which, it claims, involved "(1) the creation and implementation of safety protocols for the use and maintenance of military unique equipment, operations and systems; and (2) the development and administration of a recreational program on base." Id. at 22.
43
Thus, the Government seeks to recast this case, focusing on the purportedly broad economic and political implications of the Marine Corps' decision to repair the NATO obstacle course rather than on the specific conduct of the person doing the repairs. Perhaps the Government has adopted this strategy because it recognizes the weakness of its argument that the discretionary function exception applies to SSgt. Raventos' decisions. In any event, the Supreme Court has rejected the Government's approach. The Court has explained that the "basic inquiry concerning the application of the discretionary function exception is whether the challenged acts of a Government employee — whatever his or her rank — are of the nature and quality that Congress intended to shield from tort liability." Varig Airlines, 467 U.S. at 813, 104 S.Ct. 2755 (emphasis added).
44
Accordingly, as the majority recognizes, the proper focus is not on the Marine Corps' decision to repair the Scale of Integrity but on SSgt. Raventos' specific conduct. See ante at 219 (explaining that "we focus on SSgt. Raventos's decisions to cease the repair of the Scale of Integrity until after the weekend holiday and the alleged failure to warn adequately").3 The majority, however, going beyond even what the Government was willing to argue, holds that SSgt. Raventos' conduct "involves the allocation and management of scarce military resources," thereby "implicat[ing] economic policy" and triggering the exception. Ante at 220. In other words, incredibly, the majority concludes that SSgt. Raventos' decision to leave a large heavy plank used for exercise unbolted to its posts ten feet above the ground without an adequate warning over a long weekend was "grounded in regulatory policy." See Gaubert, 499 U.S. at 325 n. 7, 111 S.Ct. 1267.
45
In so holding, the majority allows the discretionary function exception to swallow the Federal Tort Claims Act's waiver of sovereign immunity. This holding, of course, is at odds with the judgment of Congress, reflected in the Act, that the government will generally accept responsibility for the negligence of its employees when they act within the scope of their employment.
46
Moreover, the Supreme Court has expressly disavowed such a holding. The Court has instructed that "[t]here are obviously discretionary acts performed by a Government agent that are within the scope of his employment but not within the discretionary function exception." Gaubert, 499 U.S. at 325 n. 7, 111 S.Ct. 1267. These are acts that "cannot be said to be based on the purposes that the regulatory regime seeks to accomplish." Id. For example, the Gaubert Court noted that if one of the federal bank regulators in the case before it, while on official business, drove his car negligently and thereby caused an accident, the discretionary function exception "would not apply." Id. This is so, the Court explained, because even though "driving requires the constant exercise of discretion, the official's decisions in exercising that discretion can hardly be said to be grounded in regulatory policy." Id.
47
So it is here. Certainly, deciding to leave a heavy wooden exercise plank unbolted to ten-foot high posts over a long weekend without adequate warning calls for the exercise of discretion. But the exercise of that discretion "can hardly be said to be grounded in" public policy. See id. SSgt. Raventos' decisions may have tangentially "involve[d]" the allocation and management of military resources, ante at 220, just as the Gaubert driver's negligent acts may have tangentially "involve[d]" the allocation and management of federal bank regulatory resources; but SSgt. Raventos' decisions were no more "grounded in" military policy than the decisions of the negligent driver in Gaubert were "grounded in" banking regulatory policy. See Gaubert, 499 U.S. at 325 n. 7, 111 S.Ct. 1267. SSgt. Raventos' decisions, like those of the negligent driver, were simply not judgments "of the kind that the discretionary function exception was designed to shield." Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954.
48
The majority attempts to distinguish Gaubert (and other precedent) from the case at hand seemingly on the basis of its own determination that SSgt. Raventos was repairing "military equipment" somehow unique and "integral" to "train[ing] Marines for combat." See ante at 219-20 n. 4, 220 & n. 5, 220-21. But, although the Government does contend that the obstacle constituted "military unique equipment," the district court never resolved this question. See Hawes v. United States, 322 F.Supp.2d 638, 644 n. 9, 645 (E.D.Va.2004). Thus, to the extent that the majority resolves this factual issue in the first instance, it commits basic and fundamental error. See, e.g., 5B Wright & Miller, Federal Practice and Procedure: Civil 3d, § 1350, at 255-264 (2004) (and cases cited therein).
49
Furthermore, even if an appellate court had the power to make this factual finding, it would be impossible to do so fairly at this juncture. Whether the obstacle actually did constitute "military unique equipment" that was "integral" to "train[ing] Marines for combat" is so fiercely contested at present that further evidentiary development is necessary. The Marine Corps manual on which the Government relies defines "military-unique equipment" as "[e]quipment and systems that are unique to the national defense mission," such as "military weapons, aircraft, ships, submarines, missiles and missile sites, early warning systems and sites, military space systems, ordnance, tanks, and tactical vehicles," without mention of obstacles or exercise equipment. J.A. 652. Moreover, the record evidence of wide public access to the obstacle suggests that it was not "unique to the national defense mission": in response to Hawes' interrogatory asking the Government to identify all relevant restrictions on civilian access to the obstacle, the Government conceded that at the time of the accident, Camp Barrett, where the obstacle is located, was an "open base" that "anyone [could] drive on or off without passing an armed sentry post." J.A. 1004.4
50
Finally, even if the majority could resolve in the first instance a hotly disputed factual question and could fairly find on the present record that the obstacle constituted "military unique equipment," it would make no difference in this case. The discretionary function exception would not shield SSgt. Raventos' assertedly negligent repair decisions even if the obstacle he was repairing was "military unique equipment" any more than the exception would shield the Gaubert bank regulator's negligent driving decisions even if the car he was driving was outfitted with "banking unique equipment" (for example, special computers). Like the Gaubert driver, SSgt. Raventos' decision to leave a heavy exercise plank — even one "military unique" — unbolted ten feet above the ground over a long weekend in the course of making ordinary repairs to it "can hardly be said to be grounded in" any public policy. Gaubert, 499 U.S. at 325 n. 7, 111 S.Ct. 1267. The majority's utter failure to provide any legitimate basis for distinguishing SSgt. Raventos' alleged negligence from that of the driver in Gaubert confirms its misguided approach to this case.
III.
51
Nor, contrary to the majority's suggestion, does circuit precedent support its holding. In this circuit, we may have "interpreted the phrase `public policy' broadly," ante at 219, but we have never held that garden-variety housekeeping decisions like those at issue here are "grounded in" public policy and protected by the discretionary function exception.
52
Indeed, examination of our precedent reveals that in every instance in which we have held the discretionary function exception to apply, the challenged government conduct constituted acts truly rooted in public policy. See, e.g., Minns v. United States, 155 F.3d 445, 452 (4th Cir.1998) (inoculation of military servicemen against potential biological and chemical attack); Baum, 986 F.2d at 723 n. 3, 724 ("design and construction" of guardrails over Baltimore-Washington Parkway); Bowman v. United States, 820 F.2d 1393, 1395 (4th Cir.1987) ("design and use" of guardrails and signs along Blue Ridge Parkway); see also Smith v. WMATA, 290 F.3d 201, 208-09 (4th Cir.2002) (utilization of escalator during "emergency situation" at METRO station). The challenged acts in these cases provide a striking contrast to the acts at issue here. In fact, in Baum, we recognized this difference, noting that "not ... every maintenance decision of every government actor is so policy-based as to fall within the discretionary function exception." 986 F.2d at 724. Today's decision renders those words hollow.
53
In the case most similar factually to the one at hand, the Second Circuit concluded after careful analysis that a challenge to a government employee's asserted negligence in ordinary maintenance of prison weight equipment was not barred by the discretionary function exception. See Coulthurst v. United States, 214 F.3d 106 (2d Cir.2000). In Coulthurst an inmate sued the government for serious injuries he sustained while exercising on a lateral pull-down machine when the "cable connecting the steel pull-down bar to the weights snapped, bringing the bar down onto his shoulders and neck with approximately 270 pounds of force." Id. at 107. The court held that "[u]nder various fair readings of the complaint," the prisoner's claim "involves negligence unrelated to any plausible policy objectives." Id. at 111. The court explained that a government inspector's laziness in failing to inspect the machine or "to notify the appropriate authorities upon noticing the damaged cable, are examples of negligence ... that do not involve `considerations of public policy.'" Id. (quoting Gaubert, 499 U.S. at 323, 111 S.Ct. 1267). "Such actions do not reflect the kind of considered judgment `grounded in social, economic, and political policy'" that the discretionary function exception shields "from `judicial "second guessing."'" Id. (quoting Varig Airlines, 467 U.S. at 814, 104 S.Ct. 2755).
54
The same must be said with respect to SSgt. Raventos' alleged negligence. It simply goes too far to hold that his decisions to hoist the obstacle's plank onto its posts even though the bolts he had ordered were too short, to dismiss his crew at noon without remedying the situation, and to leave the plank unbolted ten feet above ground over a long weekend without posting a prominent warning, reflect judgments "grounded in social, economic, and political policy" and shielded by the discretionary function exception.
55
Our sister circuits have recognized this, concluding that similar non-policy-based government acts are not protected by the discretionary function exception. Indeed, as one court has noted, a holding that "torts stemming from garden variety decisions fall outside the discretionary function exception is consistent with a primary motive behind the [Federal Tort Claims Act]." Cestonaro v. United States, 211 F.3d 749, 755 (3d Cir.2000) (holding asserted negligence in failure to provide adequate lighting or warning in federally controlled parking lot not shielded by discretionary function exception). Since "[t]he question" as to whether the discretionary function exception applies "is not whether there is any discretion at all, but whether the discretion is grounded in the policy of the regulatory regime," the proper analysis looks to "whether the decision is fraught with economic, political, or social judgments." Cope v. Scott, 45 F.3d 445, 449-50 (D.C.Cir.1995) (internal quotation marks and citation omitted) (holding that asserted failure to post adequate warning signs along commuter road not shielded by discretionary function exception); see also Boyd v. United States, 881 F.2d 895, 898 (10th Cir.1989) (holding that asserted failure to warn of danger in offshore swimming area "does not implicate any social, economic, or political policy judgments with which the discretionary function exception properly is concerned"). The decisions of SSgt. Raventos challenged here are no more "fraught with economic, political, or social judgments," Cope, 45 F.3d at 450 (internal quotation marks omitted), than were those at issue in Coulthurst, Cestonaro, Cope, or Boyd.
56
Finally, notwithstanding the majority's suggestion to the contrary, SSgt. Raventos' status as a military officer does not transform his ordinary workaday decisions into ones of "`military discretion'" due special deference. Ante at 220 (quoting Minns, 155 F.3d at 451 (citing Tiffany v. United States, 931 F.2d 271, 277 (4th Cir.1991))). As the cases relied on by the majority make clear, deference is due only when "discretionary decisions are ones of professional military discretion," like the determination that inoculation against biological or chemical attack is warranted, Minns, 155 F.3d at 451 (emphasis added), or the determination of what constitutes appropriate "defense of national borders." Tiffany, 931 F.2d at 278. This case simply does not involve the exercise of "professional military discretion."
57
As the Third Circuit held in rejecting the argument that the discretionary function exception barred a negligence claim against the government for the conduct of a Navy employee:
58
This case is not about a national security concern, but rather a mundane, administrative, garden-variety, housekeeping problem that is about as far removed from the policies applicable to the Navy's mission as it is possible to get.
59
Gotha v. United States, 115 F.3d 176, 181 (3d Cir.1997) (holding discretionary function exception is no shield to claim of negligence in failing to provide handrails or adequate lighting on footpath). These words are equally applicable here. The Gotha Court found it "difficult to conceive of a case more likely to have been within the contemplation of Congress when it abrogated sovereign immunity" than the one before it. Id. at 182. An appropriate application of the discretionary function exception leads to precisely the same conclusion in this case.
IV.
60
The discretionary function exception serves the important purpose of protecting the government from tort suits that challenge its policy-making authority. But when the exception is used to shield the government from liability resulting from ordinary garden-variety negligence not "grounded in" any public policy, it subverts the very purpose of the Act. As the Supreme Court has recognized, certain decisions, even though made in connection with "official duties" and even though discretionary in nature, are not shielded by the discretionary function exception because "the decisions in exercising that discretion can hardly be said to be grounded in regulatory policy." Gaubert, 499 U.S. at 325 n. 7, 111 S.Ct. 1267. The acts challenged here involve precisely such non-policy-grounded decisions. The majority's contrary holding makes it hard to imagine any situation involving a discretionary decision other than one resulting in a traffic accident in which the government would be subject to suit for employee negligence. Clearly, that could not have been Congress' purpose in enacting the Federal Tort Claims Act.
Notes:
1
We have never squarely considered the question of which party bears the burden of proof in a discretionary function case. I see no reason for us to decide that question here because the outcome of this case does not depend on its answer. But, contrary to the majority's suggestion, "[a]lthough the plaintiff bears the initial burden of proving subject matter jurisdiction under the Federal Tort Claims Act, most courts have concluded that the burden of proving the applicability of the discretionary-function exception falls upon the United States." Wright, Miller & Cooper,supra, § 3658.1, at 639.
2
At this stage of the proceedings, a court need not, and should not, consider whether SSgt. Raventos was in fact negligentSee, e.g., Duke v. Dep't of Agriculture, 131 F.3d 1407, 1410 (10th Cir.1997) (noting that "in applying the discretionary function exception we do not consider whether the decision or nondecision was negligent or wrong"). For that reason, SSgt. Raventos' substantive defense of his conduct, which the majority cites, seemingly with approval, see ante at 215 n. 1, is at this juncture irrelevant.
3
This does not mean that a court should attempt to discern the "subjective intent" underlying challenged actsSee Gaubert, 499 U.S. at 325, 111 S.Ct. 1267. Rather, we "look to the nature of the challenged decision[s] in an objective, or general sense, and ask whether th[ose] decision[s][are] one[s] which we would expect inherently to be grounded in considerations of policy." Baum v. United States, 986 F.2d 716, 720-21 (4th Cir.1993).
4
This evidence also flatly contradicts the testimony of SSgt. Raventos and Major Clarke — which the majority cites approvingly — regarding access to the obstacle courseSee ante at 221. | 01-03-2023 | 04-19-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1023170/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-2357
SELECTIVE INSURANCE COMPANY,
Plaintiff - Appellee,
versus
THOMAS L. OGLEBAY; CARMELLA BONE, Individually
and as next friend and legal guardian of
Tracey M. Mayhew,
Defendants - Appellants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (CA-05-
951)
Argued: September 20, 2006 Decided: July 17, 2007
Before MICHAEL, Circuit Judge, N. Carlton TILLEY, Jr., United
States District Judge for the Middle District of North Carolina,
sitting by designation, and Thomas E. JOHNSTON, United States
District Judge for the Southern District of West Virginia, sitting
by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Byron Leslie Warnken, WARNKEN, L.L.C., Towson, Maryland,
for Appellants. Stephen Salvatore McCloskey, SEMMES, BOWEN &
SEMMES, Baltimore, Maryland, for Appellee. ON BRIEF: Michael
Patrick Lytle, WARNKEN, L.L.C., Towson, Maryland; Stephen Allen
Markey, III, Towson, Maryland, for Appellants.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIUM:
Carmella Bone, as assignee of Thomas Oglebay’s claim, appeals
the ruling of the district court granting summary judgment for
Selective Insurance Company ("Selective"). The declaratory
judgment action was brought by Selective seeking a ruling that
Selective did not have a duty to defend under an insurance policy
issued by Selective. We affirm the opinion of the district court
denying coverage.
I.
In accordance with the agreed statement of facts submitted by
the parties, the facts of the case are as follows: Selective
issued a Commercial General Liability policy to A. Widmeyer Driving
School("Widmeyer"). (Joint Appendix at 50, ¶1). Widmeyer is the
only named insured on the policy. (JA at 50,¶ 2). The Selective
policy does not specifically identify Thomas Oglebay as an
"insured" under the policy. (JA at 50,¶ 3). The definition of the
term "insured" includes "employees . . . but only for acts within
the scope of their employment by you or while performing duties
related to the conduct of your business." (JA at 50, ¶ 4). The
Selective policy provides coverage for damages due to "bodily
injury" and "personal and advertising injury." (JA at 50,¶¶ 5-7).
Widmeyer employed Mr. Oglebay to teach driving instruction.
(JA at 51,¶ 8). Tracey Mayhew is a mildly mentally retarded adult
3
who was enrolled at Widmeyer by her mother, Carmella Bone, pursuant
to a special program where individuals with learning disabilities
could learn to drive. (JA at 51,¶ 9).
In March and April 2002, when Mr. Oglebay was supposed to be
teaching Ms. Mayhew how to drive, Mr. Oglebay sexually assaulted
Ms. Mayhew. (JA at 51,¶ 10). In particular, following classes at
the driving school after other students had left, Mr. Oglebay began
to sexually abuse Ms. Mayhew. (JA at 51,¶ 10). Mr. Oglebay
continued his activity during driving sessions in a vehicle owned
by Widmeyer and at Mr. Oglebay's personal residence. (JA at 51,¶
10, 17). All contact between Mr. Oglebay and Ms. Mayhew occurred
during the period of time that Ms. Mayhew was scheduled for driving
instruction. (JA at 53,¶ 18). Mr. Oglebay has stated that he did
not expect or intend to injure Ms. Mayhew through his conduct.
(JA at 53,¶ 19).
When Ms. Bone became aware of the abuse, she filed a civil
action in Maryland state court against Mr. Oglebay and Widmeyer
alleging "various acts of vulnerable adult abuse, sexual assault,
battery, and rape upon Ms. Mayhew." (JA at 51,¶ 10). The state
court entered summary judgment in favor of Ms. Bone on a false
imprisonment claim. (JA at 53,¶ 20). After the entry of summary
judgment, Ms. Bone and Mr. Oglebay agreed to a consent judgment
against him in the amount of $300,000 apportioned as follows:
$275,000 for emotional pain and suffering sustained as a result of
4
the false imprisonment and negligence claims and $25,000 for Ms.
Bone for past and future economic damages. (JA at 54,¶ 21). Ms.
Bone agreed not to attempt to collect anything in excess of $10,000
personally from Mr. Oglebay in exchange for Mr. Oglebay's
assignment of rights against Selective. (JA at 54,¶ 22). At all
times during the course of the state tort suit, Selective took the
position that it had no duty to defend or indemnify Mr. Oglebay.
(JA at 54,¶ 23).
Following entry of judgment in the state court action,
Selective filed a declaratory judgment action in the United States
District Court for the District of Maryland seeking a declaration
of coverage under the policy. Both parties filed motions for
summary judgment.
The district court granted Selective's motion for summary
judgment holding that there was no coverage because Mr. Oglebay was
not an "insured" as that term is defined in the policy. At the
district court, the parties agreed that under Maryland law, the
intentional acts committed by Mr. Oglebay were not "within the
scope of his employment" and that the dispositive issue before the
district court was whether Mr. Oglebay's acts were committed "while
performing duties related to the conduct" of Widmeyer (the "while
performing duties" provision).
The district court noted that the "while performing duties"
provision "must be interpreted consonant with, even if more broadly
5
than, the 'scope of employment' phrase." Ultimately, however, the
district court found there was no coverage under the policy. In
particular, the district court noted that the acts occurred during
Mr. Oglebay's working hours, but rejected the argument that the
"while performing duties" clause was broad enough to encompass
intentional sexual misconduct. Ms. Bone timely filed a Notice of
Appeal. We review de novo the district court's grant of summary
judgment. Laber v. Harvey, 438 F.3d 404, 415 (4th Cir.2006) (en
banc).
II.
Under Maryland law, an insurer is obligated to provide its
insured with a defense to a tort action when there exists a
potentiality that the claim could be covered by the policy.
Montgomery County Bd. of Educ. v. Horace Mann Ins. Co., 383 Md.
527, 860 A.2d 909, 915 (2004); Litz v. State Farm Fire & Cas. Co.,
346 Md. 217, 225, 695 A.2d 566, 570 (1997)(explaining that "the
mere possibility that the insurer will have to indemnify triggers
the duty to defend").
This potentiality determination typically involves a two part
test: (1) what coverage and defenses exist under the terms of the
policy; and (2) whether the allegations in the tort action
potentially bring the tort claim within the policy's coverage. St.
Paul Fire & Mar. Ins. v. Pryseski, 292 Md. 187, 193, 438 A.2d 282,
6
285 (1981). The first factor "focuses upon the language and
requirements of the policy, and the second [factor] focuses upon
the allegations of the tort suit." Id. Moreover, it is well-
established under Maryland law that any doubt as to whether there
is a potentiality of coverage under an insurance policy should be
"resolved in favor of the insured." See U.S.F. & G. v. Nat'l Pav.
Co., 228 Md. 40, 55, 178 8 A.2d 872, 879 (1962).
The question before this court is whether the district court
properly concluded that Mr. Oglebay's actions were not acts
committed "while performing duties related to the conduct of"
Widmeyer's business. Ms. Bone asserts that the "while performing
duties" provision must be construed more broadly than the "scope of
employment" provision and that when construed broadly, the "while
performing duties" provision would provide coverage for Mr.
Oglebay's conduct. Specifically, Ms. Bone asserts that because all
of Mr. Oglebay's misconduct was committed during the time that Mr.
Oglebay was supposed to be teaching Ms. Mayhew how to drive, such
conduct was committed while Mr. Oglebay was performing duties
related to the conduct of his employer. Essentially, Ms. Bone
claims that Mr. Oglebay's tortious conduct is covered under the
"while performing duties" provision because there is a temporal-
spatial connection between his duties as a Widmeyer driving
instructor and his tortious conduct.
7
Maryland courts have not yet interpreted the "while performing
duties" provision specifically at issue in the case. In Fed. Ins.
Co. v. Ward, 166 Fed. App'x 24 (4th Cir. 2006) (unpublished
opinion), we had occasion recently to address the interpretation of
a nearly identical insurance policy provision under Virginia law
and find that approach instructive here.
The question before the court in Ward was whether an employee
who was finishing her day's work and locking up the business'
premises was acting "while performing duties related to the conduct
of [the employer's] business" when she flicked her cigarette ashes
into a wastebasket, resulting in a fire that destroyed the
building. We conducted our analysis by identifying the discreet
act in question, flicking cigarette ashes, and comparing that with
her duties as an employee: "Indeed, because the act of smoking was
not within the Employees' job description or needed to perform a
job-related duty, the subsidiary act of flicking ashes also cannot
be characterized as the exercise of a duty."
In this case, the act complained about is false imprisonment
arising from sexual abuse and sexual assault. There is no
suggestion that sexual contact in any form constituted part of
Oglebay's job description nor that the subsidiary act of
accomplishing it in an assaultive way could be characterized as the
exercise of a duty.
8
To perform the analysis using the more expansive temporal-
spatial criteria rejected by the panel in Ward would result in
coverage for a "virtually limitless number of activities" beyond
the anticipation of either the insurer or the employer simply
because they "coincide with a job-related duty." Ms. Bone cites no
authority suggesting that the Maryland courts would adopt that
approach, and we have found none.
In Wolfe v. Anne Arundel County, 374 Md. 20, 821 A.2d 52
(2003), the Court of Appeals of Maryland specifically rejected a
temporal-spatial argument similar to the argument advanced by Ms.
Bone. The Wolfe court had to determine whether a tort suit
resulting from a rape committed by an on-duty police officer was
covered by a collective bargaining agreement that provided coverage
for "litigation arising out of acts within the scope of his/her
employment." Id. at 31, 821 A.2d at 58. The rape victim in Wolfe
had asserted that "'but for' [the officer's] position as a county
police officer he could not have gained access to and control of
his victim and the opportunity to rape her inside the police
vehicle." Id. at 32 n.4, 821 A.2d at 59 n.4.
The Wolfe court rejected this "but for" argument noting that
"the litigation arose out of the 'act' of raping Ms. Wolfe and not
out of the 'act' of the traffic stop." Id. at 36, 821 A.2d at 61.
The Wolfe case involved interpretation of a clause containing the
phrase "scope of employment" and thus is not dispositive of the
9
issue before us, namely interpretation of the more broad "while
performing duties" provision. However, the Wolfe court's rejection
of a temporal-spatial standard is instructive in predicting the
manner in which Maryland courts would interpret the "while
performing duties" provision at issue here.
In this case, Widmeyer's business was providing driving
instruction. As a Widmeyer employee, Mr. Oglebay's duties were to
teach his students, such as Ms. Mayhew, how to drive. It is
undisputed, however, that Mr. Oglebay was not teaching Ms. Mayhew
how to drive during the times that Ms. Mayhew was with him.
Rather, Mr. Oglebay sexually assaulted Ms. Mayhew in lieu of
performing his duties, i.e. providing driving instruction. Mr.
Oglebay's sexual assault of Ms. Mayhew, even if committed during
the time or at a place related to his employment as a driving
instructor, was certainly not the performance of a duty related to
the conduct of his employer's business.
III.
Ms. Bone also argues that the district court erred by
"ignoring the underlying trial court's finding on the merits that
Oglebay falsely imprisoned Tracey Mayhew which was specifically
covered under the policy." (JA at 295). In support of this issue,
Ms. Bone refers to a portion of the policy that specifically
provides coverage for claims of false imprisonment. Ms. Bone
10
asserts that because the complaint in the underlying tort action
specifically included a claim for false imprisonment there was at
least the possibility of coverage, thus triggering the duty to
defend.
As noted above, application of the potentiality standard under
Maryland law requires consideration of two questions. First, what
coverage and defenses exist under the terms of the policy? Second,
do the allegations in the tort action potentially bring the tort
claim within the policy's coverage?
Here, the policy provides coverage for damages resulting from
"false imprisonment." The complaint in the underlying tort suit
included a section entitled "Facts Applicable to All Counts." (JA
at 133-34). The factual recitation in this portion of the
complaint focuses exclusively on the sexual misconduct of Mr.
Oglebay. Id. Moreover, the "False Imprisonment" section of the
complaint, Count III, states that "Oglebay's repeated acts of
sexual assault and battery and vulnerable adult abuse, as described
previously in this Complaint, constituted intentional acts of force
or threats of force that restrained Tracey Mayhew." JA at 136.
Thus, although the complaint identifies a claim for "false
imprisonment," the factual allegations supporting the false
imprisonment claim arise exclusively from the sexual misconduct of
Mr. Oglebay. As discussed in detail above, Mr. Oglebay is not an
insured under the policy for such conduct.
11
The trial court did not err by not considering whether the
fact that false imprisonment is covered under the policy would
create a potentiality of coverage triggering the duty to defend.
The judgment of the district court is
AFFIRMED.
12 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1023172/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1587
MARTEK BIOSCIENCES CORPORATION,
Plaintiff - Appellee,
versus
ROBERT ZUCCARO, as Stockholders’
Representative of the former Interest Holders
of OmegaTech, Inc.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (1:04-cv-
03349-AMD)
Argued: May 24, 2007 Decided: July 17, 2007
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished opinion. Judge Niemeyer wrote
the opinion, in which Judge Duncan and Senior Judge Hamilton
joined.
ARGUED: J. Clifford Gunter, III, BRACEWELL & GIULIANI, L.L.P.,
Houston, Texas, for Appellant. Mark D. Gately, HOGAN & HARTSON,
L.L.P., Baltimore, Maryland, for Appellee. ON BRIEF: Andrew M.
Edison, BRACEWELL & GIULIANI, L.L.P., Houston, Texas; Shelby J.
Kelley, BRACEWELL & GIULIANI, L.L.P., Washington, D.C., for
Appellant. Lauren S. Colton, HOGAN & HARTSON, L.L.P., Baltimore,
Maryland; Catherine E. Stetson, HOGAN & HARTSON, L.L.P.,
Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
-2-
NIEMEYER, Circuit Judge:
Under the terms of a March 2002 merger agreement between
Martek Biosciences Corporation and OmegaTech, Inc. -- two
manufacturers of “DHA,” a type of long-chain fatty acid thought to
be good for cardiovascular health -- Martek agreed to pay OmegaTech
shareholders an additional $10 million in Martek stock if and when
each of four “milestones” was achieved after the date of the merger
agreement. One such milestone, which is at issue in this case,
would be achieved if the National Academy of Sciences published an
authoritative statement recommending a “dietary reference intake”
of DHA that would permit an application to the United States Food
and Drug Administration (“FDA”) for a “nutrient content claim on
food labels,” so that upon approval of the application, Martek’s
customers could advertise the presence of DHA in their products.
The National Academy of Sciences in fact published a report,
which came after the date of the merger agreement, but it stopped
short of setting a precise dietary target for DHA. The report did,
however, endorse DHA as contributing to the proper intake of a
short-chain fatty acid, “LNA,” leading OmegaTech’s former
shareholders to request payment under the milestone. When Martek
and the OmegaTech shareholders could not agree whether the National
Academy of Sciences’ report sufficiently recommended DHA to satisfy
the milestone requirements, they decided to seek regulatory
approval for the product claims based on the report, on the theory
-3-
that FDA approval would signal that the milestone had been
achieved. Even though the FDA approved the product claims, the
parties still could not agree whether Martek owed the OmegaTech
stockholders the $10 million for satisfaction of the milestone.
Martek commenced this action for a declaratory judgment that the
milestone had not been achieved, and the former OmegaTech
shareholders through their appointed representative, Robert
Zuccaro, counterclaimed for breach of contract.
On Martek’s motion for summary judgment, the district court
ruled that the milestone had not been achieved, entering a
declaratory judgment that Martek had no duty to pay the additional
$10 million. We conclude, however, that the language of the
contractual milestone is ambiguous and that the district court must
therefore assess, as a factual matter, the intentions and purposes
of the parties to the bargain and whether Martek received the
benefit of the bargain. Accordingly, we vacate the summary
judgment and remand for further proceedings.
I
Prior to the merger, both Martek and OmegaTech manufactured
DHA (docosahexaenoic acid) from algae that naturally produce that
type of long-chain fatty acid. DHA is used as a dietary
supplement, in baby formula, and as a food additive.
-4-
Under the merger agreement between Martek and OmegaTech, dated
March 25, 2002, Martek agreed to pay OmegaTech’s stockholders
approximately $50 million in Martek stock. It also agreed to pay
an additional $10 million in stock for each of four “milestones”
that was achieved during an “earn-out period” -- the period between
March 25, 2002, and October 30, 2004. Two of the milestones
related to financial performance, recognizing that OmegaTech would
be worth more if the combined companies sold an increased amount of
product in the two years after the merger. The other two
milestones related to regulatory approval of claims that could be
made about DHA on food packages. The milestone at issue in this
case is the “nutrient content claim milestone,” which rewarded
potential FDA regulatory action permitting certain types of claims
about DHA on product packages.
The parties recognize that OmegaTech would have greater value
if customers of the combined companies could make certain types of
“nutrient content claims” on their product packages, such as “this
product contains DHA” or “this product contains 32 milligrams of
DHA, 20% of a daily value.” The ability to make such claims was an
important business goal because “it would be extremely difficult,
if not impossible, to sign major food companies to DHA licensing
deals unless DHA could be promoted on food labels.”
-5-
The language of the milestone, keyed to compliance with and
the language of the Food and Drug Administration Modernization Act,
reads as follows:
If the National Academy of Sciences (the “NAS”), at any
time during the Earn-Out Period, makes an authoritative
statement recommending a Dietary Reference Intake (a
“Recommendation”), including, without limitation, a
Recommended Daily Intake or any Adequate Intake, citing
a specific milligram level for the long-chain fatty
acid[] [DHA] that permits application to the U.S. Food
and Drug Administration, pursuant to the Food and Drug
Administration Modernization Act, for a nutrient content
claim on food labels for [DHA], provided, however, that
this nutrient content claim must be limited to [DHA] and
shall specifically not include the short chain omega-3
fatty acid alpha-linolenic acid (“LNA”), such numbers of
shares of Martek Common Stock equal to $10 million . . .
shall be distributed to the Interest Holders.
Cf. 21 U.S.C. § 343(r) (with respect to the emphasized terms).
The parties initially crafted the language of the milestone to
depend on the FDA’s approval of a nutrient content claim for DHA.
They abandoned that concept, however, because FDA approval would
take too long and the merging parties did not believe that Martek
would be able to obtain FDA authorization based on the then-
existing science. Therefore, they linked the $10 million milestone
payment to the publication of a scientific statement sufficient to
permit regulatory approval of nutrition claims for DHA -- in the
language of the statute, an “authoritative statement” sufficient
for FDA approval. The agreement thus set achievement of the
milestone at a time earlier in the regulatory process than actual
FDA approval of a nutrient content claim.
-6-
Also important to the merging parties was the right to make a
freestanding nutrient content claim with respect to DHA, a long-
chain fatty acid, as distinct from LNA (alpha-linolenic acid), a
short-chain fatty acid. If the nutrient content claim for DHA had
to be tied to a claim for LNA, it would be of less commercial value
to the parties. LNA was substantially cheaper than DHA, and Martek
lacked a competitive edge in making LNA.
Thus, at a high level of generality, the milestone would be
achieved when a scientific statement was published that was
sufficient to support an application to the FDA for approval of a
nutrient content claim for DHA, independent of LNA.
On September 5, 2002, a division of the National Academy of
Sciences issued a pre-publication draft of a report entitled
“Dietary Reference Intakes” (hereafter “Report”), which set dietary
reference intakes for certain food components, including fatty
acids. The Report, which the OmegaTech stockholders contended
qualified as the “authoritative statement” of the milestone,
stated:
Because of a lack of evidence for determining the
requirement for n-3 fatty acids, an [Adequate Intake] is
set based on the highest median intake of [short-chain
LNA] by adults in the United States where a deficiency is
basically nonexistent in free-living populations . . . .
Small amounts of [long-chain DHA] can contribute towards
reversing an n-3 fatty acid efficiency . . . . [DHA] can
contribute up to 10 percent of the total n-3 fatty acid
intake and therefore up to this percent can contribute
towards the [Adequate Intake] for [LNA].
-7-
Martek, however, did not agree that the Report was adequate. To
resolve the question whether this statement satisfied the
milestone, the OmegaTech stockholders (through Zuccaro) offered to
file a notification with the FDA for nutrient content claims for
DHA, on the theory that FDA approval of the nutrient content claims
would be strong evidence that the milestone was met. Martek agreed
with this course of action. The OmegaTech stockholders, as part of
a group of DHA manufacturers, applied for approval from the FDA in
January 2004 by submitting to the FDA a “notification” of the
specific nutrient content claims for DHA they wanted, basing these
claims on the Report. Under the FDA’s process, the FDA could have
approved the submitted claims, as contained in the notification, or
it could have allowed 120 days to elapse without disapproving the
claims, see 21 U.S.C. § 343(r)(2)(H), in which case the claims
would be approved by operation of law.
FDA let the 120 days elapse, and on May 15, 2004, the DHA
manufacturers were free to make the nutrient content claims
contained in the notification. Consistent with this approval, the
FDA placed a notice of the claims on a public docket.
Unsatisfied by the nutrient content claims of this
notification, Martek itself filed a nutrient content claim
notification in January 2005 for different claims, again based on
the Report. According to a Martek nutritionist who worked on
drafting the notification, an approval of these nutrient content
-8-
claims “would probably satisfy the milestone” in the merger
agreement. The Martek notification represented that the Report was
an authoritative statement and that the nutrient content claims for
DHA met the FDA requirements, as a recommended level of DHA could
be derived from the Report.
Again the FDA approved the Martek notification by allowing the
120 days to pass without comment, and by operation of law,
manufacturers were then permitted to make the nutrient content
claims for DHA (without referring to LNA), as claimed in the Martek
notification. Again, the FDA placed a notice on the public docket
for the allowed claims.
To date, the FDA has left in place the nutrient content claims
contained in both OmegaTech’s notification and Martek’s
notification and has approved, in addition, a Martek petition,
based in part on the Report, to make health claims for DHA (more
potent claims than simple nutrient content claims).
When the parties failed to agree thereafter on whether the
milestone in the merger agreement had been met, Martek commenced
this action for a declaratory judgment and moved for summary
judgment declaring that the milestone had not been met. In
granting Martek’s motion, the district court held that the
milestone had not been achieved because (1) “[T]he merger agreement
specifically requires that [a National Academy of Sciences]
endorsement of [DHA] come unattached to a recommendation on LNA
-9-
. . . [T]his is not the case”; and (2) the Report did not cite a
“specific milligram level” for DHA.1 From the district court’s
judgment, the OmegaTech stockholders, through Zuccaro, filed this
appeal.
II
Delaware law, which applies in this diversity action by reason
of the merger agreement’s choice of law provision, requires that
the text of a contract be applied if its meaning is clear. But if
the text is ambiguous, the court “will consider testimony
pertaining to antecedent agreements, communications and other
factors which bear on the proper interpretation of the contract.”
Pellaton v. Bank of New York, 592 A.2d 473, 478 (Del. 1991).
The district court found the text of the milestone provision
clear and applied the clear meaning to grant Martek summary
judgment. It based its conclusion on two reasons. First, it held
that “the merger agreement specifically requires that [a National
Academy of Sciences] endorsement of [DHA] come unattached to a
recommendation on LNA” and that the Report’s endorsement of DHA did
not come unattached to a recommendation on LNA. The court’s
reasoning, however, misreads the milestone provision. The
1
The district court did not reach Martek’s two other arguments
why the milestone was not achieved -- that the Report did not
contain “authoritative statements” and that the Report did not
“permit application” for a nutrient content claim for DHA.
Nonetheless, we find these arguments to be without merit.
-10-
provision does not require that the National Academy of Sciences’
recommendation on DHA come unattached to a recommendation on LNA.
Rather, it requires that the nutrient content claim for DHA not
include LNA. The parties bargained for the sort of recommendation
that would reasonably support a nutrient content claim for DHA,
which is why the decoupling of DHA and LNA was only required in the
nutrient content claim, not the recommendation supporting that
claim. With the text as written, the district court would have
been required to determine whether the recommendation was
sufficient to support a freestanding nutrient content claim for
DHA.
Second, the district court held that the “[Report] does not
‘cite a specific milligram level’ that it recommended for [DHA]
that could be applied to a nutrient content claim.” Because the
Report gave a range of intakes for DHA consistent with good health,
there was no “specific milligram level.” “Whereas the parties, by
the nutritional milestone, sought a declaration of the level of DHA
that a person should take, what they got from the [Report] was an
upper limit of how much someone could take. In this (material)
sense, the nutritional milestone is not met.” In making this
holding, the court construed an ambiguous term, resolving the
ambiguity to reach one chosen result. The same language, however,
equally supports the conclusion that the Report did cite specific
milligram levels for DHA.
-11-
The Report cited a specific milligram level for the short-
chain fatty acid LNA, giving a level, for example, of 1600
milligrams per day for adult men. It then proceeded to state that
up to 10% of that milligram level for LNA could be achieved by
consuming DHA. Thus, the Report could be read to say that 160
milligrams of DHA could, for adult men, help achieve the health
benefits suggested by the Report. While some levels could to this
extent be derived from the Report for DHA, the question remained
whether they were the type of levels bargained for by the parties.
The parties focus on the semantics of whether the “range”
cited by the Report can include a “specific milligram level.” The
OmegaTech stockholders rely on a dictionary definition of “range,”
noting that the term means a “series extending between certain
limits.” They argue accordingly that the Report’s citing of a
range is tantamount to citing a series of acceptable levels.
Martek responds by arguing that because the Report’s range was
consistent with zero consumption of DHA, the Report contains no
“precise numeric value.”2 Both of these arguments are based on
abstract understandings of the meaning of the word “level” and
whether citing a range is equivalent to citing a level. In a
particular setting, however, each might be correct in light of a
2
Martek does not on appeal defend the district court’s
distinction between a statement of how much DHA a person “should”
take and a statement of how much DHA a person “could” take.
Neither the parties’ agreement nor the industry practices seem to
assign relevance to this distinction.
-12-
particular purpose. Nothing on the face of the contract indicates
which of these specific meanings the drafters had in mind. Indeed,
the drafters appear to have focused on any level “that permits
application . . . for a nutrient content claim on food labels.”
The proper definition of the term therefore depends not only on an
abstract linguistic analysis, but also on the commercial purpose of
the milestone provision. And determining that purpose requires an
examination of extrinsic evidence of the parties’ intent.
The milestone provision also includes a structural ambiguity.
It provides that the OmegaTech stockholders would receive an
additional $10 million if (1) the National Academy of Sciences
issued an “authoritative statement,” (2) recommending a “dietary
reference intake,” (3) citing a “specific milligram level,” (4)
that “permits application” to the FDA for a “nutrient content
claim” for DHA. Structurally, the provision identifies three
criteria for the Report (items 1, 2, and 3), and one goal of the
milestone (item 4). As a whole, the provision appears to be aimed
at rewarding OmegaTech’s stockholders when the forward-looking
criteria reasonably suggest that a nutrient content claim for DHA
could be expected to be approved by the FDA. But in this case, we
need not look forward to see whether a nutrient content claim could
reasonably be expected to be approved, because we can look backward
and see that a nutrient content claim was indeed approved by the
FDA, no less than three times. Because the milestone is phrased as
-13-
if it will be evaluated after the issuance of the Report but before
any FDA action, it does not provide guidance as to how, or even
whether, the criteria were to be evaluated once the FDA had
approved a nutrient content claim. The milestone provision is thus
ambiguous, because not all reasonable readers of the contract would
conclude that the criteria are freestanding contractual
requirements rather than proxies for an ultimate goal, which we now
know has been accomplished.3
Because the milestone provision is ambiguous, the
responsibility for the courts is to find the intent of the parties,
relying on whatever evidence sheds light on that intent. See
Comrie v. Enterasys Networks, Inc., 837 A.2d 1, 13 (Del. Ch. 2003)
(holding that when a contract’s terms are ambiguous, “the court may
consider extrinsic evidence to uphold, to the extent possible, the
reasonable shared expectations of the parties at the time of
contracting”); accord Seaford Golf & Country Club v. E.I. duPont de
Nemours & Co., 2007 Del. LEXIS 221, at *20-*22 (Del. May 15, 2007);
Eagle Indus. v. DeVilbiss Health Care, Inc., 702 A.2d 1228, 1232-33
(Del. 1997).
3
It is possible that the only reasonable reading of the
contractual purpose is the OmegaTech stockholders’ position. But
we leave this issue for further development. We also leave open
the issue of whether Martek, by virtue of its representations to
the FDA in its nutrient content claim notification, should be
judicially estopped from asserting that the milestone was not
achieved.
-14-
In sum, the ambiguities in the milestone provision require
factfinding as to what precisely the parties bargained for and
whether Martek has received the benefit of that bargain. See Brehm
v. Eisner, 906 A.2d 27, 69 (Del. 2006).
III
Because we find the relevant milestone provision ambiguous, we
proceed to determine whether the OmegaTech stockholders have
presented enough extrinsic evidence to create a question of fact
about the parties’ shared intent and therefore to defeat Martek’s
motion for summary judgment.
Taking the evidence in the light most favorable to the
OmegaTech stockholders, the record supports the conclusions that
the purpose of the milestone provision was to reward OmegaTech’s
stockholders for the ability to make nutrient content claims and
that Martek has therefore received the benefit of the bargain.
Because the parties wanted a shorter earn-out period than would be
needed to await final FDA approval of a nutrient content claim, the
milestone was keyed to publication of a report reasonably
calculated to support approval of a nutrient content claim. This
is supported by the milestone’s tracking of the statutory terms
governing FDA approval of nutrient content claims, as well as the
explicit allusion to a report that “permits application to the
[FDA] pursuant to the Food and Drug Administration Modernization
-15-
Act.” Compare J.A. 120-21 (“If the National Academy of Sciences
. . . makes an authoritative statement”) with 21 U.S.C. §
343(r)(2)(G)(I) (“the National Academy of Sciences or any of its
subdivisions has published an authoritative statement”); compare
J.A. 120-21 (“citing a specific milligram level”) with 21 U.S.C. §
343(r)(2)(G)(I) (“which identifies the nutrient level to which the
claim refers”). The reference to and use of the statutory language
reflects a single purpose of obtaining permission to make nutrient
content claims relating to DHA. Thus, in the light most favorable
to OmegaTech stockholders, the approval of the nutrient content
claim would prove a fortiori that the recommendation was sufficient
to meet the business goals of the merger agreement.
Parol evidence likewise suggests that the milestone was simply
intended to reward the ability to make nutrient content claims, a
reward well-earned in view of the FDA’s actions. For example, Kent
Meager, former chairman of the board of OmegaTech, testified in
deposition that:
I recall being delighted by some of its language,
specifically the language permits, because there was
concern associated with the timing of actually getting a
nutrient content claim, what I considered to be the
ultimate objective of the milestone.
* * *
[The milestone] changed to simply not have as the
objective a filed and allowed nutrient content claim, but
simply the permission or permitted notification slash, as
this is termed, application.
* * *
-16-
It was basically saying that if the report came out with
something that distinguished DHA such that you could make
-- and had a recommendation -- such that you can make a
notification under FDAMA for a nutrient content claim,
that rather than having us wait through the process of
will the FDA grant it or not, that we would -- the
milestone would be considered achieved and the shares
would be distributed.
(Emphasis added). Robert Di Scipio, former general counsel of
OmegaTech, testified similarly by affidavit:
While OmegaTech realized the importance of securing a
Nutrient Content Claim for [DHA] for Martek, OmegaTech
did not want to wait two to three years until a Nutrient
Content Claim was achieved under the FDAMA procedures to
receive payment on the Nutrient Content Claim Milestone.
Martek’s CFO, Pete Buzy, indicated that he also did not
want to wait until a Nutrient Content Claim was achieved
to pay off the Nutrient Content Claim Milestone, because
he did not want the Martek shares escrowed for the
milestones to be outstanding for that long.
The Martek and OmegaTech negotiators agreed that the
milestone should be paid if it appeared that a Nutrient
Content Claim for [DHA] could be secured. Both companies
agreed that the Nutrient Content Claim Milestone would be
deemed achieved if an anticipated [Report] contained a
statement regarding [DHA] that would simply permit
application for a [DHA] nutrient content claim so that
OmegaTech shareholders would be paid before the FDAMA
process even got underway. Accordingly, OmegaTech and
its shareholders would not be waiting for payment on the
Nutrient Content Claim Milestone while the notification
worked through the system.
* * *
At all times during the negotiations, the intended
purpose of the Nutrient Content Claim Milestone, . . . ,
was to achieve a Nutrient Content Claim for [DHA] that
did not include LNA.
Mark Braman, then-CEO of OmegaTech, testified:
-17-
Both OmegaTech and Martek realized the National Academy
of Science/Institute of Medicine Report making an
authoritative statement identifying a nutrient value for
DHA was a lower hurdle (trigger) for achieving the
milestone than actually obtaining a DHA nutrient content
claim, and agreed that if the Report simply “permitted”
the filing of an application (notification) for a [DHA]
nutrient content claim, under the FDAMA, then the
“Nutrient Content Claim Milestone” would be considered
achieved.
* * *
At no time during the negotiations did the parties
discuss or express the idea that a nutrient content claim
for [DHA] could be achieved pursuant to the FDAMA without
satisfying the “Nutrient Content Claim Milestone”.
Finally, the chief negotiator for OmegaTech, Jim Flatt, who later
went to work for Martek, testified in deposition:
Q. So there would be a benefit to Martek if a nutrient
content claim could be obtained for DHA; correct?
A. Correct.
Q. And the purpose of the milestone was to reflect
that; correct?
* * *
A. The purpose of this milestone was to reflect an
achievement or a fairly objective and specific
achievement, it would represent a step towards the
nutrient content claim. Because, again, if you
reviewed the milestone, it is based on the National
Academy of Sciences making an authoritative
statement regarding a very DRI, or dietary
reference intake for DHA as specified milligram
level that would be sufficient to allow one to
apply for a nutrient content claim under FDAMA.
So the milestone, in my understanding and the
intent at that time, did not reflect the issuance
of the nutrient content claim but rather the
issuance of a report that would serve as an
-18-
authoritative statement that would allow for the
nutrient content claim to be filed for.
Q. In other words, under the milestone, a nutrient
content claim did not necessarily have to be
achieved?
A. That’s correct.
Q. You simply had to have the prerequisites to obtain
a nutrient content claim; correct?
A. To have one of the princip[al] prerequisites,
that’s correct.
The remainder of Flatt’s deposition suggests that all discussion
revolved around what criteria would be required to predict whether
the Report was sufficient to permit a nutrient content claim.
All of this testimony supports the position of the OmegaTech
stockholders that the specific criteria for the necessary Report
existed only to predict when the FDA would allow a nutrient content
claim, and that once such a claim had been approved, Martek had
received the benefit of the bargain. But there is also at least
some evidence that supports Martek’s position that the parties
bargained for a specific kind of recommendation, rather than simply
one that was sufficient to justify a nutrient content claim.
Taking the evidence in the light most favorable to the OmegaTech
stockholders, however, the evidence would amply support a
reasonable factfinder in concluding that the milestone was
achieved; that Martek received the benefit of the bargain; and that
therefore Martek owes the performance promised under the milestone.
-19-
There is therefore a genuine dispute of material fact that should
not have been resolved on a motion for summary judgment.
Accordingly, the judgment of the district court is vacated,
and the case is remanded for further proceedings.
VACATED AND REMANDED
-20- | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1023186/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5132
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RONALD WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:05-cr-00301-D)
Submitted: July 16, 2007 Decided: July 27, 2007
Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Jennifer P. May-Parker, Assistant United State Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ronald Williams pled guilty to possessing a firearm,
having been convicted of a felony, in violation of 18 U.S.C.
§§ 922(g)(1), 924. The district court sentenced Williams to
eighty-five months in prison. Williams timely appealed, arguing
that the district court miscalculated his criminal history points
and erroneously determined that he held a leadership role. We
affirm.
After the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005), this court reviews a sentence to
determine whether the district court has correctly calculated the
advisory guidelines range and has considered the range, as well as
the factors set out in § 3553(a), and whether the sentence is
reasonable. United States v. Hughes, 401 F.3d 540, 546 (4th Cir.
2005).
First, Williams argues the district court misapplied
U. S. Sentencing Guidelines Manual § 4A1.2, comment. (n.11) (2005),
resulting in an increased criminal history score. We conclude the
district court correctly interpreted § 4A1.2 and properly applied
the guideline when it calculated Williams’s criminal history score.
Williams also argues the district court erroneously
assigned him two points for holding a leadership role in criminal
activity pursuant to USSG § 3B1.1(c). We conclude the district
court properly applied a leadership enhancement because Williams
- 2 -
provided the funds involved in the transaction and directed another
participant to purchase a specific type of firearms.
We therefore affirm Williams’s sentence. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
- 3 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593596/ | 400 N.W.2d 836 (1987)
TRU-STONE CORPORATION, Relator,
v.
William GUTZKOW, Department of Jobs and Training, Respondents.
No. C8-86-1507.
Court of Appeals of Minnesota.
February 24, 1987.
*837 Thomas A. Janson, St. Cloud, for Tru-Stone Corp.
Steven C. McChristian, St. Cloud Area Legal Services, St. Cloud, for William Gutzkow.
Hubert H. Humphrey, III, Atty. Gen., Laura E. Mattson, Sp. Asst. Atty. Gen., St. Paul, for Department of Jobs and Training.
Heard, considered and decided by RANDALL, P.J., and FOLEY and WOZNIAK, JJ.
OPINION
FOLEY, Judge.
Relator Tru-Stone Corporation appeals from a determination that William Gutzkow had good cause to quit his job due to harassment. We affirm.
FACTS
William Gutzkow was employed by Tru-Stone as a laborer from August 2, 1982 to March 21, 1986, when he voluntarily quit his job.
Some time prior to Gutzkow's resignation, his fellow employees began taunting and harassing him, calling him names and drawing uncomplimentary pictures of him with names and profanities written underneath.
In late February, Gutzkow got into a fight with a co-worker who had pretended to spit into Gutzkow's coffee cup. Since Gutzkow had been in a fight once before and was aware of Tru-Stone's rule against fighting, he went to Tru-Stone's president and explained why the fight had occurred. The president did not discipline Gutzkow, but asked his plant manager to investigate the harassment. The plant manager transferred Gutzkow to another section for one day, and then told Gutzkow and the co-worker that they would have to start getting along.
The employees continued to harass Gutzkow. On one occasion, Gutzkow's section leader made derogatory remarks to him about his wife, and told him that he would either get him fired or make him quit. On March 21, 1986, Gutzkow again complained to the president, who promised to look into the matter. However, on the following Monday Gutzkow resigned.
*838 Gutzkow applied for unemployment compensation. A claims deputy denied him benefits, determining that he did not have good cause to quit. Gutzkow appealed to a Department referee, who affirmed the claims deputy's decision, reasoning that Gutzkow "simply did not give the employer a reasonable amount of time to remedy the situation." Gutzkow appealed again, this time to a Commissioner's representative, who reversed the referee's decision, finding:
The evidence demonstrates that the employer knew for several weeks that the claimant was being harassed substantially, but took no decisive steps to end these acts. Indeed, the claimant's immediate superior joined in on the threats, intimidation and humiliation of the claimant. The claimant had no reason to expect that the president of the employer would in fact exert sufficient control to give him real relief.
ISSUE
Does the record support the Commissioner's determination that Gutzkow had good cause to quit his job with Tru-Stone?
ANALYSIS
An individual who voluntarily quits his job is disqualified from receiving unemployment compensation benefits unless he can prove that his resignation was for "good cause attributable to the employer." Minn.Stat. § 268.09, subd. 1(1) (1984); Zepp v. Arthur Treacher Fish & Chips, 272 N.W.2d 262, 263 (Minn.1978). "Good cause" may be established if the employee has been subjected to harassment on the job and can demonstrate that he gave his employer notice of the harassment and an opportunity to correct the problem. See Larson v. Department of Economic Security, 281 N.W.2d 667 (Minn.1979); Burtman v. Dealers Discount Supply, 347 N.W.2d 292, 294 (Minn.Ct.App.1984). Then, if the employee is "provided with the expectation of assistance from his employer" in eliminating the harassment, the employee must continue to apprise the employer of additional harassment. Larson, 281 N.W.2d at 669.
Here, the Commissioner's representative found that Gutzkow had received no real expectation of assistance from Tru-Stone. The Commissioner's findings must be upheld if there is any evidence in the record which reasonably tends to sustain them. Chellson v. State Div. of Employment and Security, 214 Minn. 332, 336, 8 N.W.2d 42, 45 (1943).
There is evidence in the record that Gutzkow's superiors did not provide him with a reasonable expectation of assistance. Gutzkow himself testified:
[T]hen [the plant manager] got both me and Dan [the co-worker] together and he told us * * * that he couldn't put up with this child-like stuff, he's not a babysitter, and then he said that he's going to have the two of us working together every day for the next six months till we can learn to get along.
Tru-Stone's president testified that he assured Gutzkow he would look into the problem and then delegated everything to the plant manager. The plant manager testified:
I tried to get [Gutzkow] and [the co-worker] to work along, you know. You've got to work together in a shop.
This was the plant manager's sole testimony regarding his response to the harassment. We concur with the Commissioner's finding that, in view of the plant manager's failure to respond, Gutzkow was not actually provided with a "reasonable expectation of assistance."
The record also indicates that Gutzkow's section leader participated in the harassment. Gutzkow testified without contradiction that the section leader was similar to a foreman, i.e., a direct supervisor. According to Gutzkow, some time after he had complained to the president, the section leader called him names such as "slime," "scum" and "son-of-a-bitch," called his wife a slut, and told him that he was "never going to be off the shit list *839 around here", that nobody liked him, and that he would make Gutzkow quit or get him fired.
The supreme court has stated that a manager's knowledge should be imputed to an employer where the manager "performs basically a `first level supervisory and managerial function.'" McNabb v. Cub Foods, 352 N.W.2d 378, 383 (Minn. 1984). In Dura Supreme v. Kienholz, 381 N.W.2d 92 (Minn.Ct.App.1986), this court declined to hold that the employer had offered reasonable assurances of assistance where the employee's supervisor told the employee to take the harassment as a joke. Similarly, in Porrazzo v. Nabisco Inc., 360 N.W.2d 662 (Minn.Ct.App.1985), we held that an employer was deemed to have had knowledge of continuing harassment where the supervisor was the source of many of the employee's problems.
Thus, here, the harassment by Gutzkow's section leader must be imputed to Tru-Stone. This harassment, in combination with the plant manager's failure to respond to the situation, negated the president's assurances of assistance. Since Gutzkow therefore received no real expectation of assistance, he had no duty to keep Tru-Stone apprised of the continuing harassment. Continued notification is necessary only after the employee has received an expectation of assistance. See Larson, 281 N.W.2d at 669; Porrazzo, 360 N.W.2d at 664.
Tru-Stone argues that because Gutzkow somehow "incited" the harassment, he did not have good cause to quit. We do not consider this issue, since there was no evidence that it was ever presented to the Commissioner's representative for review. See Ruzynski v. Cub Foods, Inc., 378 N.W.2d 660, 663 (Minn.Ct.App.1985). However, we do note that neither the Commissioner's representative nor the referee found that Gutzkow incited the harassment. To the contrary, the Commissioner's representative found that Gutzkow's fighting was in response to the harassment.
DECISION
The record supports the Commissioner's determination that Gutzkow had good cause to quit his job due to harassment.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593600/ | 954 So.2d 7 (2005)
Wilburn Ronald BOYINGTON
v.
Betty Gail BOYINGTON.
No. 2040726.
Court of Civil Appeals of Alabama.
August 11, 2005.
Decision without published opinions. Dismissed on joint motion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593609/ | 954 So.2d 608 (2006)
Carnell Joseph EDMOND
v.
STATE of Alabama.
CR-04-2392.
Court of Criminal Appeals of Alabama.
April 28, 2006.
Carnell Joseph Edmond, pro se.
Troy King, atty. gen., and Nancy M. Kirby, asst. atty. gen., for appellee.
McMILLAN, Presiding Judge.
The appellant, Carnell Joseph Edmond, appeals from the summary denial of his Rule 32, Ala. R.Crim. P., postconviction petition challenging his 1995 guilty-plea conviction for second-degree receiving stolen property and the resulting sentence of three years in the penitentiary, that sentence was suspended and Edmond was ordered to serve three years on probation.[1] Edmond did not appeal that conviction.
On appeal, Edmond raises the following claims:
1) That the Constitution of the United States or of the State of Alabama requires a new trial, a new sentence proceeding, or other relief.
2) That judgment was obtained by plea of guilty which was unlawfully induced or not made voluntarily with the understanding of the nature of charge and the judgment of said charge.
3) That his conviction was obtained by the unconstitutional failure of the prosecution to disclose to the Edmond's evidence favorable to him.
*610 4) That the court was without jurisdiction to render the judgment or to impose the sentence.
5) That the sentence imposed exceeds the maximum authorized by law.
6) That newly discovered material facts exist that require that the conviction and sentence be vacated.
7) That Edmond's failure to appeal within the prescribed time and that failure was without fault on his part.
8) That Edmond's conviction was the result of ineffective assistance of counsel at the guilty plea hearing and at sentencing.
9) That Edmond's Rule 32 petition was denied by the trial court without ruling or adjudication on or upon each of the merits raised in his petition.
The circuit court's order denying Edmond's Rule 32 petition, reads in relevant part:
"3. The Court having read [Edmond's] petition and having considered the State of Alabama's response thereto, and taking judicial notice of its files, case action summaries, and indictments, makes the following findings of fact:
"a) [Edmond] raises no new issues that could not have been raised on direct appeal.
"b) [Edmond] raises no newly discovered facts or issues which would toll the statute of limitations contained in Rule 32.2(c).
"c) [Edmond] raises no valid issues that would preclude this Court from having jurisdiction to impose the sentence listed above. The sentence does not exceed the maximum allowed by law.
"d) [Edmond] raises no other issues in his petition for which relief can be granted. Rule 32.7(d)."
Because Edmond's Rule 32 petition was filed outside the statutory period of limitations period provided in Rule 32.2(c), the only claims that can be considered are those that are jurisdictional. The only jurisdictional claims he raises are claims 4, 5, and 6 above.
Claims 6, alleging newly discovered evidence, is without merit. Edmond claims that he was recently made aware by his "inmate para-legal" that he was illegally and unconstitutionally convicted and sentenced. Clearly, this allegation does not meet any requirement of newly-discovered evidence. See Banks v. State, 845 So.2d 9, 16 (Ala.Crim.App.2002).
Claims 4 and 5 allege that the trial court lacked jurisdiction to accept the appellant's guilty plea and that his sentence exceeds the maximum authorized by law. Edmond argues that although he was indicted for first-degree theft, the trial court incorrectly allowed him to plead guilty to receiving stolen property in the second degree. Because receiving stolen property in the second degree is not a lesser-included offense of first-degree theft, see McMillian v. State, 905 So.2d 862 (Ala. Crim.App.2005), this cause must be remanded for the circuit court to determine whether Edmond's allegation is true. The return to remand to this court shall contain a copy of the indictment along with any proceedings conducted by the trial court and shall be filed within 56 days of the date of this opinion.
REMANDED WITH DIRECTIONS.[*]
COBB, BASCHAB, SHAW, and WISE, JJ., concur.
NOTES
[1] Edmond is currently serving a life sentence on another conviction.
[*] Note from the reporter of decisions: On August 18, 2006, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On September 8, 2006, that court denied rehearing, without opinion. On October 13, 2006, the Supreme Court denied certiorari review, without opinion (1051808). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593622/ | 954 So.2d 93 (2007)
J.D., A Child, Appellant,
v.
STATE of Florida, Appellee.
No. 5D06-2128.
District Court of Appeal of Florida, Fifth District.
April 20, 2007.
James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
*94 MONACO, J.
The sole issue presented to us in this appeal by a juvenile of a finding of indirect contempt is whether the trial court erred in imposing consecutive fifteen-day sentences for each of several violations of a behavior order. Because we conclude that the sentences violate section 985.216, Florida Statutes (2006), we reverse.
The appellant, J.D., pled not guilty to charges of burglary of a dwelling and grand theft as alleged in a petition for delinquency. A standard behavior order was put into place so that J.D. could be released to the custody of his mother pending trial. Several weeks later the trial court issued an order to show cause requiring J.D. to demonstrate why he should not be held in contempt for violating the behavior order. At the hearing on the order to show cause J.D. admitted the violation and was placed in secure detention for two days with three additional days suspended.
Several weeks later the trial court issued a second order to show cause for five more violations of the behavioral order. At the show cause hearing J.D. once again admitted the violations. The trial judge indicated that he thought he could place J.D. into secure detention for fifteen days for each of the five violations of the behavior order, for a total of seventy-five days. Defense counsel argued that J.D. could only be placed into secure detention for fifteen days, plus three additional days that had been suspended from the previous contempt. The State at the trial level appears to have agreed.[1] The trial court did not.
The court eventually placed J.D. into secure custody for fifteen days for the first violation of the behavior order, consecutive to the three days that had been earlier suspended. For the second violation the trial court placed J.D. into secure custody for an additional fifteen days consecutive to the earlier placement. He then issued three additional fifteen-day sentences for the remaining three violations, all of which were suspended. J.D. unsuccessfully sought reconsideration of this ruling by the trial court, but was able to obtain a stay pending review.
Section 985.216, Florida Statutes,[2] controls the punishment which may be meted out to a juvenile for contempt of court. Subsection (2)(a), the critical part of that statute for purposes of this appeal, reads as follows:
(2) Placement in a secure facility. A child may be placed in a secure facility for purposes of punishment for contempt of court if alternative sanctions are unavailable or inappropriate, or if the child has already been ordered to serve an alternative sanction but failed to comply with the sanction.
(a) A delinquent child who has been held in direct or indirect contempt may be placed in a secure detention facility not to exceed 5 days for a first offense and not to exceed 15 days for a second or subsequent offense.
[Emphasis supplied]. While we are able to find no other case dealing with the stacking of periods of secure detention confinement of juveniles for contempt under this particular statute, we are convinced by cases dealing with analogous situations that stacking is not permitted.
*95 In Williams v. State, 594 So.2d 273 (Fla. 1992), for example, the trial court utilized multiple violations of probation as the basis for a departure from the presumptive guidelines. The Florida Supreme Court, however, held that a departure sentence for probation violation under these circumstances was impermissible because multiple violations of probation could not be a valid basis for departure from the sentencing guidelines.[3] The Williams court defined the term "multiple probation violations" as follows:
The use of the term "multiple probation violations" in this opinion refers to successive violations which follow the reinstatement or modification of probation rather than the violation of several conditions of a single probation order.
Williams, 594 So.2d at 274 n. 3.
Similarly, in R.B. v. Miles, 871 So.2d 949 (Fla. 2d DCA 2004), the Second District was asked to construe section 985.215(c) and (g), Florida Statutes (2003)[4], which read in pertinent part:
(c) Except as provided in paragraph (g), a child may not be held in secure . . . detention care under a special detention order for more than 21 days unless an adjudicatory hearing for the case has been commenced in good faith by the court.
. . .
(g) Upon good cause being shown that the nature of the charge requires additional time for the prosecution or defense of the case, the court may extend the time limits for detention specified in paragraph (c) . . .
The appellate court there concluded that the trial court was not permitted to stack secure detention periods for two or more offenses, and that habeas relief was appropriate because the adjudicatory hearing was not commenced within the 21 day limit.
Finally, in W.B.T. v. Esteves, 825 So.2d 1055 (Fla. 4th DCA 2002), the Fourth District construing the same statute also opined that the detention statute would not authorize a court to stack twenty-one day detention periods consecutively. More particularly, the court said that, "a court cannot, at one detention hearing, order secure detention for consecutive twenty-one day periods even though there are multiple delinquent acts charged."
In the present case we are again considering multiple violations of a single order. As in probation violation cases, and cases arising out of former section 985.215(c) and (g), the violation of a single behavior order by a juvenile can only result in a single five or fifteen-day placement in secure detention, as appropriate. The power to place juveniles charged with or found to have committed a delinquent act into detention is entirely statutory in nature. Strict compliance with the statute is required. See L.K. v. Dep't of Juvenile Justice, 917 So.2d 919, 920 (Fla. 1st DCA 2005); W.C. v. Smith, 898 So.2d 1137, 1138 (Fla. 1st DCA 2005). Here, the consecutive detention periods imposed upon J.D. were in violation of the statutory limitations, and the order entered by the trial court making that improper imposition must be reversed.
Finally, we note that the State urges that J.D. failed to preserve the issue in question for review. We reject this position. Our review of the record reflects *96 that J.D.'s contemporaneous objection to the detention and his later request for the court to revisit the imposition of detention were sufficient to preserve the error for review. J.D. was not required to use Florida Rule of Juvenile Procedure 8.135 in order to preserve his position on appeal, as argued by the State, although he was certainly free to do so. The trial court was fully put on notice that an error had occurred by the contemporaneous objection and by J.D.'s request for it to reconsider, and was given the opportunity to correct it. See Franqui v. State, 804 So.2d 1185 (Fla.2001).
REVERSED.
PALMER and ORFINGER, JJ., concur.
NOTES
[1] The transcript indicates that after the trial judge asked the State if it wished to be heard on the sentencing issue, the assistant state attorney said, "Your honor, we would support what (defense counsel) is asking for, which is a total of eighteen days."
[2] Effective January 1, 2007, this statute was renumbered as section 985.037(2).
[3] The Florida Supreme Court, however, did indicate that in the case of multiple violations of probation, sentences could be bumped one cell or guideline range for each violation.
[4] This statute is now renumbered section 985.26(2), and modified slightly. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4213053/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6738
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DELTON LAMONT RAYNOR,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Raymond A. Jackson, District Judge. (2:11-cr-00159-RAJ-DEM-1; 2:16-cv-
00400-RGD)
Submitted: October 17, 2017 Decided: October 19, 2017
Before FLOYD and HARRIS, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Delton Lamont Raynor, Appellant Pro Se. Andrew Lamont Creighton, OFFICE OF THE
UNITED STATES ATTORNEY, Newport News, Virginia, Stephen Westley Haynie,
Assistant United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Delton Lamont Raynor seeks to appeal the district court’s order denying relief on
his 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice
or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A
certificate of appealability will not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies
relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable
jurists would find that the district court’s assessment of the constitutional claims is
debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on
procedural grounds, the prisoner must demonstrate both that the dispositive procedural
ruling is debatable, and that the motion states a debatable claim of the denial of a
constitutional right. Slack, 529 U.S. at 484-85.
We have independently reviewed the record and conclude that Raynor has not
made the requisite showing. Accordingly, we deny a certificate of appealability and
dismiss the appeal. We deny Raynor’s motion to remand and dispense with oral
argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
DISMISSED
2 | 01-03-2023 | 10-19-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/1594983/ | 426 F. Supp. 1376 (1977)
Vaughn W. LEMLEY and Anna L. Lemley, his wife, Plaintiffs,
v.
J & B TIRE COMPANY et al., Defendants and Third-Party Plaintiffs,
v.
Daniel W. SHETLER, III, Third-Party Defendant.
Civ. A. No. 75-1333.
United States District Court, W. D. Pennsylvania.
March 1, 1977.
Milton D. Rosenberg, Washington, Pa., for plaintiffs.
George M. Weis, Robert C. Jones, Pittsburgh, Pa., for defendant.
MEMORANDUM OPINION
(MOTION OF DEFENDANTS MORRISONS)
WEBER, Chief Judge.
In this action plaintiffs seek to recover for personal injuries suffered when they were struck by an automobile driven by one Shetler. Shetler had purchased the automobile from the defendants Morrison in a used condition. Morrison had taken the automobile to Defendant J. B. Tire Company for repairs prior to the sale.
*1377 Plaintiffs sued the Morrisons and J. B. Tire Company alleging that the defective condition of the automobile was the cause of their injuries and that these defendants are liable to them under the following doctrines of law:
1. The Rule of Restatement, Torts 2d Sec. 402A for the sale of a defective product;
2. The Rule of Sec. 2-313 of the Uniform Commercial Code by reason of an express warranty;
3. The law of negligence.
Defendants Morrisons have moved for partial summary judgment in their favor on the grounds that the facts which are not in dispute do not permit recovery under Sec. 402A of the Restatement Torts 2d or under any doctrine of warranty.
I.
There is no dispute that plaintiffs may assert a cause of action in negligence against defendants Morrisons.
II.
The plaintiffs cannot prevail on any cause of action asserted under the doctrine of Sec. 402A of the Restatement, Torts 2d, because the defendants Morrisons are not sellers engaged in the business of selling such a product. Even though the text of Rule 402A is clear as to this requirement, Comment F of the Reports Notes illustrates this point: "Nor does it apply to the owner of an automobile who on one occasion, sells it to his neighbor." The rationale of the Rule is further explained in Comment F. This determination has nothing to do with the status of plaintiff vis-a-vis the alleged seller.
III.
Plaintiffs may not recover from Morrisons on the grounds that there was an express warranty from Morrison to Shetler that the automobile was free from defects, including defects from the repair of the automobile because plaintiffs had no contract relation with Morrisons nor are they within the scope of Sec. 2-318 of the Uniform Commercial Code which extends the benefits of warranties to members of the family, household, or guests in the home or a buyer.
Nor do the plaintiffs meet the judicial exception to the privity requirement set forth in Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 [1968], and Salvador v. Atlantic Steel Boiler, 457 Pa. 24, 319 A.2d 903 [1974] because in those cases the seller met the definition of Sec. 402A of the Restatement, Torts 2d, and the Pennsylvania Supreme Court saw no reason to apply a different rule in an identical controversy solely because a claim was based on liability for warranty rather than strict liability under Restatement, Torts 2d § 402A. Both Central Soya and Atlantic Steel Boiler were cases where the warrantor was a merchant under the definition of Sec. 2-104(1) of the Uniform Commercial Code, or a seller engaged in the business of selling such a product under Restatement, Torts 2d § 402A. In Kassab v. Central Soya, the Court concluded: "on this issue [vertical privity] the code must be co-extensive with Restatement Section 402a in the case of product liability." 432 Pa. 231, 246 A.2d 854. The court further noted that the reasons for elimination of privity and the imposition of strict liability apply equally to both tort and contract actions; the consumer's inability to protect himself adequately from defectively manufactured goods; the implied assurance on the part of the seller that the goods are safe; and the superior risk bearing ability of the manufacturer (fn. 6, p. 23). None of these reasons apply to the casual seller in an isolated transaction. We hold, therefore, that plaintiffs are barred from asserting a cause of action against Defendants Morrisons based on any warranty between Morrisons and Shetler. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594980/ | 426 F. Supp. 361 (1977)
CLOSED CIRCUIT CORPORATION OF AMERICA
v.
JERROLD ELECTRONICS CORPORATION.
Civ. A. No. 75-3494.
United States District Court, E. D. Pennsylvania.
January 25, 1977.
*362 Sidney M. Eisenberg, Eisenberg & Kletzke, Milwaukee, Wis., H. Craig Lewis, Feasterville, Pa., for plaintiff.
William J. Taylor, Joseph A. Torregrossa, Morgan, Lewis & Bockius, Philadelphia, Pa., for defendant.
MEMORANDUM
McGLYNN, District Judge.
This is a diversity action between Closed-Circuit Corporation of America ("Closed-Circuit"), a California corporation with its principal place of business in Illinois and Jerrold Electronics Corporation ("Jerrold"), a Delaware corporation licensed in Pennsylvania to manufacture Community Antenna Television (CATV) equipment and doing business in the Commonwealth relating to the construction and installation of Closed-Circuit television systems. Closed-Circuit seeks $1 million in compensatory damages and $5 million in punitive damages because defendant "wilfully, knowingly, maliciously, and fraudulently [sold] plaintiff faulty and defective electronics television equipment, which did not function as promised."[1]
In response, Jerrold moved for dismissal of the second amended complaint[2] re-iterating its contention that this action, although labelled an action for fraud sounding in tort, is in essence an action for the breach of a contract for the sale of goods which is barred by the four year statute of limitations of the Uniform Commercial Code. (12A P.S. § 2-725). In the alternative, defendant contends that since plaintiff has released all rights it may have had with regard to the equipment sold to it and installed in California, that portion of the claim should be dismissed.
I
The parties began their association in December of 1965 when Closed-Circuit was awarded a franchise as the "exclusive Authorized Jerrold 2500 Megacycle Engineering Contractor for the Jerrold 2500 Megacycle school relay microwave."[3] Thereafter, Closed-Circuit participated in the retail distribution and installation of electronics equipment in a continent-wide network of franchised electronics firms representing Jerrold in the educational market. Closed-Circuit was defendant's primary distributor in California and Nevada for the installation of Instructional Television Fixed Service (ITFS) Systems.
The ITFS systems offer educational programs, telecast at 2500 Megahertz (MHz) in a microwave band higher in frequency than VHF and UHF, which assures a closed circuit audience.[4] The intended market for distribution of Jerrold ITFS systems included schools, colleges and medical institutions where educational material could be transmitted to classroom laboratories, libraries and meeting halls with the benefit of immediate access to technical information enjoyed by students, physicians, nurses, engineers, and scientists.
*363 The ITFS system manufactured by Jerrold included 2500 MHz transmitting and receiving antennas, complete microwave or master antenna television (MATV) systems, business radio service microwave used in studio-to-transmitter link applications and community antenna television systems.
One such Jerrold ITFS system was installed in the Pasadena Unified School District, Pasadena, California by Closed-Circuit. It was the first four transmitter system in the world and, according to Closed-Circuit's account, it was in "daily operation and [was] regarded as one of the most complex installations of its kind in the country."[5]
In 1969, Closed-Circuit succeeded in securing the contracts for the installation of the 2500 MHz ITFS system in the Clark County, Nevada school system (75 schools) and the Archdiocese of San Francisco school system. The San Francisco contract required the installation of sixteen transmitters, making it the largest educational television system of the time. Apparently, as a result of their combined success at Pasadena, Closed-Circuit elected to fulfill these subsequent contracts using Jerrold equipment. On or about April 10, 1969, plaintiff purchased the necessary closed circuit equipment from Jerrold upon Jerrold's assurances that the equipment was designed and would meet the contract specifications and Federal Communications Commission ("FCC") standards.[6] Installation of the equipment began on the San Francisco project in November, 1969, three months after work began on the Clark County, Las Vegas school system project. Unfortunately, neither system met with the success achieved at Pasadena. Numerous equipment failures delayed final acceptance at both sites. The presence of spurious radiation emissions from the transmitters in violation of FCC standards and a lack of power supply reliability due to continuous breakdowns in the field not only promoted dissatisfaction on the part of the school officials with the ITFS systems and with Closed-Circuit, but also eroded the relationship between Closed-Circuit and Jerrold no less as a result of the equipment failures than as a result of the lack of cooperation between the parties in attempting to deal with and to correct the malfunctions.[7]
Closed-Circuit asserts that Jerrold's poor performance ultimately reflected upon Closed-Circuit's competence and, as a result, it lost business and its high reputation for service and excellence in the closed circuit television field was damaged.[8]
Eventually, the San Francisco project was completed in November of 1970, and the Clark County, Nevada project in the fall of 1971. With respect to the final acceptance of the San Francisco project, on June 13, 1972 the Roman Catholic Welfare Corporation, representing the Archdiocese of San Francisco, Closed-Circuit and Jerrold executed mutual releases of all claims. Specifically, Closed-Circuit released Jerrold "with respect to any and all claims arising out of JERROLD'S providing of labor or materials with respect to the contract, or any claim for damages which it might have against JERROLD in connection with the contract."[9]
Nevertheless, on October 30, 1974, Closed-Circuit instituted an action against General Instrument Corporation, a parent corporation of Jerrold, in the United States District Court for the Northern District of Illinois. Closed-Circuit sought to recover from General Instrument compensation for its losses in business and reputation attributable to the failure of the Jerrold equipment in Las Vegas and San Francisco. In that action, the District Court granted General Instrument's motion for summary judgment on the grounds that the claims against General Instrument were for breach of contract, and thus were barred by the statute of *364 limitations governing contract actions and, that General Instrument could not be held responsible for any acts of Jerrold Electronics. Closed-Circuit Corporation of America v. General Instrument Corporation, C.A. No. 74 C 3472 (N.D.Ill., filed October 15, 1975).
II
Although mere non-performance of a contract does not constitute a fraud, Hubert v. May, 292 F.2d 239, 243 (7th Cir. 1961), it is possible that a breach of contract also gives rise to an actionable tort. See Brown v. Moore, 247 F.2d 711, 716 n.6 (3d Cir.) cert. denied, 355 U.S. 882, 78 S. Ct. 148, 2 L. Ed. 2d 112 (1957); see also General Dynamics Corp. v. Selb Manufacturing Co., 481 F.2d 1204 (8th Cir. 1973), cert. denied, 414 U.S. 1162, 94 S. Ct. 926, 39 L. Ed. 2d 116 (1974). "To be construed as in tort, however, the wrong ascribed to defendant must be the gist of the action, the contract being collateral." 1 C.J.S. Actions § 46. Therefore, to the extent that Closed-Circuit's losses stemmed from the manufacture and design of the equipment by Jerrold, the claim is barred by the statute of limitations because Closed-Circuit became aware of the deficiencies as early as March of 1970. Closed-Circuit's characterization of Jerrold's conduct as "calculated and deliberate" cannot alter this result. A claim ex contractu cannot be converted to one in tort simply by alleging that the conduct in question was wantonly done. Gibson v. Greyhound Bus Lines, Inc., 409 F. Supp. 321 (M.D.Fla.1976); see also Nirdlinger v. American District Telegraph Co., 245 Pa. 453, 462, 91 A. 883 (1914); and, Damian v. Hernon, 102 Pa.Super. 539, 542, 157 A. 520 (1931).
But where the nature of the duty violated arises not from the contract but from the principle of fair dealing, an action based thereon sounds in tort. See Mac Andrews & Forbes Co. v. American Barmag Corp., 339 F. Supp. 1401 (D.S.C.1972); Mayo v. Mc Closkey & Co., 168 F. Supp. 241 (E.D. Pa.1958).
Closed-Circuit argues that defendant's conduct amounted to a "fraudulent scheme" and contends that defendant's representations as to the design, engineering and manufacture of its equipment were false, thus giving rise to an action for fraudulent representation. Jerrold, on the other hand, contends that Closed-Circuit placed a "fraud" label on what is essentially a cause of action for breach of contract in order to avoid the statute of limitations.
My analysis of the pleadings, affidavits and exhibits submitted by the parties convinces me that the allegations and the proof can rise no higher than that the defendant failed to comply with the contract specifications. Closed-Circuit cannot remove the transactions from the ambit of the Commercial Code to the area of tortious conduct simply by making general allegations of fraud. See Investors Premium Corp. v. Burroughs Corp., 389 F. Supp. 39, 45-46 (D.S.C.1974); James Spear Stove & Heating Co. v. General Electric Co., 12 F. Supp. 977 (E.D.Pa.1934), aff'd, 80 F.2d 1012 (3d Cir. 1935).
In essence, plaintiff's second amended complaint alleges: a) ". . . plaintiff . . . on or about the 10th day of April, 1969 . . . purchased from the defendant certain closed-circuit electronic equipment for installation in systems" in California and Nevada (¶ 5); ". . . plaintiff relied upon the defendant's claims that the equipment was designed and would work for the purposes intended" (¶ 6); that said equipment "did not function as promised" and was "defective" (¶ 7); b) ". . . as a result of said defective and faulty equipment, plaintiff would cause to lose business accounts and its high reputation for service . . ." (¶ 12); c) ". . . the faulty aforementioned electronic equipment broke down in the field, and did not function according to specifications" (¶ 13).
These allegations present a typical claim for breach of the Uniform Commercial Code warranties of merchantability and fitness for a particular purpose. Nevertheless, the plaintiff has attempted to transform the claim into an action for fraud by inserting the word "fraudulently" in paragraphs 7 *365 and 13, and the phrase "fraudulent acts" in paragraph 11, and thereby avoid the bar of the statute of limitations which contributed to the demise of the plaintiff's suit in the Northern District of Illinois. Such broad general allegations are insufficient as a matter of law. As the Court stated in Hertz Commercial Leasing Corp. v. LMC Data, Inc., 73 Misc. 2d 1009, 343 N.Y.S.2d 689 (1973):
"If a party could simply, by alleging that a contracting party never intended to fulfill his promise, create a tortious action in fraud, there would be no effective way of preventing almost every contract case from being converted to a tort for jurisdictional purposes."
The only specific allegation of fraud is that Jerrold wilfully misrepresented that certain equipment had "FCC type acceptance" prior to the sale when, in fact, such acceptance was not extended by the FCC until February of 1970.[10]
The tort of fraudulent misrepresentation comprises several elements including the making of a representation which is false by one who knows the falsity of the statement or fact and, thereby intends to deceive another so as to induce action on the other's part which will be to his detriment. United Insurance Company of America v. B. W. Rudy, Inc., 42 F.R.D. 398, 403 (E.D.Pa.1967). Here, the alleged misrepresentation appears in a Jerrold advertising manual or "printed catalogue sheet" which states: "the SRT-1 Transmitter has been type accepted by the Federal Communications Commission (FCC) for transmission of both monochrome and color. Each unit meets or exceeds FCC specifications."[11] The most that can be said of this representation, however, is that it was premature since plaintiff concedes that the equipment was eventually given FCC type acceptance.[12]
Had plaintiff been prepared to prove that the equipment could not obtain FCC type acceptance, then the fraud claim would have some substance. Compare Barrett Roofing & Supply Co. v. Ross, 131 F. Supp. 348 (D.Mass.1955) with James Spear Stove & Heating Co. v. General Electric Co., supra. Under the circumstances presented here, I am satisfied that the representation concerning type acceptance by FCC is not material and will not sustain an action for fraud.
Therefore, plaintiff's action is reduced to a claim for the sale of defective merchandise. The sale took place in April, 1969 and plaintiff became aware of the defects in March, 1970.[13] The original complaint was filed on December 4, 1975. It is obvious, therefore, that this action is time barred by the four year limitation of the Uniform Commercial Code (12A P.S. § 2-725).
The statute of limitations is an affirmative defense. Fed.R.Civ.P. 8(c). However, the defense may be raised by a motion to dismiss under Rule 12(b)(6), Jones v. Rogers Memorial Hosp., 143 U.S.App.D.C. 51, 442 F.2d 773 (1971), and since matters outside the pleadings were presented to the court, I have treated this motion as a motion for summary judgment under Rule 56.
Accordingly, summary judgment will be entered in favor of the defendant and against the plaintiff.
NOTES
[1] Second amended complaint, ¶ 7.
[2] The original complaint was dismissed because of failure to allege fraud with particularity as required by Fed.R.Civ.P. 9(b).
[3] Affidavit of Eugene Singer, President of Closed-Circuit, dated June 26, 1976, Dkt. No. 21, ¶ 3(3) and Exhibit A.
[4] In 1963, thirty-one channels in the ITFS band (2500 to 2690 MHz) were allocated for this purpose by the Federal Communications Commission. Plaintiff's response to Defendant's Request # 1 for Production of Documents, Jerrold News Release, December 9, 1968, Philadelphia.
[5] Plaintiff's Response to Defendant's Request # 5 for Production of Documents.
[6] Second amended complaint, ¶¶ 5-6.
[7] Second amended complaint, ¶¶ 7-8.
[8] Second amended complaint, ¶ 12.
[9] See Defendant's Motion to Dismiss Plaintiff's Amended Complaint, Exhibit D.
[10] Second Amended Complaint, ¶¶ 6, 10.
[11] Affidavit of Eugene Singer, dated June 26, 1976, Exhibit B, p. 3.
[12] Second Amended Complaint, ¶ 10.
[13] Second Amended Complaint, ¶ 8. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594044/ | 954 So. 2d 1191 (2007)
Herbert SMITH, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D05-2474.
District Court of Appeal of Florida, Third District.
April 18, 2007.
*1192 Peter Raben, Coconut Grove, for appellant.
Bill McCollum, Attorney General, Orlando, and Douglas J. Glaid, Assistant Attorney General, Fort Lauderdale, for appellee.
Before RAMIREZ, WELLS, and LAGOA, JJ.
LAGOA, J.
The appellant, Herbert Smith ("Smith"), appeals an order finding him guilty of two counts of direct criminal contempt for his behavior at two non-jury hearings before the Honorable Scott J. Silverman, Circuit Court Judge of the Eleventh Judicial Circuit (the "Judge"). For the following reasons, we reverse.
I. FACTUAL AND PROCEDURAL HISTORY
On June 2, 2004, Smith, a lawyer with the Public Defender's Office, was present in the courtroom in his capacity as the supervisor for the four (4) public defenders assigned to the Judge's courtroom. While Smith was present, the Judge ordered that the Public Defender's Office appear as counsel for a defendant who had filed a motion for DNA testing. Smith informed the Judge that because of the defendant's claim of ineffectiveness of counsel at trial, the Public Defender's Office, which had previously represented the defendant, could not be appointed to represent the defendant. The following exchange took place:
THE JUDGE: He is happy with you.
If you want to provide me with some caselaw; I don't know that is a conflict.
MR. SMITH: Mr. Alvarez says that
THE JUDGE: Stop, provide me some caselaw.
File a motion, you may want to check with the Florida Hot Line, to see if that is an actual conflict.
By looking at its face, he disagrees with you, he is not happy with everything that you have done.
If you think that is a conflict, provide me with some caselaw, and I'll read it; in the meantime, you are still on the case. If you want, I'll give you a date.
MR. SMITH: How about Friday?
THE JUDGE: Friday is fine.
At the June 4th hearing, Smith informed the Judge that the appointment of counsel was discretionary as the defendant did not request counsel in his motion. The following exchange occurred, much of which formed the basis of the later charges of direct criminal contempt against Smith:
THE JUDGE: Did I ask you to research my question to you? What caselaw do you have for the court? You can answer my question.
MR. SMITH: I don't have any caselaw, because I found out Mr. Alvarez never asked you for the appointment of counsel. If you look at the motion, he has never asked you for appointment of counsel; it is completely, discretionary, when the court appoints a lawyer. It is a setup, when you appoint a lawyer from the P.D.'s office, when he is claiming that our office is ineffective
THE JUDGE: He never said you were ineffective.
Don't argue with me, and don't stump [sic] your foot, either. We went through this the other day; did we not?
MR. SMITH: The court has an interpretation of words that is different, than the common understanding of words.
*1193 THE JUDGE: My question is, didn't we go through this the other day?
MR. SMITH: Your question, you have a different opinion with what he, Mr. Alvarez, wrote. You questioned him about the P.D., he said we were ineffective
THE JUDGE: Did he write that in his motion?
Did he use the word ineffective?
MR. SMITH: We have gone over that, Judge.
THE JUDGE: You seem to want to go over that again.
MR. SMITH: No, I don't want to go over that again, I am telling you, I don't want to represent Mr. Alvarez, because we feel this is a setup.
THE JUDGE: A setup? How can you say it is a setup?
MR. SMITH: He claims we would be ineffective, if you appoint us. I don't think that is fair to us.
THE JUDGE: If he does that, you can file something.
I asked you to file something today, I asked you to research it today, and you didn't do that.
MR. SMITH: I did that.
THE JUDGE: And you didn't find a Statute, at all?
MR. SMITH: The court is not listening to me.
THE JUDGE: You are not listening to me.
Did you find any Statute
MR. SMITH: I did not.
THE COURT: Don't talk over me. Don't turn your back on me, Mr. Smith, this is the last time I am going to tell you, don't do it.
A final hearing was scheduled for June 8th during which Smith presented his arguments to the Judge. On July 20, 2004, the Judge discharged the Public Defender's Office, finding that he first needed to make a determination as to the validity of the defendant's motion before appointing counsel and admitting that he "was in error in that respect [and] the court [was] now correcting its own error."
On September 30, 2004, the Judge issued an Order to Show Cause charging Smith with six counts of criminal contempt, all of which related to Smith's behavior at the June 4th and June 8th hearings.[1] Specifically, Count V alleged that at the June 4th hearing Smith "argued with the court, interrupted the court, stomped his foot, and turned his back on the court twice during his argument (once even after being warned by the court not to turn his back on the court)." Count VI alleged that at the June 4th hearing the "Court directed [Smith] to prepare a written Memorandum of Law" and that Smith "disobeyed and violated the Court's direct order by not filing or presenting this court with a written Memorandum of Law" at the June 8th hearing.[2]
At the subsequent trial, the trial court heard testimony from Smith, the Judge, and the Judge's bailiff. The trial court found Smith guilty of Count V finding that Smith's actions at the June 4th hearing of "interrupting the court, turning his back in the court and stomping his foot, crossed the line" and that Smith's actions "were . . . deliberately intended to disrupt the *1194 court proceedings and to embarrass the court." The trial court also found Smith guilty of Count VI finding that "it could not be clearer . . . that Judge Silverman, on June 4, 2004, ordered Herbert Smith to write a memorandum of law for the June 8, 2004, hearing" and that Smith "intentionally violated an unambiguous direct court order" when he failed to file a written memorandum on June 8, 2004. This appeal ensued.
II. STANDARD OF REVIEW
We review a finding of criminal contempt based upon an attorney's misconduct under an abuse of discretion standard. Rudolph v. State, 832 So. 2d 826 (Fla. 3d DCA 2002). While a judgment of contempt is entitled to a presumption of correctness, it must be supported by the record. Berman v. State, 751 So. 2d 612 (Fla. 4th DCA 1999); Krueger v. State, 351 So. 2d 47 (Fla. 3d DCA 1977).
III. ANALYSIS
A trial court possesses the inherent authority to punish for criminal contempt, although this power "should be exercised cautiously and sparingly." Carroll v. State, 327 So. 2d 881, 882 (Fla. 3d DCA 1976). See also Fla. R.Crim. P. 3.830 (Direct Criminal Contempt); Fla. R.Crim. P. 3.840 (Indirect Criminal Contempt). The purpose of criminal contempt is "to punish assaults or aspersions upon the authority and dignity of a court or judge", not to avenge personal affronts. Krueger, 351 So.2d at 49. A finding of direct criminal contempt may be based upon either a violation of an order of the court or an act which is facially contemptuous. Rudolph, 832 So.2d at 828. Contempt has been defined by the Florida Supreme Court as follows:
[A]ny act which is calculated to embarrass, hinder, or obstruct the court in the administration of justice, or which is calculated to lessen its authority or its dignity, is a contempt. The test is not the physical propinquity of the act to the court, but its tendency to directly affect the administration of justice.
Ex parte Crews, 127 Fla. 381, 173 So. 275, 279 (1937) (citations omitted).
When a finding of contempt is based upon a violation of a court order, that order must be one which clearly and definitely makes the person aware of its command. Barnes v. State, 588 So. 2d 1076, 1077 (Fla. 4th DCA 1991); American Pioneer Cas. Ins. Co. v. Henrion, 523 So. 2d 776 (Fla. 4th DCA 1988); Lawrence v. Lawrence, 384 So. 2d 279 (Fla. 4th DCA 1980); Kranis v. Kranis, 313 So. 2d 135 (Fla. 3d DCA 1975). Moreover, there must be evidence of the individual's intent to disobey the court's order, or "that he or she was guilty of such gross dereliction that the intent will be presumed." Barnes, 588 So.2d at 1077. Finally, this intent must be proven beyond a reasonable doubt. Id.
Based upon the record before us, we find that Smith's behavior, while discourteous at times, did not meet the standard necessary for a finding of direct criminal contempt. In the instant case, there exists no proof beyond a reasonable doubt that Smith intended to disobey any court order or that he was guilty of such gross dereliction that the intent can be presumed. First, the record reveals that once warned by the Judge not to stomp his foot, Smith did not do so again. Second, although Smith did turn his back on the Judge after the Judge told him not to do so for a second time, the record indicates that the Judge was speaking to Smith's client, not Smith, when Smith turned his *1195 back.[3] Additionally, once warned by the Judge to stop interrupting him, there is no indication in the record that Smith continued to speak over the Judge. Accordingly, a review of the record shows that Smith ceased all offending behavior once instructed to do so by the Judge. Based upon these facts, there is simply insufficient evidence to prove beyond a reasonable doubt that Smith intended to disrupt court proceedings or embarrass the court. Cf. Rudolph, 832 So.2d at 828 (contempt affirmed where attorney discussed, in front of jury, matter which had been prohibited by judge); In re Weinstein, 518 So. 2d 1370 (Fla. 4th DCA 1988) (in civil jury trial, attorney's failure to stand when making objections after being ordered to do so was a willful disobedience of a court order and an affront to the court's authority).
Similarly, the finding of contempt based upon Smith's failure to produce a written memorandum cannot be supported on this record. First, we find that the Judge's statement is too vague to be characterized as a clear directive when he merely indicated "I'll allow you to write a memorandum of law, that you claim that is an issue." Second, and more significant, is the fact that at the June 8th hearing Smith presented a thorough and comprehensive analysis of the relevant statutes and case law; so extensive, in fact, that the Judge stated at the conclusion of the hearing that Smith "raised some good points." Indeed, the Judge never asked for, or even addressed the issue of the written memorandum. Again, given the record before us, we find insufficient evidence that Smith intentionally disobeyed a direct order of the court, a necessary requirement for a finding of contempt.
Accordingly, we reverse the findings of criminal contempt as to Counts V and VI and remand with directions to vacate the judgment.
Reversed and remanded.
NOTES
[1] Because Smith was found not guilty of Counts I-IV, we only address Counts V and VI of the Order.
[2] At the conclusion of the June 4th hearing, the following exchange took place:
THE COURT: I'll allow you to write a Memorandum of Law, that you claim that is an issue. That is an order; am I clear?
MR. SMITH: I have no doubt that I am clear on what you have said.
[3] The following exchange occurred at the June 4 hearing:
THE COURT: Do you want a lawyer to be appointed?
Don't turn your back on me.
Don't turn your back on me, this is the second time I have told you; don't do it.
Do you want a lawyer to represent you?
THE DEFENDANT: Yes.
THE COURT: Do you want a Public Defender to represent you?
THE DEFENDANT: I don't mind, sir.
THE COURT: Yes, or no?
THE DEFENDANT: Yes. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593635/ | 215 S.W.3d 760 (2007)
STATE of Missouri, Appellant,
v.
Jonathan D. WHITWELL, Respondent.
No. 28131.
Missouri Court of Appeals, Southern District, Division Two.
March 8, 2007.
Kenneth G. Clayton, Rolla, for Appellant.
Dan L. Birdsong, Thomas, Birdson & Mills, P.C., Rolla, for Respondent.
ROBERT S. BARNEY, Judge.
Appellant State of Missouri ("the State") seeks to appeal the trial court's entry of an Order, prior to trial, granting Respondent Jonathan D. Whitwell's ("Defendant") "Motion to Suppress Identification." The trial court's ruling barred "all identification evidence leading from and as a result of the use of lineups, showups, confrontations or photographs of . . . Defendant . . ." in connection with his identification by an eyewitness to a robbery which the *761 State contends Defendant committed.[1] In its sole point on appeal, the State contends the trial court erred in granting Defendant's motion to suppress because the eyewitness identification of Defendant was reliable and not the result of an unduly suggestive identification procedure.
We dismiss this appeal because the Order entered by the trial court constituted a pre-trial order in limine. "A ruling in limine is interlocutory only and is subject to change during the course of trial. The motion in limine, in and of itself, presents nothing for appeal." State v. Purlee, 839 S.W.2d 584, 592 (Mo. banc 1992) (emphasis added).
We recognize that section 547.200.1(3) permits the State an interlocutory appeal from an order "the substantive effect of which results in . . . [s]uppressing evidence." "Suppression of evidence, as used in [section] 547.200, is linked directly to [section] 542.296[2] . . . which lists five bases for a motion to suppress." State v. Rivers, 26 S.W.3d 608, 609 (Mo.App.2000). "The statutory grounds for a motion to suppress involve illegal or warrantless search or seizure."[3]Id.
"The `suppression' of evidence is not the same thing as the exclusion of evidence on the basis of some rule of evidence. Suppression is a term used for evidence which is not objectionable as violating any rule of evidence, but which has been illegally obtained." Id. "The in limine order which is sought to be appealed here is not an order `suppressing' evidence or having that substantive effect." State v. Dwyer, 847 S.W.2d 102, 103 (Mo.App.1992) (emphasis added). As an in limine order, the trial court's ruling had the substantive effect of excluding evidence, not suppressing evidence.[4] "Section 547.200.1 was not intended to allow the appeal of this order in limine." Id. (emphasis added); see also State v. Holzschuh, 670 S.W.2d 184, 185 (Mo.App.1984).
*762 Outside of its jurisdictional statement, which noted it had the right to appeal "interlocutory orders on motions to suppress" pursuant to section 547.200.1(3), the State does not otherwise discuss its right to appeal the trial court's Order in the present matter. Nevertheless,
[t]he position advanced by the State would allow the State to appeal any in limine order of the trial court which ruled inadmissible any evidence which the State proposed to offer. The State could thus by a single appeal, or by repeated appeals, secure appellate rulings upon the admissibility of all its evidence. The statute has no such meaning. It is intended to apply only to those orders `suppressing' evidence; it should not be broadened by intendment to cover in limine orders.
Dwyer, 847 S.W.2d at 104.
Appeal dismissed.
BATES, C.J., and LYNCH, J., concur.
NOTES
[1] Defendant was charged by Information on March 16, 2004, with one count of the class A felony of pharmacy robbery in the first degree, a violation of section 569.025, and one count of the unclassified felony of armed criminal action, a violation of section 571.015.
All statutory references are to RSMo 2000.
[2] Section 542.296.5 sets out:
The motion to suppress may be based upon any one or more of the following grounds:
(1) That the search and seizure were made without warrant and without lawful authority;
(2) That the warrant was improper upon its face or was illegally issued, including the issuance of a warrant without proper showing of probable cause;
(3) That the property seized was not that described in the warrant and that the officer was not otherwise lawfully privileged to seize the same;
(4) That the warrant was illegally executed by the officer;
(5) That in any other manner the search and seizure violated the rights of the movant under section 15 of article I of the Constitution of Missouri, or the fourth and fourteenth amendments of the Constitution of the United States.
[3] While Respondent's motion was denominated as a motion to suppress, we note that the "legal character of a pleading . . . is determined by its subject matter and not its designation to the extent that courts ignore the denomination of a pleading and look to its substance to determine its nature." State v. Foster, 959 S.W.2d 143, 144 (Mo.App.1998); see also Weber v. Weber, 908 S.W.2d 356, 359 (Mo. banc 1995).
[4] "A trial court's ruling on a motion in limine is interlocutory only and subject to change during the trial, preserving nothing for appellate review." State v. Dowell, 25 S.W.3d 594, 601 (Mo.App.2000). "[E]ven if it initially found that the evidence should be excluded in a motion in limine, a trial court is free to change its ruling and admit such evidence" during the course of trial. Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593658/ | 400 N.W.2d 783 (1987)
Raymond David IRWIN, Petitioner, Appellant,
v.
STATE of Minnesota, Respondent.
No. C0-86-1551.
Court of Appeals of Minnesota.
February 17, 1987.
Review Denied March 25, 1987.
*784 C. Paul Jones, State Public Defender, Susan J. Andrews, Asst. Public Defender, Minneapolis, for appellant.
Hubert H. Humphrey, III, Atty. Gen., Robert M.A. Johnson, Anoka Co. Atty., Anoka, for respondent.
Considered and decided by CRIPPEN, P.J., and LANSING and NIERENGARTEN, JJ., with oral argument waived.
OPINION
LANSING, Judge.
Raymond Irwin petitioned for post-conviction relief after he was convicted of fourth-degree criminal sexual conduct. The court found Irwin was not improperly denied his right to testify, the Spreigl evidence was properly admitted, the evidence was sufficient to support the conviction, and he was not denied effective assistance of trial counsel. Irwin appeals and we affirm.
FACTS
Raymond Irwin was convicted of fourth-degree criminal sexual conduct[1] for fondling the breasts of a sleeping 15-year-old girl on July 23, 1984. After the incident occurred, but before Irwin was tried, he was charged and convicted of two counts *785 of first-degree criminal sexual conduct, second-degree assault, and first-degree burglary arising out of an incident on September 24, 1984, which also involved a female juvenile victim. State v. Irwin, 379 N.W.2d 110 (Minn.Ct.App.1985), pet. for rev. denied, (Minn. Jan. 23, 1986).
The present offense was tried on June 17, 1985. Irwin retained a private attorney to represent him. After six and one-half hours of discussion among Irwin, his attorney and the prosecutor, it was agreed that the case would be tried to the court on stipulated evidence. This evidence included Irwin's transcribed statement to police, the juvenile's Spreigl testimony from Irwin's prior trial, oral testimony of Irwin's sons who were in the apartment when the incident occurred, and other stipulated exhibits and statements.
In consideration of Irwin's waiver of a jury trial and consenting to proceed on stipulated testimony, the State agreed to ask the court to sentence without regard to the mandatory three-year minimum term required by Minn.Stat. § 609.346. The State also agreed that if Irwin were convicted, the prosecutor would ask the court to impose a presumptive guidelines sentence of 34 months, concurrent, or 21 months, consecutive, to any sentence previously imposed. The trial court went through the agreement with Irwin and asked Irwin if he wished to waive his right to a jury trial and to stipulate to the prior testimony of the witnesses. Irwin replied that he did.
The trial court conditionally accepted the State's offer of proof on the September 24 incident as Spreigl evidence. The offer included a transcript of an interview with the juvenile victim, evidence and exhibits admitted at trial, including fingerprints and the results of a sexual assault examination. Irwin's attorney offered transcript testimony of other witnesses. The trial court found that Irwin's participation in the Spreigl incident was proved by clear and convincing evidence and that it showed a common scheme or plan. The court found Irwin guilty of the current offense and sentenced him to 21 months to be served consecutively to all previously imposed sentences. Irwin petitioned for post-conviction relief, which the post-conviction court denied.
ISSUES
1. Was appellant denied his right to testify at trial?
2. Was appellant denied a fair trial by admission of Spreigl evidence?
3. Does the evidence sustain the conviction?
4. Was appellant denied effective assistance of counsel?
ANALYSIS
I
The Minnesota Supreme Court has held that although the United States Constitution does not specifically guarantee a criminal defendant the right to testify in his own defense, the right, which is also guaranteed by Minn.Stat. § 611.11 (1982), is constitutional in dimension. State v. Rosillo, 281 N.W.2d 877, 878 (Minn.1979). Because it is a basic right, fundamental to a fair trial, prejudice need not result in order to require a new trial. The denial itself is sufficient. Id. However, the Rosillo court did not remand for a new trial because it found that defendant's attorney had not barred him from testifying, but had simply advised him against it and defendant had agreed that he would not.
The Rosillo result applies even more forcefully to Irwin's claim that he was denied his right to testify. Irwin received a substantial negotiated advantage by foregoing the right that he now wishes to restore. The trial judge inquired into the agreement on the record, and Irwin signed a written waiver of a jury trial and stated that he wanted to proceed with a stipulated court trial. At the post-conviction hearing, Irwin's attorney acknowledged that Irwin asked to take the stand but appeared satisfied when the attorney reminded him that he had previously stipulated *786 that his testimony would be admitted through his written statement to the police. The record supports the post-conviction court's finding that Irwin was advised of his right to testify and agreed to proceed with a stipulated court trial. Irwin's right to testify was not impermissibly overridden by his attorney or denied by the court. State v. Jensen, 322 N.W.2d 608, 610 (Minn.1982).
II
The trial court permitted Spreigl evidence of the September 24 incident which resulted in Irwin's conviction for first-degree criminal sexual conduct. The court found that the evidence showed a common scheme or plan. The two incidents were separated by only three months, both occurred in Columbia Heights apartment buildings, both involved young females who were asleep, and both included breast fondling. The court concluded that Irwin's participation in the Spreigl incident was shown by clear and convincing evidence because Irwin was found guilty by a jury on evidence which included positive fingerprint identification.
The post-conviction court, in a thorough memorandum and order, also evaluated the admissibility of the Spreigl evidence and concluded that Irwin's participation was clearly and convincingly shown, the evidence was material in demonstrating a common scheme or plan, and the probative value outweighed its prejudicial effect, particularly where the trial was to the court rather than a jury. We agree that the State met the burden necessary to allow the admission of the Spreigl evidence. See State v. Filippi, 335 N.W.2d 739, 743-44 (Minn.1983); Minn.R.Evid. 404(b).
III
Irwin's challenge to the sufficiency of the evidence focuses on perceived inconsistencies in the victim's statements. He does not deny being at the apartment, lying down next to the girl, or putting his arm around her. He denies that he intentionally touched her breasts. The trial court and the post-conviction court each made detailed findings on the events and testimony resulting in the conviction. Their findings and Irwin's conviction are supported by the record.
IV
Irwin also maintains that he was denied effective assistance of counsel and lists seven separate deficiencies, which are further discussed in his pro se supplemental brief. Irwin claims his trial attorney failed to call witnesses, failed to impeach the State's witnesses, improperly postponed the trial, did not return his phone calls, and improperly pressured him to waive his right to a jury trial.
Effective assistance of counsel is representation by an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances. State v. Eling, 355 N.W.2d 286, 293 (Minn.1984) (quoting White v. State, 309 Minn. 476, 481, 248 N.W.2d 281, 285 (1976)). It does not hinge on whether a favorable result was obtained. State v. Race, 383 N.W.2d 656, 664 (Minn.1986). Defendant must also show prejudice as a result of the errors. A conviction will not be overturned unless it can be shown that there was a reasonable probability that the result of the proceeding would have been different but for the attorney's errors. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Gates, 398 N.W.2d 558 (Minn.1987).
The post-conviction court carefully analyzed Irwin's claims. The court found that Irwin's attorney did not attempt to contact other witnesses because Irwin led him to believe that further investigation would be fruitless. Additionally, Irwin did not meet his burden of showing prejudice from this decision. The court found that the attorney did not improperly postpone the omnibus hearing or the trial; the attorney was retained on October 20, 1984, and the omnibus hearing was held on November 1, 1984. The tactical decision to try the *787 more serious offense, first-degree criminal sexual conduct, prior to the present case fell within a range of sound trial tactics. Although Irwin attempted to contact his attorney more than 200 times between October 1984 and June 1985, the attorney had over 100 contacts with Irwin, either by phone or in person, during that time. Irwin signed a written waiver of his right to a jury trial and agreed to proceed on stipulated evidence. This decision was discussed at length between Irwin and his attorney and was supported by the attorney's concern about inconsistencies in Irwin's statements that could be brought out in testimony, Irwin's past criminal history, and Irwin's desire to explain a larger history of how the criminal justice system had treated him. The trial court inquired into the waiver, and the post-conviction court found that Irwin agreed to the stipulated court trial.
We are not persuaded that Irwin's attorney represented him incompetently nor that any of the actions alleged to be incompetent were prejudicial.
DECISION
Affirmed.
NOTES
[1] Irwin's conviction was for violation of Minn. Stat. § 609.345, subd. 1(d) (1983), sexual contact with a victim who was physically helpless because she was asleep. He was also charged with, but found not guilty of, criminal sexual conduct accomplished by force or coercion, Minn.Stat. § 609.345, subd. 1(c) (1983). The complaint stated that Irwin was subject to a mandatory minimum sentence of three years under Minn.Stat. § 609.346, subd. 2 (1982), because this incident was subsequent to his conviction for criminal sexual contact with his stepdaughter on November 16, 1981. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593660/ | 215 S.W.3d 341 (2007)
STATE of Missouri, Respondent,
v.
Michael St. GEORGE, Appellant.
No. 27554.
Missouri Court of Appeals, Southern District, Division Two.
February 28, 2007.
*343 Margaret M. Johnston, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen. and Lisa M. Kennedy, Jefferson City, for respondent.
ROBERT S. BARNEY, Judge.
Michael St. George ("Appellant") appeals his convictions by a jury for the Class B felony of assault of a law enforcement officer in the second degree, a violation of section 565.082, and the Class D felony of resisting arrest, a violation of section 575.150.[1] The trial court sentenced Appellant to seven years in the Missouri Department of Corrections for assaulting a law enforcement officer and four years in the Missouri Department of Corrections for resisting arrest with the sentences to run concurrently. Appellant asserts two points of trial court error.[2] As explained below, we find them to be without merit. We affirm.
Viewing the evidence in the light most favorable to the jury's verdict, State v. Hunter, 179 S.W.3d 317, 318 (Mo.App. 2005), the record reveals that on May 28, 2004, Officer Randall Blackburn ("Officer Blackburn") of the Springfield Police Department was on traffic patrol on his police motorcycle when he saw Appellant driving a white Honda Civic which was traveling 45 miles-per-hour in a 30 mile-per-hour zone. Officer Blackburn followed Appellant's car for a short distance before turning on his emergency lights and activating his siren. Appellant pulled his vehicle over to the side of the road behind a parked car. Officer Blackburn followed and parked his motorcycle a half a car length behind Appellant's vehicle; exited the motorcycle on the right-hand side; and approached Appellant's vehicle on foot. Appellant's vehicle then reversed in the direction of Officer Blackburn. According to Officer Blackburn, "[w]hen [Appellant's vehicle] backed up, it backed to the right at an angle so that it could then clear the vehicle that it had stopped behind." Officer Blackburn related he "thought that the bike was going to be struck or [him]self." Appellant then sped away.
Officer Blackburn pursued Appellant's vehicle with his lights activated and "bumped" his siren a "couple of times" as he followed the vehicle on his motorcycle.
Then, for the second time, Appellant pulled up behind another vehicle, a truck which was stopped at a stop sign. Officer Blackburn "kind of pulled in behind [Appellant's vehicle] but off kind of to the driver's side of the vehicle, but [he] stayed back about the rear of the bumper." The driver's side window was open on Appellant's vehicle. At trial Officer Blackburn related, "I was giving orders to [Appellant] to shut the vehicle off, you know, let's not make more of this than it has to be. I just need to see his driver's license and insurance card, and he's just going to get a couple of tickets." According to Officer Blackburn, Appellant "then turned to the left, went around the truck, and then proceeded southbound." Officer Blackburn activated his siren, continued to use his emergency lights, and followed Appellant.
Appellant eventually stopped for the third time at another stop sign. Officer Blackburn pulled his motorcycle next to Appellant's vehicle to its left so that Officer *344 Blackburn was even with the rear door of the vehicle. He turned off his siren. He informed Appellant to "shut the vehicle off," and that "this [was getting] out of hand. . . ." He told Appellant "[he] was going to take him into custody." When Appellant failed to shut down the operation of his vehicle as instructed, Officer Blackburn "put [his] hand on [his] weapon to let him know that this [wa]s serious, that he need[ed] to stop." Appellant then said "f____you" to Officer Blackburn and "made an extreme left turn toward [Officer Blackburn] and the motorcycle."
Officer Blackburn testified that at that point he was forced to make "an extreme maneuver, dip to the left . . ." to get out of the path of Appellant's vehicle. Officer Blackburn testified that had he not been able to get out of the way of Appellant's vehicle, it would have struck him. When asked on direct examination whether "up until this time, what was your pursuit? How would you describe your pursuit?," Officer Blackburn responded that "[a]tit was moreup to this point, kind of normal car stop, up until he drove away the first time." On further questioning, the prosecutor asked Officer Blackburn, "Did it change any after you had to do the dip maneuver?" Officer Blackburn answered, "Yes, sir. At this point it became a felony."
The record further reveals that Appellant then went west on Chestnut Expressway where he ran a red light to turn south onto Jefferson Street. Officer Blackburn pursued Appellant with his sirens and emergency lights activated for several blocks as the two vehicles traveled at speeds of approximately 50 miles-per-hour through a 25 mile-per-hour zone. During the pursuit, Appellant ran several other red lights, passed other cars on the wrong side of the road, and accelerated to unsafe speeds. Appellant then pulled behind an apartment complex on Elm Street, stopped his vehicle, and fled. Officer Blackburn "grounded [his] bike" so he could come off of it at a run and chased Appellant on foot "[u]p the fire escape to the rear of the apartment complex."
At the top floor of the apartment complex, Appellant entered through a partially ajar door which locked when he closed it and barred Officer Blackburn from entering. Officer Blackburn kicked in the door and "[p]roceeded down the hallway giving commands to [Appellant] to stop." Appellant stopped in front of the last apartment in the hallway, "and he had some keys out and he was frantically trying to get the door unlocked." Appellant got the door open, slid through the door, and closed the door behind him before Officer Blackburn could get to him. Officer Blackburn kicked the door in and tackled Appellant who was standing inside.
Officer Blackburn placed Appellant under arrest for assault of a law enforcement officer, resisting arrest, and nine driving violations including two incidents of careless and imprudent driving, speeding, failure to wear a seat belt, three signal violations, failure to yield to an emergency vehicle, and driving while his license was revoked.
Appellant presented no evidence at trial. As previously related, the jury convicted Appellant of felony resisting arrest and felony assault on a law enforcement officer as charged and he was sentenced by the trial court to seven years imprisonment on the assault charge as well as four years on the resisting arrest charge with the sentences to run concurrently. This appeal by Appellant followed.
In his first point on appeal Appellant asserts the trial court erred in denying his motion for judgment of acquittal at the close of all evidence regarding the *345 charge of felony resisting arrest because "there was insufficient evidence from which a juror could find beyond a reasonable doubt . . . that at the time [Appellant] fled from Officer Blackburn, [Officer] Blackburn was arresting [him] for a felony."
"We will affirm a trial court's denial of a motion for judgment of acquittal if, at the close of evidence, there was sufficient evidence from which reasonable persons could have found the defendant guilty of the charged offense." Hunter, 179 S.W.3d at 320. "`We review the denial of a motion for acquittal to determine if the State adduced sufficient evidence to make a submissible case.'" State v. Howard, 973 S.W.2d 902, 906 (Mo.App. 1998) (quoting State v. Foster, 930 S.W.2d 62, 63 (Mo.App. 1996)). "`Our standard of review is whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt.'" State v. Smith, 185 S.W.3d 747, 758 (Mo.App. 2006) (quoting State v. Wright, 998 S.W.2d 78, 81 (Mo.App. 1999)). "The court must examine the elements of the crime and consider each in turn; reviewing the evidence in the light most favorable to the judgment, disregarding any contrary evidence, and granting the State all reasonable inferences from the evidence." Id. "We defer to the superior position of the jury to assess the credibility of witnesses and the weight and value of their testimony." Id.
Section 575.150, Cum.Supp. 2003, sets out in pertinent part:
1. A person commits the crime of resisting . . . arrest, detention, or stop if, knowing that a law enforcement officer is making an arrest, or attempting to lawfully detain or stop an individual or vehicle, or the person reasonably should know that a law enforcement officer is making an arrest or attempting to lawfully detain or lawfully stop an individual or vehicle, for the purpose of preventing the officer from effecting the arrest, stop or detention, the person:
(1) Resists the arrest, stop or detention of such person by using or threatening the use of violence or physical force or by fleeing from such officer. . . .
* * *
2. This section applies to arrests, stops or detention with or without warrants and to arrests, stops or detentions for any crime, infraction or ordinance violation.
3. A person is presumed to be fleeing a vehicle stop if that person continues to operate a motor vehicle after that person has seen or should have seen clearly visible emergency lights or has heard or should have heard an audible signal emanating from the law enforcement vehicle pursuing that person.
* * *
5. Resisting or interfering with an arrest for a felony is a class D felony. Resisting an arrest by fleeing in such a manner that the person fleeing creates a substantial risk of serious physical injury or death to any person is a class D felony; otherwise, resisting or interfering with an arrest, detention or stop is a class A misdemeanor.
"`The gravamen of the offense is resisting an arrest, not flight from an officer. Accordingly, the offense of resisting arrest cannot occur unless a law enforcement officer actually contemplates an arrest.'" State v. Christian, 184 S.W.3d 597, 603 (Mo.App. 2006) (quoting State v. Brooks, 158 S.W.3d 841, 850-51 (Mo.App. 2005)). "`Resistance to an arrest must occur when the person knows that an officer is making an arrest.'" Id. (quoting State v. Dossett, 851 S.W.2d 750, 752 (Mo. App. 1993)). "`The arrest must be in progress *346 when the `resistance' occurs.'" Id. (quoting State v. Shanks, 809 S.W.2d 413, 418 (Mo.App. 1991)). "An arrest is in progress once the officer is attempting to actually restrain or control the person of the defendant." Id.
"For resisting arrest to amount to a felony, the State must prove either that the offense for which the defendant was arrested was a felony or that the defendant resisted arrest `by fleeing in such a manner that the person fleeing created a substantial risk of serious physical injury or death to any person.'"[3]State v. Orton, 178 S.W.3d 589, 593 (Mo.App. 2005) (quoting § 575.150.5, RSMo. Cum.Supp. 2003).
In the argument portion of his brief Appellant appears to make much of the fact that while Appellant was eventually charged with the felony of assault of Officer Blackburn, "there was no evidence that [Officer Blackburn] was `making an arrest' for a felony when [Appellant] initially fled." (Emphasis added). Appellant maintains the "evidence clearly showed that [Appellant] fled when [Officer Blackburn] was trying to stop him for several traffic offenses, and during that flight he committed the charged felony and continued to flee thereafter." (Emphasis added). The conclusion Appellant appears to reach is that since Officer Blackburn did not arrest Appellant until after they were inside the apartment and "[t]here was no flight after that arrest," Appellant could not have resisted being arrested for the felony of assault of a law enforcement officer in the second degree.
Appellant is correct when he asserts that only at the conclusion of the Appellant's third stop did his actions give rise to Officer Blackburn's reasonable determination that Appellant had committed the felony of assault on a law enforcement officer.[4] However, his focus on his initial flight to extirpate him from the charge of resisting arrest for a felony is of no avail to him. "During a suspect's flight from a law enforcement officer, the actions of the suspect may constitute a separate crime, giving rise to a reason to arrest the suspect." State v. Chamberlin, 872 S.W.2d 615, 618 (Mo.App. 1994).
There are similarities between the facts in the instant case and that of State v. Hopson, 168 S.W.3d 557 (Mo.App. 2005). In Hopson, Officer Bachman of the City of Jennings was conducting a routine patrol when he responded to a call to investigate a complaint. Id. at 560. When arriving on the scene he noticed the Hopson defendant was "driving a car with a license plate that looked like the tags had been torn away from another license plate." Id. Upon running a radio check, Officer Bachman "discovered that no license plate was issued to the car driven by [the defendant]." Id. The officer "activated his emergency lights in an effort to pull [the defendant] over," whereupon the defendant initially "slowed down over the length of the street in front of three or four houses and then threw three `off-white *347 chunks'" wrapped in individual plastic baggies "from the driver's side window." Id. When Officer Bachman stopped his vehicle and picked up the contraband materials, the defendant sped off. Hopson, 168 S.W.3d at 560. Officer Bachman gave chase and turned on the siren of his vehicle. Id. While fleeing, the Hopson defendant operated his vehicle in a very dangerous manner, coming "within ten to fifteen feet of hitting . . ." some people in the street, and, thereafter, turning a corner "at a speed of about forty miles per hour, making the car appear `to almost go on the two wheels.'" Id. "Once he was halfway down the street, [the defendant] stopped the car, got out, and ran down the street," all the while being pursued by Officer Bachman. Id. Eventually another officer apprehended defendant. Id.
On appeal of his conviction for felony resisting arrest, the Hopson defendant contended there was insufficient evidence to prove that Officer Bachman was arresting him and that defendant should have known he was being arrested. Hopson, 168 S.W.3d at 561. The Eastern District of this Court determined "the jury could properly find Officer Bachman was making an arrest of [the defendant] for felony possession of a controlled substance, and that [the defendant] fled from Officer Bachman for the purpose of preventing that arrest." Id. The Court stated that it "was not until Officer Bachman picked up the plastic baggies of cocaine that [the defendant] began to flee." Id. Saliently, the Court noted in its footnote that the Hopson defendant, like Appellant in the present matter,
attempts to focus on the initial stop of [the defendant]. At the time of the initial stop, Officer Bachman had no intent of arresting [the defendant] for a felony, nor would [the defendant] have reasonably believed that he was being arrested. However, the crime was committed after the initial stop when [the defendant] threw cocaine out of the window and Officer Bachman recovered the cocaine. At that point, [the defendant] fled from Officer Bachman in an effort to resist arrest for possession of cocaine base.
Id. at 561 n. 3 (emphasis added).
In the instant matter, once Appellant speedily drove away after the highly dangerous operation of the vehicle after the third stop, Officer Blackburn gave chase with sirens and lights flashing. Appellant continued to resist arrest; this time for the underlying felony of assault of a law enforcement officer. "It [was] not necessary for the officer to specifically say `you are under arrest,' when the circumstances indicate[d] the officer [was] attempting an arrest."[5]Chamberlin, 872 S.W.2d at 619; Hopson, 168 S.W.3d at 562. Furthermore, Appellant continued resisting arrest as he fled on foot at an apartment complex, again, while being chased by Officer Blackburn, all the while ignoring Officer Blackburn's command to stop.
Given all the factual circumstances previously described above, we can only conclude that Appellant should have reasonably recognized that Officer Blackburn was attempting to arrest him. Hopson, 168 S.W.3d at 561; Chamberlin, 872 S.W.2d at 619. The evidence was sufficient to support Appellant's conviction for felony resisting arrest. Hopson, 168 S.W.3d at 562. Point denied.
*348 Appellant's second point of trial court error asserts the trial court erred in refusing to instruct the jury as to the lesser included offense of resisting arrest. Specifically he asserts that "the evidence provided a basis for both an acquittal of the greater felony offense and a conviction on the lesser misdemeanor offense . . ." because
the jury could have found that [Appellant] fled from an arrest for misdemeanor traffic offenses rather than for felony assault because Officer Blackburn testified that after [Appellant] had committed several misdemeanor traffic offenses and fled from [Officer] Blackburn, he told [Appellant] that he was going to take [him] into custody, and after [Officer] Blackburn put his hand on his weapon, [Appellant] drove his car at [Officer] Blackburn while continuing to flee, and thus the jury could have concluded that the crime of misdemeanor resisting arrest occurred and [Appellant's] prolonged flight was merely a continuation of that misdemeanor resisting arrest.
An offense is a lesser included offense if it is impossible to commit the greater without necessarily committing the lesser. State v. Barnard, 972 S.W.2d 462, 465 (Mo.App. 1998). "`If the greater of two offenses includes all the legal and factual elements of the lesser, the greater includes the lesser; but if the lesser offense requires the inclusion of some necessary element not so included in the greater offense, the lesser is not necessarily included in the greater.'" State v. Brown, 58 S.W.3d 649, 655 (Mo.App. 2001) (quoting State v. Neighbors, 613 S.W.2d 143, 146 (Mo.App. 1980)). "Regardless, a trial court is not required to instruct on a lesser-included offense `unless there is a basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.'" Brown, 58 S.W.3d at 655 (quoting § 556.046.2). In this connection, a "court must give an instruction on a lesser included offense only if supported by the evidence." Barnard, 972 S.W.2d at 466. "There must be substantial evidence to support an instruction for a lesser-included offense." State v. Deprow, 937 S.W.2d 748, 750 (Mo.App. 1997).
Appellant submitted "Jury Instruction No. B" to the trial court which was a verdict directing instruction for misdemeanor resisting arrest. The trial court denied Appellant's request for the lesser included offense instruction and stated it "declined to instruct that way . . . if the jury agrees with the defense's position, they [c]ould simply find [Appellant] not guilty since the misdemeanor was never charged."[6] Instead, the trial court instructed the jury on the felony charge of resisting arrest as set out in "Instruction No. 9" proffered by the State.[7]
It is our view that the trial court did not err in failing to give "Jury Instruction No. *349 B." Appellant sought an instruction requiring the State to prove Officer Blackburn was in the midst of arresting Appellant for "multiple traffic offenses" at the time he resisted arrest; however, this element clearly is not an element of felony resisting arrest, which required the State merely to prove Appellant was being arrested for a felony, in this case felony assault of a law enforcement officer. "An instruction on a lesser offense is not proper unless it is impossible to commit the greater without committing the lesser." Barnard, 972 S.W.2d at 465. Here, the facts revealed that it was possible for Appellant to have committed a felony without first committing a misdemeanor. See id. Thus, the trial court did not err in refusing to instruct the jury as to the crime of misdemeanor resisting arrest as set out in Appellant's "Jury Instruction No. B." Point Two is denied.
The judgment of the trial court is affirmed.
GARRISON and LYNCH, JJ., concur.
NOTES
[1] Unless otherwise stated, all statutory references are to RSMo (2000).
[2] We note that neither of Appellant's points relied on challenge his conviction for the Class B felony of assault of a law enforcement officer in the second degree per section 565.082.
[3] Appellant was not charged with the felony of resisting arrest based upon his fleeing in a manner which "created a substantial risk of serious injury or death to any person." § 575.150.5, RSMo. Cum.Supp. 2003.
[4] Indeed, Officer Blackburn related that after Appellant's second stop, Officer Blackburn informed Appellant that he "just need[ed] to see [Appellant's] driver's license and insurance card," because "he[ ][was] just going to get a couple of tickets." Officer Blackburn then determined to arrest Appellant for a felony, i.e., assault of a law enforcement officer, only after Officer Blackburn was forced to "make an extreme maneuver," and "dip to the left" to get out of the path of Appellant's vehicle, subsequent to Officer Blackburn's third stop of Appellant's vehicle.
[5] See also § 575.150.3, Cum.Supp. 2003, ("[a] person is presumed to be fleeing a vehicle stop if that person continues to operate a motor vehicle after that person has seen or should have seen clearly visible emergency lights or has heard or should have heard an audible signal emanating from the law enforcement vehicle pursuing that person").
[6] The denied instruction, "Jury Instruction No. B," tracked the language of the verdict director for felony resisting arrest, except that paragraph two contained the name of a misdemeanor. i.e., "multiple traffic offenses," instead of the name of a felony offense. i.e., "felony assault of a law enforcement officer."
[7] "Instruction No. 9" set out:
As to Count II, if you find and believe from the evidence beyond a reasonable doubt: First that on or about the 28th day of May, 2004, in the County of Greene, State of Missouri, [Officer] Blackburn was a law enforcement officer, and
Second, that [Officer] Blackburn was making an arrest of the [Appellant] for felony assault of a law enforcement officer, and
Third, that [Appellant] knew or reasonably should have known that a law enforcement officer was making an arrest of [Appellant], and
Fourth, that for the purpose of preventing the law enforcement officer from making the arrest, [Appellant] resisted by fleeing from the officer,
then you will find [Appellant] guilty under Count II of resisting arrest. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593722/ | 954 So.2d 902 (2007)
Sister Nira LEDOUX, et al.
v.
GRAND CASINO-COUSHATTA, et al.
No. 06-1500.
Court of Appeal of Louisiana, Third Circuit.
April 4, 2007.
*904 M. Terrence Hoychick, Hoychick & Aguillard, Eunice, LA, for Plaintiffs/Appellees Sister Nira Ledoux, Gale Thomas.
Charles D. Elliott, Faircloth, Vilar & Elliott, L.L.C., Alexandria, LA, for Defendant/Appellant Coushatta Tribe of Louisiana.
Court composed of JIMMIE C. PETERS, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
PETERS, J.
This appeal arises from a summary judgment rendered in favor of two plaintiffs, Sister Nira Ledoux and Gale Thomas, against the defendants: Grand Casino-Coushatta; the Coushatta Tribe of Louisiana; and Grand Casinos of Louisiana, Inc.-Coushatta.[1] The trial court awarded Sister Nira Ledoux $65,581.00 and awarded Gale Thomas $32,790.50. Only the Coushatta Tribe of Louisiana (Tribe) has appealed.[2] For the following reasons, we affirm the trial court judgment rendered against the Tribe.
DISCUSSION OF THE RECORD
The litigation began as a lawsuit filed jointly by the two plaintiffs asserting separate claims based on breach of contract. The defendants own and operate a gambling facility at Kinder, Louisianathe Grand Casino-Coushatta (Casino). Both claims in this litigation arise from jackpots registered on the identical slot machine at the Casino one year and five days apart. Sister Ledoux's award is exactly twice that of Ms. Thomas because of the difference in the number of coins wagered at the time of each individual incident. In both instances the Casino refused to honor the jackpots.
Sister Ledoux and Ms. Thomas filed suit against the defendants on November 4, 2002, cumulating their actions in the same judicial demand. The Tribe and the Grand Casinos of Louisiana, Inc.-Coushatta responded with a number of pleadings, including a motion for summary judgment *905 with respect to Ms. Thomas's claim. In that motion, the defendants asserted that a malfunction in the slot machine voided any winnings registered by the machine and, thus, they were not liable to her for the claimed amount. In response to the defendants' motion for summary judgment, both plaintiffs jointly filed a motion for summary judgment of their own. After a hearing, the trial court rejected the defendants' motion for summary judgment and granted the plaintiffs' motion for summary judgment, awarding the previously stated amounts. The Tribe then perfected this appeal.
OPINION
Before discussing the summary judgment issue, we deem it appropriate and necessary to discuss two issues preliminarily. One involves the Tribe's assignment of error concerning jurisdiction, and the other involves the Tribe's exception of prescription.
Jurisdiction
Pleading that it is a sovereign Indian nation enjoying immunity from suits in state court, and claiming that it has not waived its immunity, the Tribe timely filed an exception of lack of jurisdiction in the trial court. In a written opinion, the trial court rejected this exception, concluding that the Tribe, by means of language contained in its compact with the State of Louisiana (state) had specifically waived its sovereign immunity. The Tribe previously filed a writ application with this court complaining that the trial court had erred in rejecting the exception, but this court, in an unpublished opinion, denied writs. Ledoux v. Grand Casino-Coushatta, 04-87 (La.App. 3 Cir. 3/5/04). The Tribe's effort to have the supreme court review our rejection of its writ application met with the same fate. Ledoux v. Grand Casino-Coushatta, 04-971 (La.6/4/04), 876 So.2d 84.
In one of its assignments of error now before this court, the Tribe has renewed its immunity argument and has requested that this court revisit the issue. The plaintiffs have responded by asserting that we should reject this assignment of error by applying the law of the case doctrine.[3]
We find no merit in this assignment of error because we find no error in the trial court's original judgment or in our denial of the prior writ application. However, because no reasons were given in this court's earlier disposition of this issue, we will briefly explain why we agree with that prior decision that the Tribe expressly waived its sovereign immunity as to the claims asserted in this suit.
We begin by noting that the relationship between the Tribe and the state is set forth in the Tribal-State Compact for the Conduct of Class III Gaming. The pertinent language of the version of the compact in effect in 1998 and 1999, when the plaintiffs' claims arose, is contained in *906 Section 14:(B), and is entitled "DISPUTE RESOLUTION." That section reads as follows:
In the event a dispute arises from the gaming operation refusing to award an alleged prize or pay an alleged winning to a patron, the dispute is not resolved to the satisfaction of the patron, and the dispute involves an alleged prize or winning with a value of $500 or more, then:
(1) The gaming operation shall immediately notify the Tribal Gaming Commission. The Tribal Gaming Commission shall investigate the dispute and determine how much, if any, of the prize is to be awarded or the winning is to be paid, and shall provide written notification to the patron of their determination within thirty (30) days from the date of the dispute.
(2) In the event that the dispute is not resolved to the satisfaction of the patron, then the patron may pursue the matter in the following sequential manner:
(a) mediation as provided in Section 14:(C) of this Tribal-State Compact.
(b) legal action or proceeding as provided in Section 14:(D) of this Tribal-State Compact.
With regard to pursuing legal action as contemplated by Section 14(B)(2)(b), Section 14:(D) provides in pertinent part:
Upon completion of the mediation in Section 14:(C) of this Tribal-State Compact, and if the dispute is not resolved to the satisfaction of a party, then that party may seek their remedy through a legal action or proceeding. . . .
The Tribe waived its sovereign immunity in its dispute with Sister Ledoux and Ms. Thomas by agreeing to these terms.
The Tribe's argument on appeal in support of this assignment is vague and non-specific.[4] It has cited one Louisiana case, Webb v. Paragon Casino, 03-1700 (La. App. 3 Cir. 5/12/04), 872 So.2d 641, in support of its position. However, that case held that a tribe had not waived its sovereign immunity in a workers' compensation claim against the tribe and did not address the effect of the compact provisions set forth herein. That is to say, it did not address a dispute over the payment of a prize or winning to a patron as is now before us, and is, therefore, easily distinguishable from the case at hand.
Exception of Prescription
The Tribe has filed an exception of prescription in this court,[5] asserting that the plaintiffs' claims had prescribed based on the two year prescription provided by tribal law. In support of this argument, the Tribe attached two exhibits to the exception. One is an excerpt taken from the *907 Tribe's Judicial Codes, and the other is a tribal amending resolution dated September 11, 2001. These exhibits purport to show that the Tribe imposed a two-year prescription on tort claims arising before September 11, 2001, and amended the period to one year by the resolution dated September 11, 2001. Neither of these exhibits is in the appeal record.
With regard to the filing of an exception of prescription in the appellate court, La. Code Civ.P. art. 2163 (emphasis added) states:
The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.
If the ground for the peremptory exception pleaded in the appellate court is prescription, the plaintiff may demand that the case be remanded to the trial court for trial of the exception.
Even assuming we can consider the Tribe's Judicial Code excerpts,[6] they do not support the Tribe's position. It is readily apparent from the exhibits that they relate to tort claims, while the claims before us are in contract. We recognize that we have the discretion to remand the exception to the trial court for a full hearing should the interests of justice require it. Willett v. Premier Bank, 97-187 (La. App. 3 Cir. 6/4/97), 696 So.2d 196. However, we do not find that the interests of justice require a remand in this matter. We simply reject the exception of prescription.
Summary Judgment Issue
We turn now to a discussion of the record pertaining to the trial court's ruling on the plaintiffs' motion for summary judgment. As an appellate court, we perform a de novo review of summary judgment rulings. Doerr v. Mobil Oil Corp., 00-947 (La.12/19/00), 774 So.2d 119. A motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there exists no genuine issue as to any material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). The mover has the burden of proving entitlement to summary judgment. La.Code Civ.P. art. 966(C)(2). However, La.Code Civ.P. art. 966(C)(2) further explains that 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 elements essential to the adverse party's claim, action, or defense. "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.
The parties in this litigation recognize that the law of contracts is determinative of the issues before us. A party who asserts that an obligation is null, or that it has been modified or extinguished, must prove the facts or acts giving rise to the nullity, modification, or extinction. La.Civ. *908 Code art. 1831. Once a prima facie case has been established by the plaintiff by a preponderance of the evidence, the burden shifts to the defendant. Artificial Lift, Inc. v. Production Specialties, Inc., 626 So.2d 859 (La.App. 3 Cir.1993), writ denied, 94-112 (La.3/11/94), 634 So.2d 394. "Further, one who asserts a fact must carry the burden of proving that fact by a preponderance of the evidence." Id at 862. Under this article the Tribe had the burden of proving the facts rendering its obligations null. Thus, plaintiffs are entitled to summary disposition if they can show an absence of factual support for one or more elements essential to the Tribe's claim of the contract's nullity, modification, or extinction, and the Tribe is then unable to produce factual support sufficient to establish that at trial it will be able to prove by a preponderance of the evidence the contract's nullity, modification, or extinction.
The first claim arose on the evening of November 15, 1998, when Sister Ledoux visited the Grand Casino-Coushatta and played a Bonus Wheel Double Diamond Deluxe slot machine. When she deposited two quarters and activated the machine, it displayed three "7s," and the "Bonus Spin" display monitor then advised her that she had a bonus round. When she played the bonus round, the monitor on top of the machine lit up and displayed the message: "Congratulations, you have won 262,324 coins." Two Casino employees approached Sister Ledoux and informed her that she had just won a jackpot worth $65,581.00. After the machine was opened and examined by a Casino technician, a Casino supervisor advised Sister Ledoux that the Casino would not pay her the jackpot because the machine had malfunctioned. Instead, he paid her $100.00 for hitting the three "7s." Sister Ledoux refused to release the defendants and demanded payment of the full amount of the jackpot.
Immediately after the November 15, 1998 incident, the Casino took the machine out of service for in-house testing. During the testing process, the Casino technician was unable to locate a specific malfunction or replicate Sister Ledoux's winning scenario. Finding nothing wrong with the machine and convinced that no remedial work was necessary, the Casino technician simply replaced a chip on the machine's logic board as a precaution and returned the machine to the Casino floor. On November 20, 1999, Ms. Thomas came to the Grand Casino-Coushatta and played the same machine. Instead of playing two quarters, as had Sister Ledoux, she deposited only one quarter. When she did, the machine immediately displayed three "7s" and the "Bonus Spin" display monitor advised her that she also had a bonus round. When she played the bonus round, the monitor on top of the machine lit up and displayed the message: "Congratulations, you have won 131,162 coins." As had been the case with Sister Ledoux, two Casino employees approached Ms. Thomas and informed her that she had just won a jackpot worth $32,790.50; a technician opened and examined the machine; and a supervisor then informed her that the Casino would not pay the jackpot because the machine had malfunctioned. Instead, the supervisor offered her $625.00 in settlement. Ms. Thomas rejected this offer.
After the incident with Ms. Thomas, the Casino sent the slot machine to Gaming Laboratories International, Inc. (GLI), a testing laboratory which provides testing and consulting services to the lottery and gaming industry. GLI received the machine at its Golden, Colorado location on December 6, 1999, and the Casino provided it with the history surrounding the plaintiffs' claims. After extensive testing, *909 GLI was unable to locate a specific malfunction or to replicate the results which gave rise to this litigation. Notwithstanding its negative testing results, GLI concluded that the slot machine "must have malfunctioned" because it was not programmed to pay out that much money. GLI reported this conclusion to the Tribe but acknowledged that "the cause of the malfunction was indeterminate" because, like the Casino technicians, it was unable to reproduce the malfunction.
GLI's conclusion was the basis of the defendants' motion for summary judgment addressing Ms. Thomas's claim. Among the exhibits filed in support of the summary judgment was the affidavit of James R. Maida, the President, Chief Executive Officer, and co-founder of GLI. In his affidavit Mr. Maida stated that, based on a forensic review of the device, GLI had concluded that the machine malfunctioned on November 20, 1999 (the date of Gale Thomas's play) causing erroneous data to be displayed on the LCD screen. Mr. Maida stated that the program code of the machine only allowed for a bonus win of 800 for a one-coin bet, 1600 for a two-coin bet, and 2500 for three-coin bet. Noting that GLI's report had stated that "the game code software can not award any larger of a win under normal operating conditions," Mr. Maida concluded that "[f]or this to occur, the machine must have malfunctioned on November 15, 1998 and November 20, 1999." Elsewhere in his affidavit, Mr. Maida stated that the hardware had malfunctioned on November 20, 1999, adding that the machine bears a sign that states in large letters that "MALFUNCTIONS VOID ALL PAYS AND PLAYS."
Despite the fact that the slot machine had been sent to GLI with the specific request that it try to determine what happened regarding the jackpot hit by Ms. Thomas, it is clear from the GLI report that it was unable to do so. GLI described its "[a]ttempt to re-enact scenario on duplicate game" in its report in these words (emphasis added):
After reviewing the state of game and reviewing the version of software in the game, it was determined that GLI Colorado did not have the proper equipment to emulate the game. A comparison of the amount of time that would have been needed to accomplish the task compared to the possible outcome resulted in the conclusion that this step would not be performed.
The deposition of Kevin Fontenot, the primary slot machine technician at the Kinder casino location, was also offered in support of the defendants' motion for summary judgment. In his deposition, Mr. Fontenot testified that he opened the suspect slot machine on both occasions at issue and was unable to ascertain the malfunction on either occasion. Despite finding nothing to support his position, he concluded that the slot machine had malfunctioned because something had occurred which was "not in the normal operating range." That is to say, both jackpots were in excess of the limits programmed into the machine, and the award of a jackpot in excess of those limits could only be the result of a malfunction.
The Tribe's defense is based on two contentions. One is that the bonus wheel on its face showed that the maximum pay for a three "7s" bonus was 800 for a one-coin bet; 1,600 for a two-coin bet; and 2,500 for a three-coin bet. However, photographs introduced in support of the motion for summary judgment do not support this assertion. Nowhere does any language appear on the slot machine that the maximum payout is fixed by these numbers. In fact, Mr. Fontenot admitted that the language was not there. Thus, *910 the Tribe's contention in this context is an argument not based on fact. Therefore, we find no material issue of disputed fact over whether the machine informed the player that there was a "maximum" payout in playing the bonus wheel. It did not do so.
The Tribe's second contention is that on its face the machine contained the language "[m]alfunctions void all pays and plays," and that this language is an explicit part of the contract between it and any player. Although the photographs filed in support of the Tribe's motion for summary judgment are not sufficiently clear to establish the presence of the language, the affidavit and deposition testimony offered by the Tribe declare that the language is present. However, the plaintiffs deny having ever seen it, thereby creating a factual dispute concerning this issue. The Tribe correctly points out that this language, if present, constitutes an explicit part of the contract between it and the plaintiffs. However, assuming the language to be present on the slot machine, an essential element of the Tribe's defense is that a malfunction occurredand this is where the Tribe's argument fails. Whether a slot machine malfunctioned is a question of fact. Griggs v. Harrah's Casino, 05-321 (La.App. 4 Cir. 3/22/06), 929 So.2d 204, writ denied, 06-916 (La.6/16/06), 929 So.2d 1288. To prove a malfunction caused these outcomes it was incumbent on the Tribe to prove that the malfunction occurred when the game was played. Id. "The bet is wagered when the game is played, and when the game is completed, the result is final." Id. at 217.
It is undisputed that nothing in the behavior of the slot machine in either instance suggested a malfunction. On both occasions the slot machine registered jackpots and displayed messages informing the players of their good fortune. There were no noises, alerts, signs, warnings, LED displays, or other explanations signaling the players or the Casino that something was amiss in the operation of the machine. In fact, on each occasion Casino employees in the vicinity of the winning machines immediately, and without hesitation, informed the players of the specific amount won. Trained experts in both Louisiana and Colorado examined the machines and were unable to find a malfunction or even to duplicate the machine's mechanics in awarding the jackpots at issue.
The only basis for a claim of malfunction is the Tribe's suggestion that the jackpot awards simply should not have happened because the hardware and software were designed, built, and programmed to limit the machine payout, and the two jackpots at issue exceeded those limits. According to the Tribe, normal operation of this machine should have never produced the resulting jackpots.
The flaw in this argument is the assumption that neither the design, construction, nor programming of the device could conceivably yield any result other than that desired by the designer, manufacturer, or programmer. We know of no presumption in the law that would operate to say that just because a generally successful effort was made to build and program the machine to yield no results larger than a certain number, any result producing such a larger number was the result of a malfunction.[7] A malfunction defense requires *911 factual support, not a presumption. Both Mr. Fontenot and Mr. Maida candidly admitted that no malfunction could be identified or duplicated, and Mr. Maida was not even sure whether the malfunction was in the hardware or the software. Thus, the Tribe was unable to produce factual support sufficient to establish that it would be able to satisfy its burden of proving a malfunction by a preponderance of the evidence at trial.
Additionally, a factually unsupported opinion, albeit from an expert in slot machines, cannot be used to invoke the resolutory condition that "[m]alfunctions void all pays and plays." If the Casino is the only authority that can determine whether a malfunction has occurred, there exists a basic unfairness in this wager contract. Although in this particular case the Casino contests only a win that supposedly exceeded the limits of the machine, by its reasoning the Casino could declare a malfunction for any win, even those within the claimed outside payout limit of the machine. At the same time, if there is a malfunction in the Casino's favor,[8] it would never be detected because the wagerer would not recognize that the machine had malfunctioned to deprive him of a winhe would simply assume a losing play of the slot machine.
By the testimony of the Tribe's own expert, a malfunction in the present case cannot be explained and is presently incapable of discovery and explanation. The assertion that a malfunction occurred rests solely on the Casino's word. Such a system places in the Casino's power a means to avoid its obligations that depends solely on its will as the obligor.
Louisiana Civil Code Article 1767 states that a conditional obligation, or one dependent on an uncertain event, is resolutory. The Comments to this article state that in its proper sense the word "condition" means "some operative fact subsequent to acceptance and prior to discharge, a fact upon which the rights and duties of the parties depend." Revision Comments-1984(f). In the present case the Casino regards its obligation to pay a jackpot as enforceable if the machine is functioning properly; if it malfunctions its obligation ceases, nullifying all plays and pays. Louisiana Civil Code Article 1770 provides that a resolutory condition that depends solely on the will of the obligor must be fulfilled in good faith.[9] We believe that here good faith requires that the Tribe be able to demonstrate with facts, not theory, that the machine malfunctioned.
A case similar to the present one is Jones v. Fowler, 185 So. 40 (La.App.Orleans 1938). In that case Fowler, the operator of a shooting gallery, offered a prize of $300.00 to any person, after payment of a fee, who could shoot out and obliterate a red figure "5" on a target from a certain distance with only three shots from a .22 caliber rifle. Jones claimed the prize when with three shots he succeeded in obliterating the red "5." The gallery operator admitted the agreement but refused to pay the prize, claiming that the agreement made him "the sole judge of all shooting" and that, according to his observation, not all the red was obliterated. No red could be seen with the naked eye, although some *912 could be detected with the use of a magnifying glass. The trial court's decision to award the plaintiff the prize was affirmed because the contractual provision giving the operator the absolute power to determine whether or not the plaintiff had performed the obligation was potestative and hence voidable by the plaintiff, but the contract itself was not null and the court could determine whether or not the plaintiff had performed his part. In a Note, ContractsPotestative ConditionsGood Faith in PerformanceArticles 1901, 2034, 2035, Louisiana Civil Code of 1870, 13 Tulane Law Review 626, the author points out that the court in Jones v. Fowler reached the proper result but that it could have decided the matter on the ground that the condition was not one dependent solely on the will of one of the parties, but rather upon an act tested by an objective standard. In other words, the condition was an enforceable one which required good faith in performance on the part of the defendant.
We cannot accept the Tribe's position that its contractual right to void a win because the machine malfunctioned can be exercised merely by its after-the-fact declaration that the machine had malfunctioned. It would not be good faith for the Tribe to insist that it have the right to void a jackpot for a malfunction and at the same time have the exclusive right to determine what a malfunction is and when it occurred. Thus, where there was no apparent malfunction indication by the slot machine itself, a casino may not rely on the argument that the machine was not intended to register the particular jackpot to deny payment. That is to say, there must objective proof of a malfunction. Good faith in performance of a contract requires that the resolutory condition, i.e., that a malfunction occurred which caused the jackpot, be tested by some objective standard. That objectivity is not demonstrated in this case.
DISPOSITION
For the foregoing reasons we affirm the trial court judgment granting Sister Nira Ledoux and Gale Thomas summary judgment against the Coushatta Tribe of Louisiana. We assess all costs of this appeal to the Coushatta Tribe of Louisiana.
AFFIRMED.
NOTES
[1] The original petition identifies the Coushatta Tribe of Louisiana as a sovereign nation owning land in Louisiana and operating a casino thereon pursuant to a contract with the State of Louisiana, and identifies Grand Casinos of Louisiana, Inc.-Coushatta as a Minnesota corporation authorized to do business in Louisiana. It identifies the Grand Casino-Coushatta as a separate legal entity a joint venture operated by the other two defendants. The petition asserted that the three defendants operated a casino in Kinder, Louisiana, where the events occurred which formed the basis for this lawsuit. Subsequent pleadings make it clear that the Grand Casino-Coushatta is actually a trade name for the casino operation. Despite the assertions in the subsequent pleadings, the summary judgment now on appeal was rendered against the defendants as they were named in the original petition, i.e., the Grand Casino-Coushatta, the Coushatta Tribe of Louisiana, and Grand Casinos of Louisiana, Inc.-Coushatta.
[2] Shortly after the summary judgment at issue in this appeal was rendered, the Coushatta Tribe of Louisiana obtained new counsel. After new counsel obtained permission to enroll as counsel of record in these proceedings, the counsel that had previously been representing all of the defendants sought and obtained an order from the trial court allowing counsel to withdraw as counsel of record for all defendants. Thereafter, new counsel for the Coushatta Tribe of Louisiana sought and obtained an order of appeal. Accordingly, the Coushatta Tribe of Louisiana is the only appellant and the judgment rendered against Grand Casinos of Louisiana, Inc.-Coushatta is a final judgment.
[3] The law of the case doctrine provides that "an appellate court ordinarily will not reconsider its own rulings of law in the same case;" it applies to prior rulings of the appellate court and/or supreme court in the same case. This doctrine applies to parties who were in the litigation at the time of the prior ruling and had their day in court. The purposes of the doctrine are to avoid litigating the same issue again and to promote consistency of result within the case, essential fairness to the parties, and judicial efficiency. The "law of the case" is discretionary; it is not applicable to cases in which "the prior decision was palpably erroneous or its application would result in manifest injustice." Estate of Patout v. City of New Iberia, 01-151, p. 7 (La.App. 3 Cir. 6/27/01), 791 So.2d 741, 747 (quoting Griggs v. Riverland Med. Ctr., 98-256, p. 6 (La.App. 3 Cir. 10/11/98), 722 So.2d 15, 19, writ denied, 99-385 (La.5/28/99), 735 So.2d 622).
[4] The Tribe's argument makes the general statement that "[t]he Compact only contains a waiver of immunity from suit in State Court as to claims between the Coushatta Tribe and the State." This is apparently a reference to the present compact, not the compact in effect when the instant claims arose. Although the Tribe did not expressly allude to the present compact's dispute resolution language, the record contains an amended version of the Tribal State Compact executed by the Louisiana Governor on December 8, 2000, and by the Tribal Chairman on December 11, 2000. The dispute resolution provisions we have quoted were modified by that amended version. However, these dispute resolution provisions were not in effect in 1998 and 1999.
[5] The pleading filed with us states that the exception is being raised for the first time. That statement is incorrect. The defendants, including the Tribe, pleaded the exception of prescription in their December 27, 2002 answer to the petition. They pleaded prescription again on May 20, 2005 in their supplemental and amending answer to the petition. However, the prescription issue was never taken up in the trial court.
[6] Louisiana Code of Evidence Article 202(B)(1)(f) provides that "[a] court shall take judicial notice of the . . . [l]aw of foreign countries" when requested to do so by a party and when that party "provides the court with the information needed by it to comply with the request."
[7] The functioning of software reflects the ingenuity of the designer-programmer. Who is to say that this software did not behave as it was intended to behave? A result undesirable from the Casino's standpoint does not necessarily mean that a malfunction caused it. It might have been that the result was programmed accidentally, or even purposely. It cannot be inferred that simply because the machine twice paid out more than it was believed to have been designed and programmed to pay out, there was a malfunction.
[8] Mr. Fontenot suggested in his testimony that, while rare, malfunctions do occur.
[9] According to its comments Article 1770 did not change the law. It reproduced the substance of Civil Code arts.2024, 2034, and 2035 (1870). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593763/ | 954 So.2d 1158 (2007)
CANTY
v.
STATE.
No. 1D06-3353.
District Court of Appeal of Florida, First District.
April 24, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/388793/ | 644 F.2d 1142
Arthur JACKSON, Plaintiff-Appellant,v.STATE OF MISSISSIPPI et al., Defendants-Appellees.
No. 79-3614.
United States Court of Appeals,Fifth Circuit.
Unit A
May 14, 1981.
Barbara Phillips, Lawyers Comm. for Civil Rights Under Law, Frank R. Parker, Jackson, Miss., for plaintiff-appellant.
P. Roger Googe, Jr., C. Bradshaw Farber, Asst. Attys. Gen., Jackson, Miss., for State of Miss. and Hollowell, et al.
Freeland & Gafford, James L. Robertson, Oxford, Miss., for Granite State Ins. Co. and New Hampshire Ins. Co.
Jimmie B. Reynolds, Jr., Jackson, Miss., for St. Paul Fire & Marine Ins. Co.
Roy Campbell, III, Greenville, Miss., James L. Robertson, c/o Freeland & Gafford, Oxford, Miss., for U. S. Fidelity and Guaranty Co.
Appeal from the United States District Court for the Northern District of Mississippi.
Before GOLDBERG, CHARLES CLARK, and REAVLEY, Circuit Judges.
CHARLES CLARK, Circuit Judge:
1
Arthur Jackson, an inmate of the Mississippi State Penitentiary (Parchman), filed this 42 U.S.C. § 1983 action alleging deprivation of his constitutional rights when he was injured by a pellet from a shotgun fired by a fellow prisoner guard. Relying on pendent jurisdiction, Jackson also asserted parallel claims under state law. The outcome of this appeal is governed largely by two prior cases, Bogard v. Cook, 586 F.2d 399 (5th Cir. 1978), and Douthit v. Jones, 619 F.2d 527 (5th Cir. 1980). In addition, we must consider the summary judgment procedure followed and the effect of an injunction ordering enforcement of specific constitutional rights of Parchman prisoners. We affirm in part, vacate in part, and reverse and remand in part.
2
In October 1972, Arthur Jackson began serving at Parchman a five-year prison term for armed robbery. On February 6, 1973, Jackson and other prisoners were boarding a bus to be transported to a vocational school at the penitentiary. As was the practice at that time, another prisoner designated as a "trusty shooter" was guarding these inmates with a shotgun. Noticing that some inmates were pushing to the front of the line to get a seat on the bus, the trusty shooter fired a warning shot. One of the pellets from this 00 buckshot load penetrated Jackson's left eyeball. Jackson was taken to the prison's medical facilities where the doctor on duty cleaned and dressed the wound. The doctor called the University Hospital in Jackson, Mississippi, for advice and was told to have Jackson transported to that hospital. He did so. The drive took approximately three hours. At the University Hospital, Jackson's eye was surgically removed.
3
Jackson, acting pro se, wrote a letter to the district judge on May 22, 1973. The district court construed the letter as a complaint, appointed counsel for Jackson, and allowed him to amend his complaint. The amended complaint named as defendants four prison officials and five members of the Mississippi State Penitentiary Board (Board). The case was held in abeyance pending the trial and appeal of Bogard v. Cook, 405 F.Supp. 1202 (N.D.Miss.1975), aff'd, 586 F.2d 399 (5th Cir. 1978), cert. denied, 444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d 113 (1979). On July 30, 1979, the district court granted summary judgment in favor of all defendants. This appeal followed.
4
Jackson argues that the defendants failed to meet their dual burden of demonstrating that no genuine issue of material fact existed and that they were entitled to judgment as a matter of law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). In reviewing the district court's rulings on summary judgment motions, we also apply the standard of Fed.R.Civ.P. 56(c). Wright & Miller, Federal Practice and Procedure: Civil § 2716 at 430. As to the existence of a genuine issue of material fact, we view the record in the light most favorable to the party opposing the motion for summary judgment. Cubbage v. Averett, 626 F.2d 1307, 1308 (5th Cir. 1980).
5
With respect to the defendant Board members, Jackson asserts three main issues of fact were contested and material. The first issue is the scope of these defendants' powers and duties as members of the Board. Jackson alleges that the individual Board members had assumed responsibility over various departments at Parchman in order to relieve Acting Superintendent Hollowell of some of his administrative burden. Jackson asserts the depositions of the Board members demonstrate they participated in promulgating regulations for Parchman and supervised implementation of prison policies. The second issue is whether these defendants performed their duties properly. Specifically, Jackson questions whether these defendants adequately supervised the selection and training of trusty shooters, as was required by the prior injunction order. The third issue Jackson asserts concerns the adequacy of the medical facilities at Parchman.
6
With respect to defendants Hollowell, Cash, and Jennings, acting and assistant superintendents, Jackson asserts that the extent and fulfillment of their respective responsibilities was a genuine issue of material fact.
7
All the defendants raise two arguments in response. The first, by innuendo, is that the fact issues relied upon by Jackson are not material. As explained below, we disagree. The second is that Jackson's affidavit opposing the defendants' affidavits submitted with their motion for summary judgment does not comply with Fed.R.Civ.P. 56(e). This argument is not without force.
8
Jackson's only affidavit opposing summary judgment was a sworn statement by his attorney. Depositions and documents were attached to the affidavit, and the attorney stated that she was familiar with the documents and proceedings in the case. Thus, the affidavit did not show, as Rule 56(e) requires, "that the affiant is competent to testify to the matters stated" in the attachments. In fact, it showed the converse.
9
Summary judgment is not, however, an automatic sanction for non-compliance with Rule 56(e). A movant must establish the propriety of relief by the strengths of his own showing, not by the defects in his opponent's showing. Even accepting the uncontroverted statements in the defendants' affidavits as true, the defendants were not entitled to judgment as a matter of law. Though this is the ground on which we reverse the summary judgment, we do not reject Jackson's claim that there were genuine issues of material fact. The district court may be required to re-evaluate that claim on remand.
10
The defendants claim qualified immunity for their actions. In this regard, the defendants rely on several decisions of this court and of the United States Supreme Court. Since the issues which Jackson argues were genuine and material pertain to the qualified immunity defense, we review briefly the law in that area.
11
In Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), public high school students sued under 42 U.S.C. § 1983 to enforce their due process rights under the federal constitution, which rights had been allegedly denied them when they were expelled from school for violating a rule prohibiting the use or possession of alcoholic beverages at school functions. The Court concluded that the test for immunity must contain a subjective and an objective element. An official is immune if his motives are permissible and he is not violating constitutional rights established by "settled, indisputable law...." Id. at 321, 95 S.Ct. at 1000.
12
Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978), applied Wood v. Strickland to a § 1983 suit against prison officials. The prisoner, Navarette, complained that the officials had been interfering with his mail. The interference predated the Court's ruling regarding prison mail in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). The Court held that Navarette's constitutional right of correspondence was not "clearly established" at the time of the alleged interference: "Whether the state of the law is evaluated by reference to the opinions of this Court, of the Courts of Appeals, or of the local District Court, there was no 'clearly established' First and Fourteenth Amendment right with respect to the correspondence of convicted prisoners in 1971-1972." Procunier v. Navarette, 434 U.S. at 565, 98 S.Ct. at 861 (footnote omitted). Thus, the Court concluded, there was no basis for rejecting the immunity defense under the objective test of Wood v. Strickland.
13
This court applied Wood v. Strickland to a suit against Parchman Penitentiary officials in Bogard v. Cook, 586 F.2d 399 (5th Cir. 1978). The prison officials in Bogard were held entitled to official immunity under both federal and state law, for there was insufficient evidence after the trial of that case to create a jury question on whether the officials acted with any intent.
14
In Douthit v. Jones, 619 F.2d 527 (5th Cir. 1980), we further explained that qualified immunity is an affirmative defense, the very invocation of which depends upon the range of discretion exercised by the defendants in performance of their official duties. Id. at 534. We also expounded the two alternative means by which a plaintiff can overcome the qualified immunity defense. If the plaintiff can show that he had a clearly established constitutional right that the defendants knew or should have known of, and that they knew or should have known that their conduct violated that right, the immunity is overcome. A similar result obtains if the plaintiff can prove the defendant intended to harm him or took an action substantially certain to produce injury. Id. at 533, quoting Procunier v. Navarette, 434 U.S. 555, 562, 98 S.Ct. 855, 860, 55 L.Ed.2d 24, 31 (1978); Cruz v. Beto, 603 F.2d 1178, 1182 (5th Cir. 1979); Bogard v. Cook, 586 F.2d 399, 411 (5th Cir. 1978).
15
The defendants here correctly claim that Bogard controls this case. As we said there, "(u)nder the objective test of Wood, an official, even if he is acting in the sincere subjective belief that he is doing right, loses his cloak of qualified immunity if his actions contravene 'settled, indisputable law.' " Id. at 411. Jackson does not claim that the defendants acted with malicious intent to deprive him of his rights. He asserts that they violated settled law. Jackson does not claim that the failure to eliminate the trusty system was per se unconstitutional. He claims that the prison officials' failure to evaluate trusty shooters was a violation of settled law. The settled law Jackson invokes is the injunction entered by the United States District Court for the Northern District of Mississippi in Gates v. Collier, 349 F.Supp. 881 (N.D.Miss.1972). Gates was a class action suit by prisoners at Parchman challenging various conditions and practices at the Penitentiary. The district court in Gates found that "Parchman, in certain material respects, has been, and continues to be, maintained and operated in a manner violative of rights secured to inmates by the United States Constitution...." Id. at 893. On October 20, 1972, as part of the relief awarded, the district court ordered the immediate commencement of a plan to phase out the trusty system. By June 20, 1973, the use of trusty shooters was to be totally eliminated. Further, the court ordered:
16
In the interim period before total elimination of trusty custodial personnel, defendants shall insure, by a careful review of inmate personnel records and psychological tests, that inmates placed in a position of supervision or custody of other inmates are mentally and emotionally fit to perform their assigned tasks.
17
Id. at 903.
18
Jackson, again referring to deposition statements of various defendants, claims that there is a genuine issue of material fact as to what the defendants did to comply with the specific order to review the records of trusty shooters. Lepolean Reed, the trusty shooter who discharged the gun which wounded Jackson, received two concurrent fifteen-year sentences for armed robbery. He began serving these sentences in February, 1968. In March, 1968, Reed was examined by a psychologist at Parchman. Among the pertinent findings and observations are these:
19
Lepolean is presently functioning within the borderline range of intelligence.... The Wechsler Adult Intelligence Scale indicates some retardation, however, there are no major indications of neurological malfunctioning.... He is going to need everything that the prison can offer in terms of vocational training and counseling to correct the deviant behavior pattern that he has developed.
20
Reed received no further psychological testing or evaluation before the February 6, 1973, shooting incident. Jackson asserts that no one reviewed Reed's file and that if someone had, Reed would have been relieved from trusty shooter duty before he blinded Jackson.
21
Whether the defendants were entitled to judgment as a matter of law depends on whether the Gates decree clearly established Jackson's constitutional rights. If it did not, the defendants' non-compliance, while pertinent to a contempt proceeding, could not violate "clear, indisputable law," and would not pertain to the qualified immunity claimed by the defendants. As mentioned before, the district court in Gates found that the defendants there "have subjected the inmate population at Parchman to cruel and unusual punishment ... by assigning custodial responsibility to incompetent and untrained inmates." Id. at 894. We hold that the Gates order clearly established Jackson's constitutional right to be free from cruel and unusual punishment in the form of trusty shooters who were inadequately screened for mental, emotional, or other problems. We leave to the district court on remand the development of the precise legal perimeters of the defendants' duty under Gates as it pertains to Jackson. We hold only that, even accepting the defendants' version of their compliance with Gates, the defendants were not entitled to judgment as a matter of law, and summary judgment was inappropriate. Fed.R.Civ.P. 56(c).1
22
Jackson also argues that summary judgment was improper on his claim that the medical facilities at Parchman were inadequate. The Gates order required the prison officials to employ a medical staff consisting of at least three full-time physicians, among other personnel. Further, the Gates defendants were required to "use their best efforts to comply with the general standards of the American Correctional Association relating to medical services for prisoners." Id. at 901. Jackson did not claim in this court or in the district court that the Gates order clearly articulated his constitutional rights with regard to medical facilities. Neither does he claim that the defendants violated the mandate of Gates in this respect. Indeed, the defendants represent that the plan for medical facilities was approved by the district court in the Gates proceedings on December 20, 1972. While the adequacy of the facilities to treat Jackson's injury may have been an issue in dispute, that issue is not material. Jackson alleged in his complaint that the defendants had a duty to provide care for his particular type of injury at Parchman or at a nearby hospital. Neither Gates nor any other authority required this much. While the defendants must provide adequate care, their failure to have at or near Parchman the particular kind of specialist required to treat Jackson's severe eye wound violated no duty established by settled law. Thus, this issue was not material. Since Jackson alleged neither intentional harm nor contravention of settled law, summary judgment sustaining the defendants' qualified immunity defense on this count was appropriate.
23
To the extent that the summary judgment disposed of Jackson's asserted cause of action under Mississippi law, we vacate the judgment appealed from. Those issues were not briefed or argued in this court. On remand, the district court should consider these claims anew.
24
For the reasons stated, the judgment of the district court is reversed in part and the case is remanded for further proceedings consistent with this opinion.
25
AFFIRMED IN PART, VACATED IN PART, AND, IN PART, REVERSED AND REMANDED.
1
Because of the Gates order, our holding in Roberts v. Williams, 456 F.2d 819 (5th Cir. 1972), on facts similar to these, is inapposite | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1594768/ | 432 N.W.2d 268 (1988)
STATE of South Dakota, Plaintiff and Appellant,
v.
Robert Dean TAPIO and Blaine John Brings Plenty, Defendants and Appellees.
Nos. 16283, 16285, 16320 and 16323.
Supreme Court of South Dakota.
Argued August 30, 1988.
Decided November 30, 1988.
*269 Wade A. Hubbard, Asst. Atty. Gen., Pierre, for plaintiff and appellant; Roger A. Tellinghuisen, Atty. Gen., and Thomas H. Harmon, Deputy Atty. Gen., Pierre, on brief.
George E. Grassby, Rapid City, for defendant and appellee Robert Dean Tapio.
James F. Margadant, Rapid City, for defendant and appellee Blaine John Brings Plenty.
MILLER, Justice.
In this consolidated intermediate appeal, we reverse the orders of the trial court which (1) reinstated a disqualified judge to preside over two criminal actions, (2) removed the state's attorney and his staff from prosecuting the actions, and (3) required the attorney general to assume prosecution of the actions. We affirm that part of the trial court's orders raised by notice of review, which denied defendants Robert Dean Tapio's and Blaine John Brings Plenty's (appellees') motions to dismiss grounded on prosecutorial misconduct.
PROCEDURAL HISTORY AND FACTS
Appellees currently stand charged by Information in Pennington County, South Dakota, for the alternative offenses of first-degree murder, second-degree murder, or first-degree manslaughter, and a second count of first-degree manslaughter. Each also stands charged with being an habitual offender. Appellees made an initial appearance and were later afforded a preliminary hearing in circuit court. Both appellees' cases were then assigned to the Honorable Merton B. Tice, Jr. for trial.
Pennington County State's Attorney Dennis Groff (Groff) thereafter requested by letter that Judge Tice remove himself from the cases. Such request was denied by Judge Tice and affidavits for change of judge were subsequently filed by Groff. The presiding judge, the Honorable Marshall Young, as required by SDCL 15-12-32, reviewed the affidavits, and, after determining that everything was in order, assigned the cases to himself.
At their arraignment, appellees objected to Groff's affidavits for change of judge and further informed the court that they planned to file motions to dismiss the charges grounded on prosecutorial misconduct. Motions to dismiss were subsequently filed, alleging that the State's improper use of the affidavits for change of judge against Judge Tice amounted to prosecutorial misconduct.
Presiding Judge Young disqualified all of the judges of the Seventh Judicial Circuit from considering appellees' objections to the affidavit for change of judge and their motions to dismiss. Chief Justice Wuest subsequently assigned the Honorable Scott Moses of the Eighth Judicial Circuit to consider the objections and hear the motions for dismissal.
At the hearing, Judge Moses, over objection, ordered that Groff testify concerning the contents of his affidavits for change of judge. Groff testified that he had filed affidavits against Judge Tice in all (at least eighty-three) felony cases since July 1986 pursuant to a policy adopted by him at that time. He also stated that he had personally signed all of the affidavits and complied *270 with the statutory provisions for removal of the judge in each case. Groff was also required to testify, over objection, concerning his reasons for wanting to remove Judge Tice.[1]
Judge Moses (hereinafter referred to as trial court) determined that Groff's blanket removal of Judge Tice from all felony cases without any case-by-case analysis amounted to bad faith. The trial court then concluded that the policy used by Groff constituted an abuse of the rules of criminal procedure, amounting to prosecutorial misconduct.
The trial court found that while prosecutorial misconduct had occurred, it was not prejudicial to appellees and held that the appropriate remedy for the misconduct was to disqualify Groff from prosecuting the cases. Further, the trial court disqualified the entire staff of the state's attorney's office from prosecuting the cases because the decision to remove Judge Tice from all felony cases was ultimately made by Groff in each instance. The trial court then ordered that the Office of the Attorney General prosecute these cases. The trial court finally ordered that Judge Tice be reinstated to preside over the cases since the affidavits filed against him were made in bad faith and therefore were invalid.
The State appeals the trial court's decision, alleging that the court erred when it required Groff to establish actual prejudice to support his affidavits for removal of the judge pursuant to SDCL 15-12-26, that the court erred in finding prosecutorial misconduct and that the court erred in disqualifying the entire state's attorney's office from the cases and appointing the attorney general in its place.
Appellees allege that Groff's blanket disqualifications of Judge Tice constituted prosecutorial misconduct which prejudiced them. Thus, they argue, by notice of review, that the trial court should have granted their motions to dismiss with prejudice.
DECISION
I
WHETHER SDCL 15-12-26 REQUIRES A SHOWING OF ACTUAL PREJUDICE TO SUPPORT AN AFFIDAVIT FOR REMOVAL OF A JUDGE.
The procedure to obtain a change of judge in any action, be it civil or criminal, is simple and clear. See SDCL ch. 15-12. If any party or attorney desires a change of judge they must first informally (by letter, oral communication or on the record in open court or chambers) request the judge to disqualify himself. SDCL 15-12-21.1. The person seeking to disqualify the judge cannot be required to state his reasons, and although opposing litigants are to receive copies of correspondence or be apprised of any communications, they cannot contest the request. SDCL 15-12-21.1. If the judge grants the request, the presiding circuit judge is notified and a replacement judge is assigned. If the judge denies the request, he must so notify the parties or attorneys in writing.
Under SDCL 15-12-22, the party or attorney whose informal attempts at changing judge have been denied, may file an affidavit seeking to disqualify the judge. SDCL 15-12-26 sets forth the form and content of such affidavits, stating:
An affidavit for change of judge or magistrate shall state the title of the action and shall recite that the affidavit is made in good faith and not for the purpose of securing delay, that in the *271 ordinary course of litigation such action or some issue therein is expected to come on for trial before such judge or magistrate sought to be disqualified; that the party making such affidavit has good reason to believe and does actually believe that such party cannot have a fair and impartial trial before the named judge or magistrate. Only one judge or magistrate shall be named in such affidavit. It shall not be necessary to state in such affidavit the ground or reason for such belief. (Emphasis added.)
After the affidavit has been properly served and filed, it is submitted to the presiding circuit judge who reviews it under SDCL 15-12-32. If the presiding judge determines that the affidavit is "timely and that the right to file the affidavit has not been waived or is not otherwise legally defective," he shall assign the case to another circuit judge.
Our rule[2] does not require a specific showing that the judge against whom disqualification is sought is, in reality, prejudiced. This has not always been the case. South Dakota, prior to amending its procedure, previously required that the affiant had reason to believe that "a fair and impartial trial or hearing cannot be had before said judge by reason of the prejudice or bias of such judge." (Emphasis added.) See 1927 S.D.Sess.L. ch. 89, § 2. This court, by rule, amended the former statute, deleting the "prejudice or bias" language. From that point forward, proof of prejudice was no longer required.
SDCL 15-12-26, as it currently reads, is silent as to whether the "good faith" of the affiant is to be analyzed from an objective or subjective viewpoint. It merely states that the affidavit must be made in good faith and not for the purpose of delay and that the affiant has good reason to believe and does actually believe that the party cannot have a fair and impartial trial before the judge against whom disqualification is sought. The rule also specifically states that it is not necessary that the affiant state the grounds or reasons for his belief. (It must be remembered, too, that under SDCL 15-12-21.1 the person seeking an informal disqualification cannot be required to state his reasons.) Under SDCL 15-12-32, the presiding judge must review the affidavit but the rule does not require that the presiding judge look behind the face of the affidavit to determine the objective good faith of the affiant. The record here reflects that the presiding judge complied with SDCL 15-12-32.
Reading SDCL ch. 15-12, as a whole, we believe that an affiant (be he a prosecutor, defense counsel or defendant in a criminal action or an attorney or litigant in a civil action) must not be subjected to an objective standard in order to determine whether the affidavit was made in good faith. Rather, all that is required is that the affiant in his own mind actually and in good faith believes that he cannot have a fair and impartial trial before the named judge. Thus, the trial court's attempt here to require an objective standard for determining an affiant's (Groff's) good faith was erroneous, necessitating reversal.
II
WHETHER THE STATE'S ATTORNEY'S CONDUCT WARRANTED DISMISSAL OF THE CHARGES.
In order to exercise a remedy for prosecutorial misconduct, this court has held that such misconduct must be of sufficient significance to result in the denial of the defendant's right to a fair trial. It must be a prejudicial error which will probably produce some effect on the final result. State v. Rosales, 302 N.W.2d 804 (S.D.1981). Prosecutorial misconduct arises only in relation to its effect on the *272 defendants. State v. Ashker, 412 N.W.2d 97 (S.D.1987). What constitutes prosecutorial misconduct must be decided on a case-by-case basis. State v. Kidd, 286 N.W.2d 120 (S.D.1979). While Groff's conduct may be questionable, his actions did not rise to the level of prosecutorial misconduct, warranting dismissal of the charges.
III
WHETHER THE TRIAL COURT HAD THE AUTHORITY TO REMOVE ALL MEMBERS OF THE STATE'S ATTORNEY'S OFFICE.
Part of the trial court's remedy for Groff's alleged misconduct was the disqualification of the entire staff of the Pennington County State's Attorney's Office. The trial court's decision was premised upon the fact that Groff was ultimately responsible for deciding to attempt to remove Judge Tice. Although this issue has been rendered moot by our holding earlier herein, we must observe that we find absolutely no authority to support the trial court's decision. We conclude that the trial court exceeded its authority in disqualifying the entire state's attorney's office from these cases. There are other ways to discipline an errant state's attorney. See State v. Catch The Bear, 352 N.W.2d 637 (S.D. 1984).
IV
WHETHER THE TRIAL COURT MAY REQUIRE THE ATTORNEY GENERAL TO PROSECUTE WHEN THE STATE'S ATTORNEY HAS BEEN DISQUALIFIED.
This issue, too, has been rendered moot by our holding, supra. However, because of its importance, we feel compelled to give guidance to trial courts should similar circumstances arise in the future.
The trial court here based its order on SDCL 7-16-2, which provides:
The circuit court, whenever there shall be no state's attorney for the county or when the state's attorney is absent or unable to attend to his duties or is adversely interested or disqualified, may appoint, by an order to be entered in the minutes of the court, some duly licensed attorney and counselor at law to perform for the time being the duties required by law to be performed by the state's attorney and the person so appointed shall thereupon be vested with all the powers of such state's attorney for that purpose....
This statute makes no reference to the court's authority to appoint the attorney general's office to assume the duties of a disqualified state's attorney. The appropriate, traditional practice in this state has been for the court to appoint another attorney in the same locality to serve in the absence or disqualification of the state's attorney. Our research fails to reveal any authority or instance where the attorney general could be mandatorily appointed to serve in lieu of a state's attorney.[3]
For the foregoing reasons, the circuit court's order is affirmed in part, reversed in part, and remanded for further proceedings not inconsistent with this opinion.
HENDERSON, J., concurs.
WUEST, C.J., concurs specially.
*273 MORGAN, J., concurs in part and dissents in part.
SABERS, J., dissents.
WUEST, Chief Justice (concurring specially).
I concur. Under the present rule there is no other logical choice.
MORGAN, Justice (concurring in part, dissenting in part).
I concur in the majority disposition of issues II to IV, inclusive, but I dissent from the majority on issue I. In spirit, I agree with Justice Sabers' argument, as far as it goes, and I agree that the rule does not need amendment.
SDCL 15-12-26 arises from a Supreme Court rule. The rule is designed and has well served the process of the recusal of a trial judge from an individual case where, for appropriate reason, a party feels that the trial judge should not preside. In this case, however, we have an aberration. The trial judge, who was elected by the voters of the Seventh Circuit to preside over civil and criminal trials in that circuit, is the target of a campaign by the states attorney of one county in the circuit, to remove that trial judge from the trial of all criminal felony cases in that county. That cannot be. State's Attorney Groff is an officer in the Executive Branch. By this offensive conduct, he has, for over two years exerted control over a duly elected officer of the Judicial Branch. The majority finds itself too busy attempting to analyze the rule with respect to the state's attorney's conduct. This need not be. Groff's conduct is purely and simply bad faith. It cannot be countenanced under the good faith requirement of the rule.
I would affirm the reinstatement of Judge Tice to preside over the defendants' cases.
SABERS, Justice (dissenting).
I concur with the majority opinion except for that portion of the opinion which writes "good faith" completely out of SDCL 15-12-26. To sing an old song if the legislature wants to amend the statute by writing "good faith" out of the statute that is their prerogative and it is up to the legislature not the courts to do so. This old song should apply equally to this court-made rule.
The state's attorney's practice of filing blanket affidavits of prejudice against Judge Tice brings the question of "good faith" into play and allows the defense to move for dismissal for prosecutorial misconduct. The blanket filing of eighty-three affidavits of prejudice was in bad faith and therefore Judge Moses' order reinstating Judge Tice should be affirmed.
The record clearly establishes sufficient bad faith on the part of State's Attorney Groff:
1. He filed at least eighty-three affidavits for change of judge against Judge Tice.
2. Since about July 1986, State's Attorney Groff adopted a systematic policy for the Pennington County State's Attorney's office whereby an affidavit of prejudice pursuant to SDCL Chapter 15-12 was filed against Judge Tice in every felony criminal case.
3. These affidavits were filed on all cases where Judge Tice was assigned to a criminal felony case after a preliminary hearing.
4. The filing of these affidavits increased the work load and created scheduling problems with respect to assigning new judges in the Seventh Circuit.
5. He filed these affidavits because he did not agree with Judge Tice's handling of certain matters not connected with the trial process. He did not present any evidence that Judge Tice could not conduct a fair and impartial trial for the state of South Dakota. He was determined to continue to disqualify Judge Tice from every criminal felony case after preliminary hearing.
6. He was the only one who exercised the peremptory challenge for the office of the state's attorney.
7. He made the decision in all cases and did not allow any of the deputy state's *274 attorneys to become involved in this decision-making process.
8. The deputy state's attorneys were not allowed to exercise their independent judgment.
9. He did not examine each particular case with respect to the removal of Judge Tice and therefore there was no independent case-by-case analysis of the need to remove Judge Tice. Instead, he adopted an office policy of filing such an affidavit against Judge Tice in every felony criminal case no matter who the defendant may be, no matter what the charge might be, and regardless of the individual facts in the case.
10. The affidavits were routinely prepared by the secretaries in the state's attorney's office. Pre-printed forms were used which the secretary filled out in every felony criminal case to which Judge Tice had been appointed.
11. Judge Tice knew of no reason why State's Attorney Groff filed affidavits of prejudice against him and had no knowledge of any grounds that would disqualify him under Canon 3C, or otherwise disqualify him from presiding over criminal felony cases, or Tapio or Brings Plenty's cases.
12. The affidavits in Tapio and Brings Plenty's cases were filed pursuant to this general office policy. State's Attorney Groff knew of no specific matters of prejudice involving Tapio or Brings Plenty. These affidavits were based upon the same general office policy that he followed when he filed all other similar affidavits since July of 1986.
13. State's Attorney Groff's activity constitutes blanket challenges against Judge Tice.
Defense counsel persuasively argued that "Our rules are just fine" and that State's Attorney Groff is simply abusing the rule. "The Rules of Civil Procedure (Rule 11) come with the territory" and this is the "first time" the rule was violated in South Dakota. Defense counsel further argued that this abuse was established before there was any inquiry, i.e., the gross abuse gave rise to the inquiry and "Our option is whether we allow the abuse to continue." I would not allow this abuse to continue.
In summation, I submit that there is absolutely no need to change the rule set forth in SDCL 15-12-26. We simply need to enforce this "good faith" requirement of the rule and prevent "bad faith" abuses of same. Therefore, I respectfully dissent.
NOTES
[1] Groff testified that, in his opinion, Judge Tice was a "social worker" judge and that Judge Tice was indecisive with respect to rulings and that Tice's rulings were bad. Groff further stated that he had previously had trouble with Judge Tice regarding extradition of prisoners, with the use of immunity in grand jury proceedings, and that he had problems with Judge Tice's use of his statutory right to modify sentences. Groff further claimed that Judge Tice did not have cases disposed of within the 180-day rule and that he gave the defendants appearing before him ineffective or insufficient advice of their rights at their arraignments. Groff also stated that he disliked the way that Judge Tice "pow-wowed" with respect to talking to attorneys, probation officers, presentence investigators and social workers involved in a case prior to sentencing a defendant.
[2] Other states have various rules regarding the disqualification of judges. Some states require the filing of an "affidavit of prejudice," which requires an affidavit stating that the judge to be disqualified is prejudiced and that such affidavit be submitted as part of the procedure for removal. See, e.g., State v. Wiess, 250 Or. 252, 430 P.2d 357 (1967). Other states provide a peremptory rule which allows counsel to challenge a judge merely by completing a few procedural requirements. See, e.g., State v. City Court of City of Tucson, 150 Ariz. 99, 722 P.2d 267 (1986). Some states utilize both types of rules. Id.
[3] Appellees' reliance on State v. Tarr, 62 S.D. 305, 252 N.W. 854 (1934), for the proposition that the attorney general may be required to take over for a disqualified state's attorney, is misplaced. In Tarr, the circuit court removed the Gregory County State's Attorney for misconduct and appointed a "special state's attorney" as his substitute. This court, on appeal, held that the circuit court was without the power to oust the duly elected state's attorney, and stated that "[i]f the court believed that the state's attorney was abusing his office or misconducting himself in the Tarr case, doubtless the Attorney General might have been called in or other proper steps might have been taken. ..." 62 S.D. at 309-10, 252 N.W. at 857. This remark regarding the attorney general was not intended to grant the court the power to order the attorney general to serve for a disqualified state's attorney. Rather, it refers to the attorney general's supervisory authority over the several state's attorneys pursuant to SDCL 1-11-1(5). The circuit court was thus acting beyond its authority when it ordered the attorney general to take over the prosecution of these cases. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594437/ | 146 Wis. 2d 830 (1988)
432 N.W.2d 664
IN RE the MARRIAGE OF: Judith M. PARRETT, Petitioner-Appellant-Cross-Respondent,
v.
James R. PARRETT, Respondent-Cross-Appellant.[]
No. 87-1279.
Court of Appeals of Wisconsin.
Submitted on briefs May 26, 1988.
Decided October 26, 1988.
*833 For the petitioner-appellant-cross-respondent the cause was submitted on the briefs of Thomas M. Rusch and Rush & Rusch Law Office, S.C., of Medford.
For the respondent-cross-appellant the cause was submitted on the briefs of William A. Grunewald and Corliss V. Jensen and Nikolay, Jensen, Scott, Gamoke & Grunewald, S.C., of Medford.
Before Gartzke, P.J., Dykman and Eich, JJ.
GARTZKE, P.J.
Judith Parrett appeals from a judgment divorcing her from James Parrett. Judith contends that the trial court abused its discretion (1) by awarding her limited term maintenance leaving her with $54,000 annual income and James with over $400,000 annual income; (2) by awarding child support of $1,000 per month; (3) by awarding an unequal property division; (4) by failing either to award interest on or to determine the present value of the property award payable in the future; and (5) by failing to provide security for the support, maintenance and property payments. James has cross-appealed. He contends that the court should have awarded no maintenance whatever. We reject the contentions of both parties except as to the limited term for maintenance and as to security for the property *834 payments, and we reverse and remand only in those respects.
1. Background
The facts are unusual. The parties married on March 16, 1979, when Judith was 27 and James was 38 years old. Judith owned a car and a mobile home, and James's major asset was a car which was encumbered. Both parties had full-time jobs at Weather Shield Manufacturing in Medford, Wisconsin, where James ran a machine in the tool division and she was a millworker.
In the fall or winter of 1982, Weather Shield wanted to manufacture curved windows. James independently developed a unique method to produce wooden parts for such windows. He started his own business and became Weather Shield's only supplier of those parts. Weather Shield is his only customer. He operated the business as a sole proprietor through December 31, 1985 when he incorporated as Parrett Mfg. Co., Inc., and is its sole shareholder. The sales of his business rose from about $100,000 in 1983 to about $1,000,000 in 1986.
Judith has continued to work as a millhand at Weather Shield. From 1983 through July 1985 she also did clerical work for James's business.
Judith began this divorce action in April 1986. The case was tried on January 8, 1987. The trial court found that the value of the business was $554,634. After deducting his debts, the net value of James's other property was $123,623, the value of Judith's property was $30,406, and the total marital estate was therefore $708,663.
The court began with the presumption that an equal property division is appropriate. It reasoned, however, that the property should be divided 60% to *835 James and 40% to Judith because the marriage had lasted only about seven years, neither had brought much property to the marriage, and while Judith had been a contributing and dedicated housewife, she had very little part in developing the principal asset, Parrett Manufacturing. She did not contribute to the education, training or increased earning power of James. She is young, in good health and continues to work as a millworker at Weather Shield. Since maintenance as well as generous child support was awarded, in the court's view the division should favor James, "the genius and driving force behind the commencement of the business and its development and prosperity."
To effect that division, under which James would receive $425,198 and Judith would receive $283,465, the trial court assigned to James his other property having a net value of $77,436, and his corporate stock in Parrett Manufacturing valued at $554,634. The court assigned to Judith her other property valued at $30,406, leaving a balance due her which the court fixed at $253,000. The court ordered that the $253,000 cash award be paid in 51 monthly installments of $5,000, with no interest.
The trial court found that the parties' monthly incomes and expenses were as set forth in their financial disclosure statements. Those statements show the following:
*836
James Judith
Salary/Wages $10,750 $ 1,510
Rents 5,800 None
_______ _______
Total $16,550 $ 1,510
Monthly Deductions:
Fed. and State Taxes $ 6,987 $ 430
Insurance 15
________ _______
Net Take Home $ 9,563 $ 1,065
Expenses: 5,429 1,052
_________ ________
Net $ 4,134 $ 13
The trial court rejected James's contention that no maintenance should be allowed. The court concluded that family maintenance did not involve a question of need, since Judith continued to work at her previous employment and has adequate funds for her present needs. The improved status of the parties had not substantially changed their lifestyle, except that Judith had recently hired household help. The court distinguished these facts, in which the parties had not established an elevated lifestyle "for any period of time," from situations such as that in Bahr v. Bahr, 107 Wis. 2d 72, 318 N.W.2d 391 (1982). In Bahr, the parties began with little, but during the twenty-four year marriage the husband developed a successful medical practice, and by the time of divorce the parties had a long-established lifestyle at an elevated income. The court concluded, however, that "equitable treatment calls for some sharing of [James's] good fortune and highly elevated income" and fixed maintenance at $3,000 per month for seven years.
*837 The parties have one child. The court concluded that to apply the child support guidelines to James's gross income would result in a figure so far beyond the child's needs as to be irrational. It held that $1,000 per month is the largest justifiable award to meet the needs of the child.
2. Maintenance
[1]
We review a maintenance award for abuse of discretion. In re Marriage of Harris v. Harris, 141 Wis. 2d 569, 573, 415 N.W.2d 586, 588 (Ct. App. 1987). A circuit court when fixing maintenance and an appellate court when reviewing a maintenance award must begin with sec. 767.26, Stats. In re Marriage of LaRocque, 139 Wis. 2d 23, 31, 406 N.W.2d 736, 739 (1988). That statute enumerates nine statutory factors the trial court is to consider, and, as provided in subsec. (10), adds "[s]uch other factors as the court may in each individual case determine to be relevant." According to LaRocque, the statutory factors
reflect and are designed to further two distinct but related objectives in the award of maintenance: to support the recipient spouse in accordance with the needs and earning capacities of the parties (the support objective) and to ensure a fair and equitable financial arrangement between the parties in each individual case (the fairness objective).
Id. at 33, 406 N.W.2d at 740.
The trial court considered the statutory factors and took into account, without identifying it as such, the "fairness objective" identified by the LaRocque court.[1] The court did so by reference to "equitable *838 treatment [which] calls for some sharing of [James's] good fortune and highly elevated income."
[2]
Because the trial court relied almost exclusively on the "good fortune and highly elevated income" factors, which are not enumerated in sec. 767.26(1) through (9), Stats., it must have employed sec. 767.26(10). This is permissible. Nothing in the statute or the case law obligates the trial court to rely exclusively upon the factors enumerated in subsecs. (1) through (9). The obligation is only to consider relevant statutory factors, and the court need not address every factor. In re Marriage of Trattles v. Trattles, 126 Wis. 2d 219, 228, 376 N.W.2d 379, 384 (Ct. App. 1985); In re Marriage of Lewis v. Lewis, 113 Wis. 2d 172, 181, 336 N.W.2d 171, 175-76 (Ct. App. 1983).
"Good fortune and highly elevated income" are factors which the trial court could reasonably conclude affect the "fairness objective" identified by the LaRocque court. Those factors are therefore properly considered relevant to the maintenance issues for purposes of sec. 767.26(10), Stats.
[3]
James argues that reliance on the fairness objective is inappropriate to a short marriage and that the facts differ vastly from those in LaRocque, where the parties had been married for twenty-five years and their financial circumstances were relatively modest. The argument misses the point. When describing sec. 767.26, Stats., factors as designed to further the support and the fairness objectives, the LaRocque court spoke to marriages generally. Since the statute applies to all marriages, so must the objectives it is designed to further. Reliance on the fairness objective through use of sec. 767.26(10) was not error.
*839 James claims an additional abuse of discretion in that the trial court awarded maintenance for seven years. Judith raises the same issue, and we discuss it later.
We conclude that the trial court properly exercised its discretion when it ruled that Judith is entitled to maintenance. We therefore reach Judith's claim that too little maintenance was awarded.
Judith's claim that more maintenance should have been awarded emphasizes LaRocque. She asserts that the award fails to meet the "fairness objective." We disagree. The LaRocque facts are hardly comparable to those before us. Here the marriage is much shorter, the accumulations of the parties are much greater, and Judith shares in a substantial marital estate, the value of which is largely attributable to her husband's efforts. Under the circumstances, the maintenance award meets the fairness objective.
Judith asserts in her brief that although the lifestyle of the parties was not lavish, it was elevated above the normal and "had just begun to take off." She contends that the trial court should have considered the lifestyle the parties could have enjoyed had the marriage continued, again relying on LaRocque. In that case after a long marriage the parties had reached the stage when they "could enjoy a standard of living for which they both had strived," and their accumulations had been modest. LaRocque, 139 Wis. 2d at 36, 406 N.W.2d at 741. LaRocque holds that "[o]ver a long marriage the parties each contribute to the stream of income as marital partners and should share the rewards." Id. at 39, 406 N.W.2d at 742 (emphasis added.) Here the marriage was short, the spate of income is due primarily to the efforts of the husband, and in addition to substantial maintenance, *840 the wife will receive forty percent of an estate exceeding $700,000.
[4]
We agree, however, that the trial court should have stated its reasons for limiting the maintenance award to seven years. Limited term maintenance is permitted under sec. 767.26, Stats., but if a court limits the term, it must explain why. Lewis, 113 Wis. 2d at 180, 336 N.W.2d at 176. Our search of the record has produced no explanation for the court's choice of seven years. We will reverse the maintenance award insofar as it is limited to seven years, and remand for reconsideration. On remand the court may provide for a shorter or greater term, but only if it explains its choice, or for an unlimited term.
[5]
Before turning to the support issues, we observe that Judith's arguments are partly based on the claim that James has an annual income of $436,000. That was an accountant's prediction in 1986 as to the 1987 annual earnings of the business. Assuming the corporation earns $436,000, this is not necessarily income entirely available to James. The trial court found that the incomes of the parties were as set forth in their respective financial disclosure statements, and James's statement (which speaks to the present and not the future) shows monthly income of $16,550, or $198,600 annually. The court did not clearly err by accepting James's statement of his monthly income. Findings of fact by a trial court will not be set aside unless clearly erroneous. Sec. 805.17(2), Stats. For that reason, we reject Judith's claim that James's income is more than twice the amount he disclosed.
*841 3. Support
Judith contends that the trial court should have applied the percentage guidelines set forth in Wis. Adm. Code ch. HSS 80, Child Support Percentage of Income Standard and that the court erred because the support award is based only on need.
This case was tried on January 8, 1987. Section 767.25(1m), Stats. 1983, as then in effect, provided in relevant part that when ordering payment of child support "the court shall consider the guidelines for the determination of child support established by the department of health and social services" and statutorily specified factors.[2] The trial court met its obligation. It considered the guidelines and concluded that their use would result in a figure so far beyond the child's needs as to be irrational.
We cannot fault that reasoning. Applying the guidelines to James's gross income disclosed in his standard financial disclosure form, monthly child support payable by him would be 17% of $16,550, or $2,813. No basis exists in this record for a finding that their child has a need even approaching that amount.
[6]
We reject Judith's argument that it is improper to deviate from the guidelines to avoid a high support payment merely because it exceeds the child's needs. She relies upon a memorandum by the secretary of the department of health and social services to the effect that no solid evidence exists that the percentage *842 rate may drop for parents with very high annual incomes. Department of Health & Social Services Memorandum to Members of Wisconsin Judiciary, December 20, 1983, Attachment I, p. 3. Whatever the evidence as to families generally, in this case the trial court found that the parties' lifestyle had not substantially changed. It is reasonable to refuse to apply guidelines based on statistical generalities when the facts before the court bear little relationship to a statistical norm.
We also reject Judith's assertion that the trial court made no provision for orthodontic expenses and did not discuss the fact that Judith provides health insurance for the child. The judgment provides that Judith is to continue medical and hospitalization insurance for the child available through her employment and that uninsured medical or dental expenses should be borne equally by the parties.
The assertion that the trial court made no findings regarding the needs of the child has merit. Support based on need should require findings as to the child's needs and the ability of the parents to pay. Edwards v. Edwards, 97 Wis. 2d 111, 116, 293 N.W.2d 160, 163 (1980). But the error is harmless. Judith offered no separate evidence regarding the needs of the child. Her financial disclosure statement shows monthly expenses of $1,052, including, so far as we can determine, the child's expenses. If the combined monthly expenses of Judith and the child barely exceed $1,000, then that amount is more than enough to cover the needs of the child since Judith is awarded $3,000 for monthly maintenance.
*843 4. Property Division
[7]
Judith contends that the trial court should be directed to enter an equal property division. We review a property division for abuse of discretion. Marriage of Wallen v. Wallen, 139 Wis. 2d 217, 229, 407 N.W.2d 293, 297 (Ct. App. 1987), and we find none.
[8]
Section 767.255, Stats., provides that the trial court is to presume that property other than that acquired by gift, bequest, devise or inheritance is to be divided equally between the parties. The same statute provides that the court may alter the distribution after considering enumerated factors. The trial court considered the factors.
The prime factor behind the trial court's assigning 60% to James was its characterization of him as "the genius and driving force behind the commencement of the business and its development and prosperity." Since the trial court noted that Judith has been a contributing and dedicated housewife during the marriage but added that she had very little part in developing or building the business, the court considered the contribution of each party. It is not an abuse of discretion for the trial court to give heavy weight to the fact that the major asset is attributable primarily to one party's efforts.
Judith again argues that the facts in many ways parallel those in LaRocque. She asserts that she has made her equal or greater contributions in kind through her labor, cooking, household cleaning and care of the child, and for that reason she is no less entitled to an equal share than was the wife in LaRocque. Nothing in LaRocque, however, requires an *844 equal property division where the principal asset resulted primarily from one party's efforts.
Section 767.255, Stats., contemplates that occasions will arise when property need not be divided equally between the parties. This is such an occasion. The trial court did not abuse its discretion in the property division.
5. Property Payable in the Future
Judith next contends that the trial court either should have directed that James pay interest on the 51 monthly installments of $5,000 or should have adjusted the payments to reflect the present value of the award.
Whether to allow interest on the balance due on a property division payable in installments is within the discretion of the trial court. Corliss v. Corliss, 107 Wis. 2d 338, 347, 320 N.W.2d 219, 223 (Ct. App. 1982). If the trial court does not award interest in exercising that discretion, it must explain its reasons. Either by awarding interest, id., or by considering the present value of property division payable in the future, Jasper v. Jasper, 107 Wis. 2d 59, 69, 318 N.W.2d 792, 797 (1982), the trial court must compensate the recipient spouse for the money the award would earn during the installment period if it had been paid in full at the time of judgment or explain its failure to do so.
Overson v. Overson, 125 Wis. 2d 13, 16-17, 370 N.W.2d 796, 798 (Ct. App. 1985).[3]
*845 [9]
The trial court explained its decision. The court said, "Payment is to be made at the rate of $5,000 per month for 51 months without interest, since the source of these payments will not be an established asset from which interest would be derived, rather than from current earnings anticipated in the future but not now in existence."
This reasoning implicitly considers the fact that the major asset assigned to James is his stock in Parrett Manufacturing, the value of which he must recover through future corporate earnings.[4] In that sense, James does not enjoy the present value of that asset, and no reason exists to compensate Judith through interest or otherwise for not receiving the immediate enjoyment of $253,000 of her award. Because the trial court explained its decision, it did not abuse its discretion.
6. Security for Future Payments
Judith criticizes the trial court for its failure to grant her a security interest in James's assets to protect the maintenance, support and property division awards and to prohibit him from incurring liabilities without court approval. Judith asserts that the court's unexplained refusal to protect the awards is an abuse of discretion.
*846 [10]
A trial court may impose a lien to secure a property division dependent in part upon a future act by the payor spouse. See Trowbridge v. Trowbridge, 16 Wis. 2d 176, 187-88, 114 N.W.2d 129, 136 (1962) (lien imposed on husband's assets to secure his transfer of trust assets). Section 767.30(2), Stats., authorizes the court to charge real estate of a party liable for support or maintenance payments or to require that party to give security for payment.
[11]
The decision to order such security is discretionary. Discretion must be exercised, in the sense that the decision must be based upon a rationale. Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175, 184 (1982). Consequently, a decision without an express or apparent reason is an abuse of discretion.
In her post-trial brief to the court, Judith requested that the court protect her share of the property division payable in the future by granting her a security interest in all of James's assets, business and nonbusiness, and by restricting his ability to incur new liabilities, either individually or through the corporation, without court approval. The trial court's memorandum decision covered property division, maintenance and support but not Judith's requests for a security interest and the debt restriction. It directed Judith's counsel to prepare the findings, conclusions and judgment. When purporting to comply with that direction, counsel added a new provision for a security interest to secure the property division. The court signed the findings, conclusions and judgment after striking the new provision. When counsel complained, the court tersely replied that the provision "was deleted as none was ordered."
*847 [12]
James agrees that the trial court may in its discretion award security for a property division payable in the future. See Trowbridge, 16 Wis. 2d at 187-88, 114 N.W.2d at 136. The trial court's failure to explain its reasons for not granting the requested security for the property payments is an abuse of discretion, unless we can reach our own conclusion on the basis of the record that the refusal was appropriate. In re Marriage of Thorpe v. Thorpe, 108 Wis. 2d 189, 198, 321 N.W.2d 237, 242 (1982). The only justification James offers for the court's refusal is that he is not in arrears on past payments ordered by the court. But that reason is not necessarily adequate. Under the circumstances, rather than speculate as to the court's reasons, we will direct a reexamination of this issue on remand as well.
Judith additionally asserts that the trial court abused its discretion when it refused to provide security for the support and maintenance awards. If Judith requested security as to the support and maintenance awards, that request is not of record, and we treat it as a request made for the first time on appeal. Such errors are seldom reviewed on appeal, Zeller v. Northrup King Co., 125 Wis. 2d 31, 35, 370 N.W.2d 809, 812 (Ct. App. 1985), and we decline to pursue it here.
By the Court.Judgment affirmed in part and reversed in part and cause remanded for further proceedings consistent with this opinion. No costs to either party.
NOTES
[] Petition to review pending. This petition was not disposed of at the time the volume went to press. Its disposition will be reported in a later volume.
[1] The trial court's decision is dated April 3, 1987. LaRocque was decided June 10, 1987.
[2] Since July 1, 1987, courts must determine child support payments by applying the percentage standard established by the department of health and social services, but may modify the amount of support payment after considering certain factors. Sec. 767.25(1j) and (1m), Stats. The change was made by 1985 Wis. Act. 29.
[3] Awarding the recipient interest accomplishes the same result as adjusting the payments to reflect consideration of the present value of the award. Each calculation uses the same rate of interest.
[4] The court fixed the value of the stock at two and one-half times net earnings after allowance for taxes and after deducting 20% for its unmarketability. The court found that because of many factors, predicting success for the business beyond two or three years would be speculative. The risk factors involved not only James's possible death or incapacity, but also a breakdown in the good relationship between the company's sole customer and James, a sudden drop in this cyclical industry, a general recession, and a decrease in the popularity of curved windows. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922140/ | 756 A.2d 769 (2000)
In re ERIC K. et al.
No. 98-447-Appeal.
Supreme Court of Rhode Island.
August 2, 2000.
Present WEISBERGER, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.
Thomas J. Corrigan, for plaintiff.
Kelly Monteiro, Paula Rosin, Providence, for defendant.
*770 OPINION
PER CURIAM.
This case came before the Supreme Court in Washington County on May 3, 2000, pursuant to an order directing the respondent-mother to appear and show cause why the issues raised in this appeal should not be summarily decided. The respondent, Gloria Komrowski (Gloria), has appealed from a Family Court decree terminating her parental rights to three of her children, Eric, Chalena and Shique.[1] After hearing the arguments of counsel and considering the memoranda submitted by the parties, we are of the opinion that cause has not been shown. Therefore, the appeal will be decided at this time.
The facts of this case reveal a mother with a chronic substance abuse problem who continually demonstrated an inability to engage in meaningful treatment. When she gave birth to Eric, her first child, on August 29, 1991, Gloria was a minor and under the care and custody of the Department of Children, Youth and Families (DCYF) as a result of drug use. Because Gloria admitted to having used cocaine during her pregnancy, Eric was placed in the temporary care and custody of DCYF soon after his birth. In an effort to address Gloria's substance abuse problem and lack of parenting skills, a DCYF socialworker, Debra DePasquale-Bonner (Bonner), offered Gloria placement in a host of programs and agencies. Gloria selected the Junction Day Program (Junction), which was designed to provide treatment for drug abuse, in addition to counseling and urine screens. She also was referred to Mental Health Services of Cranston-Johnston for drug use and parenting issues. A case plan was developed by DCYF with the goal of reunification through the achievement of realistic objectives that included a requirement that Gloria strengthen her parenting skills and remain drug free. When Bonner transferred the case to the next case worker in November 1991, Gloria had not complied with the case plan.
Thereafter, Mary O'Connell McKenna (McKenna) of DCYF was assigned to Gloria's case and worked with her and her children for three years. Because Gloria's attendance at Junction was sporadic, McKenna encouraged her to enter a residential drug-treatment program. On February 5, 1992, Gloria admitted to a neglect petition, and Eric was committed to the care, custody and control of DCYF. Thereafter, Gloria was ordered to cooperate with an intensive day-treatment program for substance abuse. DCYF was directed to continue to make appropriate referrals for treatment and rehabilitation. In January 1992, Gloria was referred to the Good Hope Program (Good Hope) for treatment. According to McKenna, Good Hope entailed a month-long residential drug and alcohol treatment, that was to be followed up by aftercare. In addition, McKenna again referred Gloria to the Junction substance abuse program for day treatment. However, according to McKenna, Gloria never sought treatment at Good Hope and subsequently left the Junction program.
On September 4, 1992, one year after Eric's birth, Gloria, at age seventeen, gave birth to her second child, Chalena, whose father was a different man from Eric's. When it was learned that Gloria tested positive for "pot" during the pregnancy, Chalena was placed in temporary foster care. On December 18, 1992, the child was placed with Gloria on the condition that she remain in the Junctionprogram and that she continue to provide clean urine screens. On February 4, 1993, Gloria admitted to dependency, and Chalena then was committed to the care and custody of DCYF, but remained with Gloria. *771 Gloria was referred to Project Link at Women & Infant's Hospital in Providence for parenting classes and substance-abuse treatment.
Just over nine months after the birth of Chalena, Gloria gave birth to her third child, Shique, who was fathered by yet a different man. Shique was placed with her mother on the condition that Gloria cooperate with Project Link and with services provided by the Visiting Nurse Association (VNA). A nurse from VNA testified that initially Gloria resisted services, and after three months refused any further VNA services. The nurse also testified concerning the squalor of the home where Gloria and her children resided. In July 1993, Gloria enrolled in Project Link. But because of noncompliance and numerous relapses she was referred to a more intensive program at Junction. After testing positive for cocaine while at Junction, she was referred to Talbot Women's Day Treatment, where she remained drug-free for four and one-half months. She graduated from that program in October 1994. However, Gloria's achievement was short-lived because she tested positive for cocaine one month later.
Kathleen Boday (Boday) took over as DCYF social worker in 1993. Boday prepared a case plan, and again Gloria failed to comply with the services provided for her treatment. Specifically, Boday attempted to enroll her at Talbot Day Treatment and the Salvation Army, but Gloria failed to successfully complete either program. On July 6, 1995, DCYF removed all three children from Gloria's care. On January 6, 1996, Gloria gave birth to her fourth child, Shinekqua, who was born cocaine positive.
On February 29, 1996, DCYF filed termination of parental rights petitions concerning all four of Gloria's children.[2] The petitions alleged that the children had been in the custody of DCYF for at least twelve months, that the parents had been offered or received services to correct the situation that led to the placement, and provided further that considering their age and need for a permanent home, there was not a substantial probability that the children would be able to return to the parents' care within a reasonable time.
The record discloses that two months before trial, Gloria was admitted into the SSTARbirth drug-treatment program with her fifth child, Mary. Pamela Dee (Dee), a counselor at the SSTARbirth program, testified that SSTARbirth is a one-year residential program that addresses substance abuse, household management, parenting issues and other life skills. In addition, the program includes weekly random urine screens. At the time of trial, all of Gloria's urine screens were clean. However, Dee testified that although it was possible for all five of Gloria's children to be placed with her at SSTARbirth, the children would have to be introduced sequentially into the program, followed by a ninety-day assessment period to evaluate how Gloria was coping with each child before another child could be admitted to the program.
A trial was held in December 1997 in Providence County Family Court. The trial justice, after hearing and considering the considerable testimony about Gloria's substance abuse and unwillingness to receive treatment,[3] found the allegations in the petitions to have been proven by clear and convincing evidence. Thereafter, Gloria filed this timely appeal.
*772 On appeal, Gloria argued that the trial justice erred in his interpretation of G.L. 1956 § 15-7-7(a)(2)(iii)[4] in finding that Gloria's prognosis for substance abuse recovery was questionable. Specifically, Gloria contended that the trial justice erroneously focused on her early history of substance abuse and failed to give full consideration to her recent progress. In addition, Gloria argued that the trial justice erred in terminating her rights because DCYF failed to demonstrate by clear and convincing evidence that there was no substantial probability that the children could be safely returned to Gloria's care within a reasonable period.
In reviewing cases involving termination of parental rights, this Court must examine the record to determine whether legally competent evidence exists to support the findings of the trial justice. In re Lori Ann D., 666 A.2d 403, 405 (R.I.1995) (citing In re Crystal A., 476 A.2d 1030, 1033 (R.I. 1984)). The factual findings of a trial justice are entitled to great weight, and will not be disturbed unless the trial justice was clearly wrong or misconceived material evidence. In re Zachary A., 690 A.2d 853, 854 (R.I.1997).
After reviewing the record in this case, we are satisfied that there was legally competent evidence to support the findings of the trial justice. By her own admission and by the weight of the evidence, Gloria has had a serious and long-standing addiction to illicit drugs, and although she has engaged in numerous drug treatment programs, she has failed to successfully complete these programs time and time again. After hearing the testimony and examining the evidence before him, an obviously frustrated trial justice found Gloria to be unfit and granted the termination petitions concerning all three children. Gloria argued, however, that in so doing the trial justice should have based this determination on the more recent developments in Gloria's life, particularly her success at SSTARbirth, instead of her past failures. Rather, she alleged that the trial justice limited his findings to her past conduct without regard to her recent success.
We are of the opinion that before terminating her parental rights, the trial justice gave adequate consideration to Gloria's renewed efforts at recovery and her prognosis for sobriety. Specifically, the trial justice noted that Gloria's earliest graduation date from SSTARbirth would be October 1998, followed by a two-year after care plan. The trial justice also noted that, although all three children eventually could be placed with Gloria at SSTARbirth, those decisions would have to be made on a case-by-case basis, and it was therefore unlikely that Eric, Chalena, or Shique could be returned to Gloria's care within a reasonable period. Specifically, the trial justice concluded that, "[c]onsidering the children's physical, psychological, mental and intellectual needs, they are entitled to permanency; they should not have to wait for an indeterminate period of time to find out if their parents will successfully obtain and maintain a substance *773 free lifestyle." In light of Gloria's history of chronic substance abuse, and her unwillingness or inability to successfully engage in treatment, coupled with the fact that at the time of the trial she had been in the year-long SSTARbirth program for only two months, we aresatisfied that clear and convincing evidence was presented to support the decision of the trial justice and, further, that before terminating her parental rights he accorded adequate consideration to Gloria's progress.
This is not to say that Gloria's recent accomplishments were for naught. Notwithstanding her own personal well-being, we note that Gloria has three other children,[5] and her success or failure in that program most certainly will be relevant to DCYF's determination of the need for protective measures with respect to those children. Moreover, if DCYF files a termination petition concerning any of her three remaining children, Gloria's success or failure to achieve and maintain a sober lifestyle certainly will be relevant to the court's determination of those petitions. Therefore, although Gloria's recent progress is certainly relevant, it was simply too late for any hope of reunification she may have had with Eric, Chalena, and Shique.
For the foregoing reasons, we deny the appeal and affirm the decree of the Family Court. The papers in the case may be remanded to the Family Court.
NOTES
[1] The parental rights of Adrian Butler and Eric Amado, putative fathers of Eric and Chalena, respectively, were terminated on December 6, 1996, and the parental rights of Ernest Briggs, father of Shique, were terminated on March 3, 1998. However, only Gloria has appealed.
[2] The petition regarding Gloria's fourth child, Shinekqua, was subsequently dismissed by the trial justice, and thus is not the subject of this appeal.
[3] Besides the testimony of the DCYF workers, there also was testimony from various service providers, including a substance abuse counselor, a substance abuse therapist, a provider of parent aid services, and workers from such agencies as Project Connect, Eastman House and SSTARbirth. In sum, their testimony further revealed Gloria's chronic failure to comply with the various services provided.
[4] General Laws 1956 § 15-7-7 provides, in pertinent part, that:
"(a) The court shall * * * terminate any and all legal rights of the parent to the child * * *, if the court, by clear and convincing evidence, finds as a fact * * * that:
* * *
(2) The parent is unfit by reason of conduct or conditions seriously detrimental to the child; such as, but not limited to, the following:
* * *
(iii) The child has been placed in the legal custody or care of the department for children, youth, and families and the parent has a chronic substance abuse problem and the parent's prognosis indicates that the child will not be able to return to the custody of the parent within a reasonable period of time, considering the child's age and the need for a permanent home. The fact that a parent has been unable to provide care for a child for a period of twelve (12) months due to substance abuse shall constitute prima facie evidence of a chronic substance abuse problem."
[5] It was disclosed at oral argument that Gloria has recently given birth to a sixth child. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922148/ | 756 A.2d 526 (2000)
359 Md. 671
PARLER & WOBBER, et al.
v.
MILES & STOCKBRIDGE, P.C., et al.
Misc. No. 20, Sept. Term, 1999.
Court of Appeals of Maryland.
July 25, 2000.
*528 Alvin I. Frederick (James E. Dickerman of Eccleston & Wolf, on brief), Baltimore, for appellants.
William J. Murphy (Robert T. Shaffer, III, John J. Connolly of Murphy & Shaffer, on brief), Baltimore, for appellees.
Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and HARRELL, JJ.
*527 HARRELL, Judge.
Pursuant to Maryland Code (1974, 1998 Repl.Vol.), Courts & Judicial Proceedings Article (CJP), §§ 12-601, et seq.[1], the Maryland Uniform Certification of Questions of Law Act, and Maryland Rule 8-305[2], *529 the United States District Court for the District of Maryland (Smalkin, J.) certified the following questions for our consideration:
I. May a lawyer, who is being sued by a former client for malpractice, obtain contribution or indemnification from a successor lawyer stemming from the successor's malpractice or negligent representation of the same client in the same matter?
II. May the first lawyer referred to above maintain such an action against the second lawyer when the former claims that the second lawyer negligently advised the client to settle the underlying case?
We respond in the affirmative to both questions.
STATEMENT OF FACTS
Our response to the certified questions begins with the following factual background supplied by the U.S. District Court:
Introduction
This case stems from the tortured morass which asbestos litigation has become.[] The Plaintiff in this case [before the District Court] is Royal Insurance Company of America ("Royal"). Royal insured Salomon, Inc. Royal, as Salomon's insurer, hired Miles [ & Stockbridge, P.C.] to defend Salomon in a lawsuit filed by Corinne Jerome in Baltimore City Circuit Court (the "Jerome litigation"). (Jerome had previously filed suit against Salomon in New York.) Jerome initiated the Maryland suit to recover damages stemming from her husband's alleged exposure to asbestosis. Miles represented Salomon for a short time in the initial stages of the Jerome litigation. As will be discussed in more detail below, Royal eventually discharged Miles and retained Parler [ & Wobber] to represent Salomon. By that point, a default had been lodged against Salomon in the Jerome litigation. Eventually, Royal, on the advice of Parler, decided to settle the Jerome litigation for approximately $1.6 million.
Royal is now suing Miles for malpractice, seeking over $1.6 million in damages (the "Royal litigation"). Royal claims that it was forced to settle the Jerome litigation due to Miles' negligence in allowing a default judgment to be entered against it. Miles has answered and denies liability. In addition, Miles has filed a third-party complaint against Parler, in essence seeking a contribution from it in case Miles is held to be liable to Parler [Royal]. Miles claims that Parler also acted negligently in its representation of Royal and either was the proximate cause of, or added to the extent of, the damages Royal suffered. Parler now argues in its motion to dismiss Miles' Third Party Complaint that it cannot be held liable, as a matter of law, to Miles in this situation.
The Jerome Litigation
This case started with a run-of-the-mill asbestosis lawsuit. Apparently, Jerome originally initiated suit in New York. According to Parler, she decided also to file in Maryland because she was worried that she would have statute of limitations problems in New York. Accordingly, she filed suit in Baltimore City Circuit Court in the fall of 1997, naming Salomon as defendant. According to Parler, service was affected on Salomon through its resident agent. No answer was originally filed and an initial *530 Default Order and Notice of Default was issued in December, 1997.
Salomon then notified Royal of the lawsuit. Royal in turn hired Miles to defend the case on behalf of Salomon. Miles filed a motion to vacate the Default Order, which was granted by the Baltimore City Circuit Court in January, 1998. Rather than responding to the Complaint at that point, Miles removed the case to the United States District Court for the District of Maryland. (It is at this point that Miles' actions become the subject of the Royal litigation). Judge Blake, of this Court, remanded the case to the Baltimore City Circuit Court.
Apparently, Miles assumed that the removal proceeding would stay the Circuit Court's timely filing deadline for Salomon's Answer. It did not. Upon remand to the Circuit Court, Jerome filed a Motion to Enter a Default Judgment. Miles answered the Jerome Complaint the next day (well past the original date it was due following the vacation of the first Default Order). On May 8, 1998, the Baltimore City Circuit Court, Angelletti, J., granted Jerome's motion for Default Judgment. Miles unsuccessfully attempted to have that order reconsidered by Judge Angelletti, but he denied Salomon's motion to vacate his order in August, 1998.
Soon after this failure of reconsideration, Royal discharged Miles and retained Parler, which entered its appearance in the Circuit Court on September 28, 1998. Previously, Miles had failed to identify third party defendants (the list was due on September 21, 1998). Parler in turn failed to file any third party complaints before the deadline of October 5, 1998. The parties dispute whether Miles' failure to identify third party defendants would act as a bar to Parler actually filing third party complaints. Over the next several months, Parler attempted to have Jerome's suit dismissed, relying primarily on arguments that the dismissal of Jerome's New York suit on statute of limitations grounds should have res judicata effect in Maryland and that a release Jerome had previously signed absolved Salomon of any liability. These efforts, including a denied request for a writ of mandamus from the Court of Appeals of Maryland, were unsuccessful. According to Miles, Parler never specifically requested the Circuit Court to vacate its default order. Instead, Miles alleges, Parler erroneously conceded the binding effect of the Court's default judgement [sic]. While Salomon's motion for summary judgment on the basis of Jerome's release was pending, Royal, allegedly on the advice of Parler, settled with Jerome for $1.6 million.
Malpractice Claims
Royal initiated this lawsuit by alleging malpractice by Miles. Specifically, it claims that Miles committed malpractice when it: 1) allowed a default judgment to be entered against Salomon in the Jerome litigation; and 2) failed to identify third party defendants before the September 21, 1998 deadline issued by the Baltimore City Circuit Court. Royal asserts that Miles' negligence proximately caused Royal to settle with Jerome for $1.6 million, despite Parler's efforts to avoid the effect of the default order. Royal has not sued Parler for malpractice.
Miles filed a third-party complaint against Parler. Miles alleges three specific acts of negligence in Parler's representation of Salomon: 1) it failed to argue either to the Circuit Court or on appeal (via the writ of mandamus) the appropriate liberal standard for the vacation of an entry of a default order before it becomes a final default judgment[[3]] 2) that Parler could have filed *531 third-party complaints, but failed to do so, before October 5, 1998; and 3) that Parler negligently advised Royal to settle the Jerome litigation far in excess of any reasonable settlement value. As a result of this negligent representation, Miles claims that it is entitled to contribution and/or indemnification from Parler for any liability it has towards Royal. (Miles also raises these issues as a defense to Royal's claim.) [4]
I.
Under the Certified Questions of Law Act, this Court's statutorily prescribed role is to determine only questions of Maryland law, not questions of fact. See Reed v. Campagnolo, 332 Md. 226, 228, 630 A.2d 1145, 1146 (1993); Food Fair Stores, Inc. v. Joy, 283 Md. 205, 219, n. 7, 389 A.2d 874, 882 (1978); Mercantile-Safe Deposit and Trust Co. v. Purifoy, 280 Md. 46, 55, 371 A.2d 650, 655 (1977). For purposes of our analysis, we accept the facts as submitted by the certifying court. See Reed, 332 Md. at 228, 630 A.2d at 1146; Food Fair Stores, Inc., 283 Md. at 219, n. 7, 389 A.2d at 882. Furthermore, we confine our legal analysis and final determinations of Maryland law to the questions certified. See Reed, 332 Md. at 228-29, 630 A.2d at 1146; Toll v. Moreno, 284 Md. 425, 437, 397 A.2d 1009, 1015 (1979).
We are presented with an issue of first impression in Maryland: when a client sues former counsel for professional malpractice, may that former counsel implead the client's successor counsel for contribution and indemnification where it alleges that successor counsel's professional negligence in the same matter contributed to the injury suffered by the client? We hold that such a claim may be maintained. In so holding, we must resolve two competing interests: the right for a joint tortfeasor to seek contribution or indemnification from an assertedly common liable party and the need to protect the attorney-client privilege.
Miles argues that it has a statutory right to implead Parler for contribution or indemnification under the Maryland Uniform Contribution Among Tort-Feasors Act ("UCATA"), Maryland Code Annotated (1974, 1998 Repl.Vol.), Courts & Judicial Proceedings Article, §§ 3-1401, et *532 seq.[5], which contains no express recognition of or exception for the attorney-client privilege issue, and attendant ethical implications, presented here. It asserts that the very purpose of UCATA is served by its impleader action because the statute "ensures that the costs of injuries is distributed fairly among joint tort-feasors by allowing defendants an opportunity to assert a claim that the plaintiff for whatever reason has not asserted on his own. The plaintiff still may choose whom to name as a defendant, but the defendant may then seek contribution from those tortfeasors ignored by the plaintiff."
Parler, in reply, argues that despite UCATA's provisions, for public policy reasons, it cannot be liable to Miles for contribution or indemnification in cases where the common client sues former counsel for malpractice, but not successor counsel. Parler asserts that an impleader action by former counsel against its successor would breach the attorney-client relationship by invading the successor attorney's duty of confidentiality owed to the client and the attorney-client privilege. In particular, "allowing such a claim would create a potential conflict between the interests of the client and the inherent self-protection instinct of the successor attorney." In essence, Parler warns that if this Court allows Miles' impleader action under UCATA, we will open Pandora's box by providing a third party with the right to interfere in the sacred attorney-client relationship.
In contrast, Miles stresses that successor counsel, if given immunity from such a suit, could abuse its position and insulate its conduct in cases where its negligent representation of the client contributes to or exacerbates the client's loss and that allowing a suit under UCATA only will further stimulate current counsel's duty to act diligently in its representation. Miles further requests that we adopt the legal notion that once a former client sues its former counsel, all privileges and immunities between those parties and between the client and successor counsel are waived in all matters relating to the malpractice suit.
A.
UCATA has deep historical underpinnings. At common law, Maryland generally recognized indemnification only in cases where a wrongful act of a party imposed liability on a third party; in such instances the latter could seek indemnification from the party actually guilty of the wrongful act. See Baltimore & O.R. Co. v. County Comm'rs of Howard County, 113 Md. 404, 414, 77 A. 930, 933 (1910). Among negligent joint tortfeasors, however, courts, lost in dogmatic ritual, stubbornly refused to recognize a common law right of contribution.[6]See Franklin v. *533 Morrison, 350 Md. 144, 154, 711 A.2d 177, 182 (1998); Montgomery County v. Valk Mfg. Co., 317 Md. 185, 190, 562 A.2d 1246, 1249 (1989) (discussing Baltimore & O.R. Co., 113 Md. at 414, 77 A. at 933). The seed for this prohibition was planted in the case of Merryweather v. Nixon, 8 Term. Rep. 186, 101 Eng. Rep. 1337 (1799).
In Merryweather, the culpable parties collectively acted intentionally against, and caused harm to, the plaintiff, but one of the wrongdoing parties was prohibited from seeking recovery against the other. See Valk Mfg. Co., 317 Md. at 189, 562 A.2d at 1248. The reasoning underlying Merryweather was that no party who acted wrongfully and intentionally against the injured plaintiff should be able to recover anything as a result of that party's actions. See id. American courts, perhaps arbitrarily, if not illogically, extended Merryweather to bar negligent joint tortfeasor contribution actions. See 3 Fowler V. Harper, et al., The Law of Torts § 10.2, at 40 (1986 and 1998 Supp.) ("Merryweather v. Nixon involved deliberate and intentional acts by the tortfeasor and thus, as a precedent, does not support the broad proposition for which it is so frequently cited in the American cases"). The application of Merryweather's reasoning to multiple negligent tortfeasor situations results in the following scenario:
[W]hen the plaintiff enforced a joint and several judgment entirely against A, A was not allowed to recover contribution from B for any part of what he had paid. The result was that although both A and B were at fault, A paid all the damages and B paid none. The rule grew up in the day when joint and several liability applied only to tortfeasors who acted in concert to carry out intentional torts. In that setting, denial of contribution was equivalent to saying that an intentional tortfeasor cannot use the courts to enforce an equitable loss sharing.
Dan B. Dobbs, The Law of Torts § 386, at 1078 (2000). Merryweather's extension to bar negligent joint tortfeasor contribution actions came under sharp attack from courts and commentators:
There is obvious lack of sense and justice in a rule which permits the entire burden of a loss, for which two defendants were equally, unintentionally responsible, to be shouldered onto one alone, according to the accident of a successful levy of execution, the existence of liability insurance, the plaintiff's whim or spite, or the plaintiff's collusion with the other wrongdoer, while the latter goes scot free.
Valk Mfg. Co., 317 Md. at 189, 562 A.2d at 1248 (citing Prosser and Keeton on Torts § 50, 337-38 (5 th ed.1984)). See also 1 Stuart M. Speiser, et al., The American Law of Torts § 3:17, at 433 (1983 and 2000 Supp.). Another unjust effect of the Merryweather extension was that it permitted the plaintiff, at his or her whim, to determine who should bear the costs of damages. See Valk Mfg. Co., 317 Md. at 195, 562 A.2d at 1251.
In Maryland, legislative action was taken to expunge the inherent injustices *534 of the Merryweather rule as it applied to contribution claims between negligent tortfeasors. See Valk Mfg. Co., 317 Md. at 189-90, 562 A.2d at 1248-49; Dan B. Dobbs, The Law of Torts § 386, at 1078 (2000); 1 Stuart M. Speiser, et al., The American Law of Torts § 3:19, at 446-50 (1983 and 2000 Supp.). Through UCATA's enactment in 1941 "a statutory right of contribution among joint tortfeasors was created which did not exist at common law." Central GMC, Inc. v. Helms, 303 Md. 266, 276, 492 A.2d 1313, 1318 (1985). See also Valk Mfg. Co., 317 Md. at 190, 562 A.2d at 1248-49. Furthermore, the unfairness of allowing a plaintiff the power to pick and choose whom to sue for damages was alleviated by providing the defendant with the right to implead a responsible third party to share in the liability.[7] This "distribute[s] the burden of responsibility equitably among those who are jointly liable." Valk Mfg. Co., 317 Md. at 189-90, 562 A.2d at 1248.
Under UCATA, joint tortfeasors are defined as "two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them." CJP § 3-1401(c). See also Valk Mfg. Co., 317 Md. at 191, 562 A.2d at 1249; Central GMC, Inc., 303 Md. at 276, 492 A.2d at 1318. We have held that, in situations where only one potential defendant is sued by a plaintiff, that defendant's right to contribution from a third party is predicated on the impleaded party's direct liability to the plaintiff. See Valk Mfg. Co., 317 Md. at 193, 562 A.2d at 1250. This means that as between a defendant and an impleaded party, there must be common liability in tort to an injured person. See Valk Mfg. Co., 317 Md. at 192, 562 A.2d at 1249; 1 Stuart M. Speiser, et al., The American Law of Torts § 3:21, at 455 (1983, 2000 Supp.). Courts and commentators have been careful to note a distinction between common liability and joint negligence. "Contribution rests on common liability, not on joint negligence or joint tort. Common liability exists when two or more actors are liable to an injured party for the same damages, even though their liability may rest on different grounds." Pautz v. Cal-Ros, Inc., 340 N.W.2d 338, 339 (Minn.1983). See also 1 Stuart M. Speiser, et al., The American Law of Torts § 3:21, at 455-56 (1983, 2000 Supp.). In this sense, contribution is derivative in nature rather than a new cause of action. See Valk Mfg. Co., 317 Md. at 192, 562 A.2d at 1249-50.
Because common liability requires no concerted negligence, the tortious conduct among joint tortfeasors leading to a plaintiff's harm may be concurrent. See Trieschman v. Eaton, 224 Md. 111, 115, 166 A.2d 892, 894 (1961). It has been noted aptly that:
*535 this requirement of common liability does not necessarily restrict the right to recover contribution to such cases as those in which the liability is imposed for some single act of tortious commission or omission in which all the tortfeasors concerned joined. This aspect usually arises in negligence cases. For a right to contribution to exist among tortfeasors guilty of negligence, it is not ordinarily essential that there be joint negligence in the sense that all the wrongdoers fail in the performance of an identical duty; contribution may be had among independent tortfeasors whose combined negligence, or whose omission of separate acts of care at the same instant, concur and contribute to the same injury.
1 Stuart M. Speiser, et al., The American Law of Torts § 3:21, at 456-57 (1983, 2000 Supp.)(emphasis in original).
It is from this statutory cause of action, and its historical underpinnings, that Parler wishes to carve an exception that it perceives will avert a threat to the attorney-client relationship.
B.
Confidentiality is a core value in the attorney-client relationship. The duty of confidentiality of information is enshrined in the Maryland Rules of Professional Conduct ("RPC"). Rule 1.6(a) states that "[a] lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b)." The reasoning behind this confidentiality is explained by the RPC 1.6 Comment:
The observance of the ethical obligation of a lawyer to hold inviolate confidential information of the client not only facilitates the full development of facts essential to proper representation of the client but also encourages people to seek early legal assistance.
Almost without exception, clients come to lawyers in order to determine what their rights are and what is, in the maze of laws and regulations, deemed to be legal and correct. The common law recognizes that the client's confidences must be protected from disclosure. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.
A fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of information relating to the representation. The client is thereby encouraged to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.
The principle of confidentiality is given effect in two related bodies of law, the attorney-client privilege (which includes the work product doctrine) in the law of evidence and the rule of confidentiality established in professional ethics.
See also 2 Ronald E. Mallen and Jeffery M. Smith, Legal Malpractice § 14.5, at 242 (4 th ed.1996); Noble v. Bruce, 349 Md. 730, 758, 709 A.2d 1264, 1278 (1998)(confidentiality blocks interference with an attorney's duty of loyalty to a client, avoids situations that compromise an attorney's ability to zealously advocate on behalf of a client, and prevents forced attorney disclosures of confidences that the client may not have wanted revealed).
There are notable exceptions under RPC 1.6(b), however, which make the rule of confidentiality not absolute:
(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) to prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm or in substantial injury to the financial interests or property of another;
(2) to rectify the consequences of a client's criminal or fraudulent act in the *536 furtherance of which the lawyer's services were used;
(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, or to establish a defense to a criminal charge, civil claim, or disciplinary complaint against the lawyer based upon conduct in which the client was involved or to respond to allegations in any proceedings concerning the lawyer's representation of the client[;or]
(4) to comply with these Rules, a court order or other law.
There is a critical distinction, not acknowledged clearly by Parler, between confidentiality required by ethical rules and the evidentiary basis of the attorney-client privilege. More protection is provided to communications within the attorney-client relationship under one than the other. The confidentiality umbrella of the ethical rule encompasses "all situations except where the `evidence is sought from the lawyer through compulsion of law.'" In re Criminal Investigation No. 1/242Q, 326 Md. 1, 5, 602 A.2d 1220, 1222 (1992)(citing RPC 1.6 Comment)(emphasis in opinion). "In the latter situation, only the attorney-client privilege, not the broader rule of confidentiality, protects against disclosure." Id. Thus, relevant evidence sought through discovery, unless protected by the attorney-client privilege, must be produced and the ethical duty of confidence takes a back seat to the quest for truth. Stated differently, the search for truth is paramount to just disposition of cases in controversy and Maryland's broad discovery rules take precedent over the attorney's ethical duty of confidentiality unless protected by law. See E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 Md. 396, 405, 718 A.2d 1129, 1133 (1998)(discovery rules promote liberal disclosure); Berrain v. Katzen, 331 Md. 693, 697, 629 A.2d 707, 708-709 (1993)(disclosure of all facts promotes fairness and sound administration of justice).
The attorney-client privilege is carefully guarded by the courts. It is "`the oldest of the privileges for confidential communications known to the common law.'" E.I. du Pont de Nemours & Co., 351 Md. at 414, 718 A.2d at 1133 (citing Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 682, 66 L. Ed. 2d 584, 591 (1981)). See also Harrison v. State, 276 Md. 122, 131, 345 A.2d 830, 836 (1975)(explaining that the privilege extends at least as far back as the reign of Elizabeth I (1558-1603)). Generally, the attorney-client privilege bars compelled disclosure, without the client's consent, of attorney-client communications made in confidence between the attorney and client. See In re Criminal Investigation No. 1/242Q, 326 Md. at 5, 602 A.2d at 1221-22; State v. Pratt, 284 Md. 516, 519, 398 A.2d 421, 423 (1979); Harrison, 276 Md. at 133-34, 345 A.2d at 837. It is codified in Maryland Code (1974, 1998 Repl.Vol.), Courts and Judicial Proceeding Article § 9-108, which provides that "[a] person may not be compelled to testify in violation of the attorney-client privilege." The privilege is grounded in the public policy of encouraging a client to consult freely with and seek legal advice from an attorney without fear of the attorney being forced to testify or produce evidence as to the confidences in various judicial or other proceedings. See In re Criminal Investigation No. 1/242Q, 326 Md. at 5, 602 A.2d at 1221-22; Pratt, 284 Md. at 520, 398 A.2d at 423; Harrison, 276 Md. at 134, 345 A.2d at 837. It is this uninhibited sharing of information between client and attorney that aids an attorney in effective representation and reinforces the legal profession's overall integrity. See United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir.1991). Moreover, it has been noted that, while never granted express constitutional lineage in criminal cases, the privilege is linked to the constitutional guarantee of effective assistance of counsel and that strict limitations on its application could undermine this basic guarantee. See *537 Pratt, 284 Md. at 520, 398 A.2d at 423; Harrison, 276 Md. at 135, 345 A.2d at 838.
This Court has adopted Wigmore's definition of the privilege:
(1) Where legal advice of [any] kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client (6) are at his insistence permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection [may] be waived.
E.I. du Pont de Nemours & Co., 351 Md. at 415, 718 A.2d at 1138 (citing Harrison, 276 Md. at 135, 345 A.2d at 838, quoting 8 John H. Wigmore, Wigmore on Evidence § 2292, at 554 (McNaughton rev. ed.1961)).
The attorney-client privilege is not absolute and "is not an inviolable seal upon the attorney's lips." Pitney-Bowes, Inc. v. Mestre, 86 F.R.D. 444, 446 (S.D.Fl. 1980) (citing Laughner v. U.S., 373 F.2d 326, 327 (5 th Cir.1967)). Invocation of the privilege can create evidentiary inequities between parties during discovery and the absence of fact and truth at trial. "Because the application of the attorney-client privilege withholds relevant information from the fact finder, the privilege contains some limitations and should be narrowly construed." E.I. du Pont de Nemours & Co., 351 Md. at 415, 718 A.2d at 1138.
Only the client has power to waive the attorney-client privilege. See City of College Park v. Cotter, 309 Md. 573, 591, 525 A.2d 1059, 1067 (1987). Nonetheless, express and implied waivers of the privilege are universally recognized limitations on client power to hold the privilege. See Harrison, 276 Md. at 137-38, 345 A.2d at 839-40. Wigmore has explained the premise of implied waiver as follows:
There is always also the objective consideration that when his [the client's] conduct touches a certain point of disclosure, fairness requires that his privileges shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.
Fraidin v. Weitzman, 93 Md.App. 168, 228, 611 A.2d 1046, 1076 (1992)(citing 8 Wigmore, Evidence § 2327, at 636). In contrasting express waiver to implied waiver of the privilege, we have cautioned that:
[s]ince a voluntary disclosure deprives a subsequent claim of privilege based upon confidentiality, and since traditionally waiver is described as the intentional relinquishment of a known right, in determining waiver by implication "regard must be had to the double elements that are predicated in every waiver, i.e., not only the element of implied intention, but also the element of fairness and consistency."
Harrison, 276 Md. at 138, 345 A.2d at 840 (citations omitted). See also Wender v. United Serv. Auto. Ass'n, 434 A.2d 1372, 1374 (D.C.1981)(courts must consider fairness in assessing the issue of implied waiver).
Maryland recognizes that the attorney-client privilege and other professional-client privileges are waived in any proceeding where the client challenges its hired professional's activity or advice. See Sears, Roebuck & Co. v. Gussin, 350 Md. 552, 565, 714 A.2d 188, 194 (1998)(accountant-client privilege is waived "when the client injects the professional activity or the advice of an accountant as an issue in a particular case"); State v. Thomas, 325 Md. 160, 174, 599 A.2d 1171, 1177-78 (1992) (attorney-client privilege "is waived by the client in any proceeding where he or she asserts a claim against counsel of ineffective assistance and those communications, and the opinions based upon them are relevant to the determination of the quality of counsel's performance"); Fraidin, 93 Md.App. at 229, 611 A.2d at 1076 (where client sues former counsel, former counsel is entitled to reveal privileged information provided it is necessary to the defense of the client's charge). Cf. RPC *538 1.6 and Comment ("[i]f the lawyer is charged with wrongdoing in which client's conduct is implicated, the rule of confidentiality should not prevent the lawyer from defending against the charge" but the "lawyer must make every effort practicable to avoid unnecessary disclosure of information relating to a representation").
These waiver rules are based, in part, on the premise that the client cannot use the advice of a professional as sword to prove the client's case against former counsel while at the same time asserting the privilege as a shield to prevent disclosing harmful information. See ST Sys. Corp. v. Maryland Nat. Bank, 112 Md.App. 20, 36, 684 A.2d 32, 35 (1996). Accord GAB Business Services, Inc. v. Syndicate 627, 809 F.2d 755, 762 (11 th Cir.1987)(privilege is a shield and not a sword). It has been said that "a privileged party cannot fairly be permitted to disclose as much as he pleases and then to withhold the remainder to the detriment of the defendant." Greater Newburyport Clamshell Alliance v. Public Serv. Co. of New Hampshire, 838 F.2d 13, 20 (1 st Cir.1988). To this end, "[a]s hallowed as the attorney-client privilege is, it does not lightly tolerate abuse." Peterson v. Wallace Computer Serv., Inc., 984 F. Supp. 821, 824 (D.Vt.1997). Accord Clark v. United States, 289 U.S. 1, 15, 53 S. Ct. 465, 469, 77 L. Ed. 993, 1000 (1933)("The privilege takes flight if the relation is abused").
The question in this case is whether we should extend the implied waiver rule more broadly to attorney-client privileged communications between the client and successor counsel when the client, by claiming malpractice or negligence against former counsel, has injected an issue that also implicates successor counsel's negligence in the same matter.
C.
As has been argued by the parties, the courts of our sister states are split on the issue of whether contribution claims may be asserted against negligent, successor attorneys. Illinois, Massachusetts, New York, Washington, and Wisconsin recognize such actions, under certain circumstances, while California, the District of Columbia, Minnesota, New Jersey, Pennsylvania, and Utah seemingly do not.
Appellants cite to cases from California, the District of Columbia, Minnesota, New Jersey, Pennsylvania, and Utah to support the proposition that public policy prohibits former counsel from asserting a third party claim of contribution or indemnification against successor counsel. See Holland v. Thacher, 199 Cal. App. 3d 924, 245 Cal. Rptr. 247 (1 st 1988); Goldfisher v. Superior Court, 133 Cal. App. 3d 12, 183 Cal. Rptr. 609 (2d 1982); Gibson, Dunn, & Crutcher v. Superior Court of Los Angeles County, 94 Cal. App. 3d 347, 156 Cal. Rptr. 326 (2d 1979); Waldman v. Levine, 544 A.2d 683 (D.C.1988); Melrose Floor Co., Inc. v. Lechner, 435 N.W.2d 90, 91-92 (Minn.Ct. App.1989); Olds v. Donnelly, 150 N.J. 424, 696 A.2d 633, 643 (1997); Mentzer & Rhey, Inc. v. Ferrari, 367 Pa.Super. 123, 532 A.2d 484, 486-87 (1987); Hughes v. Housley, 599 P.2d 1250, 1253-54 (Utah 1979). But see Angelos v. Lloyd, 106 F.3d 442 (D.C.Cir.1996)(unpublished disposition); Parker v. Morton, 117 Cal. App. 3d 751, 173 Cal. Rptr. 197 (4 th 1981). These courts refuse to recognize a direct action in negligence[8] or third party action in contribution *539 or indemnification for fear of the adverse impact such an action would have on the attorney-client relationship. A myriad of concerns have been voiced by these courts. Some feared that the duty of loyalty would be split between client and former counsel if the duty of care was owed to each, see Gibson, Dunn & Crutcher, 156 Cal.Rptr. at 330-31; Olds, 696 A.2d at 643; Housley, 599 P.2d at 1254, or that successor counsel might feel compelled to act in its self-interest, rather than the client's interest, in order to avoid a third party action, see Holland, 245 Cal.Rptr. at 251-52; Waldman, 544 A.2d at 693. The Holland court noted as well that successor counsel might be discouraged from taking a case where it might be sued or, after the taking the case, may feel it necessary to no longer participate in the client's litigation. See 245 Cal.Rptr. at 250-51. The result would be that the client is deprived of the attorney of choice or may be left with great difficulty in finding a competent replacement. See id. Foreseeing all of these problems, the Holland court warned that a third party complaint by former counsel would be used as an ill-motivated tactical device to confuse, disorient, and spread chaos in the opponent's camp. See 245 Cal.Rptr. at 250-51.
On the other side of the coin, two appellate Illinois courts have allowed a former attorney to implead a successor attorney when the client only sues the former attorney but both attorneys contributed to the client's injury. In Goran v. Glieberman, 276 Ill.App.3d 590, 213 Ill. Dec. 426, 659 N.E.2d 56, 61 (1 st 1995), the court explained that under Illinois law "an attorney may seek contribution from a subsequent attorney where both attorneys worked on the same underlying cause." (discussing Faier v. Ambrose & Cushing, P.C., 154 Ill. 2d 384, 182 Ill. Dec. 12, 609 N.E.2d 315 (1993)). The court rejected the contention that continued representation of the client was not grounds to dismiss former counsel's suit against the successor attorney. Under this premise, said the court, "substitute counsel, no matter how egregious their conduct, would be immunized from suit simply because the client whom they continue to represent chooses not to sue her current counsel." Goran, 213 Ill. Dec. 426, 659 N.E.2d at 61. Accord Brown-Seydel v. Mehta, 281 Ill.App.3d 365, 217 Ill. Dec. 131, 666 N.E.2d 800, 802 (6 th 1996)(citing Goran), appeal denied, 168 Ill. 2d 583, 219 Ill. Dec. 560, 671 N.E.2d 727 (1996).
The Supreme Judicial Court of Massachusetts has reached a similar conclusion. In Maddocks v. Ricker, the Court held:
An issue that could be independent of the underlying controversy is the question whether the defendant attorneys have any valid claim against Casson [as a third-party successor attorney]. The plaintiffs [as clients] are probably correct that Casson could not be directly liable to the defendant attorneys [as former attorneys for the client] for his negligence in handling the plaintiffs' claims against Gove. That fact is irrelevant, however, because, as we read the third-party complaint, the defendant attorneys' claim against Casson is founded on Casson's obligation of contribution if it is determined that the plaintiffs lost their claims against Gove because both the defendants and Casson were negligent. Further, in considering another issue collateral to the underlying dispute, we see no valid basis for argument that, as a matter of law on the face of the pleadings, the alleged negligence of the defendants and of Casson did not result in joint liability for the same injury to the plaintiffs, thus justifying contribution.
When Lawyer II brings an action for malpractice on behalf of a client against Lawyer I, Lawyer II is not immunized *540 from liability to Lawyer I for contribution if the negligence of each caused the same injury to the client.
403 Mass. 592, 531 N.E.2d 583, 589 (1988) (citations omitted). Nonetheless, in allowing former counsel to implead client-plaintiff's current counsel for contribution, the Court expressed concerns that the attorney-client privilege and legal ethical considerations were at risk in such actions and that practical judicial measures must be taken to balance the contribution right against the attorney-client privilege. The Court cautioned:
A decision to add a plaintiff's lawyer as a third-party defendant has significant consequences to the client because the client must lose the attorney of his choice or must await a decision as to whether his current attorney (Lawyer II) might be liable for contribution. The decision ... to allow a third-party complaint (or the decision not to dismiss such a complaint filed of right ... ) requires careful and prompt judicial attention. If the merits of the claim for contribution can be addressed and ruled on immediately, the question whether a plaintiff needs new counsel should be answered at an early stage in the case. The judge should be alert to the possibility that Lawyer I is using the cross-complaint as a tactical device to disqualify Lawyer II. At the same time, Lawyer II should not be entitled to use his continued representation of the client to immunize himself from the consequences of his own negligent conduct.
We conclude, on the issues open for consideration in this appeal, that Casson may not properly represent the plaintiffs and at the same time be a third-party defendant.
Maddocks, 531 N.E.2d at 589.
In Schauer v. Joyce, the Court of Appeals of New York allowed a former attorney to seek contribution against the attorney who replaced him for negligence causing the claimed injury upon the plaintiff-client. See 54 N.Y.2d 1, 444 N.Y.S.2d 564, 429 N.E.2d 83, 85 (1981). The Court rejected the successor attorney's argument that there was no contractual privity or duties between former and successor attorneys in the case and, therefore, it owned no contribution to the defendant. The Court held that existence of a duty between the wrongdoer attorneys was not a necessary predicate for the former attorney to sue the successor. See Schauer, 444 N.Y.S.2d 564, 429 N.E.2d at 84. See also Rosner v. Paley, 65 N.Y.2d 736, 492 N.Y.S.2d 13, 481 N.E.2d 553, 555 (1985)(citing Schauer); Hansen v. Brognano, 137 A.D.2d 880, 881, 524 N.Y.S.2d 862 (1988)(citing Schauer and explaining that "[a]n attorney sued for malpractice is entitled to commence a third-party claim for contribution against a subsequent attorney whose negligence has contributed to or aggravated the plaintiff's damages" and "[t]his same principle applies where, as here, a claim for indemnification is asserted"); Catania v. Lippman, 98 A.D.2d 826, 827, 470 N.Y.S.2d 487 (1983)(citing Schauer and concluding that third party attorneys should be disqualified from representing client).
The Court of Appeals of Wisconsin has allowed impleader suits against successor attorneys and has rejected an attorney-client privilege public policy exception. In Brown v. LaChance, the court explained:
we [have] held that privity is not required between two attorneys where one is seeking recovery from the other on alternative theories of contribution or indemnity in an action against one attorney by a mutual client.... [H]ere we are concerned with more than one attorney's alleged negligence to the same client. Thus, the policy protecting an attorney's zealous representation of a client is not defeated by allowing a claim for contribution or indemnity by one attorney against another for alleged negligence in the representation of the same client. Instead, allowing such claims promotes that policy by assuring that any attorney who negligently represents *541 a client may be held liable. To allow a client to sue one attorney where two or more attorneys may be responsible for the client's damages, and not allow contribution among all negligent attorneys, defeats the purpose of contribution among joint tortfeasorsassuring that the responsible parties pay their share of damages.
Furthermore, although the Minnesota cases are not controlling, there is a legitimate concern with protecting attorney-client confidentiality. By suing attorney "A," the client waives his or her right to confidentiality. However, this waiver does not apply to the client's attorney "B" who is joined by "A" for purposes of contribution. This joinder may present evidentiary problems for attorney "A" at trial, but it does not defeat his right to sue for contribution or indemnity. Therefore, we hold that the absence of privity between [successor attorney] ... and Smith [former attorney] does not defeat their action for contribution or indemnity against Rudnick..
165 Wis. 2d 52, 477 N.W.2d 296, 301-02 (App.1991), review denied, 479 N.W.2d 173 (Wis.1991)(citations omitted).
In Pappas v. Holloway, 114 Wash.2d 198, 787 P.2d 30, 36-37 (1990), the Supreme Court of Washington held that, under certain conditions, a former attorney sued by the client may implead successor counsel and pierce the attorney-client privilege. In Pappas, the former attorney sued his client for unpaid attorney's fees in a particular case. See id. at 32-33. The client counter-claimed malpractice against the former attorney relating to the same matter. See id. The client had been represented by several different counsel throughout the litigation, however, and former counsel sought to implead the attorneys who had represented the client in an effort to show that he was not responsible, or only partially responsible, for the client's loss. See id. at 33.
The Court in Pappas balanced the interests of the client's attorney-client privilege against the interests of former counsel in mounting an adequate defense to the claim of malpractice. It explained that the attorney-client privilege was not absolute and was subject to exceptions such as when an attorney is sued for malpractice. See id. at 34. "Where it would be manifest injustice to allow the client to take advantage of the rule of privileges to the prejudice of the attorney, or when it would be carried to the extent of depriving the attorney of the means of obtaining or defending his own rights, this court has ruled the privilege is waived." Id. The Court went on to extend the implied waiver rule as it applies to third-party defendants, but qualified the waiver to apply only if certain circumstances were met. It explained:
In Hearn v. Rhay, 68 F.R.D. 574 (D.C.Wash.1975), the United States District Court for Eastern Washington developed a test to determine whether the facts in a given case support an implied waiver of the attorney-client privilege. The plaintiff in Hearn, an inmate at the Washington State Penitentiary in Walla Walla, sued State prison officials in their official capacity for alleged civil rights violations. Hearn, at 576-77. The defendants raised the affirmative defense of qualified immunity from suit on the grounds they acted in good faith and on advice of their legal counsel. Hearn, at 577. When plaintiff requested disclosure of communications between defendants and their attorneys, defendants refused to comply on the grounds the communications were protected under the attorney-client privilege. Hearn, at 577. Plaintiff argued the attorney-client privilege did not cover the communications, or, in the alternative, that defendants waived the privilege by asserting their good faith affirmative defense. Hearn, at 580. In holding defendants were required to disclose the communications, the trial court concluded that where the following three conditions are satisfied, an implied waiver of the attorney-client privilege should be found: (1) *542 assertion of the privilege was the result of some affirmative act, such as filing suit, by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his defense. Hearn, at 581.
* * * * *
... In this instance, the [clients] cannot counterclaim against [former counsel] for malpractice and at the same time conceal from him communications which have a direct bearing on this issue simply because the attorney-client privilege protects them. To do so would in effect enable them to use as a sword the protection which the Legislature awarded them as a shield.
Applying Hearn to the present case, we find the record supports an implied waiver of the attorney-client privilege as to all the attorneys who were involved in defending the [clients] in the underlying litigation. First, the [clients] counterclaimed against [former counsel] for malpractice. This affirmative act was the catalyst which caused [former counsel] to file his third-party complaints against the other attorneys involved. Second, the [clients'] counterclaim itself caused malpractice to become an issue in this litigation. [Former counsel's] claims against third-party defendants are virtually identical to the claims made against him by the [clients]; hence, his third-party complaints add nothing new to the issue of malpractice....
Finally, to allow the [clients] to block [former counsel's] request for communications relating to the ... litigation would effectively deny him an adequate defense. In order for the [clients] to prove [former counsel] committed malpractice, they will have to show, among other things, that [former counsel] had a duty to exercise the care and skill of a reasonably prudent attorney and that [former counsel] failed to meet this duty. Contrary to the [clients'] claim that the only information relevant to this issue is what actually happened, this inquiry will involve examining decisions made at various stages of the underlying litigation. This will necessarily involve information communicated between these attorneys and the [clients]. This is particularly true given that [former counsel] was not the attorney who actually tried the case, nor did he have any part in its eventual settlement.... Id. at 36-37 (some citations omitted). Accord Rutgard v. Haynes, 185 F.R.D. 596, 599-600 (S.D.Cal.1999)(citing the reasoning of Pappas with approval); Simmons Foods, Inc. v. Willis, 191 F.R.D. 625, 635-37 (D.Kan.2000)(adopting and applying Pappas).
D.
The holdings of our sister states that allow a former attorney to implead an assertedly negligent successor attorney for contribution or indemnification are more closely aligned with our view of Maryland law than our sisters states that do not. While we too are concerned with protecting the attorney-client privilege and the attorney-client relationship, this Court is reluctant to exempt a potential joint tortfeasor from accepting the blame for its negligent actions.
We are aware that Maryland has created exceptions to UCATA, in an immunity context, for certain third parties despite that party's culpable conduct. See Hatzinicolas v. Protopapas, 314 Md. 340, 353, 550 A.2d 947, 954 (1988)(discussing immunities granted over the years such as interspousal immunity, workers' compensation immunity, and parent-child immunity). Under such circumstances, when immunity is recognized, no right to contribution or indemnification exists because the third party has no common liability to the plaintiff. See Hatzinicolas, 314 Md. at 353, 550 A.2d at 954. "Contribution *543 is not available where an immunity exists between the third party and the original plaintiff, because the immune party cannot be held liable to the plaintiff." See 1 Lee Lindahl, Modern Tort Law: Liability and Litigation § 20.20, at 707 (1994). It has been further noted that:
Instances are not uncommon when one of the tortfeasors has at the time of the tort a personal defense against the injured person that negates the possibility of personal legal liability and thus makes common liability a logical impossibility. In that situation it has been the traditional view that the person compelled to discharge the liability cannot recover contribution from the other, whose participation in the tort gave the injured party no cause of action against him.
3 Fowler V. Harper, et al., The Law of Torts § 10.2, at 47-50 (1986, 1998 Supp.). Like the attorney-client privilege, the immunities previously recognized as applying to UCATA actions were grounded on public policy concerns. For example, in Hatzinicolas, we noted that the parent-child immunity "is founded upon public policy, and is designed to preserve peace and harmony of the home, as well as to recognize the authority of the parent, under normal conditions, responsible for the maintenance of the home." 314 Md. at 356, 550 A.2d at 955 (citing Frye v. Frye, 305 Md. 542, 550, 505 A.2d 826, 830 (1986))(other citations and internal quotations omitted). The interspousal immunity was based on the premise that to allow suits between spouses would adversely affect familial ties and strike at the heart of domestic relations. See Boblitz v. Boblitz, 296 Md. 242, 253-57, 462 A.2d 506, 511-13 (1983)(discussing the rationale behind the immunity and the states that refused to abrogate it).
Nonetheless, the historical underpinnings of UCATA, notably its purpose in remedying the injustices of the common law rule barring joint tortfeasors' actions in negligence, are not easily swept aside or forgotten by this Court. In Valk Mfg. Co., we expressed a reluctance for carving out exceptions from UCATA. See 317 Md. at 196, 562 A.2d at 1251. We noted also that immunities are on the wane. See id., 1 Stuart M. Speiser, et al., The American Law of Torts § 3:21, at 458 (1983, 2000 Supp.). See also Hatzinicolas, 314 Md. at 353-54, 550 A.2d at 953-54 (refusing to extend the parent-child immunity to defendant). This Court and many of our sister states have either eliminated or chipped away at them by narrowing their application to avoid inequities. See Boblitz, 296 Md. at 274-75, 462 A.2d at 522 (abrogating interspousal immunity); Mahnke v. Moore, 197 Md. 61, 67-68, 77 A.2d 923, 926 (1951)(narrowing parent-child immunity's application by allowing a minor child to sue parent under cruel and inhuman treatment or malicious and wanton wrong theories); Stuart M. Speiser, et al., The American Law of Torts § 3:22, at 458-59 (1983, 2000 Supp.)(citing to several states that have allowed contribution despite immunities under the theory that "as between the two tortfeasors, the contribution is not a recovery for the tort, but the enforcement of an equitable duty to share liability for the wrong done") (citations omitted). It has been further explained that:
[i]n a growing number of jurisdictions... the policies in favor of contribution have been deemed to outweigh those in favor of the immunity of the actors who have a personal defense to the injured person's claim. Thus contribution has in such jurisdictions been permitted against otherwise immune spouses and other relatives, as well as employers who would not be liable in tort to an injured employee because of the exclusive remedy provision of the applicable workers' compensation act. If the purpose of contribution is to make the wrongdoers share the financial burden of their wrong, then the primary element of contribution should be the participation of the wrongdoers in acts or omissions that are considered tortious and that result in injury to a third person. The fact that one of the tortfeasors *544 has a personal defense if he were to be sued by the injured party would seem to be irrelevant.
3 Fowler V. Harper, et al., The Law of Torts § 10.2, at 47-50 (1986, 1998 Supp.). "And just as courts have become increasingly reluctant to bar a plaintiff's cause of action, so are they reluctant to bar contribution among unintentional wrongdoers." Valk Mfg. Co., 317 Md. at 196, 562 A.2d at 1251.
Importantly, this Court also has held that attorneys who act negligently in settlement proceedings should be held accountable to the client for their actions. See Thomas v. Bethea, 351 Md. 513, 528-30, 718 A.2d 1187, 1194-96 (1998). Thomas acknowledged that settlement proceedings are an integral part of a litigating attorney's representation and that most cases end in settlement without adjudication. See 351 Md. at 529, 718 A.2d at 1195. "There can be little doubt that clients routinely anticipate that their cases will be settled and that they rely heavily on their lawyer's recommendation regarding settlement, expecting that the lawyer has a sufficient understanding of the relevant facts, law, and prospects to make an intelligent recommendation." 351 Md. at 529, 718 A.2d at 1195. In imposing the duty of reasonable care in settlement proceedings, Thomas reiterated the long-held rule that:
"[E]very client employing an attorney has a right to the exercise, on the part of the attorney, of ordinary care and diligence in the execution of the business intrusted to him, and to a fair average degree of professional skill and knowledge; and if the attorney has not as much of these qualities as he ought to possess, and which, by holding himself out for employment he impliedly represents himself as possessing, or if, having them, he has neglected to employ them, the law makes him responsible for the loss or damage which has accrued to his client from their deficiency or failure of application."
351 Md. at 530, 718 A.2d at 1195 (citing Cochrane v. Little, 71 Md. 323, 332, 18 A. 698, 701 (1889)).
Prohibiting a joint tortfeasor action in this case would open an undesirable loophole in Thomas and circumvent UCATA's purpose. A central premise of Thomas and UCATA is that a party should be held accountable for damages caused by his or her negligence. Successor counsel could escape from this accountability by forcing former counsel to shoulder the burden of loss to the client in situations where both attorneys may have brought about the client's injury. The unfair and unjust outcome for former counsel would be reminiscent of the pre-UCATA era. We think the better public policy approach is for the parties to lay their cards on the table for the fact-finder to determine the facts and allocate the loss to the proper parties, rather than granting successor counsel a shield of immunity for its alleged wrongful acts.
We respect the public policy concerns voiced by our sister states that prohibit former counsel from suing successor counsel. Many of their concerns, however, cut both ways. Prohibiting an impleader action in such cases also may undermine the attorney-client relationship. For example, the Holland court voiced concern that allowing former counsel to sue successor counsel would forge an irresponsible weapon of intimidation. See 245 Cal.Rptr. at 250. By the same token, we can envision, given successor counsel's position of trust with and influence over the client, that a bar to an impleader action could create a situation ripe for successor attorney mischief and manipulation. It would hardly be in the client's best interest to be represented by counsel that was negligent in causing an injury to the client, but who failed to disclose the negligence to the client or take responsibility for the action. This dominant position leaves us uneasy accepting the notion that successor counsel *545 should be left to its potential self-dealing.[9] Furthermore, Appellants' argument that their ethical duty of confidentiality is infringed by the tortfeasor action is misplaced. As discussed supra, the confidentiality duty, unless exempted by law, must succumb to discovery and the search for truth.
Moreover, we do not lack faith in the disciplinary tools in the Maryland Rules, and particularly the Rules of Professional Conduct (RPC), that deter the filing of frivolous and harassing claims. They represent potential consequences to discourage an improper impleader action. They address, for example, the Holland court's concerns, such as the availability for monetary sanctions, at the state and federal[10] levels, against attorneys that fall prey to the temptation of harassing an opponent. Maryland Rule 1-341 states:
Rule 1-341. Bad faithUnjustified proceeding.
In any civil action, if the court finds that the conduct of any party in maintaining or defending any proceeding was in bad faith or without substantial justification the court may require the offending party or the attorney advising the conduct or both of them to pay to the adverse party the costs of the proceeding and the reasonable expenses, including reasonable attorney's fees, incurred by the adverse party in opposing it.
"Rule 1-341 sanctions are judicially guided missiles pointed at those who proceed in the courts without any colorable right to do so." Legal Aid Bureau, Inc. v. Bishop's Garth Assoc. Ltd. Partnership, 75 Md. App. 214, 224, 540 A.2d 1175, 1180 (1988). Furthermore, violation of RPC 3.1,[11] which prohibits the filing of frivolous suits, is grounds for attorney discipline and can lead to disbarment. See Attorney Grievance Comm'n of Maryland v. Brown, 353 Md. 271, 283-85, 725 A.2d 1069, 1074-75 (1999); Attorney Grievance Comm'n v. Alison, 349 Md. 623, 635, 709 A.2d 1212, 1217-18 (1998).
Sharing Parler's concern for protecting the attorney-client privilege, we reject Miles' assertion that the attorney-client privilege is waived automatically between the client and successor counsel simply by the client suing former counsel. Because the concepts and reasoning behind the three prongs in the Hearn Test, as discussed in Pappas, are well-established in Maryland, we think the Hearn Test[12] serves as an appropriate tool in *546 balancing Miles' statutory right to contribution under UCATA and Parler's concern in protecting the attorney-client privilege.
The burden of showing waiver of the privilege rests with Miles. See Sears, Roebuck & Co., 350 Md. at 567, 714 A.2d at 195. Once the first prong of the Hearn Test is met by the client filing suit or asserting a claim against former counsel, the second prong of the Hearn Test is met by the client injecting a crucial issue relevant to disposition of the suit. See Mountain States Tel. and Tel. Co., 780 P.2d at 544; League v. Vanice, 221 Neb. 34, 374 N.W.2d 849, 856 (1985). As discussed supra, Maryland recognizes issue injection as a valid precursor to waiving client-held, confidential communication privileges. See Sears, Roebuck & Co., 350 Md. at 565, 714 A.2d at 194 (implied waiver in accountant-client privilege context); Thomas, 325 Md. at 174, 599 A.2d at 1177-78 (implied waiver when client challenge's attorney's effectiveness in counsel); Fraidin, 93 Md.App. at 229, 611 A.2d at 1076 ("[u]nder the self-defense exception, counsel is permitted to reveal client confidence to the extent necessary to defend counsel from charges of wrongdoing"). See also Southern California Gas Co., 265 Cal. Rptr. 801, 784 P.2d at 1380 (calling it "deliberate injection" of the issue); Lorenz, 815 F.2d at 1098 ("holder must inject a new factual or legal issue into the case").
Under the third prong (vitality), the privileged information must be necessary to defend against an essential element of the claim. See Hearn, 68 F.R.D. at 581; Goldsmith v. State, 337 Md. 112, 134-35, 651 A.2d 866, 877 (1995)(the information sought must be necessary for a proper defense to pierce the psychotherapist-patient privilege); Fraidin, 93 Md.App. at 229, 611 A.2d at 1076 (waiver must be narrowly construed and should be "limited strictly to information necessary to the attorney's defense"). Mere relevance or helpfulness of the information sought is not enough to pierce a professional-client privilege. See Sears, Roebuck & Co., 350 Md. at 567, 714 A.2d at 195 (accountant-client privilege); Goldsmith, 337 Md. at 133, 651 A.2d at 876 (psychotherapist-patient privilege). Accord Frontier Refining, Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695, 699 (10 th Cir.1998)(explaining that mere relevance does not meet the Hearn vitality prong). In other words, "[w]hen the sought-after evidence is only one of several forms of indirect evidence about an issue, the privilege has not been waived." Amlani, 169 F.3d at 1195 (citations and internal quotations omitted). This implies that the privileged information sought must be available from no other source. See Frontier Refining, Inc., 136 F.3d at 699. Hearn explains further:
In an ordinary case the obstruction [to investigating the truth] is not likely to be great, for attorney-client communications *547 are usually incidental to the lawsuit, notwithstanding their possible relevance, and other means of proof are normally available. In this case, however, the content of defendant's [sic] communications with their attorney is inextricably merged with the elements of plaintiff's case and defendants' affirmative defense. These communications are not incidental to the case; they inhere in the controversy itself, and to deny access to them would preclude the court from a fair and just determination of the issues. To allow assertion of the privilege in this manner would pervert its essential purpose and transform it into a potential tool for concealment ... behind a veil of confidentiality. Under these circumstances, the benefit to be gained from disclosure far outweighs the resulting injury to the attorney-client relationship. The privilege should not apply.
68 F.R.D. at 582. Accord Greater Newburyport Clamshell Alliance, 838 F.2d at 20 ("the privilege ends at the point where the defendant can show that the plaintiff's civil claim, and the probable defenses thereto, are enmeshed in important evidence that will unavailable to the defendant if the privilege prevails").
II.
The remaining question is whether former counsel may sue successor counsel, via impleader, under the theory that successor counsel was negligent in settlement proceedings that may have ultimately contributed to the client's damages for which former counsel has been sued. We hold such a suit is cognizable in Maryland.
As discussed supra, UCATA defines joint tortfeasors as "two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them." CJP § 3-1401(c). This definition requires the defendant impleading a third party to allege that the third party was directly liable to the plaintiff and somehow is jointly liable with the defendant for the same injury to the plaintiff.
Attorney negligence in settlement proceedings is proven the same as any other negligence. See Thomas, 351 Md. at 529, 718 A.2d at 1195 (rejecting a heightened standard of negligence for attorneys). Here, in a contribution action, Miles would need to prove Parler's neglect of a reasonable duty owed to Royal's insured, that breach of the duty proximately caused injury to Royal's insured, and that Parler's negligence contributed, with Miles' negligence, to causing the same injury, wholly or in part, to Royal's insured. See Thomas, 351 Md. at 528-29, 718 A.2d at 1195; Flaherty v. Weinberg, 303 Md. 116, 128, 492 A.2d 618, 624 (1985).
We reiterate here that which was stated in Thomas, that "lawyers [should] not be regarded as negligent simply because another lawyer, or even most lawyers, with the benefit of hindsight, would not have made the recommendation at issue." 351 Md. at 529, 718 A.2d at 1195. The reason is that "the factors that the lawyer must consider in developing a settlement recommendation, as well as the recommendation itself, `are mostly subjective in nature,' and that there can legitimately exist `a range for honest differences of opinion in making settlement recommendations.'" Id. (citations omitted). Mere disagreement between lawyers regarding how to settle a case is common and a difference in opinion cannot be grounds for negligence. When the duty to exercise reasonable care in settlement proceedings is challenged, the alleged negligence must be determined in light of traditional professional negligence standards. See id.
CERTIFIED QUESTIONS OF LAW ANSWERED AS SET FORTH ABOVE. COSTS IN THIS COURT TO BE EQUALLY DIVIDED BY THE PARTIES.
NOTES
[1] CJP § 12-603 states:
The Court of Appeals of this State may answer a question of law certified to it by a court of the United States or by an appellate court of another state or of a tribe, if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling appellate decision, constitutional provision, or statute of this State.
[2] Rule 8-305 states:
(a) Certifying Court. "Certifying court" as used in this Rule means the Supreme Court of the United States, a United States Court of Appeals, a United States District Court, or the highest appellate court or an intermediate appellate court of another State, District, Territory, or Commonwealth of the United States.
(b) Certification Order. In disposing of an action pending before it, a certifying court, on motion of any party or on its own initiative, may submit to the Court of Appeals a question of law of this State, in accordance with the Maryland Uniform Certification of Questions of Law Act, by filing a certification order signed by a judge of the certifying court. The certification order shall state the question of law submitted, the relevant facts from which the question arises, and the party who shall be treated as the appellant in the certification procedure. The original order and seven copies shall be forwarded to the Court of Appeals by the clerk of the certifying court under its official seal, together with the filing fee for docketing regular appeals, payable to the Clerk of the Court of Appeals.
(c) Proceeding in the Court of Appeals. The filing of the certification order in the Court of Appeals shall be the equivalent of the transmission of a record on appeal. The Court of Appeals may request, in addition, all or any part of the record before the certifying court. Upon request, the certifying court shall file the original or a copy of the parts of the record requested together with a certificate, under the official seal of the certifying court and signed by a judge or clerk of that court, stating that the materials submitted are all the parts of the record requested by the Court of Appeals.
(d) Decision by the Court of Appeals. The written opinion of the Court of Appeals stating the law governing the question certified shall be sent by the Clerk of the Court of Appeals to the certifying court. The Clerk of the Court of Appeals shall certify, under seal of the Court, that the opinion is in response to the question of law of this State submitted by the certifying court.
[3] In a footnote addressing this particular issue, the District Court elaborated that:
This is Miles' principal claim, so it deserves additional explanation. Miles contends in its complaint and its response to Parler's Motion To Dismiss that Parler could have had the default order vacated by arguing the correct legal standard (as Miles interprets it) for vacation of a default order to the Circuit Court. Parler, Miles alleges, essentially conceded the default judgment in its two subsequent motions for summary judgment, a critical error on Parler's part. Had Parler simply argued the correct (liberal) standard for vacating default orders, a default judgment would not have been entered and there would have been no reason for Salomon to settle with Jerome, especially since the paper Jerome signed in the related New York litigation would have acted as a complete bar to recovery in the Maryland litigation.
[4] The District Court stated in a footnote that:
As noted above, all of the parties apparently agree that Jerome did in fact execute a release which would have been dispositive of her suit against Solomon [sic]. It is not clear when the release came to the attention of any of the present partiesRoyal, Miles or Parler. In any event, the fact that this procedural nightmare could have occurred, costing somebody $1.6 million to settle a case which should have been barred, is symptomatic of the problems with modern day mass tort litigation. In this case, Ms. Jerome apparently initiated several lawsuits against several defendants in different states. The courts in one state did not know what the courts in another state were doing, or how resolution in one state would affect the suit in the other state. Unfortunately, the parties did not help resolve the situation. This matter was made worse when alleged procedural mistakes blossomed into case-ending judgments not based on merits. Simply put, our system of adjudication is not up to the task of justly, efficiently or effectively handling mass tort litigation where the number of plaintiffs and defendants is enormous and there are no reliable ways to determine which defendant is or is not liable for the specific injuries of which plaintiff. The system is broken, as this litigation proves, but apparently because everyone is vested in it, no one is trying hard to fix it.
[5] The pertinent provisions of UCATA are as follows:
§ 3-1401. Definitions.
(a) In general.In this subtitle the following words have the meanings indicated.
(b) Injured person."Injured person" means any person having a claim in tort for injury to person or property.
(c) Joint tort-feasors."Joint tort-feasors" means two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.
§ 3-1402. Right of contribution.
(a) In general.The right of contribution exists among joint tort-feasors.
(b) Discharge of liability or payment of share.A joint tort-feasor is not entitled to a money judgment for contribution until the joint tort-feasor has by payment discharged the common liability or has paid more than a pro rata share of the common liability.
(c) Effect of settlement.A joint tort-feasor who enters into a settlement with the injured person is not entitled to recover contribution from another joint tort-feasor whose liability to the injured person is not extinguished by the settlement.
§ 3-1403. Judgment against one tort-feasor.
The recovery of a judgment by the injured person against one joint tort-feasor does not discharge the other joint tort-feasor.
[6] One treatise states that the distinction between indemnification and contribution is only skin deep:
In American jurisdictions in general, the allocation of damages among multiple tort-feasors has historically been analyzed in terms of two, ostensibly mutually exclusive, doctrines: contribution and indemnification. In traditional terms, the apportionment of loss between multiple tortfeasors has been thought to present a question of contribution; indemnity, by contrast, has traditionally been viewed as concerned solely with whether a loss should be entirely shifted from one tortfeasor to another, rather than whether the loss should be shared between the two. Competent judicial authority has noted that the dichotomy between the concepts of contribution and indemnity "is more formal than substantive." The common goal of both doctrines is the equitable distribution of loss among multiple tortfeasors. Contribution, says the unanimous Washington court of last resort, "is a remedial scheme which operates exclusively between or among tort-feasors. It has no effect upon the injured party's initial right to recover from the multiple tort-feasors."
1 Stuart M. Speiser, et al., The American Law of Torts § 3:15, at 423-24 (1983, 2000 Supp.)(emphasis in original).
[7] Procedurally, UCATA originally recognized an impleader action of third parties in common liability with a defendant, but that provision has since been removed from UCATA and is now regulated by Maryland Rule 2-332. See Valk Mfg. Co., 317 Md. at 191, 562 A.2d at 1249. "The goals of the procedural device, however, remain the same. `The purpose of the third party practice provided for by the [UCATA] and by the Rules which have superseded it [is] to try in one action all phases of litigation among the original and impleaded parties....'" Valk Mfg. Co., 317 Md. at 191, 562 A.2d at 1249 (citing Stem v. Nello L. Teer Co., 213 Md. 132, 144, 130 A.2d 769, 775 (1957)). See also Porter Hayden Co. v. Bullinger, 350 Md. 452, 473, 713 A.2d 962, 972 (1998). We noted the importance of impleading as "an outgrowth of what was found to be a defect in the common law. There were frequent cases where it was necessary to give relief to a defendant when he [or she] had a genuine claim for exoneration against some person not a party to the suit." Northwestern Nat. Ins. Co. v. Samuel R. Rosoff, Ltd., 195 Md. 421, 425, 73 A.2d 461, 462 (1950). The purpose of impleader is "to simplify and expedite proceedings and to avoid the useless duplication, expense and possible uncertainty of more than one trial." Allen & Whalen, Inc. v. John C. Grimberg Co., 229 Md. 585, 587, 185 A.2d 337, 339 (1962). See also Cotham v. Board of County Comm'rs for Prince George's County, 260 Md. 556, 566, 273 A.2d 115, 120 (1971)(impleader allows for more consistent judgments on related claims); Bradyhouse v. Levinson, 230 Md. 519, 523, 187 A.2d 838, 840 (1963).
[8] In addition to public policy considerations, some of these courts decided that because no duty was owed or no privity existed between former counsel and successor counsel, former counsel could not maintain an action against successor counsel. See e.g., Olds, 696 A.2d at 643-44 (no reinstatement of third-party complaint dismissed by trial court because successor attorney owed no duty of care to predecessor attorney); Housley, 599 P.2d at 1253 (former attorney not entitled to relief from successor attorney because no duty was owed to former attorney); Mentzer & Rhey, Inc., 532 A.2d at 486-87 (no cause of action by former attorney against successor attorney because absent privity, successor attorney could not be held liable to anyone except the client). Appellants, however, do not cite to these cases for this proposition. As discussed supra, UCATA does not require the existence of a duty owed or privity between the two joint tortfeasors, rather the duty of care is owed to the plaintiff in common liability. Furthermore, we are not presented with the issue of whether a duty of care exists between former counsel and successor counsel.
[9] We do not intend, by noting the potential for these adverse conditions, to imply any view that such conditions exist with regard to Parler in the present case.
[10] See Rule 11 of the Federal Rules of Civil Procedure which prohibits cases filed to harass (see Rule 11(b)) and allows the federal courts to impose sanctions for violations of the rule (see Rule 11(c)).
[11] Rule 3.1. Meritorious claims and contentions.
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer may nevertheless so defend the proceeding as to require that every element of the moving party's case be established.
[12] The Hearn Test and its underlying reasoning have been applied or cited with approval by numerous federal and state jurisdictions in determining an implied waiver under various settings. See United States v. Amlani, 169 F.3d 1189, 1195 (9 th Cir.1999); Bilzerian, 926 F.2d at 1292; Conkling v. Turner, 883 F.2d 431, 434 (5 th Cir.1989); Lorenz v. Valley Forge Ins. Co., 815 F.2d 1095, 1098 (7 th Cir. 1987); GAB Business Services, Inc., 809 F.2d at 762, n. 11; Sedco Int'l v. Cory, 683 F.2d 1201, 1206 (8 th Cir.1982); Simmons Foods, Inc., 191 F.R.D. at 635-36; Rutgard, 185 F.R.D. at 599-600; Walsh v. Seaboard Sur. Co., 184 F.R.D. 494, 496 (D.Conn.1999); Peterson v. Wallace Computer Serv., Inc., 984 F. Supp. 821, 824-25 (D.Vt.1997); In re Kidder Peabody Securities Litig., 168 F.R.D. 459, 470 (S.D.N.Y.1996); Bowne of New York City, Inc. v. AmBase Corp., 150 F.R.D. 465, 488 (S.D.N.Y.1993); Federal Deposit Ins. Corp. v. Wise, 139 F.R.D. 168, 171 (D.Colo.1991); Federal Deposit Ins. Corp. v. United States, 527 F. Supp. 942, 950 (S.D.W.Va.1981); Pitney-Bowes, Inc., 86 F.R.D. at 447; Southern California Gas Co. v. Public Utilities Comm'n, 50 Cal. 3d 31, 265 Cal. Rptr. 801, 784 P.2d 1373, 1378-79 (1990); Mountain States Tel. and Tel. Co. v. DiFede, 780 P.2d 533, 543-44 (Colo. 1989); State Farm Mut. Auto. Ins. Co. v. Lee, ___ Ariz. ___, 4 P.3d 402, 408-09 (Ariz.Ct. App.2000)(slip copy); Frank W. Schaefer, Inc. v. C. Garfield Mitchell Agency, Inc., 82 Ohio App. 3d 322, 612 N.E.2d 442, 447-48 (1992); Bryan v. State, 848 S.W.2d 72, 81 (Tenn.Crim. App.1992); Home Ins. Co. v. Advance Mach. Co., 443 So. 2d 165, 168 (Fla.Dist.Ct.App. 1983); Wender v. United Serv. Auto. Assoc., 434 A.2d 1372, 1374 (D.C.App.1981).
Courts that have not adopted the Hearn Test per se have nonetheless adopted similar implied waiver tests, under the rationale that their tests are supposedly more stringent in protecting the attorney-client privilege. See Aranson v. Schroeder, 140 N.H. 359, 671 A.2d 1023, 1030 (1995); Succession of Smith v. Kavanaugh, Pierson & Talley, 513 So. 2d 1138, 1145-46 (La.1987); Mortgage Guarantee & Title Co. v. Cunha, 745 A.2d 156, 159-60 (R.I. 2000); Republic Ins. Co. v. Davis, 856 S.W.2d 158, 163 (Tex.1993)(calling implied waiver test "offensive use waiver"). But see Howe v. Detroit Free Press, Inc., 440 Mich. 203, 487 N.W.2d 374, 382 (1992)(declining to adopt Hearn based on the facts of the case before it but adopting a similar standard); Rhone-Poulenc Rorer Inc. v. Home Indemn. Co., 32 F.3d 851, 864 (3 rd Cir.1994)(citing to the Hearn Test as dubious in validity). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593793/ | 954 So. 2d 1163 (2007)
WHITLOCK
v.
WHITLOCK
No. 1D06-5335.
District Court of Appeal of Florida, First District.
May 2, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593629/ | 155 Mich. App. 491 (1986)
400 N.W.2d 656
PEOPLE
v.
STAPF
Docket No. 86153.
Michigan Court of Appeals.
Decided October 20, 1986.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Kraag C. Lieberman, Prosecuting Attorney, and J. Ronald Kaplansky, Assistant Attorney General, for the people.
State Appellate Defender (by Stuart B. Lev), for defendant on appeal.
Before: HOOD, P.J., and D.E. HOLBROOK, JR., and W.R. PETERSON,[*] JJ.
PER CURIAM.
Defendant was charged with kidnapping and appeals as of right from a jury trial conviction for attempted kidnapping, MCL 750.349; MSA 28.581 and MCL 750.92; MSA 28.287. Defendant was sentenced to from three to five years in prison. This appeal of his conviction and sentence raises six issues.
Defendant first challenges the sufficiency of the evidence adduced at trial to sustain his conviction. On sufficiency of evidence claims, we review the evidence in a light most favorable to the prosecutor to determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v Vicuna, 141 Mich App 486, 495; 367 NW2d 887 (1985); People v Hampton, 407 Mich 354; 285 NW2d 284 (1979), cert den 449 US 885 *494 (1980). To prove the crime of attempt the evidence must show (1) the specific intent to commit a crime and (2) an overt act going beyond mere preparation toward committing the crime. People v Coleman, 350 Mich 268; 86 NW2d 281 (1957); People v Frost, 148 Mich App 773, 776; 384 NW2d 790 (1985). The parties agree that the elements of kidnapping under the particular facts at hand are: (1) forcible confinement or imprisonment, (2) against the victim's will, maliciously or without authority, and (3) with asportation. People v Wesley, 421 Mich 375, 388; 365 NW2d 692 (1984).
The evidence showed that fourteen-year-old Stephanie Vandenbout and her eleven-year-old sister Sarah were walking along M-75 returning from a swim when they noticed defendant following them. Stephanie testified that defendant began walking faster and when he caught up to her he grabbed her arm and dragged her into the woods. Defendant was holding a gun in front of her, but did not point it at her, and he told her to be quiet. Stephanie began screaming and attempting to get away by kicking and hitting the defendant. About seventy-five feet into the woods defendant abruptly let Stephanie go, and she ran back to the highway, where her sister and a passerby met her. She estimated the incident took less than one minute.
Defendant argues that the evidence was not sufficient to prove that he specifically intended to commit an attempted kidnapping. He submits that his letting the victim go after such a short period of time shows the lack of specific intent. He also points to the lack of evidence of planning and motive and suggests that only speculation supports a finding of specific intent.
Defendant made two statements shortly after his arrest which were read to the jury. In one statement he admitted he intended to take the girl *495 farther into the woods. Defendant also testified that he grabbed Stephanie when she started screaming and that he did not intend to confine her, he was just pushing her.
We disagree that a jury could not have found the specific intent to kidnap from these facts. Defendant's use of physical force to take the girl into the woods and his use of the gun (which proved to be a toy) to scare her are sufficient evidence of his intent. From his actions the jury could have reasonably concluded that he intended to forcibly confine or imprison his victim against her will.
Defendant also contends that the evidence shows that he realized that the incident had gotten carried away and blown out of proportion and that even if he once had criminal intent to kidnap he later abandoned his attempt. This Court recognized the defense of voluntary abandonment to a charge of attempted kidnapping in People v Kimball, 109 Mich App 273; 311 NW2d 343 (1981); modified 412 Mich 890; 313 NW2d 285 (1981). Kimball held that the burden is on the defendant to prove by a preponderance of the evidence that he has voluntarily and completely abandoned his criminal purpose. The Court pointed out what did not constitute "voluntary" abandonment:
Abandonment is not "voluntary" when the defendant fails to complete the attempted crime because of unanticipated difficulties, unexpected resistance, or circumstances which increase the probability of detention [sic] or apprehension. Nor is the abandonment "voluntary" when the defendant fails to consummate the attempted offense after deciding to postpone the criminal conduct until another time or to substitute another victim or another but similar objective. [109 Mich App 286-287.]
*496 Under the present circumstances, defendant's abandonment was not voluntary. In defendant's confession, he stated that he saw a flash of something, apparently believed someone was coming, and let the victim go. Defendant's actions in going to the lake and hiding under a dock reinforced the idea that he abandoned his attempt because he thought someone was coming and he feared getting caught. According to Kimball, circumstances which increase the probability of apprehension negate the voluntariness of abandonment.
Defendant next asserts that the trial court erred in admitting a real gun owned by his stepfather which the police seized from a locked cabinet in his stepfather's home where defendant had been staying. Defendant admitted showing a toy gun to Stephanie. He told the police where he had hidden the toy gun, which they recovered, and Stephanie testified that the toy gun looked like the gun defendant showed her. However, the prosecutor claimed the real gun was relevant to prove the toy gun looked like a real gun to Stephanie and the trial court admitted it for this limited purpose. We conclude that admission of the real gun was error.
Evidence which is not relevant is not admissible. MRE 402. Although the prosecutor claimed the real gun was relevant to prove the toy gun looked like a real gun, it was unnecessary to use defendant's stepfather's gun and to argue during closing argument that defendant could have used either gun. The presence of a weapon is not an element of kidnapping. Nonetheless, although the real gun was irrelevant, and its admission error, we find the error harmless. Even if the jury believed from this irrelevant evidence that defendant had a real gun at the time of the offense, we are unconvinced that any juror might have voted to acquit defendant *497 absent this evidence. People v Hudgins, 125 Mich App 140, 145; 336 NW2d 241 (1983).
Next, we address whether the trial court's jury instructions were deficient because the instructions were inadequate to inform the jury that attempted kidnapping is a specific intent crime and because the judge failed to instruct sua sponte on the defense of intoxication and voluntary abandonment. As to the intoxication instruction, defense counsel never argued at trial that defendant was impaired by the alcohol and marijuana defendant admitted he consumed prior to the incident. Nor did he ever argue that he intended to kidnap Stephanie but abandoned that intent. When the defendant presents no evidence relating to a defense, the trial court is not expected to sua sponte instruct the jury regarding those defenses. People v Freeman, 149 Mich App 119, 126; 385 NW2d 617 (1985).
Likewise, we disagree with defendant's argument that the trial court failed to instruct that attempted kidnapping is a specific intent crime. While kidnapping is not a specific intent crime, attempted kidnapping is a specific intent crime. People v Wesley, supra; People v Joeseype Johnson, 407 Mich 196, 239; 284 NW2d 718 (1979). The trial court did give the jury the appropriate elements of attempt and gave a specific intent instruction. However, in doing so the court erroneously referred to specific intent in relation to the kidnapping charge itself. Nonetheless, we find that the instruction as given, when read as a whole, contained all the information required by the jury to return a proper verdict. People v Freeman, supra.
Because they are closely related, we address in tandem two additional assignments of error. Throughout the trial, defense counsel suggested *498 that the proofs would not support a conviction for kidnapping or attempted kidnapping; that at most defendant was guilty of assault and battery. Defendant himself admitted during his testimony that he had committed the crime of assault and battery. In instructing the jury, the court told the jurors that they should "consider whether the movement was for the purpose of kidnapping or whether it was a part of the crime of assault and battery." The court also stated that it was defendant's theory of the case that he had been "overcharged based on the facts presented" and "that any movement that took place was incidental to a lesser offense of Assault and Battery."
Nonetheless, defendant was not charged with assault and battery and the trial court did not give an assault and battery instruction. Defendant claims that trial counsel requested an instruction on the lesser-included offense of assault and battery during an in-chambers conference on instructions. Even though no instruction on assault and battery was given, counsel made no objection on the record and instead pronounced himself satisfied with the jury instructions. At one point during deliberation, the jury requested and received additional instruction on kidnapping and attempted kidnapping. Later the jury informed the court it could not reach a verdict and it was given the deadlock instruction, after which it returned the verdict of guilty of attempted kidnapping.
Defendant now asserts that the trial court erred by denying an in-chambers request for an instruction on the lesser offense of assault and battery. Defendant alternatively argues that if trial counsel failed to make a proper request, then the trial attorney seriously erred to the extent he was deprived of effective assistance of counsel. Because we are unable to determine from this record *499 whether trial defense counsel did request the assault and battery instruction and because appellate counsel's arguments do raise a question as to the adequacy of defendant's representation at trial, we find it necessary to remand to the trial court for presentation of these issues.[1]
We so find because we are convinced that the instant facts met the requirements for the giving of instructions on a lesser-included misdemeanor as set forth in People v Stephens, 416 Mich 252, 261-265; 330 NW2d 675 (1982). If the defendant requested the instruction, it would have been appropriate for the trial court to give the instruction. The intent to kidnap was sufficiently in dispute so that the jury could have consistently found defendant innocent of the greater offense and guilty of the lesser included misdemeanor offense. People v Acosta, 143 Mich App 95, 102; 371 NW2d 484 (1985). If the jury believed the defendant had not intended to confine the victim but had committed some crime, it had no acceptable verdict. Defendant's theory of the case was that he had only assaulted and battered the victim, never meaning to confine her except incidental to the assault and battery.
However, if, on the other hand, defendant's trial attorney failed to request the assault and battery instruction when his theory of the case was that defendant was guilty of nothing more than assault and battery, then a factual determination must be made by the trial court as to whether a serious mistake was made by defense counsel rendering his performance below that of a lawyer with ordinary skill and training in criminal law and depriving *500 defendant of a reasonable chance of acquittal, or, in this case, conviction on the lesser included misdemeanor. People v Garcia, 398 Mich 250; 247 NW2d 547 (1976); Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Vicuna, supra, pp 496-498. Accordingly, pursuant to People v Ginther, 390 Mich 436; 212 NW2d 922 (1973), this case is remanded to the trial court for a hearing on defendant's new trial motion. At that hearing, in addition to the issue of whether defendant's trial counsel failed to request an assault and battery instruction, defendant may present testimony on his counsel's failure to request intoxication and abandonment instructions.
Defendant's last issue challenges his sentence because the trial judge deviated from the sentencing guidelines but failed to articulate his departure reasons on the record. While the judge did explain his sentence departure on the Sentencing Information Report (SIR) under departure reasons, we subscribe to the view that "departure reasons must be placed on the record in addition to the SIR which has only the effect of placing them in the record." People v Spalla, 147 Mich App 722, 727; 383 NW2d 105 (1985); People v Fleming, 142 Mich App 119, 123; 369 NW2d 499 (1985) lv gtd 424 Mich 877 (1986). Thus, in the event that on remand following the Ginther hearing the trial court denies defendant's new trial motion, defendant should be resentenced and any departure reasons shall be specifically articulated on the record.
Remanded for further proceedings consistent with this opinion.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] We recognize that on February 18, 1986, a panel of this Court denied defendant's motion to remand on this same basis "for failure to persuade the Court of the necessity of a remand at this time." We now find that remand is necessary. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593630/ | 215 S.W.3d 96 (2007)
In the Matter of the Care and Treatment of Mark A. MURRELL, Appellant,
v.
STATE of Missouri, Respondent.
No. SC 87804.
Supreme Court of Missouri, En Banc.
February 13, 2007.
Rehearing Denied March 20, 2007.
*99 Emmett D. Queener, Office of Public Defender, Columbia, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., James H. Klahr, Asst. Atty. Gen., Jefferson City, for Respondent.
WILLIAM RAY PRICE, JR., Judge.
A jury unanimously found Mark Murrell to be a sexually violent predator ("SVP") pursuant to sections 632.480-632.513[1], RSMo Supp.2001. Because his appeal challenges the validity of sections 632.480-632.513, jurisdiction lies solely in this Court. Mo. Const. art. V, sec. 3.
This Court holds: (1) that Missouri's SVP statute, sections 632.480-632.513, complies with the due process protections of the United States and Missouri constitutions; (2) antisocial personality disorder ("ASPD") can meet the definition of "mental abnormality" within the meaning of section 632.480(2) if there is evidence of a link between ASPD and sexually violent behavior and there was sufficient evidence in this case for the jury to find that Murrell is an SVP under the statute; and (3) expert testimony, including evidence of actuarial *100 instruments, was properly admissible in this case because the actuarial instruments utilized constituted facts or data of a type reasonably relied upon by experts in the field that were otherwise reasonably reliable and it was linked with an independent clinical evaluation of Murrell. The judgment is affirmed.[2]
I. Facts
Mark "Red" Murrell has a long record of criminal offenses and has spent the majority of his life in prisons, halfway houses, mental institutions and other detention facilities.[3] As a teenager, he was arrested several times and ended up at a home for boys. By the age of 15 years, Murrell had been in two different boys' juvenile facilities and had an extensive arrest record. He frequently used drugs and alcohol.
When Murrell was 18 years old, he was involved in a bar fight in Kansas that culminated in Murrell stabbing another man. He was arrested on charges of aggravated battery. Three months after that arrest and while out on conditional release, Murrell and two other men abducted two women at gunpoint from a parking lot. They took the women to a Belton house and raped them. On October 23, 1980, Murrell pled guilty to the rape of the two women and to aggravated battery in connection with the stabbing. He was sentenced to 15 years for the rape and 10 years for aggravated battery, to be served concurrently.
Murrell was paroled in 1991. Five months later, while under parole supervision, he was arrested for driving while intoxicated, unlawful use of a weapon, and possession of a controlled substance, cocaine base. On the basis of these charges and the subsequent convictions following guilty pleas, Murrell's parole was revoked and he was sentenced to four years imprisonment. In 1994, he was paroled to a halfway house. He escaped and was soon after apprehended in a drug house. His parole was revoked.
Murrell was finally released from prison and any and all supervision in 1995 and went to live with an ex-girlfriend. In March 1996, four months after his release from prison, Murrell fondled the breasts of a 13-year-old girl while he watched a movie with her and his ex-girlfriend's daughter in the house where he was living. He pled guilty to child molestation in the 2nd degree and was sentenced to four years in prison.
Murrell served four years and was scheduled for release from prison on April 4, 2000. In January 2000, the department of corrections notified the attorney general that Murrell might meet the definition of an SVP. In February of that year the prosecutor's review committee met pursuant to section 632.493, RSMo Supp.1999, and determined Murrell did in fact meet that definition. On February 28, 2000, the State of Missouri filed a petition to commit Murrell to the custody of the department of mental health pursuant to section 632.492, RSMo Supp.1999.
Prior to trial, Dr. Deborah Gunnin, a licensed forensic psychologist with the department of mental health, was assigned to *101 conduct an SVP evaluation of Murrell and diagnosed Murrell with recurrent depressive disorder, polysubstance dependence, and ASPD. In Dr. Gunnin's opinion, the existence of ASPD, as well as Murrell's scores on the Static-99 and MnSOST-R[4] actuarials, made Murrell more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility.
During the pendency of Murrell's SVP proceeding, the United States Supreme Court decided Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), and this Court, in turn, decided In the Matter of the Care and Treatment of Thomas v. State, 74 S.W.3d 789 (Mo. banc 2002). The rule of those cases is that an SVP statute allowing for civil commitment must require a finding of future dangerousness and a link between that finding and the existence of a "mental abnormality" or "personality disorder" that causes the individual serious difficulty controlling his behavior. See Thomas, 74 S.W.3d at 791.
Following the change in the law, Dr. Gunnin reevaluated Murrell in October 2002. Although she again diagnosed him with ASPD and again took his scores on the Static-99 and MnSOST-R into account, she believed that there was inconclusive evidence to indicate whether Murrell has control of his behavior and chooses to act unlawfully, or whether he has serious difficulty controlling his behavior.
Consequently, the State hired Dr. Harry Hoberman, also a licensed psychologist, to conduct an evaluation of Mark Murrell. At trial, Dr. Hoberman testified[5] that Murrell suffers from the mental abnormality of ASPD. He instructed that Murrell's ASPD was a congenital or acquired condition that affects his emotional or volitional capacity such that it predisposes him to commit sexually violent offenses. Finally, Dr. Hoberman testified that, in his opinion, Murrell's ASPD causes him serious difficulty controlling his behavior and makes him more likely than not to engage in future acts of predatory sexual violence. He explained that he measured Murrell's risk of reoffense by reviewing and relying upon Murrell's extensive record, looking to base rates, and using actuarial tools.
Murrell attacked the reliability of the actuarial instruments relied on by Dr. Hoberman. Murrell also called Dr. Gregory Sisk, a licensed psychologist, who stated that in his opinion, Murrell does not suffer from a mental abnormality within the meaning of section 632.480(2). According to Sisk, "mental abnormality," as used in the statute, necessarily requires an abnormality that causes a tendency to commit sexually violent offenses and neither ASPD nor major depressive disorder nor polysubstance dependence necessarily cause sexual urges, as a paraphilia would.
At the conclusion of the evidence the court gave the jury the following verdict director, in relevant part:
If you find and believe from the evidence beyond a reasonable doubt:
First, that the respondent pleaded guilty to child molestation in the second degree in the Circuit Court of Jackson County, State of Missouri, on December 10, 1996, and
Second, that the offense for which the respondent was convicted was a sexually violent offense, and
*102 Third, that the respondent suffers from a mental abnormality, and
Fourth, that this mental abnormality makes the respondent more likely than not to engage in predatory acts of sexual violence if he is not confined to a secure facility, then you will find that the respondent is a sexually violent predator.[6]
The jury unanimously found Mark Murrell to be a sexually violent predator. The court entered judgment on the verdict and ordered Murrell to be placed in the custody of the Missouri Department of Mental Health for control, treatment and care until his mental condition has so changed that he is safe to be at large.
II. Discussion
A. Points on Appeal
Murrell raises four points of error on appeal: (1) the trial court erred when it denied his motion to dismiss the State's petition because sections 632.480-632.513 violate due process; (2) the evidence was insufficient to prove beyond a reasonable doubt that Murrell is an SVP; (3) the trial court erred in admitting evidence that Murrell suffers from ASPD because it is not a "mental abnormality" under the statute; and (4) the trial court erred in admitting the results of Murrell's scores on the Static-99 and MnSOST-R actuarial instruments as applied to him by Dr. Hoberman.
B. Constitutionality of Sections 632.480-632.513
Murrell alleges that the trial court erred when it denied his motion to dismiss the State's petition because sections 632.480-632.513 are unconstitutional in that they permit civil commitment of an individual without requiring proof that the individual's mental abnormality makes him more likely than not to commit a sexually violent offense in the immediate future. Rather, he urges, the statutes allow commitment based on a finding that a person may be a danger at some indefinite time into the future and will commit a sexually violent offense over the course of an entire lifetime and are, therefore, unconstitutional.
1. Standard of Review
This Court reviews issues of law de novo. Barker v. Barker, 98 S.W.3d 532, 534 (Mo. banc 2003). "Statutes are presumed to be constitutional." Suffian v. Usher, 19 S.W.3d 130, 134 (Mo. banc 2000) (citations omitted). This Court will "resolve all doubt in favor of the act's validity" and may "make every reasonable intendment to sustain the constitutionality of the statute." Westin Crown Plaza Hotel v. King, 664 S.W.2d 2, 5 (Mo. banc 1984). If a statutory provision can be interpreted in two ways, one constitutional and the other not constitutional, the constitutional construction shall be adopted. See Asbury v. Lombardi, 846 S.W.2d 196, 199 (Mo. banc 1993).
2. Due Process Standards
The Missouri General Assembly has identified sexually violent predators as a very real threat to the safety of the people of Missouri. As a result, if a previously convicted sexually violent offender is found to have a mental abnormality making him *103 dangerous at the time of scheduled release, sections 632.480 et. seq. establish the process pursuant to which he or she may be civilly committed.[7] Section 632.480 defines "mental abnormality" and "sexually violent predator" as follows:
"Mental abnormality", a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others[.]
. . .
"Sexually violent predator", any person who suffers from a mental abnormality which makes the person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility.[8]
Sec. 632.480(2), 632.480(5).
Pursuant to its police power, a state may enact SVP statutes providing for the involuntary civil commitment of dangerous persons "provided the commitment *104 takes place pursuant to proper procedures and evidentiary standards." Kansas v. Hendricks, 521 U.S. 346, 357, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997); see also Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992). The Supreme Court in O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975), held that a finding of "mental illness" alone will not justify locking up a person against his will for an indefinite period of time. Id. at 575, 95 S.Ct. 2486. Rather, due process requires that a person be both mentally ill and dangerous in order to be civilly committed; the absence of either characteristic renders involuntary civil confinement unconstitutional. Foucha, 504 U.S. at 77, 112 S.Ct. 1780. See also Hendricks, 521 U.S. at 358, 117 S.Ct. 2072. The individual must not only be dangerous at the time of, but also during, commitment, for "if his involuntary confinement was initially permissible, it could not constitutionally continue after a basis no longer existed." O'Connor, 422 U.S. at 575, 95 S.Ct. 2486.
Moreover, due process requires that the "mental abnormality" and "dangerousness" be inextricably intertwined, such that "involuntary civil confinement [is limited] to those who suffer from a volitional impairment rendering them dangerous beyond their control." Hendricks, 521 U.S. at 358, 117 S.Ct. 2072. The result being, as found in Thomas, that to pass constitutional muster the statute must require a finding of future dangerousness and then link that finding to the existence of a "mental abnormality" or "personality disorder" that causes the individual serious difficulty controlling his behavior. See Thomas, 74 S.W.3d at 791-92; see also Hendricks, 521 U.S. at 358, 117 S.Ct. 2072; Kansas v. Crane, 534 U.S. at 413, 122 S.Ct. 867.
3. Due Process Challenges
Murrell contends that "future dangerousness" requires a showing that the individual poses an imminent, immediate threat of harm. Essentially, Murrell's argument is that due process requires proof that an individual will commit a sexually violent offense at a specific time. This precise issue need not be considered. As noted by the Supreme Court of California in Hubbart v. Superior Court, 19 Cal.4th 1138, 81 Cal.Rptr.2d 492, 969 P.2d 584 (1999), "nothing in Hendricks or the cases on which it relied suggests that a commitment scheme must require the trier of fact to pinpoint the time at which future injury is likely to occur if the person is not confined." 81 Cal.Rptr.2d 492, 969 P.2d at 600. Murrell is dangerous at the time of commitment precisely because he currently presents a danger of committing a sexually violent offense.
The language of section 632.480 is written in the present tense and necessarily requires the jury to find an individual presently poses a danger to society if released. Under the plain language of the statute, a person may not be confined absent a finding he "suffers" from a mental abnormality that "makes" the person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility. Sec. 632.480(5). In order to be found to suffer from a mental abnormality, a person must have a condition "affecting" the congenital or volitional capacity that "predisposes" the person to commit a sexually violent offense in a degree constituting such person a "menace"[9] to health and safety of others. Id.
*105 Missouri's SVP statute requires a finding that, to be committed, the individual 1) has a history of past sexually violent behavior; 2) a mental abnormality; and 3) the abnormality creates a danger to others if the person is not incapacitated. That is all Hendricks requires. See Hendricks, 521 U.S. at 357, 117 S.Ct. 2072. It is neither possible nor constitutionally required that the jury be charged with determining at what precise time Murrell's present dangerousness will result in sexually violent behavior. See Hubbart, 81 Cal. Rptr.2d 492, 969 P.2d at 600. Because the statute can be construed in a constitutional manner, it need not be invalidated for any alleged lack of specificity and need not be read to require any additional or different constitutional requirements. See Kearney Special Road Dist. v. County of Clay, 863 S.W.2d 841, 842 (Mo. banc 1993); Asbury, 846 S.W.2d at 199.
In addition, Missouri's statutory scheme provides for an annual examination of the committed individual's mental health condition. Sec. 632.498.1. Following the procedures set forth in the statute, if the director, the judge, or a jury finds that the individual no longer suffers from a mental abnormality that makes him more likely than not to engage in predatory acts of sexual violence, he shall be conditionally released. Sec. 632.498.5(4). Indeed, commitment pursuant to the SVP statute is not necessarily indefinite, nor a life sentence. "[T]he confinement's duration is instead linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others." Hendricks, 521 U.S. at 363, 117 S.Ct. 2072. The annual review mechanism ensures involuntary confinement that was initially permissible will not continue after the basis for it no longer exists. O'Connor, 422 U.S. at 575, 95 S.Ct. 2486. It is, of course, hoped that the committed individual responds to treatment so that he is no longer a threat.
The present tense language and annual review mechanism allow Missouri's SVP statute to comport with the due process protections of the United States Constitution, and Murrell has failed to present any authority to suggest the Missouri Constitution provides any greater protection relating to the civil confinement of repeat sexual offenders. The Court's decision today is in accord with the decisions reached by courts in other states that have considered this issue. Martin v. Reinstein, 195 Ariz. 293, 987 P.2d 779, 800 (App.1999) (statute required more than a mere possibility, in that "it specifically requires that an accused SVP have a mental disorder that renders him 'likely' to engage in acts of sexual violence . . . [and][w]e have defined `likely' as probable rather than merely possible"); Hubbart, 19 Cal.4th 1138, 81 Cal.Rptr.2d 492, 969 P.2d 584, 599 (1999), (statute upheld because "the statutory criteria are expressed in the present tense, indicating that each must exist at the time the verdict is rendered"); In re the Detention of Selby, 710 N.W.2d 249, 252 (Iowa App.2005) (statute upheld because the "present tense language of chapter 229A requires that a person be found to be both dangerous and to have a mental abnormality at the time of the proposed commitment . . . and [it] provides for a yearly review of the individual's condition"); Beasley v. Molett, 95 S.W.3d 590, 600 (Tex. App.-Beaumont 2002) (declaring that by definition a "menace" is a threat or imminent danger and that therefore, in its own terms, the act satisfied any proof requirement of an imminent risk of future harm).
C. Antisocial Personality Disorder As a Basis for Civil Commitment
Murrell's next two arguments are essentially the same: the State may not be *106 permitted to commit Murrell because ASPD is not, in and of itself, sufficient to distinguish a sexually violent predator subject to civil commitment from an ordinary criminal better dealt with through the criminal justice system. However, he approaches the issue in two distinct ways.
1. Standard of Review
The first issue presented is whether ASPD is a "mental abnormality." Questions of statutory construction are strictly a matter of law and are for the independent judgment of this Court. City of St. Joseph v. Village of Country Club, 163 S.W.3d 905, 907 (Mo. banc 2005).
The second issue presented, whether ASPD may provide sufficient evidence from which the jury may find an individual is more likely than not to engage in predatory acts of sexual violence, is an evidentiary issue. The Court views the evidence in a light most favorable to the jury verdict, disregarding all contrary evidence and inferences, and determines whether the evidence was sufficient for twelve reasonable jurors to have believed beyond a reasonable doubt that Murrell is an SVP. Care and Treatment of Cokes v. State, 183 S.W.3d 281, 282 (Mo.App. 2005).[10]
2. Murrell as Distinguished From the Typical Recidivist
i. ASPD and "Mental Abnormality" Under Section 632.480
Murrell's first argument is focused on the statutory definition of "mental abnormality." He asserts that the statute requires a mental abnormality that is, in and of itself, linked to sexual offending. Consequently, he argues ASPD cannot, constitutionally, be used to form the basis of civil commitment, evidence of the disorder should not have been admitted, and he cannot be found to fall within the definition of an SVP.
The Court held that under Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), the "degree" to which a person cannot control his behavior must be "serious difficulty." decided In the Matter of the Care and Treatment of Thomas v. State, 74 S.W.3d 789, 791 (Mo. banc 2002). Under section 632.480 and Crane, "mental abnormality" is (1) a congenital or acquired condition; (2) affecting the emotional or volitional capacity; (3) that predisposes the person to commit sexually violent offenses; (4) in a degree that causes the individual serious difficulty controlling his behavior.[11]See id. at 792.
Murrell's argument that the SVP statute requires a mental abnormality that, in and of itself, predisposes a person to commit sexually violent offenses fails. Missouri's SVP statute need only require "evidence of past sexually violent behavior and a present mental condition that creates a likelihood of such conduct in the future if the person is not incapacitated." Kansas v. Hendricks, 521 U.S. 346, 357-358, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). Civil commitment statutes have been upheld "when they have coupled proof of dangerousness *107 with the proof of some additional factor, such as a 'mental illness' or 'mental abnormality.'" Id. at 358, 117 S.Ct. 2072. "Mental abnormality," as used in Hendricks, includes personality disorders. See id. ("The recommitment requirement of a `mental abnormality' or 'personality disorder' is consistent with the requirements of these other statutes that we have upheld in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness.").
Murrell is correct insofar as he argues that a diagnosis of ASPD, based upon a criminal history devoid of any sexual crimes, cannot, standing alone, satisfy the statutory definition of an SVP; that evidence would only satisfy the "mental condition" aspect. Murrell is also correct to the extent he argues sexually deviant disorders such as sadism and pedophilia, which are mental abnormalities necessarily involving a propensity to commit sexual offenses, satisfy the statutory definition standing alone. Simply because ASPD cannot in every case be enough, however, does not make it "too imprecise." If ASPD is linked with sexually violent behavior, it can provide the basis for commitment.
ii. ASPD and "Sexually Violent Predator"
Murrell's second argument that ASPD does not distinguish him from the common criminal is focused on the definition of "sexually violent predator." He argues that even if ASPD is a mental abnormality, it provides insufficient evidence to support a finding that he is more likely than not to engage in predatory acts of sexual violence in the future if not confined. Again, while Murrell is correct that ASPD is not, in and of itself, sufficient to provide a basis for a finding that an individual is more likely than not to engage in predatory acts of sexual violence if not confined, ASPD will be sufficient when combined with other evidence of sexually violent behavior.
There was evidence of sexually violent behavior in this case. The jury heard from both Dr. Hoberman and Dr. Gunnin that ASPD predisposes Murrell to commit sexually violent offenses. They heard testimony of Murrell's past sexually violent crimes. On one occasion, Murrell raped two women. Prior to the rape, one of the victims asked to use the bathroom. Murrell followed her and before she could pull her pants back up he put his arm around her, rubbed her on her thighs and in between her legs while holding a knife to her, and made her grab his penis.
The second victim testified that after they arrived at a house Murrell ordered them to remove their clothes while holding his shotgun, and he and the other men "took turns" with them. Specifically, she told the jury that Murrell raped her several times vaginally and orally, and made her perform oral sex on him. While she was being raped, he told her he would kill her if she told anyone, and he grabbed her hair and smacked her head on the floor.
The jury heard accounts of the sexual molestation of a 13-year-old girl. Dr. Hoberman noted that although Murrell tried to wait until he was alone with the girl to fondle her, he did it in a house in which his ex-girlfriend was present, and the girl's friend did, in fact, see the incident occur. When Murrell fondled the young girl's breasts under her bra, she asked him to stop, but he continued to fondle her breasts over her bra and shirt.
The jury heard two experts in this case, Drs. Gunnin and Hoberman, testify that based on their clinical evaluations and on actuarial instruments, they believed Murrell's ASPD makes it more likely than not *108 he will engage in sexually violent behavior in the future if not confined. Dr. Hoberman testified that the actuarial tools he used put Murrell in the "high risk" category for reoffense. He stated that Murrell refuses, at times, to take the medication that helps him control his behavior and that he has had aggressive outbursts in prison at least twice in 2004. The evidence showed that Murrell has never completed a drug treatment or sex offender treatment program. Murrell himself indicated that when depressed he feels like someone else takes over him and endorsed the statement, "behaviors occur due to instinct and you have no control over them." Dr. Hoberman's opinion was based in part on the fact that Murrell has been free, collectively, for only a little over a year since he was 18 and in that time has committed multiple sexual offenses, each involving more than one act of assault. While on conditional release after his arrest for stabbing a man, Murrell abducted two women at gunpoint and repeatedly raped them. When Murrell was released after his incarceration for rape, he molested a 13-year-old child only 4 months later.
3. Conclusion
Antisocial personality disorder qualifies as a mental abnormality within the meaning of section 632.480, as interpreted by Thomas, if it is linked to past sexually violent behavior. ASPD will provide the evidentiary basis for a finding that a person is an SVP if there is also evidence that the individual is more likely than not to engage in predatory acts of sexual violence in the future if not confined. Murrell has committed sex crimes in two instances, each involving multiple acts of assault, one with multiple victims. Murrell committed the sex crimes impulsively, with little hesitation and without thinking about the consequences of his actions. The evidence showed that in the past he has exhibited no remorse or regret for those crimes.
There was sufficient evidence in this case of the link between ASPD and sexually violent behavior for the jury to find Murrell is an SVP under the statute and distinguishable from the typical recidivist. To borrow language from Hendricks, Murrell's "lack of volitional control, coupled with a prediction of future dangerousness, adequately distinguishes [Murrell] from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings." Hendricks, 521 U.S. at 360, 117 S.Ct. 2072. This Court's holding on this point is in accord with previous decisions of all three districts of the court of appeals of this state. See In the Matter of the Care and Treatment of Heikes v. State, 170 S.W.3d 482, 486 (Mo.App.2005) (holding "a personality disorder can constitute a mental abnormality if all of the statutory elements are met"); In re Shafer, 171 S.W.3d 768, 771-72 (Mo.App.2005) (affirming commitment of sex offender with ASPD); In the Matter of the Care and Treatment of Pate, 137 S.W.3d 492, 497 (Mo.App.2004) (holding narcissistic personality disorder with antisocial features qualifies as a mental abnormality).
D. Admissibility of the Actuarial Instruments
Although relatively new in the judicial context, the actuarial method of risk assessment has been used rather extensively in other settings. E. Janus & R. Prenky, Forensic Use of Actuarial Risk Assessment with Sex Offenders: Accuracy, Admissibility, and Accountability, 40 Am. Crim. L.Rev. 1443, 1454 (2003). Dr. Hoberman explained the methodology of both actuarial instruments in this case. He testified that the Static-99 is a ten-item measure developed by looking at the characteristics *109 of approximately 4,000 sex offenders to see which characteristics they possessed were associated with the likelihood of reoffense within 15 years, as defined by reconviction.[12] The items that make up the Static-99 include prior sex offenses as measured by arrest or conviction, history of general violence, the number of prior sentencing occasions, marital status, and characteristics of the victim such as sex and whether the victim was a stranger.
Dr. Hoberman explained that the MnSOST-R is a sixteen-item measure developed by looking at the characteristics of approximately 1,000 individuals to see what characteristics were highly correlated to rearrest for sexual offenses within six years of release. The items include whether the victim was a stranger, the age of the victims, whether force was used, employment history of the offender, the offender's drug use at or around the time of offense, age of the offender, whether the offender has completed chemical dependency or sex offender treatment, and whether the offender had any disciplinary offenses during his or her most recent incarceration.
When Dr. Hoberman applied the Static-99 to Murrell he found that, according to the instrument, a person with Murrell's characteristics falls into the high risk category for reoffense. The score Murrell received is associated with a 52 percent chance of reconviction within fifteen years. Dr. Hoberman stated that the MnSOST-R, as applied by him to Murrell, placed Murrell in the high risk category for reoffense. According to Dr. Hoberman, the most recent research indicates that individuals in the high risk category of the MnSOST-R have a 72 percent chance of being rearrested for a sex offense within six years.
Murrell argues that the trial court abused its discretion in admitting Dr. Hoberman's testimony as to the results of the Static-99 and MnSOST-R actuarial instruments. Specifically, he argues that the instruments reflect only the results of a group analysis and, therefore, are irrelevant and not helpful to the jury in that they do not address the issue of whether Murrell is likely to reoffend.
1. Standard of Review
The determination of whether to admit evidence is within the sound discretion of the trial court. A trial court will be found to have abused its discretion when a ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. State v. Johns, 34 S.W.3d 93, 111 (Mo. banc 2000). This Court's direct appeal review is for prejudice, not mere error, and the trial *110 court's decision will be reversed only if the error was so prejudicial that it deprived the defendant of a fair trial. State v. Strong, 142 S.W.3d 702, 710 (Mo. banc 2004). Trial court error is not prejudicial unless there is a reasonable probability that the trial court's error affected the outcome of the trial. State v. Zink, 181 S.W.3d 66, 73 (Mo. banc 2005).
2. The Static-99 and MnSOST-R
Missouri's SVP statute is civil in nature. See Kansas v. Hendricks, 521 U.S. at 367-68, 117 S.Ct. 2072. Admission of expert testimony in civil cases is governed by section 490.065. State Board of Registration for the Healing Arts v. Edward W. McDonagh, 123 S.W.3d 146, 153 (Mo. banc 2003). The statute provides, in relevant part:
1. In any civil action, if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
. . .
3. The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable.
Sections 490.065.1, 490.065.3.
The first issues of admissibility under 490.065.1 are whether "specialized knowledge will assist the trier of fact" and whether the expert is qualified "by knowledge, skill, experience, training, or education" to render an opinion. Sec. 490.065.1. Murrell couches his relevance argument in a way that attacks Dr. Hoberman's utilization of the actuarial instruments in this case as not helpful to the trier of fact under 490.065.1. His focus on that section is misguided. 490.065.1 involves only the questions of whether expert testimony will assist the jury in understanding the evidence or determining a fact in issue and, if so, if the particular expert is qualified to testify. Murrell does not contest those two issues in this case.
The admissibility of the actuarial instruments, and Murrell's relevance argument, is controlled by section 490.065.3. Under the statute, if expert testimony is needed and if the expert is qualified to testify under subsection 1, the expert is entitled to base his opinion upon facts or data 1) "of a type reasonably relied upon by experts in the field," and 2) which "must otherwise be reasonably reliable." If facts or data are both reasonably reliable and reasonably relied on by experts in the field when forming an opinion on the matter at issue, they will necessarily be relevant to the case, and testimony as to the facts and data will be admissible.
Dr. Hoberman was asked if the data in this case, the actuarial instruments, were "the type of instruments or data reasonably relied upon by experts in the field in forming opinions about a person's risk of future sexual violence." He answered affirmatively. The State presented evidence of the frequent use of actuarial instruments and their general acceptance in the scientific community. Dr. Hoberman stated that in almost every SVP case he had participated in, "one of the [department of mental health] evaluators has used at least one actuarial measure and typically two, the Static-99 and the MnSOST-R." Dr. Hoberman testified that the Static-99 is used in fifteen of the seventeen states with SVP statutes.
*111 In the past two years, reported cases in at least twelve states have recognized experts' reliance on the Static-99 as a risk-assessment tool in cases involving sexually violent predators.[13] At least five Missouri cases in the past three years reference the admission of the Static-99.[14] Actuarial instruments are not only relied upon by the states in their cases against alleged SVPs, but also by experts for sexual offenders as well. See In re Commitment of Simons, 213 Ill.2d 523, 290 Ill.Dec. 610, 821 N.E.2d 1184, 1192, (2004) (citing People v. Calhoun, 118 Cal.App.4th 519, 13 Cal.Rptr.3d 166, 168 (2004)). It is clear that actuarial instruments are reasonably relied upon by experts in evaluating a sexually violent predator's risk of reoffense.
The second issue under 490.065.3 is whether the data is reasonably reliable. Dr. Hoberman testified that it was his belief that the MnSOST-R has been validated and is widely accepted. He cited an authoritative text entitled Evaluating Sex Offenders, by Dr. Dennis Doren, that advocates the use of the Static-99 and MnSOST-R instruments. He testified that another authoritative text, Forensic Management of Sexual Offenders, lists the MnSOST-R as one of the risk assessment tools used in the evaluation of sexual offenders. Dr. Hoberman instructed that the Static-99 has been subject to at least twenty-two cross-validation studies bolstering its reliability. He stated that the MnSOST-R has also been subject to cross-validation. Indeed, "many scholars have concluded that the predictive efficacy of actuarial methods of risk assessment is superior to clinically derived assessments of risk." E. Janus & R. Prenky, Forensic Use of Actuarial Risk Assessment with Sex Offenders: Accuracy, Admissibility, and Accountability, 40 Am.Crim. L.Rev. 1443, 1457 (2003).
There was testimony that, contrary to the contention of Murrell, the Static-99 is relevant to the risk of recidivism for the individual as well as the test group. Dr. Hoberman stated that the instrument provides experts with an indicator of the factors that sex offenders who recidivate have in common. He instructed that the expert then looks at the individual being evaluated to determine whether he possesses the characteristics shown by the Static-99 to be indicative of recidivism. The person being evaluated is then given a score based on the characteristics he or she possesses, which indicates the percentage of likelihood of reoffense for a person with those characteristics; in this case Murrell.
Finally, any concern about the accuracy of the actuarial instruments was made known to the jury and goes to the weight the evidence should receive. Dr. Hoberman illuminated the issues surrounding the accuracy of these instruments and their limitations. He agreed that there is *112 no way to know what personality disorders the individuals making up the Static-99 suffered from. He instructed that at least two experts in the field have criticized the MnSOST-R as over-predicting the risk of reoffense. On cross-examination Dr. Hoberman admitted that there is no way to determine for certain that Murrell will commit a sexually violent offense if released. He agreed that he could offer nothing more than probabilities and there was no way to tell whether Murrell would be in the class of the 52 percent of people who were reconvicted, as guided by the Static-99, or the 48 percent who were not. The trial court was correct in finding that the actuarial instruments were reasonably reliable.
This holding does not ignore Murrell's argument that the actuarial instruments are irrelevant because they are a product of the recidivism rate of the test group, not the individual being evaluated. Under the statute, determination of whether the facts and data relied upon are relevant is made relative to the testimony of the expert. If the facts and data are shown to be reasonably relied upon by experts in the field, they are necessarily relevant to the issue the expert is addressing. The only way to attack the admissibility of that information is to show that the facts and data are not the type experts in the field are relying on or are not reliable. Murrell has simply failed to show that actuarial instruments are not reasonably relied upon or that they are not reliable in evaluating an SVP's risk of reoffense.
Additionally, it is essential to note that Dr. Hoberman's testimony indicated actuarial instruments are merely one of many tools considered in the evaluation and that he does not conclude his analysis of a person's future risk on the instruments alone. Dr. Hoberman stated that characteristics unique to the individual are omitted from the instruments and must be considered. He reviewed approximately 7,000 to 10,000 pages of Murrell's records during his assessment. He considered Murrell's offense history and personal characteristics, such as his mental abnormality, his past substance abuse, and his periodic refusal to take his medication. In other words, the evidence indicates Dr. Hoberman made his own clinical assessment in coming to a conclusion regarding Murrell's risk of reoffense and the actuarial instruments were used to corroborate his assessment; they were not the sole basis for it.
Admissibility should not be confused with submissibility. The holding today does not suggest that testimony as to the results of an actuarial instrument as applied to an individual standing alone, without the accompanying independent clinical assessment, would be a sufficiently reliable basis to commit an individual as an SVP. As courts in other states have recognized, testimony incorporating the results of actuarial instruments is admissible in cases involving the civil commitment of an SVP when the instruments are used in conjunction with a full clinical evaluation. See In re Commitment of Simons, 213 Ill.2d 523, 290 Ill.Dec. 610, 821 N.E.2d 1184, 1192 (2004) (actuarial instruments are generally accepted by professionals who assess sexually violent offenders and therefore are perfectly admissible in a court of law); In re Detention of Holtz, 653 N.W.2d 613, 619-20 (Iowa App. 2002) (actuarial instruments admissible when used in conjunction with clinical evaluation). In this case, there was ample evidence that Dr. Hoberman conducted an independent clinical evaluation.
Moreover, the sole issue before the Court is whether an expert in a civil commitment trial may testify as to the results of actuarial instruments. The *113 Court does not hold that an expert can argue based on the Static-99 that the particular offender has a 52% chance of reoffending. Rather, the Court holds the expert may base his or her opinion on actuarials because they constitute facts or data of a type reasonably relied upon and are otherwise reasonably reliable. The expert may testify that according to actuarials a certain percentage of people with characteristics like Murrell's do reoffend; that data can be part of the assessment as to whether Murrell is more likely than not to reoffend because although actuarials are not determinative, they are relevant to that determination.
At trial, the jury heard the following:
[Prosecutor]: "So does it (Static-99) give you any percentages or produce a result that comes out in percentages?"
[Dr. Hoberman]: "The score Mr. Murrell received is associated with a 52 percent chance of being reconvicted for a sex offense over a 15 year period of time."
To the extent this exchange was meant to convey to the jury that Murrell himself has a 52 percent chance of reoffending within the next 15 years, it was a misapplication of the actuarial results. However, the specific question and answer were not objected to by the defense and have not been challenged in Murrell's points relied on. Even had Murrell raised the issue here, the Court would not find plain error. On cross-examination of Dr. Hoberman, the jury heard the following testimony:
[Defense Counsel]: "You don't know if Mr. Murrell would fall in that 52 percent (of individuals who reoffended) or in that 48 percent (of individuals who did not), do you?"
[Dr. Hoberman]: "I do not."
[Defense Counsel]: "There's no way to tell?"
[Dr. Hoberman]: "No way to tell."
[Defense Counsel]: "Wouldn't you agree with me that it's kind of hard to talk specifics regarding Mr. Murrell and the Static-99 if you don't know exactly which side of this he fits in?"
[Dr. Hoberman]: "I think what you can say is what I said, which is that he has characteristics. You don't know which side he fits in, which is why you look at other actuarial measures, to use as many of them as possible to see to what degree they converge."
[Defense Counsel]: "Okay. But looking at the Static-99, you can't say whether Mr. Murrell was in the 52 percent number or the 48 percent number who don't reoffend?"
[Dr. Hoberman]: "Correct."
Any improper characterization conveyed to the jury was cured by Dr. Hoberman's testimony on cross-examination.
In sum, the trial court correctly held that the actuarial instruments utilized by Dr. Hoberman in assessing Murrell's risk of recidivism constituted facts or data of a type reasonably relied upon by experts in the field and which were otherwise reasonably reliable. The testimony regarding Dr. Hoberman's utilization of those instruments was, therefore, admissible under 490.065.
III. Conclusion
The judgment is affirmed.
STITH, LIMBAUGH and RUSSELL, JJ., concur.
WOLFF, C.J., dissents in separate opinion filed.
TEITELMAN and WHITE, JJ., concur in opinion of WOLFF, C.J.
*114 MICHAEL A. WOLFF, Chief Justice, dissenting.
Mark Murrell is committed for treatment. No matter how much treatment he receives, and no matter how well Murrell responds to treatment, as long as he remains confined, he always will score the same on the statistically based risk assessment instruments the state misuses through expert testimony in this case.
Evidence of statistics-based risk assessment measures, the STATIC-99 and the MnSOST-R, is fundamentally at odds with the constitutional basis on which the state may seek civil commitment of sex offenders who are alleged to be sexually violent predators under section 632.480 et seq.
The constitutional basis for these commitments is that they are not punishment, but rather rehabilitative. Civil commitment under Missouri's sexually violent predator law is not criminal punishment, whose objectives are retribution or deterrence. Such laws were upheld by the United States Supreme Court in Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), and Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). The sexually violent predators' confinement is for the purpose of holding the person until his mental abnormality no longer causes him to be a threat to others, and he is permitted to be released on a showing that he is no longer dangerous. See section 632.495; Hendricks, 521 U.S. at 363, 117 S.Ct. 2072.
In upholding Kansas' sexually violent predator law, the Supreme Court noted that the maximum time an individual can be incapacitated is one year, 521 U.S. at 364, 117 S.Ct. 2072, which is similar to Missouri's statutory scheme. This Court upheld Missouri's sexually violent predator law, relying upon the "multiple opportunities for court review," in finding that our statutory scheme is "narrowly tailored to promote the compelling interest of protecting the public from this small percentage of offenders." In re Care and Treatment of Norton, 123 S.W.3d 170, 175 (Mo banc. 2003). As with the Kansas statute, the Missouri statute provides for annual examinations and court review to determine if the person's "mental abnormality has improved with treatment and if the individual remains likely to engage in violent sexual acts if released." 123 S.W.3d at 175, citing section 632.498. In these reviews, as this Court has noted, the state has the burden of proving that the person's mental abnormality "has not improved and that it is not safe to release" the sexually violent predator. Id.
The statistically based evidence that this Court approves is directly contrary to these constitutionally-based premises. The evidence that purports to show that Murrell has a 52 per cent chance of re-offending in the next 15 years is based on statistical analysis of characteristics that never change. By approving these misused scientific measures, the Court assures that Murrell probably will never regain his liberty no matter how much treatment he receives and no matter how well he responds to it.
The STATIC-99 instrument was developed by researchers in Canada and the United Kingdom using two risk assessment instruments and was validated on a population of several thousand male sex offenders. The purpose of the STATIC-99 is to determine whether a male offender with certain characteristics is at low, moderate-low, moderate-high, or high risk of committing another sexual offense. The STATIC-99 does not say that Murrell himself has a 52 percent risk of re-offending. Rather, the STATIC-99 says that 52 percent of a group of male sex offenders who share Murrell's "static" (i.e. unchanging) characteristics committed a new offense *115 within a certain period of time. It is, at most, a generalization about a group, not a prediction as to any individual's future behavior.
The STATIC-99 is an instrument that is useful to sentencing judges in assessing the risk that a particular offender is in a category of persons who are more or less likely to re-offend and is perfectly appropriate at the sentencing stage. The STATIC-99 is being adopted for use by the Missouri Board of Probation and Parole in developing pre-trial sentencing assessment information for trial judges. This instrument is useful in informing the trial judge whether a particular offender shares the characteristics of those persons in a high, moderate, or low-risk group. Although the STATIC-99 does not, in fact, predict future behavior in a particular individual, a sentencing judge may find the assessment helpful in determining what kinds of controls, short of confinement, or what kind of program, in prison or in the community, might work to reduce the chance of recidivism in a particular type of offender. The sentence, as always, is based on the judge's judgment; the STATIC-99 is at best useful in reinforcing that judgment.
The use of this instrument through expert testimony in the civil commitment context, however, is not only wrong, but harmful. The reason that the instrument is inappropriate in civil commitment proceedings is that the characteristics of a confined offendersuch as Murrellwill never change.
The STATIC-99 risk assessment methodology is as follows: a one-point value is assigned to each of the following factors, none of which, except age, is subject to change for a confined man. The higher the score, the greater the statistical risk.
1. Agea person between the ages of 18 and 25 is scored one point;
2. A person who has never lived with a lover or significant other for at least two yearsone point;
3. Present convictions for nonsexual violenceone point;
4. Prior nonsexual violence offense one point;
5. Prior sexual offenses are identified in three ranges, based upon the number of charges and the number of convictions: depending upon this criminal offense history, points are scored from zero to three;
6. The number of times a person has been sentenced for felonies on different occasions scores an additional point if the person has been sentenced four or more times for any offense;
7. Convictions for non-contact sexual offensesone point;
8. Unrelated victimsone point;
9. Victims who are strangers to the offenderone point;
10. If the offender has male victims one point.
When all of these points are added up, an offender is considered low risk if he has zero or one points; if he has two or three points, he is moderate to low risk; if he has three, four or five points, he is rated moderate to high risk; and if he has six or more points, the offender is considered high risk.[1]
What is most noteworthy about this scoring system is that, except for age, the risk score never changes once a person is *116 confined. In other words, items 2 through 10 above will always be part of the confined offender's history, and they do not change. If he is committed civilly with, for example, a score of six or more, when he comes up for evaluation for release, he will still have the same score. It might be one point lower if he passes from under age 25 to over age 25, but that is the only thing that can possibly change about this evaluation. Murrell's score will never change; he is 46 years old. The other risk assessment instrument used by the expert in this case, the MnSOST-R risk assessment methodology developed in Minnesota on a smaller number of sexual offenders than the STATIC-99, shares the same characteristics that make the STATIC-99 inappropriate for use in civil commitment proceedings.
Under the statutory scheme for civil commitment of sexually violent predators, and the constitutional basis on which these laws are upheld, this statistical evidence is irrelevant in a legal sense, even if such evidence seems to be logically relevant.
Evidence must be both logically and legally relevant to be admissible. See, e.g., Shelton v. City of Springfield, 130 S.W.3d 30, 37 (Mo.App.2004). The evidence that these statistical assessment instruments present is that, out of large number of offenders, a certain percentage of those in the group having a particular score re-offended during some period of time. Does this have some logical relevance to those offenders in a group sharing Murrells' characteristics? The risk instruments say nothing about him personally. The risk instruments merely say that Murrell has characteristics similar to those of the group whose risk of re-offending is a statistically determined probability. It says nothing about whether or not Murrell himself is likely to re-offend. In fact, the researchers who developed the STATIC-99 candidly admit that one of the instrument's weaknesses is that "it demonstrates only moderate predictive accuracy."[2] What that means is that the STATIC-99 is better than flipping a coin for predicting the future behavior of individual sex offenders, but not that much better. In this context it is difficult to find any logical relevance.
If the discussion of logical relevance seems uncomfortably arcane, an examination of its legal relevance will bring us to a more comfortable setting. The question of legal relevance is particularly important here because the evidence that purports to present this in scientific or statistical terms is misleading. Legal relevance involves balancing the probative value of evidence against its prejudicial effect on the jury. If the probative value of the evidence is outweighed by its prejudicial effect, it should be excluded.
All that this statistical evidence tends to show is that Murrell is somewhat like members of a group of sex offenders who re-offended in the past. What the jury hears is likely to be quite differentthat this sex offender, Murrell, has a 52 per cent likelihood of committing another sexual offense. What the jury heard in this case from the state's out-of-state expert was as follows:
"Q Does it (the STATIC-99) give you any percentages or produce a result that comes out in percentages?"
"A The score that Mr. Murrell received is associated with a 52 percent chance of *117 being reconvicted for a sex offense over a 15-year period of time."[3]
What jury is going to vote to release him from confinement with that "scientific" prediction?
Because of its inherently misleading nature in the civil commitment context, this statistic is not evidence that assists the finder of fact, under section 490.065.1, but in fact is evidence that causes the jury to believe that there is some probative value to it. The principal opinion relies on the expert's testimonythat these risk assessment instruments are relied upon by experts in the fieldto make the results admissible under section 490.065.3.[4] A court's duty under this statute is to make sure the "facts or data in a particular case upon which an expert bases an opinion" are "of a type reasonably relied upon by experts in the field . . ." and are "otherwise reasonably reliable." (Emphasis added.) In my view, these risk assessments should be excluded if they are logically or legally irrelevant regardless of what the expert says about their use by other experts in the field because the use of irrelevant facts or data is inherently unreasonable. Nor are these facts and data "otherwise reasonably reliable," as I have discussed.
Under this expert testimony, it is asserted that Murrell currently has a 52 per cent chance of re-offending within 15 years. More accurately stated, 52 percent of a group of untreated sex offenders who shared Murrell's characteristics re-offended. On this basis the state says Murrell should be committed civilly.
At his next review, however, the same evidence can be adduced, under the principal opinion's analysis. In two years, three years, and so on, upon each annual review, he will still have a 52 per cent change of re-offending within 15 years, because Murrell's "static" characteristics will not have changed. This is true no matter how much treatment Murrell has received, no matter what the results.
The treatment that Murrell will be afforded by this civil commitment is designed to train him to curb his impulses. With treatment, he may become adequately trained to control his impulses, but using these statistical measures, he will still have a "52 per cent risk" of re-offending within 15 years. Does anyone remember the Soviets' misuse of their mental health system for incarcerating enemies of the state? Does this seem at all similar?
*118 The use of the STATIC-99 and the MnSOST-R methodologies in the civil commitment proceeding is a scientifically-based means to justify confining Murrell for the rest of his life regardless of the outcome of his treatment. The old Soviet Union is gone, but is its legacy of misusing its mental health system alive and well in this country?
I would grant Murrell a new trial with this statistically based evidence excluded. I respectfully dissent.
NOTES
[1] All statutory references are to RSMo 2000, unless otherwise indicated.
[2] Two companion cases, involving several of the issues presented here, In the Matter of the Care and Treatment of Stephen Elliott v. State (No. SC87746), 215 S.W.3d 88 (2007) and In the Matter of the Care and Treatment of Timothy S. Donaldson, 214 S.W.3d 331 (2007), are also decided this date.
[3] This Court reviews the facts in the light most favorable to the verdict. State v. Gill, 167 S.W.3d 184, 187 (Mo. banc 2005).
[4] Minnesota Sex Offender Screening Tool, Revised.
[5] Because Murrell refused to be interviewed, Dr. Hoberman relied upon his review of the available police records, court records, medical records, victims' statements, Department of Correction files, and probation and parole reports.
[6] The instruction also included the following definitions: "As used in this instruction, `sexually violent offense' includes the offense of child molestation in the second degree. As used in this instruction, `mental abnormality' means a congenial or acquired condition affecting the emotional or volitional capacity that predisposes the person to commit sexually violent offenses in a degree that causes the individual serious difficulty controlling his behavior. As used in this instruction, `predatory' means acts directed towards individuals, including family members, for the primary purpose of victimization."
[7] Under Missouri's SVP statute, the attorney general's office receives notification at least 360 days prior to the scheduled release of a individual previously convicted of a sexually violent offense. See secs. 632.480-632.513. Upon receipt of notification, the attorney general may initiate preliminary proceedings to determine whether the individual meets the definition of "sexually violent predator." See id. If such a determination is made, the attorney general may file a petition containing the allegation in the probate division of the circuit court that convicted the individual. Sec. 632.486. The judge shall then make a determination as to whether probable cause exists to believe the individual is an SVP, and if such a determination is made the individual has the right to a hearing at which they are entitled to be represented by counsel and to present evidence and cross-examine witnesses. Sec. 632.489. If a probable cause determination is made following the hearing, the individual shall be transferred to a secure facility for an evaluation as to whether he or she is a sexually violent predator. Id. Within 60 days of the completion of the examination the court shall conduct a trial to determine whether the individual is an SVP; the individual, the attorney general, or the judge may demand the case be tried to a jury. Sec. 632.492. The court, or jury as it may be, shall determine whether, by clear and convincing evidence, the individual is an SVP. Sec. 632.495.1, RSMo Supp.2006. If the individual is found to be an SVP, he or she shall be committed to the custody of the director of the department of mental health for control, care and treatment until such time as the individual's mental abnormality has so changed that he or she is safe to be at large. Sec. 632.495.2. Any person committed pursuant to the statute shall have a current examination of that person's mental condition made once every year by the director of the department of mental health or designee, and the yearly report shall be provided to the court that committed the person. Sec. 632.498.2. The individual may petition for conditional release; if the director agrees, the individual may be released. Id. If the individual petitions for conditional release over the director's objection, the petition shall be served on the court that committed the individual, there shall be a hearing, and if the court determines by a preponderance of the evidence that the individual no longer suffers from a mental abnormality making them more likely than not to commit sexually violent offenses, the court shall set a date for trial on the issue. Secs. 632.498.3 and 632.498.4. The burden is again on the attorney general to prove by clear and convincing evidence that the individual's mental abnormality remains. Sec. 632.498.5(3). If the court or jury finds the mental abnormality no longer remains, the person shall be conditionally released; otherwise, the person shall remain in the custody of the department of mental health until fit for release. Sec. 632.498.5(4).
[8] The statute also requires the person to have "pled guilty or been found guilty, or been found not guilty by reason of mental disease or defect pursuant to section 552.030, RSMo, of a sexually violent offense;" or to have "been committed as a criminal sexual psychopath pursuant to section 632.475 and statutes in effect before August 13, 1980." Sec. 632.480.
[9] A "menace" is by definition a present danger: "threatening import, character, aspect; someone that represents a threat; impending evil." Webster's Third New International Dictionary, Unabridged, 1981.
[10] Under the version of Missouri's SVP statute in effect at the time Murrell was committed, the evidentiary standard was the same as the standard in criminal cases. Section 632.495, RSMo Supp.1999. As a result, "[appellate] review of the sufficiency of the evidence applies the same standard of review as in criminal cases." Care and Treatment of Cokes, 183 S.W.3d at 282.
[11] Although Murrell does not contest whether ASPD (1) qualifies as a congenital or acquired condition; (2) affects the emotional or volitional capacity; or (4) causes him serious difficulty controlling his behavior, the record reflects that those elements were, in fact, established.
[12] More specifically, "actuarial scales are developed using statistical analyses of groups of individuals (in the present case, released sex offenders) with known outcomes during a `follow-up' period (either arrested for or convicted of a new sexual offense, or not identified as having committed a new sexual offense). These analyses tell us which items (`predictor variables') do the best job of differentiating between those who reoffended and those who did not reoffend within a specified time period. Since some of these variables inevitably do a better job than others, these analyses also help us to determine how much weight should be assigned to each item. The variables are then combined to form a scale, which is tested on many other groups of offenders (cross-validation). When the scale has been used on many samples with a sufficiently large number of offenders, the scores derived from the scale may be expressed as estimates of the probability that individuals with that score will reoffend within a specified time frame." E. Janus & R. Prenky, Forensic Use of Actuarial Risk Assessment with Sex Offenders: Accuracy, Admissibility, and Accountability, 40 Am.Crim. L.Rev. 1443, 1454 (2003).
[13] See People v. Vercolio, 363 Ill.App.3d 232, 300 Ill.Dec. 159, 843 N.E.2d 417 (2006); Harris v. State, 836 N.E.2d 267 (Ind.App.2005); In re Detention of Shearer, 711 N.W.2d 733 (Iowa App.2006); Sweet v. State, 163 Md.App. 676, 882 A.2d 296 (2005); Com. v. Chapman, 444 Mass. 15, 825 N.E.2d 508 (2005); In re Commitment of Stone, 711 N.W.2d 831 (Minn. App.2006); In re Civil Commitment of A.H.B., 386 N.J.Super. 16, 898 A.2d 1027 (2006); In re J.M., 713 N.W.2d 518 (N.D.2006); In re Commitment of Barbee, 192 S.W.3d 835 (Tex. App.2006); Com. v. Allen, 269 Va. 262, 609 S.E.2d 4 (2005); In re Detention of Elmore v. State, 134 Wash.App. 402, 139 P.3d 1140, 1142-43 (2006); In re Commitment of Combs, 720 N.W.2d 684 (Wis.App.2006).
[14] In re Care and Treatment of Kapprelian, 168 S.W.3d 708 (Mo.App.2005); Smith v. State, 148 S.W.3d 330 (Mo.App.2004); Goddard v. State, 144 S.W.3d 848 (Mo.App.2004); Care & Treatment of Wadleigh v. State, 145 S.W.3d 434 (Mo.App.2004); Care and Treatment of Scates v. State, 134 S.W.3d 738 (Mo. App.2004).
[1] Andrew Harris, Amy Phenix, R. Karl Hanson, & David Thornton, "STATIC-99 Coding RulesRevised2003." Available online from the Solicitor General of Canada: www. sgc.gc.ca: 1) Make language choice 2) Click on "Corrections" 3) Click on "Corrections Reports" 4) Click on "2003."
[2] Harris, et al. p. 3. The ROC (Receiver Operating Characteristic) curve is .71; this is a statistical way of expressing predictivity. A ROC close to 1.0 would be an excellent rating; a .5 is about the same as flipping a coin.
[3] It is difficult to see how the quoted testimony does not violate the principal opinion's rationale, stated in its penultimate paragraph:
Moreover, the Court does not hold that an expert can argue based on the Static 99 that the particular offender has a 52% chance of reoffending. Rather, the Court holds the expert may base his or her opinion on actuarials because they constitute facts or data of a type reasonably relied upon and are otherwise reasonably reliable. The expert may testify that according to actuarials a certain percentage of people with characteristics like Murrell's do reoffend; that data can be part of the assessment as to whether Murrell is more likely than not to reoffend because although actuarials are not determinative, they are relevant to that determination.
Although the expert's statement about the STATIC-99 is couched in expert-speak ("is associated with") it is difficult to believe that any lay person on a jury would understand this to mean something other than that Murrell has a 52 percent risk of re-offending.
[4] Section 490.065.3 provides: "The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593659/ | 954 So.2d 630 (2007)
Yoel SANCHEZ and Yordanys Meneses, Appellant,
v.
Elida NERYS, Appellee.
No. 3D05-2434.
District Court of Appeal of Florida, Third District.
February 14, 2007.
Rehearing Denied May 18, 2007.
Kubicki Draper and Angela C. Flowers, Ocala, for appellant.
Mark J. Feldman, Miami, for appellee.
*631 Before FLETCHER, SHEPHERD, and ROTHENBERG, JJ.
ROTHENBERG, Judge.
The defendants, Yoel Sanchez ("Sanchez") and Yordanys Meneses ("Meneses") (collectively referred to as "defendants"), appeal (1) a final judgment in favor of the plaintiff, Elida Nerys ("Nerys" or "plaintiff"), in the amount of $185,290.00; and (2) a final order awarding the plaintiff her attorneys' fees and costs pursuant to section 768.79, Florida Statutes (2005). For the following reasons, we reverse both orders and remand for a new trial.
Nerys filed a personal injury action to recover for injuries allegedly suffered as a result of an automobile accident involving Nerys, who was a passenger in a vehicle driven by her daughter, and another vehicle owned by Sanchez but which was being driven by Meneses. During the course of the jury trial, the defendants, in support of their argument that the plaintiff's alleged injuries pre-dated the accident, presented the expert testimony of Dr. Salvador Ramirez. Over objection, on cross-examination, the plaintiff's counsel sought to impeach Dr. Ramirez by asking him whether he kept computer records detailing the cases in which he had served as an expert witness and the lawyers who hired him. Dr. Ramirez responded that he does not keep computer records of this information, but he does keep a list of court appearances. He testified that he does not, however, maintain a list of the lawyers who retain him as an expert. Over objection by the defendants, the plaintiff's counsel was allowed to continuously and improperly question Dr. Ramirez regarding his computer system, claiming, without support, that Dr. Ramirez had intentionally and deliberately destroyed and eliminated information on his computer pertaining to the number of cases he had been retained as an expert and the lawyers who had retained him. This impropriety was compounded by plaintiff's counsel's remarks during closing argument, wherein counsel again accused Dr. Ramirez of deliberately destroying documents and arguing that his testimony should be disregarded as a result. There was no evidence in the record, however, that Dr. Ramirez had created or destroyed any documents or information in his computer. The record, in fact, demonstrated that Dr. Ramirez did not input this information in his computer, and although not required to do so, maintained a list of his court appearances for a reasonable period of time and had produced this list to plaintiff's counsel prior to trial.
An expert witness' credibility may be impeached by showing bias, partiality, improper relationships or motives. § 90.608, Fla. Stat. (2005); § 90.702, Fla. Stat. (2005). Florida case law and Florida Rule of Civil Procedure 1.280(b)(4)(A) provide "reasonable latitude for inquiry about the extent of a trial expert's alignment with one side, or another" and "allow some discovery regarding work that the trial expert has done in other cases." Flores v. Miami-Dade County, 787 So.2d 955, 958 (Fla. 3d DCA 2001). To demonstrate the probability of bias, an expert witness may be questioned about the scope of employment and the compensation arrangements for the pending case; about the expert's general litigation experience and the percentage of work performed for plaintiffs or defendants; about the identity of other cases wherein the expert has been retained; and may be asked to give an approximate estimate of the portion of the expert's time or work devoted to services as an expert witness, which may be based on the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness. Fla. R. Civ. P. 1.280(b)(4)(A); Elkins v. Syken, 672 So.2d *632 517, 520-21 (Fla.1996). An expert, however, may not be compelled to compile or produce non-existent documents. Elkins, 672 So.2d at 521. Consequently, we conclude that the cross-examination of Dr. Ramirez went beyond permissible grounds on the issue of bias and amounted to a prohibited attack on Dr. Ramirez's character when plaintiff's counsel repeatedly argued that Dr. Ramirez had intentionally destroyed documents that had never been created and of which he was under no duty to compile or produce.
In addition to the plaintiff's counsel's improper cross examination of Dr. Ramirez and the arguments flowing from this cross examination during closing argument, are plaintiff's counsel's improper, inflammatory remarks and personal attacks upon defense counsel. Plaintiff's counsel's arguments to the jury that defense counsel was "pulling a fast one," "hiding something," and "trying to pull something," was tantamount to calling defense counsel liars and accusing them of perpetrating a fraud upon the court and jury. Owens Corning Fiberglas Corp. v. Morse, 653 So.2d 409, 411 (Fla. 3d DCA 1995); Sun Supermarkets, Inc. v. Fields, 568 So.2d 480, 481 (Fla. 3d DCA 1990). "As this court has stated on numerous occasions, these inflammatory and prejudicial remarks will not be condoned." Owens, 653 So.2d at 411. We find, as we have previously found, that these types of remarks are "of the nature and type that neither a rebuke or retraction of the comments would `destroy their prejudicial and sinister influence.'" Sun Supermarkets, 568 So.2d at 481 (quoting E.S.S. Lines, Inc. v. Martial, 380 So.2d 1070, 1072 (Fla. 3d DCA 1980)).
Based upon a careful review of the record, we conclude that the improper attack upon Dr. Ramirez's credibility, compounded by plaintiff's counsel's improper and inflammatory closing argument, prejudiced the defendants, depriving them of a fair trial and, warranting a new trial. See Manhardt v. Tamton, 832 So.2d 129, 131-32 (Fla. 2d DCA 2002).
As we are remanding for a new trial, we necessarily reverse the final judgment for attorneys' fees and costs since the statutory basis for the award of fees and costs is dependent on the underlying judgment obtained by the plaintiff. See § 768.79, Fla. Stat. (2005); Allstate Ins. Co. v. Mazzorana, 731 So.2d 38, 40 (Fla. 4th DCA 1999).
REVERSED and REMANDED for a new trial in accordance with this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593674/ | 400 N.W.2d 86 (1986)
In re the MARRIAGE OF Thomas C. MUELLER and Sharon A. Mueller.
Upon the Petition of Thomas C. Mueller, Petitioner-Appellee,
And Concerning Sharon A. Mueller, Respondent-Appellant.
No. 86-302.
Court of Appeals of Iowa.
November 26, 1986.
*87 Thomas E. McDonald, Iowa City, for respondent-appellant.
William D. Werger, of Hayek, Hayek, Hayek and Holland, Iowa City, for petitioner-appellee.
Considered by DONIELSON, P.J., and HAYDEN and SACKETT, JJ.
SACKETT, Judge.
Petitioner Thomas C. Mueller and Sharon A. Mueller were married in 1969. Their marriage was dissolved in 1980. In the decree Sharon was granted custody of the parties' three children, Donald, born in 1971, Michelle, born in 1974, and Cari, born in 1975. Thomas was ordered to pay child support of $500 per month, maintain Blue Cross/Blue Shield insurance on the children and pay one-half of the children's medical expenses not covered by insurance. The $500 award was not apportioned among the children. The record reflects that at all times Thomas has been current with his support obligations.
In August, 1985, Thomas filed an application to modify custody asking that sole custody or physical care of Donald be awarded to him. Sharon crossclaimed asking for an increase in child support. The parties agreed custody of Donald should be transferred to Thomas and the trial court ordered custody changed.
Thomas did not ask for nor was Sharon ordered to pay child support for Donald. Thomas also did not ask that the support paid to Sharon be decreased from the $500 per month figure. The issue on an increase in child support to be paid to Sharon was submitted to the trial court. The trial court determined the modification of child support requested by Sharon should be denied.
Sharon appeals contending she should have additional support because (1) Thomas has the opportunity to manipulate his income and assets; (2) Thomas' income has increased since the dissolution; (3) Thomas' financial situation has improved when considered with the earnings of his present wife; and (4) Donald will enjoy a better quality of life than his sisters.
*88 Thomas and certain of his family members, including his current wife, are involved in a pizza business. Donald was involved in the business when the parties' marriage was dissolved. At the time of dissolution he earned about $20,000; today he earns $28,000. His net worth has increased from $56,000 to $68,000. At the time of the dissolution Sharon was not employed outside the home, but the stipulation between the parties contemplated she would be employed. She now earns $13,000 annually.
The power of the courts to modify child support exists only where there has been material and substantial change in circumstances since the date of the original decree or of any subsequent intervening proceedings which considered the situation and rights of the parties upon application for the same relief. Dworak v. Dworak, 195 N.W.2d 740, 742 (Iowa 1972); Sandler v. Sandler, 165 N.W.2d 799, 800 (Iowa 1969); McDonald v. McDonald, 183 N.W.2d 186, 188 (Iowa 1971). An award entered in a final decree is not to be regarded as a variable sum to be adjusted either upward or downward with each fluctuating change in the respective conditions of the parties. Mears v. Mears, 213 N.W.2d 511 at 514 (Iowa 1973). The burden rests on Sharon to establish a substantial change in circumstances by the preponderance of the evidence. Mears, 213 N.W.2d at 515; Dworak, 195 N.W.2d at 742.
I. DISCLOSURE OF ASSETS AND INCOME
We look first at Sharon's contention that Thomas had the opportunity to manipulate his assets and income. Parties to a modification, as well as a dissolution have the obligation to make a full and fair disclosure of their income, assets and liabilities. Thomas made an adequate disclosure.
II. IMPROVEMENT OF FINANCIAL SITUATION
We find, as did the trial court, that Thomas' income has increased. However, the trial court found in balancing his increased income with the fact he now provides Donald's sole support, there was no substantial increase in his financial situation and overall ability to pay additional child support.
We also consider the fact Thomas now has Donald in his home and is supporting Donald without contribution from Sharon. See In re Marriage of Phipps, 379 N.W.2d 26, 29 (Iowa App.1985). Sharon is no longer required to provide for Donald's support. We agree with the trial court's assessment that Sharon has failed to show a substantial change so as to warrant modification.
A great deal of Sharon's argument focuses on the income of Thomas' current wife, Nancy. Sharon has also remarried and, according to her testimony, her husband contributes to the household expenses but does not contribute to the house payment.
Nancy is employed by the family pizza corporation and earns an annual salary of over $28,000. She works for the corporation on a full-time basis and has a demanding job. There is no evidence that she earns other than her own salary or that she is worth less to the corporation and is being paid salary that should have gone to Thomas. Nancy has, by virtue of Donald being in their home, assumed a portion of Donald's physical care and the record reflects she has cooperated where possible in providing child care for the other children. Her support obligation to Donald is limited to the extent his being in her home may have increased the cost of his maintenance by reason of a higher living scale than he experienced during the marriage of his mother and father. See Mears, 213 N.W.2d at 518. She has no further obligation to support the children of her husband's first marriage. See Page v. Page, 219 N.W.2d 556, 558 (Iowa 1974). We limit our consideration of Nancy's financial resources to the extent it relates to Thomas' overall financial condition. Page, 219 N.W.2d at 558. We also consider the financial resources of Sharon's husband only as *89 it relates to her overall financial condition and recognize his support obligation to her two children is limited to any increase in cost of maintenance they experience by reason of any higher scale of living they experienced because of his presence in the home. Mears, 213 N.W.2d at 518; Page, 219 N.W.2d at 558. We recognize Sharon's husband assumes a portion of their physical care.
III. A BETTER STANDARD OF LIVING FOR DONALD
The record clearly reflects both homes have sufficient resources to more than adequately provide for the children in their care. They both take vacation and spend money for recreational pursuits.
Our job is not to weigh the situation to assure all three children enjoy exactly the same luxuries. That is impossible even in a two-parent home where the children live under the same roof. Children have different needs and desires. The fact that the two children in Sharon's care do not have as many bikes as the child in Thomas' care is not a consideration for modification.
Reviewing the record as a whole, we fail to find Thomas' financial situation has changed so as to justify modification.
IV FEES
Sharon has requested attorney fees. Thomas contends attorney fees are not proper in a modification. We point out to him the case law he cites in support of his position predates July 1, 1984, when Iowa Code § 598.36 (1985) was amended to provide for attorney fees in a modification. Said fees, however, are not recoverable as a matter of right but rest within the court's discretion. See In re Marriage of Phipps, 379 N.W.2d 26, 29 (Iowa App.1985); In re Marriage of Estlund, 344 N.W.2d 276, 281 (Iowa App.1983). Considering the fact that Sharon was not successful in her application, we do not find an award of attorney fees proper at this time. We will not consider an attorney fee application by Thomas. Appellate costs are taxed to Sharon.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593837/ | 954 So.2d 1168 (2007)
SHEFFIELD
v.
STATE
No. 2D07-852.
District Court of Appeal of Florida, Second District.
April 16, 2007.
Decision without published opinion. Belated App. granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593843/ | 954 So.2d 31 (2007)
POLK
v.
STATE.
No. 1D06-4407.
District Court of Appeal of Florida, First District.
April 17, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602239/ | 164 Wis.2d 718 (1991)
476 N.W.2d 611
IN the MATTER OF the CONDEMNATION by the City of Superior, Douglas County, Wisconsin, OF PROPERTY OWNED BY Dame Mildred Q. BRONFMAN, Bernard Lande, and her husband, Thirty-Six Developments (Canada) Ltd., Berland Holdings, Inc., The Equitable Life Assurance Society of The United States, National Super Markets Inc., Gateway Foods, Inc., and Miners Incorporated: Dame Mildred Q. BRONFMAN, Bernard Lande, her husband, Thirty-Six Developments (Canada) Ltd., and Berland Holdings, Inc., Appellants,
v.
DOUGLAS COUNTY, Respondent.
No. 91-0375.
Court of Appeals of Wisconsin.
Submitted on briefs August 12, 1991.
Decided September 24, 1991.
*720 On behalf of appellants, the cause was submitted on the brief of Gaylord W. Swelbar of Hanft, Fride, O'Brien, Harries, Swelbar & Burns, P.A. of Duluth, Minnesota.
On behalf of respondent, the cause was submitted on the brief of Frederic P. Felker, Douglas County corporation counsel, of Superior.
Before Cane, P.J., LaRocque and Myse, JJ.
LAROCQUE, J.
The owners of a condemnation award deposited with the clerk of circuit court by the condemnor pending the owners' appeal challenge a judgment upholding the payment of the accumulated interest on the funds to the Douglas County general fund pursuant to sec. 59.42(2), Stats. The owners argue that the statute does not apply to interest on money tendered into court for the benefit of the parties in civil litigation, and also that the county's retention of the interest constitutes a taking of their property without just compensation in violation of the state and federal constitutions. We affirm the judgment.
*721 The city of Superior exercised its powers of eminent domain and condemned the owners' private property for a public use pursuant to ch. 32, Stats. After the condemnation commissioners set the amount of just compensation for the taking at approximately $1.5 million, the city tendered that amount to the owners by depositing the funds with the clerk of court pursuant to sec. 32.06(8), Stats. The owners declined the award and appealed, but later withdrew the appeal and accepted the funds. Between the end of May 1990 when the funds were deposited and mid-October 1990 when the appeal was withdrawn, the deposited funds earned between $40,000 and $50,000 interest. The principal award was paid to the owners, but the clerk paid the accumulated interest to the county general fund pursuant to sec. 59.42, Stats. The court denied the owners' motion to compel payment of the interest to them, and the owners appeal.
The statute provides:
59.42 Clerk of Court; fees; investment of funds. (1) The clerk of the circuit court shall collect the fees prescribed in ss. 814.60 to 814.63. The clerk may refuse to accept any paper for filing or recording until the fee prescribed in subch. II of ch. 814 or any applicable statute is paid.
(2) Except as provided in sub. (3), the clerk may invest any funds paid into his or her office and which are being held for repayment. The investments shall be made in suitably protected accounts in the manner specified in s. 66.04(2) and all income that may accrue shall be paid into the county general fund.
(3) A judge may direct that sub. (2) does not apply to certain funds paid into the office. The judge's authority applies only to funds relating to cases before his or her court.
*722 [1-5]
The cardinal rule in all statutory interpretation is to discern the intent of the legislature. Scott v. First State Ins. Co. 155 Wis.2d 608, 612, 456 N.W.2d 152, 154 (1990). Whether a statute is ambiguous is a question of law. In re Berth, 157 Wis.2d 717, 721, 460 N.W.2d 436, 438 (Ct. App. 1990). A statute is ambiguous if it is capable of being construed in two different ways by reasonably informed persons. State v. Mason, 132 Wis.2d 427, 432, 393 N.W.2d 102, 104 (Ct. App. 1986). A statute may be rendered ambiguous by the interaction of the words and structure of the statute itself. State ex rel. Newspapers, Inc. v. Showers, 135 Wis.2d 77, 87, 398 N.W.2d 154, 159 (1987). Where the statute is ambiguous, the court looks to the legislative history, context, subject matter and object of the statute to ascertain the legislative intent. State v. Pham, 137 Wis.2d 31, 34, 403 N.W.2d 35, 36 (1987).
[6]
The county reads the reference in subsec. (2) of sec. 59.42, Stats., to "any funds" as unambiguous and thus to include the monies here. The owners argue that the reference to funds must be read in context of subsec. (1) of the same statute that directs the clerk to collect various filing fees for actions maintained in the circuit court. The owners suggest that the investment of funds referred to in subsec. (2) means investment only of the fees collected pursuant to sec. 814.60 to 814.63, Stats. Assuming without deciding that the owners have presented an alternative reasonable way to read the statute, the statutory history still supports the county's position.
The Legislative Reference Bureau (LRB) records show that the request for a statute to authorize investments by the clerk of the circuit court came from Milwaukee *723 County and dealt specifically with condemnation awards paid into court. The request included an opinion from the Milwaukee County Corporation Counsel, Robert P. Russell, which provided in pertinent part:
Under the existing law money paid to the clerk of the circuit court as damages for the taking of property in condemnation proceedings is paid to the clerk for the benefit of the property owner. The refusal of the property owner to accept the amount tendered as damages does not change the fact that the money actually belongs to him and the clerk is simply holding the funds as trustee. While the existing law does not require that the clerk invest such money, if it is invested, the interest thereon belongs to the property owner. This would be true regardless of the manner of investment, whether by the clerk directly or indirectly through the county treasurer.
We assume that the purpose of the recommendation . . . is to change the existing law not only with respect to monies deposited as damages in condemnation proceedings, but also to cover other monies which might be deposited with the clerk of the circuit court. Without passing upon the merits of such legislation, it would be our opinion that the legislature could properly authorize the clerk of the circuit court, with certain exceptions, such as monies representing the proceeds of minor settlements, to deposit monies received by him . . . where it would be mingled with other funds of the county . . . and with the county retaining the interest earned on such funds. Accordingly, we find no legal obstacle to the adoption of the proposed resolution.
The original investment statute, sec. 59.42(14), ch. 43, Laws of 1969, covered funds "not specifically identifiable to any account." Arguably, despite the purpose of Milwaukee's request for legislation, a condemnation *724 award is "specifically identifiable" and therefore would be outside the statutory authority to pay the interest to the county. Whatever the limitations of the original statute, any question of the statute's application to the funds at issue here were put to rest by an amendment in 1979 that broadened the clerk's authority to permit investment of "any funds." The LRB analysis of the 1979 amendment provides: "This proposal specifies that the investment provisions relate to all funds paid into the clerk's office, but that a judge may direct that the investment provisions do not apply to certain funds . . . ." (Emphasis added.) The legislature's fiscal estimate attached to the bill provides:
The bill extends the permissive authority of a clerk of court to invest any funds paid to the clerk's office unless a judge specifies otherwise for funds relating to cases before the judge's court. The bill would increase the potential funds available and therefore increase the investment income derived from clerk of courts accounts. The bill would . . . potentially result in increased revenues for counties.
The exact fiscal effect of this bill, however, is not possible to determine because of the following unknowns: . . . . . . .
4. The frequency with which a judge would exercise his or her individual discretion relating to investment of funds for cases before his or her court.
There remains no question that the statute means what it says, that "any funds" can be invested, and thus interest on condemnation awards in the hands of the clerk of court is paid to the county general fund.
*725 [7]
The owners also attack the county's claim on constitutional grounds. In order to successfully attack a legislative enactment as unconstitutional, it is insufficient merely to establish doubt as to the act's constitutionality or to establish that an act is probably unconstitutional; the party attacking the statute has the burden of proving its unconstitutionality beyond a reasonable doubt. Quinn v. Town of Dodgeville, 122 Wis.2d 570, 577, 364 N.W.2d 149, 154 (1985).
Article I, sec. 13, of the Wisconsin Constitution states that "[t]he property of no person shall be taken for public use without just compensation therefor." The fifth amendment to the United States Constitution made applicable to the states through the fourteenth amendment provides: "nor shall private property be taken for public use without just compensation."
The owners rely upon Webb's Fabulous Pharmacies v. Beckwith, 449 U.S. 155 (1980), declaring a Florida statute that permitted the county to appropriate the interest earned on private funds deposited in court violative of the fifth and fourteenth amendments. In that instance, the purchaser of the assets of a corporation sought court protection under the Florida Bulk Transfers Act because the corporation debts appeared to be greater than the purchase price. Pending a decision on disposition of the funds, the court directed the clerk to deposit the purchase money in an interest bearing account. The Florida statutes deemed all interest accruing from monies deposited with the clerk to belong to the county. A separate statute required the clerk to charge a specified fee for "services rendered" on all money deposited in the office, the fee to be computed as a percentage of the amount deposited. Pursuant to the fee statute, the clerk collected approximately $9,000. The interest on the *726 invested principal also earned approximately $100,000. The receiver for the insolvent corporation moved the trial court to order payment to him of both the deposited principal sum, less the service fee, as well as the accumulated interest. The trial court awarded the interest to the county pursuant to the statute. The Florida Supreme Court upheld that decision on grounds that the money assumes the temporary status of "public money" when it is deposited.
The Webb decision reversed the Florida court and held the practice to be an unconstitutional taking without just compensation. While acknowledging that the court "has been permissive in upholding government action that may deny the property owner of some beneficial use of his property or that may restrict the owner's full exploitation of the property, if such public action is justified as promoting the general welfare," id. at 163, it rejected the statute because the government "has not merely adjust[ed] the benefits and burdens of economic life to promote the common good." Id. (quoting Central Trans. Co. v. New York City, 438 U.S. 104, 124 (1978)). Rather, the exaction is a forced contribution to general governmental revenues, and it is not reasonably related to the costs of using the courts. "Indeed, '[t]he Fifth Amendment's guarantee . . . was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.'" Id. (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960)).
Webb's ultimate holding is this:
We hold that under the narrow circumstances of this casewhere there is a separate and distinct state statute authorizing a clerk's fee "for services rendered" based upon the amount of principal deposited; where the deposited fund itself concededly is private; *727 and where the deposit in the court's registry is required by state statute in order for the depositor to avail itself of statutory protection from claims of creditors and others[the] County's taking unto itself, [by statute], the interest earned on the interpleader fund while it was in the registry of the court was a taking violative of the Fifth and Fourteenth Amendments. We express no view as to the constitutionality of a statute that prescribes a county's retention of interest earned, where the interest would be the only return to the county for services it renders.
Id. at 164-65 (emphasis added).
[8]
We conclude that Webb is not controlling and that sec. 59.42(2), Stats., is not unconstitutional. Unlike the Florida scheme, Wisconsin does not provide both a service fee and retention of the interest.[1] Even more significant, however, are the provisions of ch. 32, Stats., dealing *728 with owners' rights to withdraw the funds from the court. Section 32.06(11) provides:
Withdrawal of compensation paid into court; bond. If either party appeals from the award of the commission, the owner shall not be entitled to receive the amount of compensation paid into court by condemnor unless the owner files with the clerk of the court a surety bond executed by a licensed corporate surety company in an amount equal to one-half of the commission's award, conditioned to pay to the condemnor, any sums together with interest and costs as allowed by the court, by which the award of the commission may be diminished.
[9]
Thus, unlike the circumstances in Webb where the owners of the funds were required to maintain the deposit for their own protection, the owners here had the right to withdraw their funds and invest them as they saw fit. The owners' response to this statutory provision is a statement in their brief that the "decision to not withdraw those funds was based in part on the cost and difficulty of obtaining a surety bond, which would have cost . . . approximately $8,000." As Douglas County notes, this claim of difficulty and expense is nothing but an "unsubstantiated assertion by . . . counsel."[2] Assertions of fact that are not part of the record will not be considered on appeal. Jenkins v. Sabourin, 104 Wis.2d 309, 313, 311 N.W.2d 600, 603 (1981). Furthermore, even *729 if the cost of the bond were established, that expense does not render the collection of interest an unconstitutional taking.
As Webb indicated, the supreme court has been permissive in upholding government action that denies property owners the use of property where it is justified as promoting the general welfare. Id. at 163. The requirement that the owner post a bond to assure government recoupment of the award should it be reduced on appeal is within this authority. We therefore conclude that sec. 59.42(2), Stats., is not unconstitutional.
By the Court.Judgment affirmed.
NOTES
[1] As Douglas County notes, there is a separate statute dealing with the placement of funds held by the court in a safe depository. Section 757.25, Stats., provides:
Money in court, how deposited. The judge of any court of record on the application of a party to any action or proceeding therein who has paid $1,000 or more into court in the action or proceeding may order the money to be deposited in a safe depository until the further order of the court or judge thereof. After the money has been so deposited it shall be withdrawn only upon a check signed by the clerk of the court pursuant to whose order the deposit was made and upon an order made by the court or the judge thereof. The fee for the clerk's services for depositing and disbursing the money is prescribed in s. 814.61(12)(a).
The owners did not invoke this statute, but, assuming placement in a safe depository allows for investment of the funds, this statute presents yet another option to the owners to avoid losing the interest to the county.
[2] The owners also argue that the decision not to withdraw the funds was based upon "assurance from the Clerk of Court that the funds had been placed in interest bearing accounts." The county points out that this allegation does not appear in the record nor is there any such finding by the trial court. Further, even if the assurance were given, there is no indication that the clerk advised the owners that he argued that the interest would belong to them. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594023/ | 954 So. 2d 296 (2007)
STATE of Louisiana, Appellee
v.
Richard P. JONES, Appellant.
No. 41,880-KA.
Court of Appeal of Louisiana, Second Circuit.
March 28, 2007.
*297 Richard P. Jones, Pro Se.
James E. Beal, Louisiana Appellate Project, for Appellant.
William R. Coenen, Jr., District Attorney, Penny W. Douciere, John M. Lancaster, Assistant District Attorneys, for Appellee.
Before BROWN, WILLIAMS, and CARAWAY, JJ.
BROWN, Chief Judge.
On March 10, 2003, Tracey Duprey, Bobby McCall, and Jonathan McCandlish set out on a night of drinking alcohol, smoking marijuana, and committing mischief in rural West Carroll Parish. At one point they stole the street sign for Little Creek Road. Tracey's ex-sister-in-law, Shawn Morrow, lived with defendant, Richard P. Jones, on Little Creek Road. Tracey had visited in defendant's home on several occasions. After taking the street sign, the trio decided to pull up defendant's mailbox. According to Tracey, their first attempt failed, and they tried again. Both McCall and McCandlish got out of the truck to reattach a chain to the mailbox. This occurred after midnight, and defendant, who was awakened by the noise, grabbed his 30/30 rifle, went outdoors, and fired off at least one round. McCall and McCandlish jumped back into their truck and left at a high rate of speed. At this point, defendant fired at the vehicle and hit it at least three times. One round went through the wheel well and passenger side seat. A fragment from this round struck Jonathan McCandlish. Tracey and Bobby took McCandlish to the Delhi Hospital where he died.
Defendant was indicted for second degree murder. A jury, however, found him guilty of manslaughter. The trial court imposed the minimum term of 20 years at hard labor without benefit of probation, parole, or suspension of sentence. Defendant *298 appealed his conviction and sentence. We affirm.
Discussion
Defendant's appellate counsel's only assignment of error was that defendant's sentence was excessive; however, defendant filed a pro se brief adding two other assignments of error.
Sufficiency of the Evidence
In his first pro se assignment of error, defendant alleges that the evidence presented was insufficient to support his conviction for manslaughter. In particular, defendant contends that his girlfriend, Shawn Morrow, gave perjured testimony and varying accounts of events which prejudiced and tainted the jury's verdict.
Shawn Morrow and her daughter, Jessica Gary, were living with defendant at the time of the incident. Jessica's boyfriend, Leo Cantou, had stayed over at defendant's house on the night of the shooting. Ms. Morrow testified that she knew the three people who attempted to pull down the mailbox at defendant's house. Tracey Duprey was her former sister-in-law and had visited with Shawn at defendant's home. On the night of the shooting, Ms. Morrow went to bed at approximately 9:30 p.m. She was awakened when she heard a truck outside the residence peeling out on Little Creek Road. Ms. Morrow saw defendant get out of bed, put on his pants, then fumble at the wall where he kept his guns. Ms. Morrow observed defendant leave the room with a gun.
Ms. Morrow testified that she heard the truck drive by, then turn around and again stop outside the house. Ms. Morrow stated that she heard the truck idling outside the house and heard defendant holler, "Hey m____ f____, what the hell do you think you're doing?" She then heard a gunshot, followed by running and the truck leaving at a high rate of speed, throwing gravel. She then heard several gunshots.
Defendant came back in the house yelling for Ms. Morrow to call 911. Defendant said that a tall, skinny, white guy had gotten out of a red truck, put a chain around the mailbox, and started pulling it out of the ground. That's when he hollered at them and shot at the tailgate. Defendant said that he had only seen one person in the truck. Defendant also stated that he believed he had hit the tailgate of the truck so he could identify it later. Defendant said that he thought it had been Tracey Duprey in the truck.
Ms. Morrow noted that she had purchased the mailbox, and she and defendant had installed it across from the residence. That morning several hours after the shooting, Ms. Morrow saw the mailbox and pole lying in the middle of the street.
On cross-examination, Ms. Morrow acknowledged that within a month of the incident there had been several acts of vandalism at the house, including someone "keying" defendant's son's truck, doors to the house being left open, horses being released, someone "cutting donuts" in their yard, as well as an attempt to hot wire defendant's four wheeler. She also testified that during that period they were getting a lot of phone calls late at night.
Jessica Gary testified that she was living with her mother and defendant at the time of the shooting. Leo Cantou had stayed overnight on the couch in the living room. Both Jessica and Leo's testimony was the same as that of Shawn Morrow, except to add that defendant said that he knew he got one of them and hoped he did.
Defendant gave statements to Louis Russell, chief criminal deputy for West Carroll Parish Sheriff's Office, after being informed that the victim had died. According to Deputy Russell, defendant got *299 sick and vomited upon hearing the news. Defendant's statements were recorded and played for the jury. In the statements defendant referred to "they," "the boy that was driving," and "the one that got out." During a second statement, defendant admitted that he didn't shoot into the air as he had said at first, but he aimed at the vehicle.
Tracy Duprey testified as to what occurred and stated that the entire incident was just a practical joke. Bobby McCall had died in an unrelated accident prior to trial. The investigating officers also testified, as well as a forensic pathologist and crime lab expert.
At the close of the prosecution, the defense rested without calling any witnesses.
Defendant claims that Shawn Morrow lied but has pointed to nothing in support of this claim. In fact, most of what Ms. Morrow testified to was in agreement with defendant's statement to the investigating officers. The evidence shows that defendant fired into a truck which he knew was occupied. Defendant claims that he did not intend to shoot anyone; however, manslaughter does not require an intent to kill or cause great bodily harm if the offender was engaged in certain felonies or any intentional misdemeanor directly affecting the person. See La. R.S. 14:31(A)(2)(a). The evidence was sufficient to prove all the elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
Denial of Motions for Mistrial
In his second pro se assignment of error, defendant alleges that the trial court erred in failing to grant a mistrial after the prosecution made prejudicial remarks concerning defendant's failure to testify and that the trial court should have granted a mistrial when a state witness, Tracey Duprey, was hospitalized after giving direct testimony, causing a break or delay before cross-examination.
Failure to grant a mistrial for comment by prosecution
Defendant takes issue with the following statement made by the prosecutor during rebuttal closing arguments:
I agree with (defense counsel), this is a tragedy, a terrible tragedy. But some times we have to pay for tragedies. He said (defendant) was sympathetic to Jonathan's family. You've heard him talk twice on statements that were played before you. Did you hear sympathy towards Jonathan? Did you hear sympathy for Jonathan's family? Or did you hear a man that knew what he was facing?
A mistrial shall be ordered, upon motion of a defendant, when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to, inter alia, the failure of the defendant to testify in his own defense. La. C. Cr. P. art. 770(3).
We find no error in the trial court's denial of defendant's motion for a mistrial. Defense counsel stated during closing arguments, "My sympathy and Richard's sympathy goes to the family of Jonathan." The prosecutor's remark simply asked whether the jury detected any sympathy in the recordings that they had heard. The remark was not a comment on defendant's failure to testify.
Failure to grant a mistrial for unavailable witness
La. Constitution article I, § 16 provides in part that an accused is entitled to confront and cross-examine the witnesses against him, to compel the attendance of witnesses, to present a defense, and to testify in his own behalf.
*300 Following direct examination, Tracey Duprey began having problems with acid reflux disease and was hospitalized. Upon being released from the hospital, Tracey returned and completed her testimony. Claiming that this interruption interfered with his presentation, defense counsel moved for a mistrial. We note that the delay allowed defense counsel more time to prepare an effective cross-examination. Regardless, there is no showing of prejudice or denial of the right of cross-examination. The fact that the witness was ill was adequately explained to the jury.
Excessive Sentence
Defendant argues that his sentence is excessive because the trial court failed to adequately consider mitigating factors. The trial court, however, did consider defendant's age, which was 44 years, and defendant's prior three felony convictions (simple burglary and two counts of theft). The court also mentioned that defendant was remorseful, took into account defendant's social history, and stated that it had read letters submitted on defendant's behalf.
La. R.S. 14:31(B) provides in part that whoever commits manslaughter shall be imprisoned at hard labor for not more than 40 years.
La. C. Cr. P. art. 893.3(E) provides in part that:
(1)(a) Notwithstanding any other provision of law to the contrary, if the defendant commits a felony with a firearm as provided for in this article, and the crime is considered a violent felony as defined in this paragraph, the court shall impose a minimum term of imprisonment of ten years. In addition, if the firearm is discharged during the commission of such a violent felony, the court shall impose a minimum term of imprisonment for twenty years.
(b) A "violent felony" for the purposes of this paragraph is: second degree sexual battery, aggravated burglary, car jacking, armed robbery, second degree kidnapping, manslaughter, or forcible rape.
(2) A sentence imposed under this paragraph shall be without benefit of parole, probation, or suspension of sentence. (Emphasis added).
Defendant's 20-year sentence is the minimum term provided by La. C. Cr. P. art. 893.3(E). A sentencing judge must start with the presumption that a mandatory minimum sentence is constitutional and may only depart downward if he finds clear and convincing evidence that, under the facts and circumstances, the minimum sentence is excessive. State v. Johnson, 97-1906 (La.03/04/98), 709 So. 2d 672. The trial court did not so find and the record does not support such a departure.
Conclusion
For the reasons set forth above, defendant's conviction and sentence are AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593877/ | 954 So. 2d 1142 (2005)
JOHN HENRY IVORY
v.
STATE
No. CR-04-1058.
Court of Criminal Appeals of Alabama.
November 10, 2005.
Decision without opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593869/ | 896 F. Supp. 144 (1995)
Richard GRAY, Individually and Derivatively on Behalf of The FURIA ORGANIZATION, INC., Plaintiff,
v.
The FURIA ORGANIZATION, INC., Ronald W. Kuzon, Waylon E. McMullen, Franco Nocito, Steven Nocito, and David B. Slater, Defendants.
No. 94 Civ. 8878.
United States District Court, S.D. New York.
August 22, 1995.
*145 Heller, Horowitz & Feit, P.C., New York City (Richard F. Horowitz, of counsel), for plaintiff.
Joel Held, c/o John J. Phalen, New York City, for defendants The Furia Organization, Inc., Waylon E. McMullen, Franco Nocito and Steven Nocito.
Waylon E. McMullen, Dallas TX, for defendants Ronald W. Kuzon and David B. Slater.
OPINION AND ORDER
STANTON, District Judge.
Plaintiff Richard Gray, a shareholder in The Furia Organization ("Furia"), sues Furia and its officers and directors under section 13(a) of the Securities Exchange Act of 1934 to compel Furia to file certain reports with the Securities and Exchange Commission. He also asserts claims under state law for conversion and breach of fiduciary duty.
Both Gray and the defendants move pursuant to Fed.R.Civ.P. 56 for summary judgment on Gray's federal securities law claim. Defendants argue that: (1) there is no private right of action under section 13(a), and (2) if that claim is dismissed, this court does not have subject-matter jurisdiction over Gray's state-law claims. Gray also moves for summary judgment on his claim for breach of fiduciary duty.
BACKGROUND
Before the events involved in this litigation, Gray was Furia's majority shareholder and served as president and director of the company. In December 1993, a wholly-owned subsidiary of Furia merged with Madison Fashions, Inc. on terms which resulted in Madison's shareholders and others than Gray becoming the owners of approximately 83% of Furia's common stock. After the merger, Gray, who no longer controlled Furia, resigned as president and director. Furia disclosed the merger in a Form 8-K dated December 29, 1993, which was filed with the SEC.
Since the merger, Furia has not filed any annual or quarterly reports with the Securities and Exchange Commission.
DISCUSSION
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The court "must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." Consarc Corp. v. Marine Midland Bank, 996 F.2d 568, 572 (2nd Cir.1993).
A. Private Right of Action Under Section 13(a)
Section 13(a) of the Securities Exchange Act of 1934 (the "Act"), 15 U.S.C. § 78m(a), provides:
*146 (a) Every issuer of a security registered pursuant to [section 12 of the Act] shall file with the Commission, in accordance with such rules and regulations as the Commission may prescribe as necessary or appropriate for the proper protection of investors and to insure fair dealing in the security
(1) such information and documents (and such copies thereof) as the Commission shall require to keep reasonably current the information and documents required to be included in or filed with an application or registration statement.... [and]
(2) such annual reports (and such copies thereof) ... and such quarterly reports (and such copies thereof), as the Commission may prescribe.
Under 17 C.F.R. § 240.13a-1 (1995), issuers of securities registered pursuant to section 12 of the Act are required to file an annual report on a prescribed form. Such issuers are also required to file quarterly reports on Form 10-Q. Id. § 240.13a-13.
Because Furia is an issuer whose securities are registered pursuant to section 12(g) of the Act, it must comply with section 13(a)'s reporting requirements. (See Plaintiff's 3(g) Statement, ¶¶ 22-23.) Defendants concede that since the merger Furia has not complied with those requirements. The issue is whether Gray can sue under section 13(a) to compel its compliance.
Most courts have refused to imply a private right of action under section 13(a). See In re Penn Central Securities Litigation, 494 F.2d 528, 540 (3rd Cir.1974); Erath v. Xidex Corp., 1991 WL 338322, at *8 (D.Ariz. Feb. 7, 1991); Carapico v. Enflo Corp., 1986 WL 14202, at *3 n. 3 (E.D.Pa. Dec. 11, 1986); Nemo v. Allen, 466 F. Supp. 192, 195-96 (S.D.N.Y.1979); DeWitt v. American Stock Transfer Co., 433 F. Supp. 994, 1005 (S.D.N.Y.1977); Smith v. Murchison, 310 F. Supp. 1079, 1088 (S.D.N.Y.1970) (private right of action under 13(a) "very doubtful"); but see Abbey v. Control Data Corp., 603 F.2d 724, 731 (8th Cir.1979) (assuming existence of private right of action under 13(a), complaint fails to state a claim), cert. denied, 444 U.S. 1017, 100 S. Ct. 670, 62 L. Ed. 2d 647 (1980); Kaminsky v. Abrams, 281 F. Supp. 501, 505 (S.D.N.Y.1968) (same); duPont v. Wyly, 61 F.R.D. 615, 633 (D.Del.1973) (implying private right of action for injunctive relief under section 13(a) because private enforcement "would serve the Congressional purpose of protecting investors").
Gray argues that those cases do not control here because the plaintiffs in those cases sought damages, while he seeks only injunctive relief. Under the settled approach to implied private rights, that distinction makes no difference here.
In determining whether an implied cause of action exists under a federal statute, "what must ultimately be determined is whether Congress intended to create the private remedy asserted." Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16, 100 S. Ct. 242, 245, 62 L. Ed. 2d 146 (1979) (internal quotation and citation omitted). That inquiry must begin with the statute's language. Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S. Ct. 2479, 2485, 61 L. Ed. 2d 82 (1979). By its terms, section 13(a) requires certain issuers to file reports prescribed by the SEC. It does not create a private cause of action in favor of any person.
However, another provision of the Act does create a private right of action for damages for certain violations of section 13(a). Section 18(a) of the Act grants standing to sue for damages to "any person (not knowing that such statement was false and misleading) who, in reliance upon such statement, shall have purchased or sold a security at a price which was affected by the statement. ..." 15 U.S.C. § 78r(a).
The existence of an express remedy for purchasers and sellers injured by reliance on statements filed pursuant to section 13(a) is strong evidence that Congress did not intend to create a broader remedy under section 13(a) for persons not encompassed by section 18(a). See Redington, 442 U.S. at 572, 99 S.Ct. at 2487 ("For where the principal express civil remedy for misstatements in reports created by Congress contemporaneously with the passage of § 17(a) is by its terms limited to purchasers and sellers of securities, we are extremely reluctant to imply a cause of action in § 17(a) that is significantly *147 broader than the remedy that Congress chose to provide."). Gray has pointed to no legislative history (and this court has found none) which suggests that Congress intended to create a private right of action for injunctive relief under section 13(a).
Gray argues that a private right of action should be implied because Congress enacted section 13(a) for the protection of investors. That Congress intended to protect investors does not necessarily mean that Congress intended to provide them with a private right of action. See id., 442 U.S. at 578, 99 S.Ct. at 2490 ("Certainly, the mere fact that § 17(a) was designed to provide protection for brokers' customers does not require the implication of a private damages action in their behalf."). Congress entrusted enforcement to the SEC, which can seek both damages and injunctive relief for violations of section 13(a). See 15 U.S.C. § 78u.
Finally, Gray urges that section 13(a) is analogous to section 13(d) and that this court should follow the cases implying a private cause of action under section 13(d). Section 13(d), which requires a person who acquires more than 5% of a corporation's stock to file a report with the SEC, was added as part of the Williams Act in 1968, 34 years after section 13(a) was enacted. Thus, the legislative history and legal context in which Congress enacted the provisions two factors relevant to whether a private right of action should be implied are different. See Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 378, 102 S. Ct. 1825, 1839, 72 L. Ed. 2d 182 (1982) ("In determining whether a private right of action is implicit in a federal statutory scheme when the statute by its terms is silent on that issue, the initial focus must be on the state of the law at the time the legislation was enacted."). Accordingly, cases decided under section 13(d) are not persuasive on the existence of a private right of action under section 13(a).
There being no private right of action against Furia, neither is there a private right to sue its controlling persons under section 20(a) of the Act, which makes them liable only "to the same extent as" the corporation.
In sum, there is no private right of action for injunctive relief under section 13(a) of the Act. Defendants' motion for summary judgment dismissing that claim is granted.
B. Jurisdiction Over Gray's State-Law Claims
The complaint alleges that this court has federal question jurisdiction over the section 13(a) claim and has supplemental jurisdiction over the state-law claims. (Complaint, ¶ 8.) Defendants argue that Gray's state-law claims should be dismissed because there is no basis for supplemental jurisdiction without the federal securities law claim.
Gray responds that 28 U.S.C. § 1332 provides a basis for jurisdiction because the parties' citizenship is diverse and the amount in controversy exceeds $50,000. Gray asserts that he is a citizen of Florida; Furia is a Delaware corporation with its principal place of business in New York; and the individual defendants are citizens of New York, Massachusetts and Texas. (Plaintiff's Memorandum in Support of Motion for Summary Judgment, at 9.)
Construing Gray's argument as a motion to amend the complaint, it is granted. Under Fed.R.Civ.P. 15(a), leave to amend "shall be freely given when justice so requires." A district court "is justified in denying an amendment if the proposed amendment could not withstand a motion to dismiss." Journal Publishing Co. v. American Home Assurance Co., 771 F. Supp. 632, 635 (S.D.N.Y.1991) (internal quotations omitted). A motion to amend may also be denied if the movant has acted in bad faith or delayed excessively, or if the non-movant would be prejudiced by amendment. Id. at 634. Here, defendants do not claim they will be prejudiced if leave to amend is granted. Their argument that the amendment would be futile because the amount in controversy does not exceed $50,000 is unavailing in light of Gray's claim that defendants converted $250,000 of Furia's money.
Accordingly, Gray's motion to amend the complaint is granted and defendants' motion for summary judgment dismissing Gray's state-law claims for lack of subject-matter jurisdiction is denied.
*148 C. Breach of Fiduciary Duty Claim
Gray contends that defendants breached their fiduciary duties to Furia and its shareholders by not filing the reports required by section 13(a) of the Act.
Under both New York and Delaware law,[1] the officers and directors of a corporation owe fiduciary duties to the corporation and its shareholders. Among those duties is the duty of care, which requires that a director perform his duties "in good faith and with that degree of care which an ordinarily prudent person in a like position would use under similar circumstances." N.Y.Bus. Corp.L. § 717(a) (McKinney 1986 & Supp. 1995). The business judgment rule applied to fiduciary breach claims "bars judicial inquiry into actions of corporate directors taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes." Auerbach v. Bennett, 47 N.Y.2d 619, 629, 419 N.Y.S.2d 920, 926, 393 N.E.2d 994, 998 (Ct.App.1979).
Defendants have raised a triable fact issue whether they breached their duty of care. The affidavit of defendant Waylon McMullen states that Furia's subsidiary and only source of revenue, Pat Fashion Industries, filed for chapter 11 bankruptcy protection in April 1994. (McMullen Aff. ¶¶ 4-5.) As a result of Pat Fashion's financial difficulties, Furia did not have the funds to pay for the certified financial statements Furia needed to file the reports. (Id. ¶ 6.) One cannot say on this record that defendants' decision not to make the filings was unreasonable as a matter of law.
Plaintiff's motion for summary judgment on his breach of fiduciary duty claim is denied.
CONCLUSION
Plaintiff's motion for summary judgment on his claim under section 13(a) of the Securities Exchange Act is denied and defendants' motion for summary judgment dismissing that claim is granted. Plaintiff's motion for summary judgment on his breach of fiduciary duty claim is denied.
Plaintiff has leave to amend the complaint within 30 days.
NOTES
[1] Gray assumes that New York law applies to his claim for breach of fiduciary duty, but New York's "internal affairs" doctrine may require application of the law of Delaware, the state in which Furia is incorporated. See Galef v. Alexander, 615 F.2d 51, 58 (2nd Cir.1980). Because New York and Delaware law do not differ materially with respect to the issues raised here, that question need not be decided on this motion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593847/ | 954 So. 2d 1256 (2007)
Luis PEREZ-ORTIZ, Appellant,
v.
STATE of Florida, Appellee.
No. 5D06-1383.
District Court of Appeal of Florida, Fifth District.
April 27, 2007.
*1257 Ira W. Still, III, Coral Springs, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
LAWSON, J.
Luis Perez-Ortiz appeals his conviction and life sentence on the charge of first degree (premeditated) murder, for killing his wife. He argues that the trial court erred in denying the motion to suppress his confession, and that the State's evidence at trial was insufficient to create a jury question on the issue of premeditation. We affirm.
Nilda Corsino was last seen by neighbors arriving at her apartment on the evening of March 31, 2004. When she did not show up for work the next day, family members contacted police, who ultimately discovered her dead body lying face-down in an inch of water in a tub inside her apartment. Corsino was fully clothed and had a bruise on her jaw, as well as readily-apparent marks around her neck. An autopsy later confirmed that Corsino died from manual strangulation with a contributing factor of immersion in scalding hot water.
Corsino's body was discovered at around 10:00 p.m. on April 1, 2004. At the time of her death, she had been separated from the Defendant. He was residing with his mother. By the time the investigating officers determined where Defendant was residing, it was early on the morning of April 2. So, at approximately 4:00 a.m., on April 2, detectives Santos and Lee, from the Orange County Sheriff's Office, arrived at the home of Defendant's mother to notify Defendant of the death of his wife. Upon their arrival, Santos and Lee found Defendant dressed in street clothes, with a turtle-neck shirt pulled up on his neck as high as possible. Visible above the shirt's *1258 neckline, however, they could see fresh scratches on Defendant's neck and face. Although the scratches were suspicious, and the detectives considered Defendant to be a suspect, they had no other evidence linking Defendant to Corsino's death, and clearly did not have any basis to detain or arrest him.
Therefore, they asked Defendant if he would voluntarily meet them for questioning. He agreed, and drove himself to the nearby Oviedo police station. Both before and during the video-taped interview, the detectives confirmed to Defendant that he was at the station voluntarily, and could leave if he chose to do so. The interview began in a friendly tone, and the detectives' friendly demeanor never changed. However, the detectives' questions did become accusatory as their interrogation proceeded. Basically, they said or implied that they knew Defendant was involved in Corsino's killing, and used various emotional pleas to secure his confession (repeatedly calling upon him to "do the right thing" in the name of truth, virtue, religion, his upbringing, and for the sake of his son).
Defendant initially denied even being at the apartment when Corsino was killed. Then, he began to sit silently as the detectives speculated about what happened on the night of Corsino's death, and pressured him to confess (again, using only the psychological tool of moral persuasion). Shortly before admitting his guilt, Defendant asked if he could "talk to a lawyer, please?" Immediately, detective Lee told Defendant that this would "end the communication between us," but again told him that: "You're free to go, you don't have to talk to us. You know, you're not under arrest. That is your option." Defendant responded by simply saying: "I didn't do it. We had a bad fight, but I didn't do it." Shortly thereafter, Defendant again asked if he could talk to a lawyer, and Lee once again clearly asked Defendant if he wanted to leave. When Defendant didn't indicate a desire to leave or terminate the interrogation, Lee responded with: "Can I ask you something? What's keeping you from trusting us enough to tell us the truth tonight?" The interview continued, and the Defendant ultimately confessed to killing his wife.
Motion To Suppress Confession
Prior to trial, Defendant filed a motion to suppress his confession, claiming that the detectives violated his Fifth Amendment right to counsel, as outlined in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), by failing to discontinue the interview immediately upon his request for a lawyer. In making this argument, Defendant inaccurately represents that the Fifth Amendment requires a law enforcement officer to immediately cease any questioning of a suspect in response to a clear request for an attorney, in any setting. Contrary to Defendant's argument, the Fifth Amendment "right to counsel" is a procedural safeguard created by Miranda to secure the Fifth Amendment's right against compelled self-incrimination during custodial interrogations. Id. at 444, 86 S. Ct. 1602. The Miranda right-to-counsel safeguard simply does not apply outside the context of a custodial interrogation. Id.; Sapp v. State, 690 So. 2d 581, 585 (Fla.1997).
We have carefully considered the factors outlined in Ramirez v. State, 739 So. 2d 568, 574 (Fla.1999), and agree with the trial court's conclusion that the Defendant was not in custody at any time during the interrogation. Most significantly, the Defendant voluntarily agreed to drive himself to the police station, and was repeatedly told that he was not under arrest and free *1259 to leave at any time.[1] Given the totality of the circumstances, we find that a reasonable person placed in the same position could not have believed that his or her freedom of action was curtailed to a degree associated with actual arrest. Therefore, we conclude that Defendant was never in custody, see Ramirez, 739 So.2d at 573, and that the Miranda safeguards, including the right to counsel, did not apply. Sapp, 690 So.2d at 585.
Sufficiency of Circumstantial Evidence To Prove Premeditation
Defendant also argues that the trial court erred in denying his timely motion for judgment of acquittal as to the charge of first degree murder because the State's evidence was insufficient to prove premeditation. Premeditation is a fully-formed conscious purpose to kill, which exists in the mind for a sufficient length of time to permit reflection. Johnston v. State, 863 So. 2d 271, 285 (Fla.2003), cert. denied, 541 U.S. 946, 124 S. Ct. 1676, 158 L. Ed. 2d 372 (2004). When there is no direct evidence of premeditation, the evidence relied upon by the state to prove premeditation must be inconsistent with any reasonable inference other than that the accused killed his or her victim pursuant to a conscious purpose, formed with sufficient time for reflection. Id.
Because of the time necessary to kill another human by manual strangulation, the circumstance of killing by strangulation alone is deemed sufficient to create a jury question on the issue of premeditation in at least a few jurisdictions. See, e.g., Hounshell v. State, 61 Md.App. 364, 486 A.2d 789, ("Whether the time required to produce death by strangulation is sufficient for the assailant to reflect upon his actions before death ensues is a matter for the jury to determine.") cert. denied, 303 Md. 42, 491 A.2d 1197 (1985); Houck v. State, 563 P.2d 665, 668 (Okla.Crim.App. 1977) (finding the fact that strangulation took several minutes to cause the victim's death sufficient to raise an inference of premeditation); cf. State v. Sturdivan, 497 S.W.2d 139, 142 (Mo.1973) ("Premeditation may be reasonably inferred from the bare hand strangulation of defendant's victim and the subsequent application of the towel for two or three minutes longer to make sure he was dead."); but see State v. Bingham, 105 Wash.2d 820, 719 P.2d 109, 113 (1986) (rejecting rule that strangulation alone is sufficient to create a jury question on premeditation, reasoning that having "the opportunity to deliberate is not evidence the defendant did deliberate, which is necessary for a finding of premeditation").
Although our Supreme Court has not expressly addressed this issue, its rulings in several cases lead to the inescapable conclusion that, in Florida, the length of time necessary to produce death by strangulation, standing alone, is not a sufficient basis to submit the issue of premeditation to a jury. See, e.g., Randall v. State, 760 So. 2d 892 (Fla.2000) (finding insufficient evidence of premeditation to uphold conviction for first degree murder in manual strangulation case); Green v. State, 715 So. 2d 940 (Fla.1998) (same).
Ms. Corsino, however, did not simply die from strangulation. After being strangled, but while still breathing, she was drowned in an inch of water, in her tub. The only reasonable inference to be drawn from this evidence is that Defendant, after strangling Ms. Corsino, either held her face into the water, or placed her face-down in the water while she was unconscious. Given the time and forethought that would have *1260 been required to prepare the water, or even move the victim into it, after strangling her, we find the evidence sufficient to support a conviction for first degree murder.
AFFIRMED.
TORPY and EVANDER, JJ., concur.
NOTES
[1] When the interview was over, Defendant also drove himself back to his mother's house. The detectives arrested him later in the day, after securing an arrest warrant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594022/ | 896 F. Supp. 1197 (1995)
PROYECTOS ORCHIMEX DE COSTA RICA, S.A., a Costa Rica company, Plaintiff,
v.
E.I. DUPONT de NEMOURS & COMPANY, a Delaware corporation, Defendant.
HOPEWELL BLOOMS, LTD., a Jamaica limited company, Plaintiff,
v.
E.I. DUPONT de NEMOURS & COMPANY, a Delaware corporation, Defendant.
FRED M. JONES ESTATES, LTD., a Jamaica limited company, Plaintiff,
v.
E.I. DUPONT de NEMOURS & COMPANY, a Delaware corporation, Defendant.
Noel A. LYON, d/b/a Church Valley Farm, a sole proprietorship, Plaintiff,
v.
E.I. DUPONT de NEMOURS & COMPANY, a Delaware corporation, Defendant.
TYALL FOLIAGE, LTD., a Jamaica limited company, Plaintiff,
v.
E.I. DUPONT de NEMOURS & COMPANY, a Delaware corporation, Defendant.
The ORCHID PATCH, LTD., a Jamaica limited company, Plaintiff,
v.
E.I. DUPONT de NEMOURS & COMPANY, a Delaware corporation, Defendant.
JALTIQUE, LTD., a Jamaica limited company, Plaintiff,
v.
E.I. DUPONT de NEMOURS & COMPANY, a Delaware corporation, Defendant. *1198 [DO] Nos. 95-194-CIV-ORL-18, 95-186-CIV-ORL-18, 95-191-CIV-ORL-18, 95-181-CIV-ORL-18, 95-286-CIV-ORL-18, 95-190-CIV-ORL-18 and 95-196-CIV-ORL-18.
United States District Court, M.D. Florida, Orlando Division.
August 23, 1995.
*1199 Dennis K. Bayer, Cobb, Cole & Bell, Daytona Beach, FL, for plaintiff.
John Armando Boudet, Dawn I. Giebler, Cabaniss & Burke, P.A., Orlando, FL, for defendant.
ORDER
G. KENDALL SHARP, District Judge.
The defendant, E.I. du Pont de Nemours and Company ("DU PONT"), seeks to dismiss these seven cases on the grounds of forum non conveniens. The cases all involve product liability claims against DU PONT for damage to commercial nursery crops and real property located in foreign countries allegedly arising from the plaintiffs' application of an agricultural fungicide manufactured by DU PONT known as Benlate®. None of the plaintiffs are citizens or residents of the United States. DU PONT is a Delaware corporation with its principal place of business in Wilmington, Delaware.
I. DESCRIPTION OF CASES
Six of these cases, Lyon (CIV # XX-XXX-XX), Hopewell Blooms, Ltd. (CIV # XX-XXX-XX), The Orchid Patch, Ltd., (CIV # XX-XXX-XX), Fred M. Jones Estates (CIV # XX-XXX-XX), Jaltique, Ltd. (CIV # XX-XXX-XX) and Tyall Foliage, Ltd. (CIV # XX-XXX-XX), involve claims by commercial nurseries located in Jamaica, West Indies. One case, Proyectos Orchimex de Costa Rica, S.A. (CIV # XX-XXX-XX) involves a commercial nursery located in Costa Rica.
The complaints in all of the cases are essentially identical. The plaintiffs each allege that they are citizens of either Jamaica or Costa Rica and that DU PONT is a Delaware *1200 corporation with its principal place of business located in Wilmington, Delaware. Subject matter jurisdiction is asserted based on diversity of citizenship pursuant to 28 U.S.C. § 1332(a)(2).[1] Plaintiffs allege that they applied Benlate® to their nurseries in Jamaica and Costa Rica for a number of years and that the Benlate® damaged or destroyed the crops to which it was applied and contaminated the plaintiffs' nursery soils and growing facilities. According to the complaints, the Benlate® used by the plaintiffs was, "prior to the time it was sold by DU PONT," either contaminated with a herbicide or erroneously designed, formulated or manufactured so that it produced a herbicidal effect after application. Each plaintiff asserts causes of action for negligence, strict liability and breach of warranty. Plaintiffs seek recovery for loss of inventory, past and future lost profits, costs of decontamination of soil and growing facilities and other losses resulting from the alleged contamination of the real property by Benlate®.
II. GOVERNING LAW
In federal diversity cases, forum non conveniens is governed by federal law, not state law. Sibaja v. Dow Chemical Co., 757 F.2d 1215, 1219 (11th Cir.), cert. denied, 474 U.S. 948, 106 S. Ct. 347, 88 L. Ed. 2d 294 (1985). The basic principles governing the application of the doctrine in the federal courts were set forth by the Supreme Court in Piper Aircraft v. Reyno, 454 U.S. 235, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981), reh'g denied, 455 U.S. 928, 102 S. Ct. 1296, 71 L. Ed. 2d 474 and Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S. Ct. 839, 91 L. Ed. 1055 (1947). Forum non conveniens is available as a ground for dismissal in diversity cases "even when jurisdiction is authorized by the letter of a general venue statute." Gulf Oil, 330 U.S. at 507, 67 S.Ct. at 842.
Under federal forum non conveniens law, a foreign plaintiff's choice of forum is not entitled to the same deference or presumption of correctness as would be applied where a plaintiff sues in its home forum. Piper, 454 U.S. at 256, 102 S.Ct. at 266. This principle stems not from any antipathy toward foreign nationals, but rather from the fact that the presumption that plaintiffs have selected the most convenient forum is much less reasonable when the chosen forum is not the plaintiffs' home forum. Id., In re Silicone Gel Breast Implants Products Liability Litigation, 887 F. Supp. 1469 (N.D.Al. 1995).
In considering a motion for dismissal based on forum non conveniens, the trial court should evaluate and weigh all relevant public and private interest factors that bear upon the relative convenience of the forums. Piper, supra, 454 U.S. at 254, 102 S.Ct. at 265. The evaluation of these factors is committed to the sound discretion of the trial court. Gulf Oil, supra, 330 U.S. at 508, 67 S.Ct. at 843. There is no rigid formula to be applied in considering dismissal based on forum non conveniens and the doctrine gives "substantial deference" to the trial court's determination of the competing interests. Piper, 454 U.S. at 257, 102 S.Ct. at 266-67. As the court stated in Piper,
[E]ach case turns on its facts. If central emphasis were placed on any one factor, the forum non conveniens doctrine would lose much of the flexibility that makes it so valuable.
Id. at 249-250, 102 S.Ct. at 263.
In weighing these factors, the court may consider any concessions made by the moving defendant such as waiving statutes of limitations, objections to process, personal jurisdiction or other similar concessions. Piper at 257 n. 25, 102 S.Ct. at 267 n. 25, In re Union Carbide Corporation Gas Plant Disaster at Bhopal India in December 1984, 634 F. Supp. 842, 850 (S.D.N.Y.1986). In the instant cases, DU PONT has agreed, that (1) it will submit to the jurisdiction of the foreign tribunals, (2) it will be bound to pay final judgments rendered against it by those *1201 tribunals, (3) it will exclude from calculation of statutes of limitations the periods that these actions were pending in this court, (4) it will make relevant documents available to plaintiffs by providing access to DU PONT's Benlate® document depository located in Wilmington, Delaware to plaintiffs' legal representatives in the same manner as access is provided to legal representatives of domestic litigants.
III. DISCUSSION
A. Preliminary Considerations
1. Amenability to Process
"At the outset of any forum non conveniens inquiry, the court must determine whether there exists an alternative forum." Piper, 454 U.S. at 254, n. 22, 102 S.Ct. at 265, n. 22. The requirement of an alternative forum will ordinarily be satisfied when the defendant is "amenable to process" in the other jurisdiction. Id. Here, DU PONT has agreed to submit to the jurisdiction of the foreign tribunals and thus is clearly "amenable to process" in the alternative forum.
2. Choice of Law
In general, a court engaged in an inquiry concerning the existence and adequacy of an alternative forum should not hinge its decision based on the possibility of an unfavorable change of law. "[I]f conclusive or substantial weight were given to the possibility of a change in law, the forum non conveniens doctrine would become virtually useless." Piper 454 U.S. at 250, 102 S.Ct. at 263. However, a narrow exception to this rule applies in situations where "the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all." Id. at 254, 102 S.Ct. at 265.
The evidence in the record establishes the following: (1) Jamaica is a common law jurisdiction with a developed and independent court system, (2) Jamaican law provides a remedy to persons whose real and/or personal property is damaged by a defective product, (3) Jamaican law recognizes claims for negligence and breach of warranty, and (4) Jamaican law allows for the recovery of compensatory damages. Plaintiffs have submitted an affidavit from a Jamaican lawyer, Mr. Roald Nigel Adrian Henriques, opining that the Jamaican courts may decline to accept jurisdiction of these cases in the event that they are filed in Jamaica. However, it appears that Mr. Henriques' analysis proceeds on the assumption that DU PONT would attempt to resist jurisdiction. As noted above, DU PONT has agreed to submit to jurisdiction in Jamaica. In any event, the court finds that the analyses and opinions presented by DU PONT's expert witness, Mr. George C.J. Moore, are more persuasive.
With respect to Costa Rica, DU PONT has provided the court with the affidavits of Mr. Victor Manuel Garita and Mr. Carlos J. Oreamuno. Messrs. Garita and Oreamuno are lawyers in Costa Rica and members of the largest law firm in that country. The affidavits establish that: (1) Costa Rica is a civil law jurisdiction with a reliable and impartial court system, (2) the Civil Code of Costa Rica recognizes causes of action for negligence and breach of warranty, and (3) under Costa Rican law, a prevailing plaintiff is entitled to recover full compensatory damages, including lost profits and cost of replacement or repair of damaged property.
In response, Plaintiffs have submitted an affidavit from Mr. Federico Sosto Lopez, an attorney in Costa Rica. Mr. Lopez's affidavit generally confirms the status of the law as described by Garita and Oreamuno, but raises questions about the enforceability of a potential judgement against DU PONT and expresses concerns that pre-trial discovery is not as extensive in Costa Rica as in the United States. The concerns about enforceability of a judgment are misplaced because DU PONT has agreed in this court to pay any final judgment entered in Costa Rica. The concerns about the scope of pre-trial discovery are also unavailing because it is not necessary that the alternative forum have extensive pre-trial discovery procedures comparable to those found in the United States.
Jamaica and Costa Rica have previously been found to be adequate forums by other federal courts. See, Early v. Travel Leisure Concepts, Inc., 674 F. Supp. 1199 (E.D.Va. *1202 1987) (Jamaica) and Cabalceta v. Standard Fruit Co., 667 F. Supp. 833 (S.D.Fla.1987) (Cost Rica). Based on the record and the applicable law, the court finds that the proposed alternative forums of Jamaica and Costa Rica would be available to the plaintiffs and would provide plaintiffs with an adequate remedy.
B. Private Interest Factors
The Gulf Oil decision listed a number of factors that affect the interests of the specific litigants to an action and which should be considered in a forum non conveniens analysis. These private interest factors include "relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling witnesses; possibility of view of premises, if view would be appropriate and all other factors that make trial of a case easy, expeditious and inexpensive." Id. 330 U.S. at 508, 67 S.Ct. at 843.
1. Location of Physical Evidence
The central piece of physical evidence in these cases is the real property which has allegedly been damaged and contaminated by the application of the defendant's product. It is reasonable to expect that these cases will involve extensive sampling, testing and analysis of the plaintiffs' real property located in Jamaica and Costa Rica. The costs associated with transporting counsel, experts and other interested persons to these foreign locations would be enormous. In addition, the court finds it significant that there would be no realistic possibility of providing for a view of the premises by the finder of fact if the cases are tried in this forum. This is a particularly relevant consideration in cases such as these which involve allegations of ongoing damage to real property. The court finds that the location of the physical evidence supports dismissal.
2. Location of Witnesses
With respect to the location of witnesses, it appears that there are relevant witnesses in the United States as well as in the foreign jurisdictions. However, it is undisputed that the vast majority of material witnesses are located outside of this forum. Virtually none of the witnesses with direct knowledge of the events connected with these cases are located here. None of the events connected with this case took place in the Middle District of Florida. The product was not designed, manufactured, sold to or used by these plaintiffs in the Middle District of Florida. Although the plaintiffs allege that some of the Benlate® involved in these cases may have been shipped to Jamaica and Costa Rica through the Port of Miami, the court finds this limited contact with the State of Florida to be insignificant, particularly since the plaintiffs' complaints expressly allege that the product was not substantially altered or changed after leaving DU PONT and before reaching the plaintiffs.
The plaintiffs, the plaintiffs' present and former employees, plaintiff's accountants and bookkeepers, neighboring landowners and growers, and other potential witnesses with direct knowledge about this case are located in the foreign forums. The DU PONT witnesses with knowledge about this case are largely located in Delaware. The plaintiffs have offered to make themselves and certain of their current employees available to give testimony in this forum. However, the court finds that, on balance, the plaintiffs' cooperation in this regard is not sufficient to offset the overall inconvenience of trying these cases in a forum which is not home to any of the principal witnesses, parties or events connected with this lawsuit. See, In re Silicone Gel Breast Implants, supra, 887 F.Supp. at 1477 (plaintiff's offer to bring witnesses to forum found insufficient to offset burden).
3. Access to Documentary Evidence
With respect to documents, it appears that most, if not all, of the relevant documents are maintained outside of this forum. DU PONT's Benlate®-related documents are housed in a document depository located in Wilmington, Delaware. The plaintiffs' business records are maintained in their respective home forums. It is reasonable to anticipate that there are relevant documents in the hands of third parties in the United States as well as in the foreign forums. In the event of dismissal to the foreign forums, the plaintiffs would nevertheless be able to obtain *1203 documents from third parties located in the United States under 28 U.S.C. § 1782 as well as through other extra-territorial means such as the Hague Convention. The foreign forums have no provision comparable to 28 U.S.C. § 1782 allowing for the direct production from third parties. In addition, as a condition of dismissal, DU PONT has agreed to permit plaintiffs' legal representatives access to the Benlate® document depository in the same manner as is provided to domestic litigants.
Another factor to be considered is that there has been substantial discovery taken of DU PONT by other plaintiffs in Benlate® cases including numerous depositions of key DU PONT officials by Plaintiffs' present counsel. It appears to the court that a substantial portion of what remains to be done in these cases is the discovery of evidence from the plaintiffs themselves and from those with direct knowledge as to the plaintiffs nursery operations. Considering all of these factors, the court finds that the plaintiffs' would have relatively greater ease in obtaining the relevant documents in the event of dismissal than would DU PONT in the event that the cases remain in this forum. Thus, on balance, the court finds that the question of relative ease of access to documents supports dismissal.
4. Other Private Interest Factors
The court has considered other private interest factors raised by the plaintiffs including the contention that the presence of plaintiffs' counsel in this forum is a compelling reason for maintaining the cases in the Middle District of Florida. The court does not find this a compelling factor. Even if the location of counsel is a relevant consideration, the record here shows that both Jamaica and Costa Rica (unlike many foreign jurisdictions) permit the use of contingent fees and there is no reason to believe that the plaintiffs will find it impossible to locate competent counsel in their home forums. The affidavits of Garita, Oreamuno and Moore establish that competent local counsel would be available to represent the plaintiffs in the foreign forums.
C. Public Interest Factors
This court's analysis of the private interest factors enumerated above supports dismissal based on forum non conveniens and thus a weighing of the public interest factors is not strictly necessary. Nevertheless, a review of the public considerations leaves no doubt that dismissal of these cases is appropriate.
By all accounts, these are complex and highly contested cases often featuring lengthy trials. Some previous Benlate® trials have lasted as long as six months. The trial of these seven cases alone could occupy one of the three federal judges in the Orlando Division of the Middle District of Florida full time for a year or more. The burden, delays and inconvenience to the other civil and criminal litigants in this forum would be enormous. This court's docket would be thrown into chaos.
The litigation of these costly cases in this court would also impose a tremendous burden on the citizens of the Middle District of Florida. Scores of citizens from this community would be inconvenienced by being called to serve as jurors in cases involving parties and events having no connection to this forum. The burden of imposing jury duty on citizens to decide a case with no connection to the forum is a significant factor in performing a forum non conveniens analysis. Piper, 454 U.S. 235, 241 n. 6, 102 S.Ct. at 255, 258 n. 6, citing Gulf Oil, 330 U.S. at 509, 67 S.Ct. at 843. In these cases, the jury duty burden weighs heavily in favor of dismissal.
Another relevant consideration is the relative interest of the competing forums in the litigation. Jamaica and Costa Rica clearly have a strong interest in determining whether a pesticide used by its citizens has caused damage. Plaintiffs contend that Florida has an interest in this litigation because Benlate® was sold in Florida and because Florida state officials are conducting research regarding Benlate®. However, this court reaches the same conclusion as was reached by the Supreme Court when a similar argument was advanced by the plaintiffs in the Piper case: "[t]he incremental deterrence that would be gained if this trial were held in an American court is likely to be insignificant." *1204 Plaintiffs' counsel has acknowledged that he currently represents approximately 50 local growers in Benlate® suits in the Florida state courts. Under these circumstances, the court concludes that there would be little or no "incremental deterrence" to be gained by litigating these foreign cases in this forum.
A final factor to be considered is the possibility that this court will have to apply foreign law in these cases. DU PONT contends that foreign law is controlling. The plaintiffs contend that "American" law is controlling, although the plaintiffs have not identified any particular "American" jurisdiction whose law would be applicable. In any event, while there is some question as to whether foreign law would ultimately apply to all aspects of these cases, there is no question that these cases would ensnare this court in a difficult choice of law determination. These difficulties would be compounded in the Costa Rican case by the need to translate relevant documents and law. Without deciding the choice of law issue, the court finds that the possibility that foreign law will apply weighs strongly in favor of dismissal.
IV. CONCLUSION
In light of the availability of an adequate alternative forum, and based upon a balancing of the private and public interest factors enumerated above, the court finds that dismissal of these cases warranted. This dismissal is conditioned on the following:
1. DU PONT's agreement to accept service of process in Jamaica and Costa Rica;
2. DU PONT's agreement to exclude the time period during which these cases were pending in this court from any statute of limitations analysis;
3. DU PONT's agreement to be bound by any final judgment, after appeals if applicable, that may be entered against it by the courts in Jamaica and Costa Rica;
4. DU PONT's agreement to provide the plaintiffs with access to DU PONT's document depository and depositions of all DU PONT employees from prior Benlate® related litigation in the same manner as these materials are provided to domestic litigants.
Based on the foregoing and subject to the conditions set forth above, Defendant's Motion to Dismiss Based Upon the Doctrine of Forum Non Conveniens is GRANTED.
DONE AND ORDERED.
NOTES
[1] The sole reference in the complaints in this forum is the allegation that DU PONT "maintained authorized representatives within the territorial jurisdiction of the Middle District of Florida" who worked in the marketing and sale of Benlate®, but there is no allegation that these representatives were involved in any way with the sales at issue here or otherwise interacted with these plaintiffs with respect to their purchases of Benlate®. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594014/ | 400 N.W.2d 389 (1987)
In re the Marriage of Mark Allen TANGHE, Petitioner, Respondent,
v.
Debra Ann TANGHE, Appellant.
No. C4-86-1455.
Court of Appeals of Minnesota.
February 10, 1987.
*390 Donald E. Schmid, Jr., Hauser & Schmid, Sleepy Eye, for respondent.
James R. Anderson, Marshall, for appellant.
Considered and decided by FORSBERG, P.J., and SEDGWICK and HUSPENI, JJ., with oral argument waived.
OPINION
HUSPENI, Judge.
Debra Tanghe appeals from custody determinations in a dissolution judgment and amended judgment. She argues that the trial court abused its discretion in making findings unsupported by the evidence and that the court's findings are insufficient to support the grant of custody. She also argues that the matter should be remanded on the issues of property settlement, maintenance and child support, and she requests attorney's fees on appeal. We reverse and remand.
FACTS
Appellant and respondent, Mark Tanghe, were married on September 16, 1972. Respondent petitioned for dissolution of the marriage on November 22, 1985. At the time of the dissolution, the parties' five daughters were ages twelve, nine, seven, four and seven months.
During the marriage, appellant was employed for approximately six months. She has no education or training beyond high school and has been a full-time homemaker since graduating from high school. Respondent is employed full-time and also farms on a part-time basis. His average annual income is $21,000.
Both parties sought physical custody of the children. There is no dispute that during the marriage appellant provided the majority of the physical care, although respondent shared in certain responsibilities and was more involved in recreational activities than was appellant. The main area of contention centered on appellant's ability to appropriately discipline the children. At the dissolution hearing, there was testimony of two incidents near the time the dissolution petition was filed where appellant's discipline included scratching and biting. An incident five years earlier involved spanking one of the children with a wooden spoon. Several witnesses testified that appellant screamed and yelled at the children, while respondent was calmer in providing discipline. Respondent testified that appellant struck him and cursed at him in front of the children and told the children he was a sinner because he was seeking a divorce.
A social worker testified that respondent was more stable emotionally and financially than appellant. The children's guardian *391 ad litem agreed that respondent was more stable emotionally, but added that appellant had made progress in dealing with her emotions. The psychologist who had counseled appellant indicated that the dissolution proceedings were extremely stressful to her, a Catholic who views divorce as a sin. She added that appellant had made progress in addressing her emotional problems and that for a full-time homemaker raising five young children, yelling as a means of discipline is not unusual.
None of the expert witnesses investigated reports that respondent had physically abused appellant on approximately 20 occasions. The information was provided in a letter from a counselor at a domestic abuse treatment center, where a treatment program for respondent had been outlined. He did not complete the program.
Respondent acknowledged having spanked one of the children beyond the point necessary for disciplinary purposes. Appellant testified that the incident resulted in raising welts on the child. Two of the children indicated to the social worker that they were afraid of receiving spankings from their father.
The court granted joint legal custody. Physical custody of the four oldest children was granted to respondent with physical custody of the baby granted to appellant. In its initial findings, the court found both parties to be fit and proper persons to have custody of the children, but added:
[Appellant] is an excellent caretaker of younger children but that she has had difficulties with the children as they have gotten older and attempted to assert their own personalities.
In amended findings, the court replaced its original finding of fitness with a finding that appellant is not a fit and proper person to have care, custody and control of the four older children.
ISSUES
1. Did the trial court abuse its discretion in granting custody of four of the parties' children to respondent?
2. Must the issues of property division, maintenance and child support be remanded to the trial court for reconsideration in connection with the issue of custody?
3. Is appellant entitled to an award of attorney's fees on appeal?
ANALYSIS
I.
Review of custody determinations is limited to whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn.1985). The court's findings must be sustained unless clearly erroneous. Id., Minn.R.Civ.P. 52.01.
[W]hen both parents seek custody of a child too young to express a preference, and one parent has been the primary caretaker of the child, custody should be awarded to the primary caretaker absent a showing that that parent is unfit to be the custodian.
Pikula, 374 N.W.2d at 712 (Minn.1985). Once the determination of primary caretaker has been made, there must be a strong showing of unfitness in order to grant custody to the parent who did not serve as the primary caretaker during the marriage. Id. at 714.
It is apparent that in both its initial and amended findings and the memoranda accompanying those findings, the trial court struggled with the Pikula requirement that custody be granted to the primary parent unless that parent was shown to be unfit. In its memorandum accompanying the original findings the court stated:
The Court in this case was presented with a fact situation in which application of the Pikula case was difficult. [Appellant] was the primary caretaker of the minor children with regard to [their] physical needs * * *. While she had difficulty with administering appropriate discipline and the making of inappropriate remarks to the children, these did not approach any "strong showing of unfitness" as set forth in Pikula. In awarding *392 custody of the four older children to [respondent], this Court finds that [he] has been the primary caretaker * * * with regard to meeting the children's emotional needs.
However, in its amended findings the court reversed its previous position and determined that appellant was not a fit parent to have custody of the four older children, stating specifically:
[W]hile the [appellant] has been able to meet the physical needs of the children, she is not able to understand or meet the emotional needs of the four oldest children.
* * * * * *
The [respondent] by his overall testimony and demeanor in the courtroom impressed this Court as a person who is soft spoken and mild mannered. That the Court was impressed with [respondent's] understanding of the emotional needs of the minor children and a willingness to put their needs before his own.
That the [appellant] by her overall testimony and demeanor impressed this Court as a person who was lacking in self control. That while she truly loves her children, that [appellant] does not understand the emotional needs of the children and the results of her behavior.
* * * * * *
[Appellant] suffers from a lack of self-esteem and has a dependent personality. [Respondent] appears well adjusted and suffers from no mental or physical problem. [Respondent] is judged to be the better able to give love, affection and guidance to the children. While the [appellant] loves the children, she appears to utilize the children to maintain her self-image as a "mother". She appears to want to mother the children and has problems when the children begin to mature and assert their own personalities. As a caretaker of infant children, [appellant] is found to be excellent.
In the memorandum accompanying the amended findings, the trial court sought guidance on what, in fact, constituted a "strong showing of unfitness" and questioned whether in determining which of the parents is the primary parent, all of the Pikula factors must be given equal weight.
In custody matters, as in family law matters generally, the specific facts of a case are critical. Issues must be resolved on a case by case basis and only after consideration of the unique facts of each case. Therefore, it is impossible to answer either of the concerns raised by the trial court except in the context of the specific facts of a particular case.
A consideration of the specific facts of this case leads us to conclude that the trial court was correct in initially determining that "both parties are fit and proper" and in error in subsequently finding that "[appellant] is not a fit and proper person to have * * * custody of the [four oldest children]". We conclude that the conduct and character traits of appellant which the trial court referred to in its amended findings fall short of parental "unfitness" as envisioned in Pikula. A review of the record indicates that the finding of appellant's unfitness rested primarily on three isolated incidents of improper discipline meted out by her, on testimony that she "yelled" at the minor children, and on comments made by her regarding respondent's efforts to dissolve the marriage. We note, too, that appellant was declared "unfit" only in regard to the four older children. She was deemed "excellent" in regard to the child who was yet an infant at the time of the dissolution. We certainly do not minimize the seriousness of the three incidents of inappropriate discipline. However, they were isolated and occurred over a period of several years. Further, both a psychologist and a social worker testified to the recent progress made by appellant in dealing with her emotions. Next, a parent who has the full-time responsibility to care for and discipline five young children, and yells occasionally in doing so, may not be engaging in the most constructive or appropriate disciplinary practices, but, as recognized by the psychologist at trial, is not engaging in unusual behavior. Appellant's *393 unfortunate and inappropriate remarks regarding respondent's decision to end the parties' marriage appear clearly to be situational and caused by the stress of the dissolution proceeding. Again, witnesses observed the progress which had been made by appellant in regard to her emotions.
Although the trial court made a finding of appellant's unfitness, its reluctance to do so based on the record before it is apparent. We believe the trial court concluded that respondent was the more capable disciplinarian and therefore the more capable parent, but recognized that under Pikula a grant of custody to the "more capable" parent is inappropriate if that "more capable" parent is also not the primary caregiver. The exception to that rule arises, of course, if the primary parent is determined to be unfit. The trial court amended its original findings to include a finding of unfitness so this exception could be employed. The record does not support that determination.
The trial court's concern about the weight to be given to each Pikula factor in determining primary parent must be answered in the same manner as its question about "unfitness." The weight to be given to each Pikula factor[1] also depends upon the unique facts of each case. In this case, however, we believe the factor relied on almost exclusively by the trial court was discipline, especially the comparative abilities of the parties in disciplining, and how the emotional stability of each parent affected that ability. Even assuming that such comparison would be appropriate under Pikula, the trial court did not complete its analysis. It briefly mentioned that there had been testimony regarding respondent's alleged abuse of appellant, but made no findings as to that alleged abuse nor to respondent's failure to complete the treatment program recommended to him by a domestic abuse center. Nor did the court refer to the incident of excessive spanking by respondent or the fear of future spankings expressed to the social worker by two of the children. In contrast, the court did make findings regarding the three incidents of unfortunate and inappropriate discipline by appellant.
Further, we are concerned that the trial court's comparison of the parties' disciplinary abilities ultimately undermines the Pikula holding. Pikula requires that in order to provide stability in the children's lives and to avoid relying on inappropriate standards, custody must be granted to the primary caretaker, absent a showing of unfitness of that parent. 374 N.W.2d at 712-13. Pikula would appear to preclude granting custody on the basis of a finding that one parent is the more appropriate disciplinarian, unless, of course, the disciplinary practices of the other parent lead to a finding of unfitness. We have determined that such is not the case here.
In both its original and amended findings the trial court addressed many of the ten Pikula factors. In its amended findings, it stated that appellant provided most of the care in the areas of meal preparation and planning; bathing, grooming and dressing; purchasing, cleaning and care of clothes; medical care; and arranging alternate care. It indicated that there had been no testimony on arranging for social interaction among peers after school, but presumed appellant provided the majority of the transportation. It also found that the parties shared equally in putting the children to bed at night, educating the children and teaching elementary skills. It stated that appellant "has been able to meet the physical *394 needs of the children." In its original findings the trial court had determined that appellant was the primary parent "during the infancy of the minor children", and in the memorandum accompanying the original findings that appellant "was the primary caretaker * * * with regard to * * * physical needs" and respondent "has been the primary caretaker * * * with regard to meeting the children's emotional needs." By declaring in the amended findings that appellant was "unfit" the trial court avoided the necessity of determining which parent was, in fact, the primary caretaker under the Pikula rationale. That determination must be made on remand. See Regenscheid v. Regenscheid, 395 N.W.2d 375 (Minn.Ct.App.), pet. for rev. denied, (Minn. Dec. 23, 1986).
Further, in view of our determination regarding appellant's fitness we specifically ask the trial court on remand to address the issue of which parent undertook the majority of discipline, and the impact which responsibility for full-time care of five young children may have on disciplinary methods. Possibly a parent who serves as a full-time homemaker and child caregiver occasionally may invoke different disciplinary techniques than a parent who works both full and part-time jobs and is not called upon to provide constant or consistent discipline. In addressing the emotional stability of the parties, the trial court should also make specific findings regarding respondent's alleged abuse of appellant and alleged inappropriate discipline of the minor children.
We also suggest that on remand the trial court specifically address any basis for dividing custody of the children, especially in view of our determination here that it erred in finding appellant unfit to have custody of the four older children. See Rinker v. Rinker, 358 N.W.2d 165, 168 (Minn.Ct.App. 1984). Finally, we direct the trial court to expedite this matter on remand.
II.
If on remand the custody determination is altered, the trial court must reconsider issues of maintenance, child support, and property division. However, no meritorious argument has been advanced for this court's review of these issues prior to the trial court's redetermination of the custody issue.
III.
Appellant has presented no specific argument for an award of attorney's fees on appeal, and we decline to grant such fees. She may request attorney's fees from the trial court upon remand of this matter.
DECISION
The trial court abused its discretion in basing its custody determination on an erroneous finding of unfitness. The issues of maintenance, child support and property damage shall be reconsidered by the trial court in connection with the custody issue. No attorney's fees are awarded on appeal.
Reversed and remanded.
NOTES
[1] The ten factors enunciated in Pikula are:
(1) preparing and planning of meals; (2) bathing, grooming and dressing; (3) purchasing, cleaning, and care of clothes; (4) medical care, including nursing and trips to physicians; (5) arranging for social interaction among peers after school, i.e. transporting to friends' houses or, for example, to girl or boy scout meetings; (6) arranging alternative care, i.e. babysitting, day-care, etc.; (7) putting child to bed at night, attending to child in the middle of the night, waking child in the morning; (8) disciplining, i.e. teaching general manners and toilet training; (9) educating, i.e., religious, cultural, social, etc.; and, (10) teaching elementary skills, i.e., reading, writing and arithmetic.
374 N.W.2d at 713. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594475/ | 432 N.W.2d 547 (1988)
230 Neb. 568
STATE of Nebraska, Appellee,
v.
Isabel GREENO, Appellant.
No. 87-987.
Supreme Court of Nebraska.
December 9, 1988.
*549 Charles F. Fitzke, Scotts Bluff County Public Defender, for appellant.
Robert M. Spire, Atty. Gen., Royce N. Harper, and Melanie Whittamore, Lincoln, for appellee.
HASTINGS, C.J., WHITE, CAPORALE, and FAHRNBRUCH, JJ., and REAGAN, District Judge.
HASTINGS, Chief Justice.
The defendant was found guilty by a jury in Scotts Bluff County of fraudulently obtaining low-income energy assistance from the State. On appeal, she assigns as error the trial court's refusal to grant a mistrial.
The defendant filed a false application for energy assistance from the State of Nebraska. Her sister, Eloise Giron, was employed by the State and was responsible for the approval of applications for the Nebraska low-income energy assistance program. She processed and "verified" the defendant's application, resulting in the defendant's receiving $165 fraudulently from the State. Giron was convicted for her participation in the scheme in a separate trial conducted prior to the defendant's.
The defendant assigns as error, inter alia, the court's refusal to grant a mistrial after allegedly prejudicial statements were made by the prosecutor during voir dire, and after the State allegedly failed to prove the statements it made during voir dire. Neither of these assignments of error are discussed in the defendant's brief. This court will not consider issues which are not both assigned and discussed. Nuttelman v. Julch, 228 Neb. 750, 424 N.W.2d 333 (1988).
The remainder of the defendant's assignments of error are actually several variations on one theme: that the defendant was prejudiced by repeated references to her sister's trial.
Discussion of Giron and her duties at the Department of Social Services was integral to the cases of both the prosecution and the defense, and the jury was necessarily made aware of Giron's collusion with the defendant. The defendant does not argue that all references to Giron's participation in the fraud were prejudicial. However, the defendant does contend that all references to Giron's trial worked together to create prejudice, especially in light of Giron's volunteered testimony that she had been convicted.
Because of the nature of the fraud, many of the witnesses at the defendant's trial had also testified at Giron's trial, and much of the evidence introduced at the defendant's trial had also been introduced at Giron's trial. In the course of the defendant's trial, many references were made to the previous trial and previous testimony. However, many of these references were made by defense counsel, and of the references made by the prosecutor, none were objected to. "It is well settled by this court that if a party does not make a timely objection to evidence, the party waives the right on appeal to assert prejudicial error in the reception of such evidence." State v. Todd, 226 Neb. 906, 908-09, 416 N.W.2d 13, 15 (1987).
*550 Giron was called as a witness for the defense. On direct examination by defense counsel, Giron volunteered that she had been "on trial two weeks ago." Subsequently, on cross-examination, the State asked Giron several questions about her previous testimony. At one point, Giron responded, "I'm going to take the 5th because I really don't recall everything word for word." The court instructed her that mere lack of knowledge was not a proper ground for taking the fifth amendment, then asked her if she refused to answer on the grounds that it would tend to incriminate her. Giron replied, "I've already been found guilty but, yes, I still do take the 5th." (Emphasis supplied.) The court cautioned the jury that the volunteered information was "unrelated to the case at hand" and should be disregarded. The defense then moved for a mistrial, which was denied by the court.
When cross-examination continued, both Giron and the State continued to refer to Giron's trial and her previous testimony. While making no more direct references to her conviction, Giron did state that other workers in her office "wanted to prove me the way they proved me," and admitted that she was bitter "because of the outcome of my trial."
On rebuttal, the State called a witness who was asked if she had testified at a previous trial. Defense counsel at that time requested a mistrial, and the motion was subsequently heard and denied.
During closing argument, the prosecutor stated: "There is no one person that did this; there are two, and you have seen them both in this courtroom today." He concluded, "I proved that there are not one but two worms in the woodpile." Neither of these statements were objected to by defense counsel, but after the jury had been read the instructions and retired to the jury room to deliberate, the defense again moved for mistrial. Defense counsel argued that the continued references to Giron's involvement "refresh[ed] once again to the recollection of these jurors that she slipped and said that she was guilty in that case." The motion was denied, and the defendant was convicted.
We note at the outset that defendant's argument concerning the impropriety of the prosecutor's closing remarks cannot be considered on appeal, as no objection was timely made. The sequence of events in Lemmon v. State, 173 Neb. 387, 113 N.W.2d 525 (1962), was identical to the case at hand: After the prosecutor's closing argument, the jury received instructions and retired, and only then did the defense counsel move for mistrial based on the allegedly improper remarks made by the prosecutor. This court held, "An objection made to the argument of opposing counsel after the jury has retired is not timely and will not be reviewed on appeal." Id. at 388, 113 N.W.2d at 526. See, also, State v. Benzel, 220 Neb. 466, 477, 370 N.W.2d 501, 511 (1985), in which the defense did not object during the closing argument or before the jury retired, and this court held, "The failure to make a timely objection is equivalent to failing to make an objection at all and waives any right to complain"; State v. Keithley, 227 Neb. 402, 408, 418 N.W.2d 212, 216 (1988), in which no objection was made at the time of argument, and this court held, "Failure to assert a timely objection at the time of trial constitutes a waiver of the objection."
Moreover, "The general rule is that remarks made by the prosecutor in final argument which do not mislead or unduly influence the jury do not rise to a level sufficient to require granting a mistrial." State v. Fraser, 230 Neb. 157, 162-63, 430 N.W.2d 512, 515 (1988); State v. Benzel, supra; State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984), cert. denied 469 U.S. 1028, 105 S. Ct. 447, 83 L. Ed. 2d 372. The State's allusions to Giron's involvement certainly did not surprise or mislead the jury during closing arguments; by that time, Giron's participation had been made abundantly clear. "[I]t is not prejudicial for the prosecutor to make remarks based on deductions and inferences drawn from the evidence." Benzel, supra 220 Neb. at 478, 370 N.W.2d at 511. Furthermore, the remarks were not in and of themselves *551 unduly influential on the jury. "The impact of any comment made at trial depends on the atmosphere at trial. The trial judge is in a better position to measure the impact a comment has on a jury, and his decision will not be overturned unless clearly erroneous." Id. at 477-78, 370 N.W.2d at 511. We cannot say that under the circumstances the trial court was in error.
By failing to object when the State referred to the previous trial, and indeed, by bringing up Giron's trial himself, defense counsel waived any arguments on the matter.
However, there remains the question of whether Giron's volunteered testimony disclosing her conviction was sufficiently prejudicial to warrant a mistrial. As in State v. Robertson, 219 Neb. 782, 366 N.W.2d 429 (1985), we emphasize that the evidence in question relates to the codefendant's conviction, and not merely to the codefendant's participation in the crime.
The clear rule of law in this country is that where two persons are charged with the same criminal offense but are tried separately, the fact that one defendant has been convicted is inadmissible against the other defendant. See State v. Robertson, supra. However, case law suggests that the result may be different where, as here, the conviction of the codefendant is disclosed through the unresponsive testimony of a witness, rather than as the result of a direct question by the prosecutor. In any event, admission of a codefendant's conviction will not be the basis for a mistrial unless it creates undue prejudice which was not, or could not be, negated through curative measures undertaken by the court.
State v. Robertson, supra, while not directly on point, considered the admissibility of a jury's verdict finding a codefendant guilty. In Robertson, the prosecutor asked the codefendant whether she had been convicted for her part in the crime for which the defendant was being tried, to which the codefendant replied yes. This court found that "evidence of a codefendant's conviction on the same charge has no place in the State's case in chief against a defendant." Id. at 791, 366 N.W.2d at 435. However, the court did not consider the question of voluntary, unsolicited testimony by the witness, divulging her conviction.
In State v. Riendeau, 448 A.2d 735 (R.I. 1982), the Rhode Island court affirmed the conviction of the defendant, who at his own trial had volunteered information about his codefendant's conviction and jail sentence in answer to a question that arguably did not require such a response. While reaffirming the rule that evidence of one defendant's conviction is inadmissible against another defendant as substantive proof of guilt, the court nevertheless found that the testimony did not result in sufficient prejudice to warrant a new trial, since the defendant had volunteered the information, the trial court immediately cautioned the jurors to disregard the information, the trial court gave jury instructions reminding the jury that they were not to consider the codefendant's fate, and other evidence in the case overwhelmingly established the defendant's guilt.
In Moore v. State, 515 N.E.2d 1099 (Ind. 1987), the investigating officer, in his testimony, mentioned the codefendant's conviction. The Indiana court noted that "[t]he question of whether the admission of a co-defendant's conviction requires reversal depends on the facts and circumstances surrounding the case." Id. at 1103. Here, since the officer made "only a brief mention" of the codefendant's conviction, and the prosecutor did not use the conviction directly to argue the defendant's guilt, the court found that the prejudice to the defendant was insubstantial.
In State v. Brown, 67 N.C.App. 223, 313 S.E.2d 183 (1984), review denied 311 N.C. 764, 321 N.E.2d 147, the court held that the admission into evidence on direct examination that the codefendant had been convicted was erroneous. Although the admission of the evidence was erroneous, however, the court held it did not constitute prejudicial error requiring a new trial. The court found that since the codefendant had testified regarding his participation in the *552 scheme, the jury was already fully aware of his guilt.
The Brown case relied in part on State v. Bryant, 236 N.C. 745, 73 S.E.2d 791 (1953). In Bryant, as the jury was leaving the jury box, the codefendant entered a plea of guilty to the crime for which the defendant was on trial. The trial court denied the defendant's motion for mistrial, but immediately cautioned the jury that if it had overheard the codefendant's guilty plea, it should not consider it. The North Carolina Supreme Court affirmed, explaining that since the codefendant had testified to facts which disclosed his participation in the crime, "[t]he jury was already fully apprized of his guilt," id. at 747, 73 S.E.2d at 792, and thus, no prejudice resulted from its overhearing the codefendant's guilty plea.
In United States v. Dougherty, 810 F.2d 763, 767 (8th Cir.1987), the prosecutor informed the jury during opening argument that a codefendant "`who has himself been convicted of a felony offense relating to this investigation'" would be called as a witness. The defendant's motion for mistrial was denied. Although the appellate court expressed disapproval over the prosecutor's actions, it found that in the totality of circumstances of the entire trial, the defendant had not been prejudiced by the prosecutor's statement. The court came to this conclusion by examining the cumulative effect of the prosecutor's misconduct, the strength of the properly admitted evidence of the defendant's guilt, and the curative actions taken by the trial court. The prosecutor had made no further references to the codefendant's conviction and had taken additional measures to see that the codefendant did not discuss the conviction on direct examination; there was overwhelming evidence of the defendant's guilt irrespective of the prosecutor's comment; and the trial court had given a cautionary instruction to the jury to alleviate any possible prejudice.
In the present case, the witness disclosed her conviction in response to a question by the court that did not require such a response. The prosecutor did not ask her whether she had been convicted, nor did he use that fact to argue the defendant's guilt. The jury was immediately cautioned to disregard Giron's statement, and upon submission of the case to the jury, the court instructed it not to consider any volunteered information regarding the outcome of any other trial. Moreover, there was overwhelming, properly admitted evidence of the defendant's guilt regardless of Giron's statement that she had been convicted for her part in the fraud.
Although the statement was not properly admissible evidence, the prejudice resulting therefrom was insubstantial and did not necessitate the granting of a mistrial. State v. Watkins, 227 Neb. 677, 687, 419 N.W.2d 660, 666 (1988) (error in admitting statement was harmless where conviction was supported by "substantial, even overwhelming, evidence" in addition to inadmissible statement); State v. Ebberson, 209 Neb. 41, 46, 305 N.W.2d 904, 908 (1981) ("even if [the witness' answer] had been wholly unresponsive it was clearly not so prejudicial as to require a new trial. Ordinarily, when an objection to improper evidence is sustained and the jury is instructed to disregard it, such an instruction is deemed sufficient to prevent prejudice"); State v. Kirby, 185 Neb. 240, 253-54, 175 N.W.2d 87, 95-96 (1970) ("The answer was unexpected, and the court immediately instructed the jury to disregard it [and] specifically admonished the jury that it was not to consider any evidence stricken by the court.... [T]he defendant is entitled to a fair trial but not a perfect one"). See, also, Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct. 481, 490, 97 L. Ed. 593 (1953), cited in Kirby, supra ("In view of the fact that this record fairly shrieks the guilt of the parties, we cannot conceive how this one admission could have possibly influenced this jury to reach an improper verdict"). The judgment of the district court is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594425/ | 954 So. 2d 530 (2007)
Burnell DAVIS, Appellant
v.
STATE of Mississippi, Appellee.
No. 2006-CP-00079-COA.
Court of Appeals of Mississippi.
April 24, 2007.
*531 Burnell Davis, appellant, pro se.
Office of the Attorney General by Jacob Ray, for appellee.
Before MYERS, P.J., IRVING and BARNES, JJ.
BARNES, J., for the Court.
¶ 1. Burnell Davis, appearing pro se, appeals the denial of his motion for post-conviction relief by the Circuit Court of Copiah County. Finding no error, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶ 2. Davis was arrested on charges of statutory rape in October of 2001. His preliminary hearing was on May of 2002, when Davis was appointed two defense attorneys. Davis claims that the night he was arrested, law enforcement officers obtained a DNA sample from him without a court order. Davis was indicted by a grand jury for statutory rape pursuant to Mississippi Code Annotated section 97-3-65 (Rev.2000) on June 7, 2002. Entering a plea of guilty on August 1, 2003, Davis was sentenced to five years in the custody of the Mississippi Department of Corrections ("MDOC") with nineteen months to serve and the remainder of the sentence suspended, with three years of post-release supervision.[1] This suspended sentence was conditioned on certain demands by the court, including that Davis "avoid injurious or vicious habits" and "abstain from the use of alcohol or illegal drugs." Additionally, in his petition to enter a plea of guilty, Davis acknowledged he waived all of his constitutionally guaranteed rights.
¶ 3. On March 1, 2004, Davis entered a plea of guilty to charges of "statutory rape-revocation of probation" in the Copiah County Circuit Court. Davis, on post-release supervision, had violated the terms and conditions of his sentence because, as the court order stated, he failed to avoid the injurious behavior of cocaine usage and failed to pay supervision fees as ordered. The circuit court revoked Davis's post-release supervision and sentenced him to serve three years and five months in the custody of the MDOC.
¶ 4. In May of 2005, Davis filed a complaint in the United States District Court for the Southern District of Mississippi *532 based on 42 U.S.C. § 1983. The federal court dismissed Davis's claim without prejudice, explaining that since Davis's only actionable claims involved the calculation of his sentence, a section 1983 action was an improper vehicle for the relief Davis desired. Instead, the federal court stated the proper vehicle would be the filing of a federal habeas corpus action. However, the federal court explained to Davis that he must first exhaust all state remedies. Consequently, on July 20, 2005, Davis filed a motion for post-conviction collateral relief in the Circuit Court of Copiah County, which was denied. Aggrieved, Davis timely appeals to this Court, arguing that (1) his constitutional rights were violated because he was incarcerated 191 days without an initial appearance or preliminary hearing, and DNA evidence was unlawfully obtained; (2) his indictment was illegal; (3) the revocation of his probation and imposition of his suspended time were unlawful; and (4) he was denied a speedy trial. Also implied in Davis's arguments is an ineffective assistance of counsel claim.
STANDARD OF REVIEW
¶ 5. This Court's standard of review for the denial of a motion for post-conviction relief is well-established. We will not alter the findings of the trial court unless they are clearly erroneous. Smith v. State, 806 So. 2d 1148, 1150 (¶ 3) (Miss.Ct. App.2002) (citation omitted). Questions of law are reviewed de novo. Brown v. State, 731 So. 2d 595, 598(¶ 6) (Miss.1999).
ISSUES AND ANALYSIS
1. Whether Davis waived his right to an initial appearance or preliminary hearing, whether his constitutional right to a speedy trial was violated, and whether DNA evidence was obtained unlawfully.
¶ 6. Davis actually argues two seemingly distinct issues here-the alleged delay in the proceedings and procurement of DNA evidence-but since they are legally related, we will address them together. We will also combine, for judicial economy, Davis's fourth issue, which contends a violation of his constitutional right to a speedy trial, and which is related to his issue regarding delay in the proceedings.
¶ 7. Davis argues that 191 days passed from his arrest until he was afforded an initial appearance or a preliminary hearing, violating Mississippi law and his constitutional right to a speedy trial. Additionally, Davis claims law enforcement officers procured a DNA sample without a court order, in violation of Davis's Sixth and Fourteenth Amendment rights. Davis cites Coleman v. State, 592 So. 2d 517 (Miss.1991), for the proposition that an inexcusable delay in providing an initial appearance renders the taking of DNA samples and a subsequent confession inadmissible. Id. at 521.
¶ 8. Our case, however, is distinguishable from Coleman in that here Davis pled guilty to the charges of statutory rape, instead of confessing during an interrogation as was the case in Coleman. The Mississippi Supreme Court has "recognized that a valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial." Rowe v. State, 735 So. 2d 399, 400(¶ 4) (Miss.1999) (citing Anderson v. State, 577 So. 2d 390, 391-92 (Miss.1991)). The court explains that "[w]e have generally included in this class `those [rights] secured by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, as well as those comparable rights secured by Sections 14 and 26, Article 3, of the Mississippi Constitution of 1890.'" Id. (quoting Sanders v. State, 440 So. 2d 278, 283 (Miss. 1983)). Further, Davis signed a petition to *533 enter a plea of guilty, which was not a part of the record originally but was obtained by this Court and examined. This document acknowledges that Davis agreed to waive all of his constitutional rights. This waiver would include Davis's right to a speedy trial, as well as any defects in obtaining a DNA sample. Accordingly, this issue is without merit.
2. Whether Davis's indictment was illegal.
¶ 9. Next, Davis argues that his indictment was illegally obtained for the following reasons: neither the victim nor any family member testified before the grand jury, the indictment was not a true bill because the grand jury never met, and there was a jurisdictional defect in the indictment.
¶ 10. Regarding Davis's first contention, there is no legal requirement that a grand jury call witnesses favorable to the accused. In fact, the grand jury has broad latitude in its investigative powers, and the court will usually not interfere with the grand jury absent a strong reason to do so. Ex Parte: Jones Co. Grand Jury: State v. Pacific, 705 So. 2d 1308, 1315(¶ 32) (Miss. 1997) (citing 38A C.J.S. §§ 76, 78, 131).
¶ 11. Second, Davis claims that the indictment is not a "true bill." Yet, "it is the responsibility of any person challenging the validity of an official, or official act, to show the invalidity by clear proof." Gray v. State, 819 So. 2d 542, 547(¶ 24) (Miss.Ct.App.2001) (quoting Harris v. Harrison Co. Bd. of Supervisors, 366 So. 2d 651, 656 (Miss.1979)). Any evidence must be balanced by the "strong presumption that the official acts of [public] officers are valid." Id. (quoting Raper v. State, 317 So. 2d 709, 712 (Miss.1975)). Davis fails to present any evidence in support of his contention.
¶ 12. Davis cites Gray regarding his assertion that the grand jury never met and thus his indictment was illegal. In Gray, which is an appeal from a post-conviction relief petition, the defendant claimed his indictment was "manufactured"; however, the defendant was only able to provide "indirect and incompetent evidence." Gray, 819 So.2d at 547(¶ 27). Yet, Gray was reversed and remanded not because the indictment was probably fabricated, but in order to move beyond a successive motion bar. Id. Davis has not provided any documentation to support his contention that the grand jury never met, nor does this Court have any documents in the record in support of this contention.
¶ 13. In May of 2006, in a possible attempt to provide evidence in support of his allegation that the indictment was manufactured, Davis filed an affidavit to this Court, including a copy of the indictment, again claiming it was not a true bill. Davis claims the signature of the district attorney, Alexander Martin, does not say "Alexander Martin." This Court was already provided, as a part of the appellate record, a copy of the indictment, filed June 7, 2002. Upon inspection, we fail to see a defect regarding the district attorney's signature. As for a "jurisdictional defect" in the indictment, Davis does not elaborate, and we do not find one. Accordingly, we find the indictment valid. This issue is without merit.
3. Whether the revocation of Davis's probation and imposition of suspended time was unlawful.
¶ 14. Davis contends that the revocation of his probation, and imposition of his suspended time were unlawful, which rendered his suspended sentence unconstitutional and made the imposition of a five-year sentence illegal. The trial court originally sentenced Davis to five years in the *534 custody of the MDOC, with nineteen months to serve and the remainder of the sentence suspended. Davis was placed on three years of post-release supervision. The suspended sentence was conditioned on Davis's abstaining from drug usage, among other conditions. Davis apparently failed to abstain from cocaine usage and failed to pay supervision fees. On March 1, 2004, in the Circuit Court of Copiah County, Davis entered a plea of guilty to the charge of "Statutory Rape-Revocation of Probation." The court thereby revoked Davis's probation and sentenced him to serve three years and five months in the custody of the MDOC.
¶ 15. Davis cites Goss v. State, 721 So. 2d 144, 145(¶ 7) (Miss.1998), and Robinson v. State, 585 So. 2d 757, 759 (Miss.1991) for the assertion that a court cannot partially suspend a sentence for a previously convicted felon. According to Davis's guilty plea petition, Davis had been convicted of the prior felony of sale of cocaine. In his brief, Davis states this was in March of 1994, and he was sentenced to serve ten years.
¶ 16. However, the Mississippi Supreme Court overruled Goss with Carter v. State, 754 So. 2d 1207 (Miss.2000) because of the similar problem which would be created here: if Goss's holding were followed, it would "restrict unnecessarily the trial courts' ability to impose a split-sentence upon a previously convicted felon." Carter, 754 So.2d at 1210(¶ 8). In Goss, Mississippi Code Annotated section 47-7-33 (Supp.1993) was interpreted to mean that where a defendant has been convicted of a prior felony, it is improper for the trial court to sentence the defendant to probation or a suspended sentence. Goss, 721 So.2d at 146 (¶ 12). However, Carter, in overruling Goss, holds that Mississippi Code Annotated section 47-7-34 (Supp. 1999) creates the post-release supervision program for those already convicted of a felony, and this "program creates a split-sentencing option for repeat offenders. The program is different from § 47-7-33 (1993) probation in that it does not allow the combined terms [of incarceration and post-release supervision] to exceed the statutory maximum period of incarceration. Post-release supervision is a legislative creation separate and distinct from probation." Carter, 754 So.2d at 1208(¶ 4). Further, Mississippi Code Annotated section 47-7-37 (Supp.2006) states that at any time during the probation period the court may arrest the probationer for violating the conditions of his probation or suspension of sentence. If the probationer is arrested, the judge shall have the authority "to continue or revoke all or any part of probation or . . . the suspension of sentence, and may in case of revocation proceed to deal with the case as if there had been no probation." Miss.Code Ann. § 47-7-37 (Supp.2006) (emphasis added.)
¶ 17. In our case, Davis had a suspended sentence with three years of post-release supervision, which is proper for a defendant with a prior felony conviction under section 47-7-34. Once he violated the terms of his suspended sentence, the post-release supervision was revoked, which is proper under section 47-7-37. The judge then ordered Davis to serve three years and five months in the custody of MDOC. This sentence equates to the remainder of his five-year sentence which was suspended. Davis was given credit for his nineteen months of time served in the Copiah County jail. Therefore, the imposition of a three year and five month sentence by the trial court was proper. We find this issue to be without merit.
4. Whether Davis's counsel were ineffective.
¶ 18. Davis was appointed two lawyers. Davis makes an implied argument *535 that his defense counsel were ineffective because one of his lawyers coerced him to plead guilty. The test for ineffective assistance of counsel is articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The defendant bears the burden of establishing this claim, and must prove (1) that defense counsel's performance was deficient when measured by the standard of reasonable professional competence, and (2) the defendant was prejudiced by counsel's failure to meet this standard. Pleas v. State, 766 So. 2d 41, 42(¶ 3) (Miss.Ct. App.2000) (citing Wiley v. State, 750 So. 2d 1193, 1198(¶ 11) (Miss.1999)). If a defendant pleads guilty, the key issue is if counsel's performance had been effective, there was a reasonable probability the defendant would not have pled guilty but would have gone to trial. Id. at 43(¶ 7) (citing Bell v. State, 751 So. 2d 1035, 1038(¶ 14) (Miss. 1999)). The record before us is void of any evidence that the performance of either of Davis's attorneys was deficient. Davis signed his plea petition on August 1, 2003, in which he acknowledges his satisfaction with his counsel, and he was subsequently released from incarceration. There is no evidence in the record of involuntariness or ignorance on the part of Davis in signing the plea agreement. Therefore, this issue is without merit.
¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF COPIAH COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.
NOTES
[1] Davis claims he was incarcerated from the time of his arrest on October 26, 2001, until he pled guilty on August 1, 2003, after which apparently he began post-release supervision pursuant to the sentencing order, having received credit for serving nineteen months in the Copiah County jail. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593889/ | 954 So. 2d 623 (2005)
EX PARTE MATTHEW WAYNE TUBBS.
No. 1041240.
Supreme Court of Alabama.
December 16, 2005.
Decision without opinion. Cert. denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593878/ | 19 So. 3d 1282 (2009)
In the Matter of the ESTATE OF Artis HIGH, Deceased:
Arbella High Watt, Appellant
v.
Gracie Cobb, Joe High and David High, Appellees.
No. 2008-CA-00799-COA.
Court of Appeals of Mississippi.
October 27, 2009.
*1284 Lucius Edwards, Hernando, attorney for appellant.
Sidra Patterson Winter, Pontotoc, attorney for appellees.
Before KING, C.J., GRIFFIS and MAXWELL, JJ.
MAXWELL, J., for the Court.
¶ 1. Following a hearing on the issue of the domicile of the decedent at the time of his death, the Chancery Court of Pontotoc County granted summary judgment on behalf of the contestants of the will. The chancellor found that she was unable to proceed with probate of an "unauthenticated" copy of a foreign will. From this decision, the proponent, Arbella Watt, appeals, raising the following assignments of error:
I. The chancellor erred in granting the contestants' motion for summary judgment.
II. The chancellor erred in ruling that a lost will disposing of property located in Mississippi, but executed in another state, could not be initially probated in Mississippi.
III. The chancellor erred in failing to award a jury trial on fact issues as requested by the proponent.
¶ 2. After considering the record before us and the relevant legal authority, we find the chancellor erred in dismissing the case and should have granted the requested jury trial. Accordingly, we reverse and remand with instructions that the chancellor impanel a jury to determine the validity of the testator's will in a manner consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
¶ 3. The testator, Artis High, died on April 4, 2003, at a hospital in Tupelo, Mississippi. *1285 Because he was ill and required assistance, prior to his death, he had spent approximately two years in Mississippi living with relatives. High was predeceased by his spouse, and they had no children. It is undisputed that High had significant amounts of personal property located in Mississippi at his time of death.
¶ 4. Before his move to Mississippi, High resided in St. Louis, Missouri, where he had lived since the late 1960s. He was employed in the automobile industry until his retirement in the late 1980s. According to the proponent, in 1987, High had executed a last will and testament through the United Auto Workers' Legal Services Benefit Program. The original will has not been located since High's death.
¶ 5. Following High's death, Watt, the proponent, who is his sister and the sole living beneficiary under the will, filed a petition to open an intestate estate. However, on July 15, 2005, she sought to probate the alleged copy of High's 1987 will. This petition included as exhibits a photocopy of High's will and photocopies of sworn affidavits of two attesting witnesses to the will. On December 13, 2005, Gracie Cobb, High's niece and one of the contestants, filed an answer objecting to the probate of the will. Several months later, David High and Joe High, also contestants who, respectively, are the nephew and brother of the deceased, filed a separate complaint contesting the will. It is undisputed that all of the contestants are heirs at law of Artis High.
¶ 6. The separate actions were later consolidated and set for a jury trial in October 2007. On August 8, 2007, the contestants filed a motion for summary judgment. Before ruling on the contestants' motion, the chancellor held a hearing on the limited issue of testator High's residency at his time of death. Following the hearing, the chancellor determined that High had only intended to remain in Mississippi temporarily and was a resident of Missouri when he died. Based upon this finding, the chancellor granted the contestants' motion for summary judgment and held that Watt was unable to proceed with probate of an "unauthenticated" copy of a foreign will.
STANDARD OF REVIEW
¶ 7. In reviewing the issues from a will contest, "[t]ypically this Court will not disturb a chancellor's findings of fact unless the chancellor was manifestly wrong and not supported by substantial, credible evidence." In re Estate of Wright, 829 So. 2d 1274, 1276(¶ 5) (Miss.Ct. App.2002) (citation omitted). However, when reviewing a question of law, "the manifest error/substantial evidence rule has no application[,] and we conduct a de novo review." Id.
DISCUSSION
I. Chancellor's Refusal to Allow Probate of a Lost Foreign Will
¶ 8. The relevant motion filed by the contestants was a single document, which they described as being filed under both "Rule 12" and the "Rules for Summary Judgment." The motion was slightly over one page in length, and was not supported by any affidavits, answers to interrogatories, other attachments, or supporting material. In the motion, the contestants argued that they were entitled to prevail as a matter of law because: (1) the will was barred from probate due to the statute of limitations in Missouri, the jurisdiction where the testator was domiciled at his time of death; and (2) the proponent could not produce the evidence necessary to probate a lost will.
¶ 9. The proponent then filed a response denying the contestants' allegations. In the response, the proponent argued that *1286 the Missouri statute had no bearing on the issues before the court. Watt also argued that there were genuine issues of material fact as to the probate of the lost will. The record indicates that Watt attached multiple answers to interrogatories to show the presence of genuine issues of material fact. Almost two months later, she filed a brief in which she further elaborated on this position, and attached a sworn affidavit as additional support.
¶ 10. After reviewing the record, we can find no further attempt by the contestants to show the nonexistence of genuine issues of material fact regarding the evidence necessary to probate the lost will. Rather, in their motion, the contestants simply pointed out that in Mississippi, "there is a clear presumption that [a will] has been destroyed when the original cannot be accounted for," and contended that the proponent was "unable to overcome the presumption[.]"
¶ 11. The record makes it clear that the contestants' motion to dismiss was based upon Mississippi Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted, although this specific rule is not cited in the record or the parties' briefs. The record reveals that the chancellor granted the Rule 12(b)(6) motion rather than their motion for summary judgment. However, upon review, we note that the chancellor considered matters outside the pleadings in reaching her decision on the contestants' motion. Therefore, we must review the contestants' motion as a motion for summary judgment under Rule 56 of the Mississippi Rules of Civil Procedure. See Lee v. Thompson, 859 So. 2d 981, 985 n. 6 (Miss.2003) (citations omitted); see also M.R.C.P. 12(b).
¶ 12. The applicable standard for reviewing the grant of a Rule 56 or Rule 12(b)(6) motion is the samede novo. Lee, 859 So.2d at 985 n. 6. In reviewing the grant of a motion for summary judgment, the "facts are viewed in the light most favorable to the non-movant," and the trial court's judgment must be affirmed "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Germany v. Denbury Onshore, LLC, 984 So. 2d 270, 275(15) (Miss.2008) (citations omitted).
¶ 13. In the present case, the chancellor held that Mississippi law prohibited a lost foreign will from being initially probated in Mississippi where the testator was domiciled elsewhere at his time of death. Thus, the chancellor found she was "unable to proceed with [the] probate of . . . [an] unauthenticated copy of the decedent's purported foreign will."
¶ 14. The proponent offers several bases upon which she claims the chancellor erred in reaching this result. We will address each argument in turn.
A. Contestant's Failure to Pursue Affirmative Defenses
¶ 15. Missouri, which is the state the chancellor determined to be the decedent's state of residency,[1] has a one-year *1287 limitation period on the probate of a will. Mo.Rev.Stat. § 473.050.3(2) (2000). Mississippi, alternatively, has "no statute of limitations on the probate of a will." Robberson v. Burton, 790 So. 2d 226, 229(¶ 14) (Miss.Ct.App.2001).
¶ 16. The contestants first claim the photocopy of the alleged will cannot be probated in Mississippi unless and until it has first been probated in Missouri. Because the will was not submitted for probate within Missouri's one-year statute of limitations, the contestants argue that the will simply cannot ever be probated, and the testator's estate must instead pass through intestate succession.[2]
¶ 17. The contestants raised Missouri's statute of limitations in their initial pleadings and argued that it barred probate of the will. However, the proponent claims that because the contestants engaged in discovery and made multiple filings before again raising the defense in their motion for summary judgment, their failure to pursue the statute-of-limitations defense constituted an unreasonable delay, and the defense was, therefore, waived.
¶ 18. At the outset, we emphasize that Missouri's statute of limitations is not relevant to the descent of the testator's property located in Mississippi at his time of death. Mississippi law is clear that property situated in Mississippi descends according to Mississippi law, regardless of where the decedent resided or was domiciled. This is true whether the property is real or personal, and whether the estate is testate or intestate. See, e.g., Miss.Code Ann. § 91-1-1 (Rev.2004); In re Estate of Mason, 616 So. 2d 322, 328 (Miss.1993); Bolton v. Barnett, 131 Miss. 802, 827, 95 So. 721, 726 (1923); Heard v. Drennen, 93 Miss. 236, 243-44, 46 So. 243, 244 (1908).
¶ 19. Although it would have been incorrect for the chancellor to have relied on the Missouri statute of limitations in dismissing this case, the record is clear that this is not the reason she granted the contestants' motion. In fact, in her order dismissing the case, the chancellor specifically stated that the Missouri statute of limitations was not determinative of her decision.
¶ 20. Accordingly, we need not reach the proponent's claim that the contestants waived the statute-of-limitations defense because the chancellor's decision was not based on the Missouri statute of limitations.
B. Probate of a Lost Foreign Will
¶ 21. The proponent next contends the chancellor erred in determining that Mississippi's foreign-will statute, Miss. Code Ann. § 91-7-33 (Rev.2004), allows originals or authenticated copies of foreign wills to be probated in Mississippi but prohibits the probate of lost foreign wills. Before we address the chancellor's underlying decision, we note that in Mississippi a foreign will is defined as a will that is executed by a testator domiciled in a state other than Mississippi at his or her time of death. Robert A. Weems, Wills and Administration of Estates in Mississippi, § 3:14 (3d ed.2003).
¶ 22. Section 91-7-33 states, in pertinent part, that:
*1288 Authenticated copies of wills proven according to the laws of any of the states of the union . . . and affecting or disposing of property within this state, may be admitted to probate in the proper court. Such will may be contested as the original might have been if it had been executed in this state, or the original will may be proven and admitted to record here.
Id. (emphasis added). The supreme court has explained that the effect of the first part of section 91-7-33 is to "dispense with formal proof of the due execution of the will where it has been proven according to the laws of any other state . . . where an authenticated copy is produced showing that it has been proven in the [other] state[.]" Heard, 93 Miss. at 242, 46 So. at 244.
¶ 23. However, the statute as originally drafted did not contain all of the language above. The statute was amended around 1880, at which time the language "the original will may be proven" in Mississippi was added to the statute. See Bolton, 131 Miss. at 821, 95 So. at 724. Prior to this addition, a foreign will's probate and administration in Mississippi were treated as ancillary to that of the state of the testator's domicile, see id, and Mississippi courts interpreting the pre-amendment statute uniformly held that the will had to be probated first in the state of the testator's domicile. See, e.g., Bailey v. Osborn, 4 George 128, 33 Miss. 128, 129-30 (Err. & App. 1857).
¶ 24. Since the amendment, however, the supreme court has interpreted the language from section 91-7-33 to allow a foreign will which disposes of property located in Mississippi to be probated by either of two methods. Bolton, 131 Miss. at 823, 95 So. at 725; see also Weems, § 7:16. The first method is to probate the will in Mississippi before doing so elsewhere. Id. The second method is to probate the will elsewhere and then to probate an authenticated copy of the will in Mississippi. Id.
¶ 25. In the present case, the proponent of the will attempted to probate the foreign will by the first of these methods, that is, by probating the will initially in Mississippi. Here, however, the will sought to be probated is not an original, but a photocopy, which adds yet another step to our inquiry.
¶ 26. In explaining the proper analysis when the testator's original will cannot be produced, but only a photocopy can be located, our supreme court has stated:
The law regarding admission into probate of a lost will is discussed at length in Warren v. Sidney's Estate, 183 Miss. 669, 184 So. 806 (1938). Sidney's Estate sets forth the elements necessary to probate a copy of a lost will are: (1) the proof of the existence of the will; (2) evidence of its loss or destruction; and (3) proof of its contents. A fourth element has been added: (4) that the testator did not destroy the will with the intent to revoke it.
In re Estate of Mitchell, 623 So. 2d 274, 275 (Miss.1993) (internal citations omitted). The proponent has the burden to prove each of these elements by clear and convincing evidence. Id.; see also Veazey v. Turnipseed, 219 Miss. 559, 565, 69 So. 2d 379, 382 (1954). However, if "(a) the would-be testator made a will, (b) last known to have been in its maker's possession prior to his death, but (c) not found after death despite diligent search," there arises a rebuttable presumption that the testator revoked his will by destroying it. In re Estate of Leggett, 584 So. 2d 400, 403 (Miss.1991). Generally, there must be clear and convincing evidence to overcome the presumption of revocation. Chapman, *1289 623 So.2d at 277. However, it has been held that the "presumption can be defeated with slight evidence when it can be shown that contestants of the will had access to it." Dowdy v. Smith, 818 So. 2d 1255, 1258(¶ 11) (Miss.Ct.App.2002) (citation omitted).
¶ 27. In the present case, the chancellor never reached any of these issues. Instead, she dismissed the case based on the fact that the decedent was domiciled in a state other than Mississippi.
¶ 28. As previously mentioned, a foreign will need not be probated first in the foreign jurisdiction. Miss.Code Ann. § 91-7-33. However, here, the chancellor held that where the testator was domiciled in another state, and the will was a lost will, the will could not be probated in Mississippi until it was first probated in the state of domicile. In the chancellor's order dismissing the case, she stated that the options available to the proponent were to either (1) produce the original will for probate in Mississippi, or (2) probate the will in the state of domicile and then produce an authenticated copy for probate in Mississippi. We find that this was error.
¶ 29. Section 91-7-33 provides that the original "may be proven" in Mississippi before being proven elsewhere. Id. (emphasis added). It does not state that the original will must be produced, or else the will must be first probated in the state of domicile. Therefore, we find that section 91-7-33 permits the proponent of a lost foreign will that disposes of property in Mississippi to be given an opportunity to probate the will as a lost will in Mississippi before being required to probate such a will in the jurisdiction of the testator's domicile. We simply do not see how section 91-7-33 mandates a proponent who elects to probate in Mississippi a lost foreign will disposing of property located here to either produce the original will or obtain an authenticated copy from the state of domicile, as the contestants here contend and as the chancellor held.
¶ 30. The refusal to allow a proponent the opportunity to prove the contents of a lost foreign will would in some cases (and perhaps in this case) defeat the testator's intent by preventing the intended beneficiaries from receiving their inheritance. In this case, refusing to allow the will to be probated initially in Mississippi would also result in altogether denying the proponent any opportunity to probate the will since its probate is time-barred in Missouri.
¶ 31. Here, the will may have been destroyed with the intent to revoke as the contestants contend. Or, the testator may have intended for his will to remain valid, and it was lost inadvertently. Unfortunately, the testator's lips have been sealed by death, and these questions remain.
¶ 32. In summary, we find the chancellor erred in holding that section 91-7-33 absolutely bars the proponent from initially proving a lost foreign will in Mississippi where the will disposes of property in this state. Because genuine issues of material fact exist, we find the chancellor also erred in granting the contestants' motion for summary judgment.
II. Jury Trial
¶ 33. In chancery courts, "the granting of a jury trial . . . where no statute prescribes one, is always discretionary with the chancellor. . . ." Carradine v. Estate of Carradine, 58 Miss. 286, 293 (1880). However, Mississippi Code Annotated section 91-7-19 (Rev.2004) provides, in pertinent part, that: "At the request of either party to [a probate] proceeding, an issue shall be made up and tried by a jury as to whether or not the writing propounded be the will of the alleged testator." Here, the *1290 proponent argues that since she timely requested a jury trial, the chancellor was required to grant her request.
¶ 34. "[T]he question of `devisavit vel non' (`will or no will') is the primary issue in a will contest, and under Miss.Code Ann. § 91-7-19 (1972), either party to a will contest has an automatic right to a jury trial, [unless] no genuine issues of material fact have been presented in the pleading stage [and] a motion for summary judgment is properly granted." Power v. Scott, 837 So. 2d 202, 205(7) (Miss. Ct.App.2002) (citing In re Will of Launius, 507 So. 2d 27, 29 (Miss.1987)); see also Miss.Code Ann. §§ 91-7-19, 91-7-21, 91-7-23 (Rev.2004). "[T]he role of a jury in a will contest is the same as that of a jury in a civil trial in a court of law and is not merely advisory." Fowler v. Fisher, 353 So. 2d 497, 501 (Miss.1977) (internal quotations omitted).
¶ 35. Here, the chancellor never made any determination as to the validity or non-validity of the lost foreign will. Rather, the chancellor held a hearing on the testator's residence and granted summary judgment after determining the testator was domiciled in Missouri. This decision was based on an improper finding that the testator's lost foreign will could not be probated in Mississippi unless and until it was proven authentic in the state of the testator's domicileMissouri.
¶ 36. The proponent filed three written requests for a jury trial, and made other oral requests at the hearing on the testator's domicile. In addition, the contestants initially requested a jury trial in their complaint contesting the will in the event "the will [was] not disallowed for probate as a matter of law."
¶ 37. We make clear that the chancellor did not err in deciding not to impanel a jury for the domicile hearing because the domicile of the testator does not bear on the issue of devisavit vel non. In other words, the testator's domicile is not a part of the broader issue of the will's validity, as would be the issues of testamentary capacity and due execution of the will. See, e.g., In re Estate of Prine, 208 So. 2d 187 (Miss.1968); Warren v. Sidney's Estate, 183 Miss. 669, 184 So. 806 (1938). However, our case law demonstrates that whether the testator destroyed or revoked his will is an issue for the jury to decide. See Mitchell, 623 So.2d at 275-77.
¶ 38. Given the existence of genuine issues of material fact regarding the validity of the testator's will, as discussed above, we find the chancellor should have proceeded with the will contest and impaneled a jury to decide the will's validity. On remand, the chancellor is instructed to impanel a jury in accord with the proponent's request in order to comply with the requirements of section 91-7-19 and proceed with the will contest.
¶ 39. THE JUDGMENT OF THE CHANCERY COURT OF PONTOTOC COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.
NOTES
[1] We note that the proponent argues in passing that the chancellor erred in determining that Missouri was the testator's state of domicile at his time of death. However, this allegation is not specifically listed as one of the proponent's assignments of error in her appellate brief, and she fails to cite any authority in support of this contention. Since "failure to cite any authority in support of a claim of error precludes this Court from considering the specific claim on appeal," we are barred from reviewing the proponent's argument on this specific issue. See Funderburg v. Pontotoc Elec. Power Ass'n, 6 So. 3d 439, 442(¶ 9) (Miss.Ct.App.2009) (citation omitted).
[2] The contestants stated in their appellate brief that they "readily admit that the Chancery Court of Pontotoc County, Mississippi, has jurisdiction to dispose of the property therein located, but contend that since the unauthenticated copy of the will is inadmissible, the property should be disposed of according to the laws of intestate succession[.]" | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593991/ | 19 So. 3d 992 (2009)
POPE
v.
STATE.
No. 2D09-4182.
District Court of Appeal of Florida, Second District.
September 21, 2009.
Decision Without Published Opinion Belated Appeal denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594049/ | 19 So. 3d 933 (2007)
EX PARTE C & D LOGGING.
(IN RE: WILLIE MOBLEY v. C & D LOGGING).
No. 2070159.
Court of Civil Appeals of Alabama.
December 5, 2007.
Decision of the Alabama Court of Civil Appeal Without Published Opinion. Mand. pet. denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594063/ | 19 So. 3d 995 (2009)
TYNER
v.
STATE.
No. 5D09-2223.
District Court of Appeal of Florida, Fifth District.
October 22, 2009.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594067/ | 19 So. 3d 987 (2009)
CLEMENTS
v.
STATE.
No. 1D08-4476.
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/3032095/ | FILED
NOT FOR PUBLICATION JAN 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROXANA MARIBEL NOLASCO- No. 08-74114
ALVAREZ,
Agency No. A098-559-156
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
**
Submitted January 11, 2010
Before: BEEZER, TROTT, and BYBEE, Circuit Judges.
Roxana Maribel Nolasco-Alvarez, a native and citizen of El Salvador,
petitions for review from the Board of Immigration Appeals dismissal of her
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jlf/Inventory
appeal from the immigration judge’s denial of her applications for withholding of
removal and relief under the Convention Against Torture (“CAT”). The BIA noted
that petitioner was not eligible for asylum based on her failure to file a timely
asylum application. The BIA denied petitioner’s applications for withholding of
removal and CAT based on her failure to establish persecution or the likelihood of
torture in El Salvador.
Petitioner contends that the BIA erred by denying her application for asylum
based on her failure to establish past persecution or a well-founded fear of future
persecution. Petitioner alleged fear of gang activity in El Salvador.
Petitioner does not challenge the BIA’s holding that she had failed to file a
timely asylum application, or that an exception to the timeliness requirement
applied, and therefore petitioner has waived any arguments concerning whether she
merited asylum relief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.
1996) (issues not specifically raised and argued in a party’s opening brief are
waived). Petitioner raises no issues before this court concerning the BIA’s denial
of her applications for withholding of removal or relief under the Convention
Against Torture. Petitioner, therefore, fails to raise any issues properly before this
court.
PETITION FOR REVIEW DENIED.
jlf/Inventory 2 08-74114 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2743579/ | ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of-- )
)
Chugach Federal Solutions, Inc. ) ASBCA No. 59328
)
Under Contract No. FA5000-13-C-0005 )
APPEARANCES FOR THE APPELLANT: William A. Roberts, III, Esq.
Richard B. O'Keeffe, Jr., Esq.
Michael P. Grogan, Esq.
Gary S. Ward, Esq.
Wiley Rein LLP
Washington, DC
APPEARANCES FOR THE GOVERNMENT: Lt Col James H. Kennedy III, USAF
Air Force Chief Trial Attorney
Jeffrey M. Lowry, Esq.
Anna F. Kurtz, Esq.
Trial Attorneys
ORDER OF DISMISSAL
The dispute has been settled. The appeal is dismissed with prejudice.
Dated: 3 October 2014
~~§- Administrative Judge
Vice Chairman
Armed Services Board
of Contract Appeals
I certify that the foregoing is a true copy of the Order of Dismissal of the Armed
Services Board of Contract Appeals in ASBCA No. 59328, Appeal of Chugach Federal
Solutions, Inc., rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals | 01-03-2023 | 10-17-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1023825/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6731
In Re: LAWRENCE CRAWFORD,
Petitioner.
No. 07-6853
In Re: LAWRENCE CRAWFORD,
Petitioner.
No. 07-6978
In Re: LAWRENCE CRAWFORD,
Petitioner.
No. 07-6982
In Re: LAWRENCE CRAWFORD,
Petitioner.
On Petitions for Writs of Mandamus.
(0:06-cv-02459; 0:06-cv-01990, 0:07-cv-01062; 0:06-cv-01412)
Submitted: September 13, 2007 Decided: September 18, 2007
Before GREGORY and DUNCAN, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Petitions denied by unpublished per curiam opinion.
Lawrence Crawford, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
- 2 -
PER CURIAM:
In these consolidated petitions for writs of mandamus,
Lawrence Crawford, a South Carolina prisoner, requests that this
court issue orders: directing the district court to send Crawford
a copy of an exhibit used in an underlying state court proceeding;
directing the district court to grant a change of venue in
Crawford’s 42 U.S.C. § 1983 (2000) civil actions and his 28 U.S.C.
§ 2254 (2000) habeas petition; directing the district court to
refrain from changing the case numbers under which his pleadings
are docketed; directing the recusal of District Judge Wooten and
Magistrate Judge Marchant from any and all proceedings in the
District Court for the District of South Carolina in which Crawford
is a party; and, finally, directing that all proceedings in the
South Carolina Court of Common Pleas be conducted by Judge Michelle
Childs, and that Crawford be granted a continuance in that court.
We deny all four petitions.
Mandamus relief is available only when the petitioner has
a clear right to the relief sought and no other means to seek the
requested relief. In re First Fed. Sav. & Loan Ass’n, 860 F.2d
135, 138 (4th Cir. 1988). Further, mandamus is a drastic remedy
and should only be used in extraordinary circumstances. Kerr v.
United States Dist. Court, 426 U.S. 394, 402 (1976); In re Beard,
811 F.2d 818, 826 (4th Cir. 1987). Crawford has not established he
is entitled to the relief sought, as he fails to establish the
- 3 -
requisite extraordinary circumstances. Further, mandamus may not
be used as a substitute for appeal. In re United Steelworkers, 595
F.2d 958, 960 (4th Cir. 1979). Although Crawford appears to
dispute the propriety of the dismissal of his § 2254 petition, he
has not appealed that order and thus that issue is not before this
court.
Accordingly, although we grant leave to proceed in forma
pauperis, we deny the petitions for writs of mandamus. We further
deny Crawford’s motion for en banc hearing and all other pending
motions. 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.
PETITIONS DENIED
- 4 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594164/ | 400 N.W.2d 407 (1987)
KOODA BROTHERS CONSTRUCTION, INC., Respondent,
v.
UNITED FEDERAL SAVINGS AND LOAN ASSOCIATION OF ALEXANDRIA (n.k.a. Washington Federal Savings Bank), et al., Respondents,
Jennings C. Kooda, et al., Appellants.
No. C0-86-1677.
Court of Appeals of Minnesota.
February 10, 1987.
Penn Charles Brandborg, Fergus Falls, for Kooda Bros. Const., Inc.
Thomas J. Reif, Thornton, Hegg, Reif & Johnston, Alexandria, for United Federal Sav. and Loan Ass'n of Alexandria (n.k.a. Washington Federal Sav. Bank), et al.
Charles A. Krekelberg, Williams, Nitz, Krekelberg & Stringer, Pelican Rapids, for Jennings C. Kooda, et al.
Considered and decided by POPOVICH, C.J., and PARKER and LESLIE, JJ., with oral argument waived.
OPINION
LESLIE, Judge.
This appeal is from partial summary judgment entered for respondent United Federal Savings and Loan on its cross-claim for indemnity against its mortgagors *408 Jennings C. and Jean Kooda. The trial court found no just reason for delay and expressly ordered the entry of final judgment. Minn.R.Civ.P. 54.02; Minn.R.Civ. App.P. 104.01. We affirm.
FACTS
Respondent Kooda Brothers Construction is a corporation engaged in the general construction business in the Alexandria area. It is owned by members of the Kooda family, including appellants Jennings and Jean Kooda, who are also employees. The corporation agreed with the Koodas to build two houses, on separate parcels of land owned by the Koodas.
On June 7, 1978, the Koodas executed a mortgage on the Scenic Heights addition property to United Federal Savings and Loan (hereinafter United Federal). On December 14, 1978, they executed a mortgage for $86,000 to United Federal on the same property, and on another parcel located on Lake Darling. The mortgages included covenants of title and against encumbrances. The Koodas also signed an affidavit stating there were no liens or charges on the property.
United Federal began foreclosure by advertisement on the later mortgage on November 17, 1979. On December 24, 1979, the corporation filed mechanic's lien statements on both properties. The corporation claimed that work had started on the properties before they were mortgaged.
The mortgage foreclosure sale was held on January 18, 1980. United Federal bid in and purchased the properties for the full amount of the Koodas' debt on the loan, $96,459.65. There was no redemption from the foreclosure. United Federal sold each of the properties and agreed to indemnify the purchasers against the mechanic's lien claims, of which it was aware when it foreclosed.
In November 1980, Kooda Brothers brought these actions to enforce its mechanic's lien claims. United Federal filed cross-claims against the Koodas, claiming a right to indemnity if the mechanic's liens were found to be prior and superior.
The trial court granted United Federal's motion for summary judgment on the cross-claims. The corporation has stipulated it would not pursue the Koodas on the mechanic's lien claims if United Federal is entitled to indemnity.
ISSUE
Did the trial court err in finding United Federal entitled to indemnity?
ANALYSIS
The Koodas' mortgage included a covenant against prior encumbrances. They contend, however, that this covenant did not survive the mortgage foreclosure, in which United Federal purchased the property for the full amount of the debt. They argue also that by its cross-claim, United Federal is seeking a deficiency judgment which is barred to it in a foreclosure by advertisement. Finally, they claim United Federal elected its remedy by foreclosing in that manner and should not now be allowed to pursue an indemnity claim.
The Koodas cite American Building and Loan Association v. Waleen, 52 Minn. 23, 53 N.W. 867 (1892). In Waleen, the court held that the mortgagee could not recover on a mortgagor's bond of indemnity against mechanic's liens after the mortgagee purchased the property at the foreclosure sale for the full amount of the debt. The Waleen holding was limited in Wood v. Pacific Surety Co., 116 Minn. 474, 134 N.W. 127 (1912), on which the trial court relied. Wood reached the opposite result. The parties agree the two cases are controlling.
The court in Waleen held that the mortgagee suffered no damages to be indemnified. Waleen, 52 Minn. at 28, 53 N.W. at 869. Noting the mortgage contained no covenants of title, the court stated:
What was offered for sale on the foreclosure, and what plaintiff bought, was just such title as the mortgagor had, and it was for that title, whatever it was, that plaintiff bid the full amount of the mortgage *409 debt; and therefore it has received full satisfaction of its claim * * *.
Id.
In this case, as in Wood, covenants of title appear, including a covenant against encumbrances. Therefore, although United Federal received full payment of the debt through the foreclosure, it did not receive the title promised in the mortgage. The supreme court stated in Wood:
The important consideration is that the bond was not given as security for the debt, but as security for the title of the mortgaged property, to protect the mortgagee against the chance of the loss of his security by mechanics' liens. Clearly the sale did not release the covenants in the mortgage. The mortgagee, as purchaser, still had a claim against the mortgagor to make the title good.
116 Minn. at 478, 134 N.W.2d at 128-29.
The court in Wood expressed doubt whether the covenants of title in the mortgage were sufficient grounds for distinguishing Waleen. Id. at 478, 134 N.W.2d at 129. However, the court in Waleen itself recognized: "Where the mortgage contains covenants of title which run with the land, different considerations apply." Waleen, 52 Minn. at 28, 53 N.W. at 869.
There is a view opposed to Wood, holding that covenants in a mortgage entitle the mortgagee only to recover the amount due on the mortgage. See Tott v. Johnson, 51 Iowa 192, 1 N.W. 498 (1879). This view, however, has been rejected in Minnesota. Security Bank of Minnesota v. Holmes, 65 Minn. 531, 535-36, 68 N.W. 113, 114 (1896).
The covenant against encumbrances is one of indemnity. Id. at 534, 68 N.W. at 113. It requires the Koodas to indemnify United Federal for any damages suffered as a result of a breach of the covenant. The covenant concerns title to the mortgaged property, not repayment of the debt. Therefore, we conclude United Federal's cross-claim is not barred because of the foreclosure, either by the doctrine of election of remedies or by the waiver of deficiency judgments. See Minn.Stat. § 580.-23, subd. 1 (1986) (foreclosure by advertisement).
The doctrine of election of remedies applies only if the alternative remedies are inconsistent. See Bond v. Charlson, 374 N.W.2d 423, 431 (Minn.1985) (plaintiff could not recover damages for both breach of contract and rescission). A mortgagee foreclosing to recover the amount of the debt does not lose its right to enforce the covenants, which concern the title to the mortgaged property. Security Bank of Minnesota v. Holmes, 65 Minn. at 536, 68 N.W. at 114. The remedy of foreclosure is not inconsistent with an indemnity claim for breach of a covenant in the mortgage. Similarly, since the covenants do not concern the debt itself, their enforcement by a claim of indemnity is not a deficiency judgment. There could be no deficiency here as United Federal purchased the property for the full amount due it. See Minn.Stat. § 581.09 (1986).
DECISION
The trial court did not err in determining that respondent was entitled to indemnity against the mechanic's liens.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594159/ | 400 N.W.2d 807 (1987)
STATE of Minnesota, Respondent,
v.
John Ray McCOY, Appellant.
No. C6-86-825.
Court of Appeals of Minnesota.
February 17, 1987.
Review Denied March 25, 1987.
*808 Hubert H. Humphrey, III, Atty. Gen., St. Paul, William S. MacPhail, Wright Co. Atty., Katy L. Stesniak, Asst. Wright Co. Atty., Buffalo, for respondent.
C. Paul Jones, Minnesota State Public Defender, Lawrence Hammerling, Asst. State Public Defender, Minneapolis, for appellant.
Considered and decided by CRIPPEN, P.J., and LANSING and NIERENGARTEN, JJ., with oral argument waived.
OPINION
NIERENGARTEN, Judge.
John Ray McCoy appeals from his convictions of first degree criminal sexual conduct and first degree intrafamilial sexual abuse. He contends the trial court abused its discretion by admitting expert testimony on the behavioral characteristics of sexually abused children and Spreigl evidence of other acts, and that there was insufficient evidence. We affirm.
FACTS
On the morning of May 28, 1985, McCoy's 12-year-old daughter T.M. left her home and ran to the neighbors and told them "my dad is hurting me," then called her mother at work and said: "Dad is sexually abusing me again." T.M.'s mother confronted McCoy about the sexual abuse, which he denied. T.M.'s 14-year-old sister M.M. told her teacher and a school social worker that T.M. had said McCoy was going to rape her that day. The social worker notified Wright County authorities. McCoy was subsequently charged with two counts of first degree criminal sexual conduct and two counts of first degree intrafamilial sexual abuse, Minn.Stat. §§ 609.342(a) and 609.3641, subd. 1(2)(e) (1984). *809 McCoy waived his right to a jury trial and was tried by the court.
T.M. testified that McCoy had sexually abused her from the time she was six or seven years old, and specifically described numerous acts of sexual penetration.
McCoy's wife and the mother of T.M. and M.M. observed McCoy and T.M. together not fully clothed and harbored some suspicion but T.M. never told her McCoy was having sex with her. M.M. testified about McCoy and T.M. being in a room of the house together with the door closed and T.M. saying "no" or sometimes yelling and emerging with her face red like she had been crying. T.M. once showed M.M. a picture of a man and woman having intercourse and said: "That is what dad does."
The state presented expert testimony from a licensed psychologist and social worker who had counseled T.M. The psychologist said T.M.'s detailed descriptions of the sexual abuse were "not inconsistent." The psychologist claimed the characteristics she had observed in T.M. were typical behavioral characteristics of sexually abused children. A Wright County detective and two defense witnesses, a social worker and investigator also testified to T.M.'s largely consistent prior statements about the sexual abuse. The trial court allowed in evidence the deposition of T.M.'s aunt regarding two sexual assaults committed by McCoy against her, once in 1971 when she was 9 years old, and once in 1974 when she was 12 years old.
McCoy denied having sexual intercourse with T.M., although he admitted pinching his daughter's breasts at least twenty times. McCoy also admitted buying a box containing contraceptive foam in 1982, and said he hid it where he knew his wife would find it:
I told her it was something kinky. Sometimes, you know, you don't get along 100 percent sexual activity, or, however you want to say it, and it was something to put a little spice in it.
McCoy's wife had been sterilized in 1978. McCoy admitted he had digitally penetrated and had sexual intercourse with T.M.'s aunt in 1971.
The trial court found McCoy guilty of one count each of first degree criminal sexual conduct and first degree intrafamilial sexual abuse and sentenced McCoy to imprisonment for a presumptive term of 43 months for first degree criminal sexual conduct.
ISSUES
1. Did the trial court abuse its discretion by admitting Spreigl evidence of other sexual assaults?
2. Was expert testimony on the behavioral characteristics of sexually abused children properly admitted?
3. Was there sufficient evidence?
ANALYSIS
I.
The admission of evidence rests in the sound discretion of the trial court and will be upheld unless there is a clear abuse of discretion. See State v. Ture, 353 N.W.2d 502, 515 (Minn.1984). The supreme court recently summarized the factors a trial court must consider in determining whether to admit Spreigl evidence:
[I]n order for such evidence to be admissible the trial court must determine that there is "clear and convincing" evidence that the defendant participated in the crimes or bad acts sought to be admitted. * * * The court must also determine that the evidence of prior crimes or bad acts is "relevant and material to the state's case." * * * In addition, it must rule that the probative value of the evidence outweighs any potential for "unfair prejudice."
State v. Doughman, 384 N.W.2d 450, 454 (Minn.1986) (citations omitted). McCoy contends that the trial court committed reversible error by admitting the aunt's deposition because the sexual assaults she described were too remote in time to be relevant to the charged offenses. We disagree.
*810 The two sexual assaults described by the aunt were about as remote in time as the Spreigl evidence in State v. Casady, 392 N.W.2d 629 (Minn.Ct.App.1986), pet. for rev. denied, (Minn. Sept. 24, 1986). In Casady, this court concluded that evidence of prior sexual misconduct was inadmissible, in part, because an inappropriate sexual advance toward the victim's aunt occurred only once and the incidents with the victim did not begin until five or six years later. There also were no significant similarities with respect to place or modus operandi in the Casady case. Here, McCoy's conduct showed a much more consistent modus operandi than in Casady. McCoy had sexual intercourse with both T.M. and her aunt in his home while his wife was absent, and repeated the act when he had the opportunity. Compare Casady, 392 N.W.2d at 630 (single proposition). Here the trial court evaluated the aunt's deposition before admitting it into evidence. Compare Casady, 392 N.W.2d at 632 (no hearing to determine credibility of sole witness). Under these circumstances, we cannot say that the trial erred when it determined that the aunt's deposition was admissible.
II.
McCoy next contends that the trial court abused its discretion by admitting expert testimony from the psychologist regarding the typical behavioral characteristics exhibited by victims of sexual abuse. McCoy argues that the psychologist was not qualified as an expert and her testimony was not admissible under State v. Myers, 359 N.W.2d 604 (Minn.1984).
An expert witness may be qualified by "knowledge, skill, experience, training, or education * * *." Minn.R.Evid. 702. The State's witness is a licensed psychologist and social worker. She has obtained a Master's degree and observed and counseled several victims of sexual abuse. It was within the court's discretion to find her qualified. See Minn.R.Evid. 702.
Expert testimony on the typical behavioral characteristics of child victims of sexual abuse, the so-called "sexual abuse syndrome," may be admissible in cases involving sexual abuse of young children, as are an expert's observations of the particular behaviors exhibited by a victim. See Myers, 359 N.W.2d at 609 (citing Hestad v. Pennsylvania Life Insurance Co., 295 Minn. 306, 204 N.W.2d 433 (1973)).
We believe the admission of expert testimony on the "sexual abuse syndrome" in this nonjury trial was a matter for the sound discretion of the trial court, and find no abuse of that discretion.
III.
McCoy's final contention, that there was insufficient evidence, has little merit. When the trial court sits as the finder of fact, its verdict is entitled to the same weight as that accorded a jury. See State v. Thurmer, 348 N.W.2d 776, 778 (Minn.Ct. App.1984). The State presented substantial evidence to corroborate T.M.'s testimony, even though none was required. See Minn.Stat. § 609.347, subd. 1 (1984).
DECISION
The trial court did not abuse its discretion by admitting evidence of other sexual assaults committed by appellant or in admitting expert testimony on the "sexual abuse syndrome." There was sufficient evidence to support the trial court's findings that appellant was guilty of first degree criminal sexual conduct and first degree intrafamilial sexual abuse.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594146/ | 155 Mich. App. 643 (1986)
400 N.W.2d 610
ROBEY
v.
FORD MOTOR COMPANY
Docket No. 82982.
Michigan Court of Appeals.
Decided April 10, 1986.
Quinn, Borella & Stockton, P.C. (by Jerome G. Quinn), and Gromek, Bendure & Thomas (by Daniel J. Wright), Attorneys of Counsel, for plaintiff.
Dickinson, Wright, Moon, Van Dusen & Freeman (by Robert S. Krause, Richard L. Caretti and William P. Shield, Jr.), for defendant.
Before: WAHLS, P.J., and R.B. BURNS and M.E. DODGE,[*] JJ.
PER CURIAM.
Plaintiff appeals as of right from a Wayne Circuit Court order granting defendant's motion to dismiss on the grounds of forum non conveniens. We reverse. The facts of this case are on all fours with those in Cray v General Motors Corp, 389 Mich. 382; 207 NW2d 393 (1973), where the Supreme Court affirmed a lower court order denying the defendant's motion to decline jurisdiction. In light of the Court's holding that application of the doctrine of forum non conveniens should lie within the discretion of the trial judge, we would be loath to say that a judge could never decline jurisdiction when faced with facts similar to those in Cray. However, we would expect that the judge's decision would reveal some reason for distinguishing Cray. We cannot find such a reason in this case and, accordingly, would reverse and remand for trial.
*645 When a party requests that a court decline jurisdiction based on the doctrine of forum non conveniens, there are two inquiries for the court to make: whether the forum is inconvenient and whether there is a more appropriate forum available. If there is not a more appropriate forum elsewhere, the inquiry ends and the court may not resist imposition of jurisdiction. If there is a more appropriate forum, the court still may not decline jurisdiction unless its own forum is seriously inconvenient.
In this case, the trial judge identified three reasons for declining jurisdiction: the accident occurred in Virginia, plaintiff resided in Virginia and defendant was doing business in Virginia. These reasons, along with defendant's agreement to stipulate to jurisdiction in a Virginia court and to waive any statute of limitations, lead to the conclusion that a Virginia forum is available which, at least in some respects, has advantages over the Wayne Circuit Court. However, the judge's reasons do not appropriately address the inconvenience of his court as a forum. The fact that defendant was doing business in Virginia says nothing of the convenience or lack thereof of the Wayne Circuit Court. Indeed, Wayne County is defendant's principal place of business. The fact that plaintiff is a resident of Virginia is also of no moment; she has elected Wayne Circuit Court as her forum of choice.
That the accident occurred in Virginia does suggest that some of the Cray factors came into play. However, the trial judge did not address any of these factors and, on review of the record, we cannot find that any injustice would result from retention of jurisdiction in Wayne County. Plaintiff asserts that Michigan law should apply. See Olmstead v Anderson, 145 Mich. App. 160; 377 *646 NW2d 853 (1985). Plaintiff's suit alleges negligent design of the tractor occurring in Michigan; pretrial discovery on this claim would probably center in Wayne County. Plaintiff further claims that there were no eyewitnesses to the rollover and that she would be the only one testifying as to the circumstances surrounding the accident. We do not regard defendant's allegation that there may be other Virginia witnesses not subject to compulsory process in Michigan as sufficient in itself to support dismissal of plaintiff's action. The allegations are not supported by record evidence and are speculative at this time. Also, we regard the necessity of a view of the premises as unlikely in light of defendant's earlier removal of plaintiff's first action, filed in a Virginia state court, to a Virginia federal court more than one hundred miles from the site of the accident.
In Cray, the Supreme Court referred to the commentary to Restatement Conflict of Laws 2d, § 84, which included a corporation's principal place of business as an appropriate forum. Cray, supra, pp 394-395, n 2. Recently, a panel of this Court has stated that the doctrine of forum non conveniens is applicable only where, inter alia, neither party is a resident of the forum state. Duyck v International Playtex, Inc, 144 Mich. App. 595, 602; 375 NW2d 769 (1985). At this time, we are hesitant to follow our colleagues on the Duyck panel and adopt the mandatory rule stated in that case. Nevertheless, the above citations suggest that it must be a truly exceptional case where the defendant's principal place of business would not be a convenient forum. This case so lacks of any exceptional factors that we can only conclude that the trial judge's decision was an abuse of discretion. Marrs v Board of Medicine, 422 Mich. 688, 694; 375 *647 NW2d 321 (1985), citing Spalding v Spalding, 355 Mich. 382, 385; 94 NW2d 810 (1959).
Reversed and remanded for trial.
R.B. BURNS, J. (dissenting).
Plaintiff, Sandra L. Robey, executrix of the estate of Jessie Thomas Robey, deceased, appeals from a Wayne Circuit Court order granting defendant Ford Motor Company's motion to dismiss on the grounds of forum non conveniens. Plaintiff's decedent was killed in Lunenberg County, Virginia, on October 19, 1982, when the Ford 4000 tractor he was driving allegedly overturned and crushed him. Plaintiff, both at the time of the accident and at the present time, is a resident of Virginia.
The instant case was filed in Wayne Circuit Court on October 18, 1984. At approximately the same time, an identical action was filed in Lunenberg County, Virginia. Defendant successfully removed that case to the United States District Court in Richmond, Virginia, approximately 125 miles away. Wishing to pursue the Michigan action, plaintiff requested voluntary dismissal without prejudice of the federal suit. However, by its January 11, 1985, order the federal district court granted dismissal with prejudice because plaintiff's two suits in different courts respecting the identical claim put defendant to unnecessary expense.
Defendant then moved to dismiss based on forum non conveniens in Wayne Circuit Court. The trial court granted the defendant's motion.
In Cray v General Motors Corp, 389 Mich. 392; 207 NW2d 393 (1973), and the three other cases consolidated for hearing therewith, the Michigan Supreme Court held that Michigan courts may decline jurisdiction of a case by applying the doctrine of forum non conveniens. In addition to setting forth the criteria which should be included *648 in making such a determination, the Supreme Court also articulated the rule that
[t]he principle of forum non conveniens establishes the right of a court to resist imposition upon its jurisdiction although such jurisdiction could properly be invoked. It presupposes that there are at least two possible choices of forum. [389 Mich. 395.]
This Court will not reverse the lower court's application of the forum non conveniens doctrine unless there is an abuse of discretion. Bellin v Johns-Manville Sales Corp, 141 Mich. App. 128; 366 NW2d 20 (1984); Dayton Mall Motor Inn v Honeywell, Inc, 132 Mich. App. 174; 347 NW2d 15 (1984); Cray v General Motors Corp, supra. Cray suggests that a reviewing court should look to the convenience to the parties and the ends of justice in such a determination. 389 Mich. 396.
The Cray Court then set forth the following factors to be considered in rejecting or accepting jurisdiction:
1. The private interest of the litigant.
a. Availability of compulsory process for attendance of unwilling and the cost of obtaining attendance of willing witnesses;
b. Ease of access to sources of proof;
c. Distance from the situs of the accident or incident which gave rise to the litigation;
d. Enforceability of any judgment obtained;
e. Possible harassment of either party;
f. Other practical problems which contribute to the ease, expense and expedition of the trial;
g. Possibility of viewing the premises.
2. Matters of public interest.
a. Administrative difficulties which may arise in an area which may not be present in the area of origin;
*649 b. Consideration of the state law which must govern the case;
c. People who are concerned by the proceeding.
3. Reasonable promptness in raising the plea of forum non conveniens. [389 Mich. 396.]
In granting defendant's forum non conveniens motion, the trial court said
[t]hat the motion is hereby granted because the accident occurred in Virginia, the plaintiff resided in Virginia and the defendant was doing business in Virginia.
While the trial judge could have articulated his reasons more fully, I find no abuse of discretion.
I would affirm.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594215/ | 432 N.W.2d 237 (1988)
230 Neb. 489
Robert W. KOEPP, Appellant,
v.
Holly JENSEN, Director of the Department of Motor Vehicles, State of Nebraska, Appellee.
No. 87-259.
Supreme Court of Nebraska.
December 2, 1988.
*238 James D. Livingston, of Cunningham, Blackburn, Livingston, Francis, Cote, Brock & Cunningham, Grand Island, for appellant.
Robert M. Spire, Atty. Gen., and Yvonne E. Gates, Lincoln, for appellee.
HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and FAHRNBRUCH, JJ.
*239 FAHRNBRUCH, Justice.
Robert W. Koepp appeals the 1-year revocation of his motor vehicle operator's license for refusing to submit to a breath test for alcohol. We affirm.
Koepp challenges the manner in which the revocation was imposed by Holly Jensen, the director of the Nebraska Department of Motor Vehicles. The order of revocation was affirmed by the Hall County District Court.
Koepp claims the district court erred six times, which assignments can be summarized as follows: (1) The court erred in failing to find that there is sufficient reason in the record to justify Koepp's refusal to submit to the breath test; (2) the court erred in finding that Jensen had statutory authority to delegate revocation procedures to another; and (3) the court erred in failing to find that Koepp was denied due process under the law.
On March 19, 1986, after drinking in a bar in Grand Island, Koepp was stopped by a Grand Island police officer, Officer Michael Durant, for driving without his headlights on and for weaving on the road. Officer Durant testified that Koepp's eyes were bloodshot, he had a strong odor of alcoholic beverage on his breath, and his movements were uncoordinated. The officer asked Koepp to perform four field sobriety tests, which Koepp attempted and failed.
The officer then at 1:10 a.m. arrested Koepp for driving while under the influence of alcohol. Koepp was taken to the Hall County jail, where he was asked to perform the same sobriety tests. Koepp did not attempt any of the tests.
Officer Durant had Koepp read an implied consent advisement postarrest form which addressed the consequences of refusing to submit to a chemical test. Koepp signed the form without question. Durant then attempted to establish the required 15-minute waiting period before administering a breath test. Koepp, however, would not cooperate by allowing the officer to determine if he had anything in his mouth. Koepp was cited for refusing to submit to the test. A notarized report of the refusal was forwarded to the Department of Motor Vehicles.
An implied consent hearing was held on May 13, 1986, pursuant to Neb.Rev.Stat. § 39-669.16 (Reissue 1984). A hearing officer made a recommendation to Gerald Pankonin, staff attorney for the Department of Motor Vehicles.
Pankonin testified that as a part of his job, he reviews a written memorandum concerning the evidence adduced at a hearing, as well as the hearing officer's recommendation. Pankonin then makes the decision as to whether a motor vehicle operator's license should be revoked. After Pankonin makes the determination regarding revocation, he sends the order to a secretary, who types it. The secretary then affixes a stamped facsimile of Jensen's signature on the order.
Jensen is consulted only in cases that are in "gray areas" or are "close calls." Pankonin did not contact Jensen regarding Koepp's case because it was a "simple enough case." An order was issued by the Department of Motor Vehicles, bearing Jensen's stamped signature, revoking Koepp's license for 1 year. Koepp appealed to the Hall County District Court, where the case was heard de novo. See Porter v. Jensen, 223 Neb. 438, 390 N.W.2d 511 (1986). See, also, Neb.Rev.Stat. § 60-420 (Reissue 1984). The Hall County District Court affirmed the revocation order from the Department of Motor Vehicles.
The appellant expressly elected to forgo discussion of the first assignment of error by not discussing it in his brief. "Errors assigned but not discussed will generally not be considered by this court." State v. Burke, 225 Neb. 625, 629, 408 N.W.2d 239, 244 (1987); State v. Bishop, 224 Neb. 522, 399 N.W.2d 271 (1987); State v. Lynch, 223 Neb. 849, 394 N.W.2d 651 (1986); Neb.Ct.R. of Prac. 9D(1)d (rev. 1986).
With respect to the delegation issue, we addressed nearly an identical situation in Fulmer v. Jensen, 221 Neb. 582, 379 N.W. 2d 736 (1986). There, the plaintiff's operator's *240 license was revoked by a determination made by the deputy director of the Department of Motor Vehicles. As did the staff attorney in the present case, the deputy director in Fulmer reviewed the evidence as submitted by the hearing officer and then made the determination. In Fulmer, both the revocation order and the certificate of service attached thereto bore Jensen's signature.
As this court noted in Fulmer, Neb.Rev. Stat. § 60-1503 (Reissue 1984) specifically provides, "The Director of Motor Vehicles shall have authority to employ such personnel, including legal, and technical advisors as may be necessary to carry out the duties of his office."
The Fulmer court held at 585, 379 N.W.2d at 739, "The authority of the director to delegate her implied consent revocation duties is fairly implied by § 60-1503." For the reasons set forth in Fulmer, we conclude that Jensen lawfully delegated to Pankonin her responsibilities regarding implied consent determinations and the use of her signature stamp with regard thereto.
Koepp claims he was denied due process because Jensen did not hear his case, yet her facsimile signature was stamped on the order. This court has held that procedural due process requires notice and an opportunity to be heard. See, Dieter v. State, 228 Neb. 368, 422 N.W.2d 560 (1988); Bockbrader v. Department of Insts., 220 Neb. 17, 367 N.W.2d 721 (1985); Atkins v. Department of Motor Vehicles, 192 Neb. 791, 224 N.W.2d 535 (1974). Koepp does not complain that he did not receive notice or that he did not have an opportunity to be heard, but rather that he did not have an opportunity to be heard by Jensen.
Relying upon Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288 (1936), appellant claims that the individual who heard his case was not the individual who decided it and, therefore, the Department of Motor Vehicles' revocation was invalid. In Morgan, the U.S. Secretary of Agriculture made a decision against the appellants, apparently without considering or being apprised of the evidence. Morgan stands for the proposition that the individual who makes the determinations must be apprised of and consider the evidence which justifies them.
In Koepp's case, the evidence is clear that the decisionmaking was lawfully delegated to Pankonin and that he made the revocation decision. Before finalizing the case, Pankonin reviewed a written memorandum concerning the evidence adduced at the hearing, as well as the hearing examiner's recommendation. Had the Secretary of Agriculture followed the procedure used for Koepp, the decision in Morgan likely would have been compatible with the conclusion we reach in this case. As stated in Morgan, 298 U.S. at 478-79, 56 S.Ct. at 910-11:
If the Secretary had assigned to the Assistant Secretary the duty of holding the hearing, and the Assistant Secretary accordingly had received the evidence taken by the examiner, had heard argument thereon and had then found the essential facts and made the order upon his findings, we should have had simply the question of delegation.
Under those circumstances, it would have been proper for the Assistant Secretary to make the decision after being apprised of the evidence and after considering the evidence.
Since we have found that the Director of Motor Vehicles may delegate the task of determining whether a motor vehicle operator's license should be revoked for refusing to take a breath test for alcohol, and because the procedure suggested by the U.S. Supreme Court was followed in revoking Koepp's license, the appellant was not denied due process of law.
Additionally, Koepp appealed to the district court, where his case was heard de novo. Therefore, due process was satisfied in the district court hearing, as evidence was heard anew and an independent decision was made by the trial judge.
Likewise, this court reviews de novo, as in equity, the findings of the trial court on *241 appeal from a revocation of a motor vehicle operator's license under the implied consent statute. Wohlgemuth v. Pearson, 204 Neb. 687, 285 N.W.2d 102 (1979); Emmons v. Jensen, 221 Neb. 444, 378 N.W.2d 147 (1985).
In the courts, in Koepp's case, the evidence was twice considered anew by the decisionmakers. His claim of lack of due process has no validity. The decision of the district court must be affirmed.
AFFIRMED.
WHITE, J., concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594226/ | 954 So.2d 7 (2005)
C.H.
v.
STATE.
No. 2040683.
Court of Civil Appeals of Alabama.
August 31, 2005.
Decision without published opinions. Transferred to Ct. of Crim. App. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594466/ | 172 Mich. App. 748 (1988)
432 N.W.2d 427
PEOPLE
v.
WALLIN
Docket No. 92751.
Michigan Court of Appeals.
Decided November 8, 1988.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Cris J. VanOosterum, Prosecuting Attorney, and J. Ronald Kaplansky, Assistant Attorney General, for the people.
State Appellate Defender (by Ronald J. Bretz), for defendant on appeal.
Before: DANHOF, C.J., and HOOD and R.L. OLZARK,[*] JJ.
PER CURIAM.
Defendant was convicted following a jury trial of carrying a concealed weapon, MCL 750.227; MSA 28.424, and was subsequently sentenced to one year's probation, with sixty days in jail, and assessed $1,610 in fines and costs. He appeals as of right, claiming that the weapon found in his van by the arresting officers should have been suppressed and that the trial court erred in denying his requested instruction on the "place of business" exception to carrying a concealed weapon. We affirm.
*750 At the preliminary examination, the district judge denied defendant's motion to suppress the gun found in his van. A trial court's decision on a motion to suppress evidence will be reversed only if the court abused its discretion or if its decision is clearly erroneous. People v Tanis, 155 Mich. App. 806, 808; 396 NW2d 544 (1986), lv den 426 Mich. 877 (1986). A finding is clearly erroneous where, although there is evidence to support it, the reviewing court is firmly convinced that a mistake has been made. People v Harris, 164 Mich. App. 567, 571; 417 NW2d 502 (1987).
Plaintiff correctly asserts that defendant was properly "stopped and frisked." The stop-and-frisk exception to the warrant requirement allows seizure of objects found during a search necessitated by a legitimate concern for personal safety. The reasonableness of such a search depends on a balancing of the need to search against the intrusion the search entails. Terry v Ohio, 392 U.S. 1, 21; 88 S. Ct. 1868; 20 L. Ed. 2d 889 (1968).
In this case, we find that the search of the van and the seizure of defendant's gun found under the driver's seat resulted from the officers' legitimate safety concerns. Defendant was found in a van parked after hours in a used car lot where there had been reports of recent thefts. Although one arresting officer indicated at the preliminary examination that at the time the gun was found the buildings in the area were deemed secure and defendant was not suspected of any criminal activity, the other officer, who actually reached for the gun, testified that he had not finished checking the buildings and suspected that there was a breaking and entering in progress. This officer testified that the rag wrapped around the gun was visible from his position outside of the van. When he asked defendant what the object was, defendant repeatedly *751 attempted to reach down beside his seat. We believe that the arresting officer had probable cause to retrieve the rag-wrapped object and to open the box once he retrieved it from underneath defendant's seat, based upon his past experience and training as a police officer. Given the entire circumstances, there was no clear error in finding that the officers were justified in making a protective Terry search and in denying defendant's motion to suppress.
We also find no error in the trial court's denial of defendant's requested jury instruction. Defendant contended that, because he was in the business of delivering produce, his van was his "place of business" for purposes of the concealed weapons statute.
MCL 750.227; MSA 28.424 provides:
[A] person who shall carry a pistol concealed on or about his person, or, whether concealed or otherwise, in a vehicle operated or occupied by him, except in his dwelling house or place of business or on other land possessed by him, without a license to so carry the pistol as provided by law ... shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years, or by fine of not more than 2,500 dollars. [Emphasis added.]
This Court has held, contrary to plaintiff's position, that the words "other land" indicate the legislative intent to limit the place of business exception to business property on land. People v Brooks, 87 Mich App 515-518; 275 NW2d 26 (1978), lv den 406 Mich. 946 (1979). To adopt defendant's reasoning would render the statutory prohibition inapplicable to any traveling business person who wishes to carry a concealed weapon. This was certainly not the legislative intent.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1023864/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6691
PHILLIP MCCURTIS ASKEW, JR.,
Petitioner - Appellant,
versus
DIRECTOR, Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:06-cv-00500-RGD)
Submitted: September 24, 2007 Decided: October 5, 2007
Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Phillip McCurtis Askew, Jr., Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Phillip McCurtis Askew, Jr., a Virginia inmate, appeals
the district court’s order dismissing his 28 U.S.C. § 2254 (2000)
petition for failure to pay the filing fee. We reverse and remand
to the district court for further proceedings.
Although Askew sought authorization to proceed in the
district court in forma pauperis, the court reasonably required him
to pay the $5.00 filing fee because sufficient funds had been
recently deposited in Askew’s inmate trust account. Unfortunately,
Askew’s timely efforts to comply with the filing fee requirement
were frustrated by bureaucratic delays and failings. The record
reveals that on one occasion, the prison incorrectly prepared a
requested money order for an amount in excess of the filing fee;
this money order was returned to Askew by the district court
because the Clerk could not accept an overpayment. On a second
occasion, Askew’s request that a money order be prepared was
delayed over a month; by the time it was processed, the prison had
withdrawn funds to pay Askew’s prison commissary account, leaving
inadequate funds to honor his earlier request that money be
withdrawn to pay his filing fee. On a third occasion, the prison
declined to process Askew’s request, even though he had $11.66 in
his inmate account, apparently on account of a prison policy that
prohibited the processing of money orders that would result in an
account balance below $10.00.
- 2 -
When Askew brought each of these events to the attention
of the district court, the court patiently responded by according
Askew additional time to arrange for payment of the filing fee. By
order filed February 12, 2007, the court granted Askew an extension
of time until March 5. On April 13, 2007, after not receiving the
filing fee, another motion for an extension of time, or a statement
as to Askew’s inability to pay the fee, the district court
dismissed Askew’s case without prejudice. Askew timely appealed.
On appeal, Askew has submitted to this court an “Inmate
Trust System – Withdrawal Request Form,” which reflects his request
that a payment of $5.00 be made to the United States District Court
to satisfy the court filing fee in the present civil action. The
form was signed by Askew on February 26, 2007, Askew’s signature
was witnessed by a prison official, and the form is endorsed as
“withdrawal approved by” another prison official on February 27,
2007. Askew submits on appeal that he had no knowledge that his
request, which was prepared, witnessed, and approved in time to
meet the district court’s March 5, 2007 deadline, had not been
processed until he received the court’s order dismissing his case.
Because the district court had no indication that Askew
had acted timely to comply with its order of February 12, 2007, we
have no quarrel with its determination to dismiss Askew’s case for
failure to pay the filing fee. On the other hand, assuming that
the document Askew tendered to this court is genuine, he can hardly
- 3 -
be faulted for non-compliance with the district court’s direction.
Indeed, assuming the facts represented by Askew are accurate, and
had they been timely known both by Askew and the district court, we
have no doubt that the court would have either accorded Askew
additional time to submit the filing fee or taken other measures to
ensure that Askew’s repeated requests were honored by his
custodian.
In light of the unique circumstances presented, and
because it is likely that a new action by Askew would be time-
barred even though the district court’s dismissal was without
prejudice, we vacate the district court’s order and remand so that
the district court can determine, based upon the facts of which it
was unaware when it acted, whether Askew should be granted an
additional extension of time in which to pay the filing fee. 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.
VACATED AND REMANDED
- 4 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1549654/ | 72 F.2d 655 (1934)
UTILITIES PRODUCTION CORPORATION
v.
CARTER OIL CO.
CARTER OIL CO.
v.
UTILITIES PRODUCTION CORPORATION.
Nos. 874, 875.
Circuit Court of Appeals, Tenth Circuit.
August 4, 1934.
*656 *657 Elmer J. Lundy, of Tulsa, Okl. (Francis E. Matthews and Joseph R. Harmon, both of Chicago, Ill., and Poe, Lundy & Morgan, of Tulsa, Okl., on the brief), for Utilities Production Corporation.
James A. Veasey, of Tulsa, Okl. (S. J. Montgomery, of Tulsa, Okl., on the brief), for Carter Oil Co.
Before PHILLIPS, McDERMOTT, and BRATTON, Circuit Judges.
McDERMOTT, Circuit Judge.
Under the Osage Indian Allotment Act (Act of June 28, 1906, 34 Stat. 539) the minerals were reserved to the Tribe, leases thereof to be made by the tribal council and approved by the Secretary of the Interior. The Utilities Production Corporation, plaintiff below and herein referred to as the gas lessee, owns the lease of the gas rights in 166,400 acres. The Carter Oil Company, defendant below and herein referred to as the oil lessee, owns leases of the oil rights in 640 acres. Casing-head gas is gas produced in the drilling of oil wells, and is saturated with gasoline. The gasoline is recovered from the gas through casing-head gas plants, and the residuum of dry gas is called "residue gas." Broadly speaking, the oil lessee is entitled to so much of this residue gas as it may need for operating or developing the lease producing the gas and adjoining leases. The gas lessee is entitled to the balance, at its option, upon payment of a compressing charge to the oil lessee and a royalty to the Tribe. This litigation involves the question of whether the oil lessee is entitled to use this residue gas for particular purposes, or whether it must account to the gas lessee for gas so used. An effort was made to get the Interior Department to settle the controversy under its power, reserved in the leases, to make regulations amendatory thereof, but this the Department declined to do because of its understanding that "a friendly suit for the purpose of determining the legal rights of the parties" was contemplated. This is that suit.
The two leases are separate instruments; the Osage Tribe is lessor in each, and the parties herein respectively lessees. The one grants and leases "all the oil deposits"; the other "all the gas deposits." Each lease refers to the other, and provision is made that if the oil lessee brings in a gas well, the gas lessee shall be entitled to the well upon paying the expense thereof; the converse is likewise provided. Each is subject to regulations "now or hereafter" prescribed by the Secretary, with certain limitations not here pertinent. With this interlocking arrangement, the two leases and the regulations must be construed together, as integral parts of one plan to lease the minerals of the Tribe to the best advantage.
So construing them, and applying the settled rule that all parts of agreements should be given effect if reasonably possible to do so,[1] the solution of the controversy *658 turns upon an application of one section of the oil lease and two regulations. They are:
Section 12 of the oil lease deals with raw casing-head gas, that is, the gas before the gasoline is extracted. It provides:
"All casing-head gas shall belong to the oil lessee and when used for the manufacture of gasoline shall be metered and be subject to a royalty of 16 2-3 per cent based on the market value of the gasoline contents, and all such gas not utilized by the oil lessee on his leased premises or for operating other adjoining leases within the Osage Reservation, shall belong to the gas lessee, subject to the prescribed royalty of 16 2-3 per cent."
Paragraph 49 of Amendments to Regulations Approved May 13, 1919, effective June 7, 1919, deals with residue gas the dry gas after the gasoline has been extracted. That paragraph defines when an oil well is deemed to produce gas in commercial quantities; it then excepts casing-head gas in this language:
"* * * Except when gas from such well contains gasoline in commercial quantities, in which event it shall be termed `casing-head gas' but only when, and only while actually used for the manufacture of gasoline, as provided for under paragraph 12 of the oil lease. Any casinghead gas coming direct from the wells and not utilized by the oil lessee as above provided for, or for operations as provided for in section 12 of the oil lease shall be delivered to the gas lessee at a central point on the oil lessee's gathering or carrying lines, at the same schedule of prices as fixed for delivery of residue gas at gasoline plants into the line or lines provided by the gas lessee; also all gas after extraction of gasoline, and not used for operations under the terms of paragraph 12 of the oil lease, shall be delivered to gas lessee at points where the gasoline is extracted at as high a pressure as the efficient operation of such plant will permit and where same is delivered at a pressure not above fifty pounds the oil lessee shall receive one cent per thousand cubic feet and an additional one-half cent increase for each additional 50 pounds pressure not exceeding three cents per thousand cubic feet. Settlement for same to be made on or before the twentieth day of each month for all gas delivered during the preceding month and to be computed on the usual basis of ten ounces above atmospheric pressure, provided that royalty on such gas shall be computed the same as though it were gas produced and utilized by the gas lessees under the terms of their leases from their wells proper, and provided further, that the rights herein conferred are optional and in no event shall the gas lessees be obligated to utilize or pay the oil lessee, or pay royalty to the tribe, if not utilized, for any such gas as is described in this amendment; and if the gas lessee does not accept such gas and utilize the same after tender thereof by the oil lessee, then such gas may be otherwise disposed of by the oil lessee upon the same basis of royalty as fixed in case of utilization by the gas lessee. In case of combination wells where the gas lessee has no market for and does not utilize such gas for any purpose, the oil lessee shall be permitted to utilize and sell the same to adjoining lessees for operating purposes until such time only as the gas lessee is in a position to and does utilize such gas." (Italics supplied.)
Regulations approved July 23, 1919, provide for royalties on the casing-head gasoline manufactured by oil lessees. Section 11 reads:
"The residue or dry gas remaining after extracting the gasoline, not used for developing purposes on the leases where it was produced or adjoining leases in Osage County, shall be delivered to the gas lessee as provided in amended paragraph 49 of the rules and regulations governing leases in Osage County, and all contracts for the sale of casing-head gas shall contain a provision to such effect."
Other provisions of the leases and regulations permit gas to be used for certain operations royalty free, but provide for royalties to the Tribe on gasoline extracted from casing-head gas, and on the residue gas not used for such operations. We are concerned here with residue gas only, and the leases and regulations, construed together, leave no room for reasonable doubt that the oil lessee is entitled to use such gas for operating or developing the leases from which it was produced and adjoining leases of the oil lessee within the Reservation. Standing alone, section 12 of the lease gives to the gas lessee only such raw casing-head gas as may not be used for the manufacture of gasoline or utilized by the oil lessee on the lease or those adjoining. The argument that, having title to the raw gas used for manufacture, the oil lessee has title to the gasoline and dry gas produced from the raw gas, overlooks the fact that this lease was expressly subject to later regulations, and that a later regulation makes a specific disposition of the dry or residue gas.
This brings us to the real question in the case: Do the uses to which the oil lessee has put this residue gas fall fairly within the ambit of operations or development as the *659 terms are used in the lease and regulations? We take up the items separately.
1. Repressuring of oil wells. When an oil well plays out, it is not because all the oil has been recovered, but because the gas or water pressure has been exhausted. When the strata overlying an oil sand is penetrated by the drill, the gas within the formation, being under pressure, seeks the outlet, carrying with it the oil. When that pressure is gone, there is nothing left to bring the oil within reach of the pump, except gravity, the operation of which is limited to upper strata of the sand, and there counteracted by properties of viscosity, capillarity and adhesion of oil to its mother sand. Oil is produced by the lateral thrust of the gas pressure to the hole, and, after it quits flowing, the vertical lift of the oil to the top by a pump. Many years ago it was conceived that played-out wells could be given a new lease on life by injecting gases or liquids under pressure into the oil sands, thus starting the cycle anew. This is accomplished by forcing gases or liquids into one of the exhausted wells on a lease, or into a master-hole drilled for the purpose. The gas, seeking an avenue of escape, percolates through the sands to the outlets the other wells on the lease carrying oil with it. Bulletin 148, Department of Interior, 1917; Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 52 S. Ct. 559, 76 L. Ed. 1062, 86 A. L. R. 403; Bandini Petroleum Co. v. Superior Court, 284 U.S. 8, 52 S. Ct. 103, 76 L. Ed. 136; Russell v. Walker, 160 Okl. 145, 15 P.(2d) 114.
The operation or development of an oil lease requires that the oil in the sands be brought to the top of the ground. Moving the oil laterally is as important a part of the work as moving it vertically. It is conceded that residue gas may be used to lift it from the bottom of the hole; no reason is suggested why moving it to the bottom of the hole is not likewise a part of the operation or development of a lease.
The gas lessee's main argument, on this point, is that the use of gas for this purpose was not known in the Osage Nation when the oil lease permitting use of raw casing-head gas was made in December, 1918, or when the use of residue gas for operations and development was permitted by regulation in 1919; that the parties could not and did not contemplate, by the words "operations" and "development," any use except that known to the industry in Oklahoma at that time. The argument is not sound, either in fact or law. The use of gas for repressuring was so widely known in the industry by 1917 two years before the Regulations were adopted that the Interior Department had prepared and issued a bulletin of 120 pages on the general subject. Repressuring was in common use in the Appalachian fields in 1916. That there was no present need for it in the Osage field in 1919 does not lead to the conclusion that the Secretary of the Interior, who approved the lease for the lessor, the oil lessee, a West Virginia corporation, and the gas lessee, a Delaware corporation, were in ignorance of practices common in the eastern oil fields and of bulletins put out by the Interior Department.
But the argument that the parties contemplated the use of gas only for such methods of operation and development as were known to the industry the day the leases were signed, is specious. It imputes to the parties an intention to encase themselves, during the terms of the leases, in a straight-jacket. The oil business, then and now, is one in which changes come with lightning-like rapidity. A review of the patent causes in the courts discloses the frequent and radical changes made in the methods of oil operations and development. The argument leads to the conclusion that residue gas could not be used even for drilling if the lessee used any improvement in drills or casing-shoes which was invented after the lease was made. Such a foreshortened intent cannot be imputed to the parties, for they knew that improvements would come about during the terms of the leases, and must have contemplated the use of such improved methods. In fact, the lessor would doubtless have just cause to complain if an inefficient operation of the leases resulted from the failure of the lessees to use improved methods which came in common use during the terms of the leases.
If support be needed for a proposition so plain, it may be found in Bassell v. West Virginia Central Gas Co., 86 W. Va. 198, 103 S.E. 116, 117, 12 A. L. R. 1398, where a gas lessor complained because his lessee used methods for increasing the gas flow which were not known when the lease was made. The complaint was held to be without substance, the court saying:
"He executed the lease and conferred this right in an age of rapid and startling invention which wrought its wonders and transformations in no department of human activity more suddenly, progressively, and radically than in mining, transportation, and enlargement of enterprises and undertakings. Parties to contracts are held, in the absence *660 of agreements to the contrary, to have contemplated modifications of their relations under their contracts, by the development of improvements and new methods in the progress of science and invention. `The common law is the living science of justice, and adopts the application of fixed principles to changes in the affairs of men.' Mr. Justice Mitchell, in Saltsburg Gas Co. v. Borough of Saltsburg, 138 Pa. 250, 259, 20 A. 844, 10 L. R. A. 193."
The trial court was right in denying the gas lessee's claim for residue gas used for repressuring wells on the lease from which it was produced, or those adjoining.
2. Gas used as fuel in the casing-head gasoline plant. In its bill, the gas lessee complains that the oil lessee "has used a portion of the residue [gas] as fuel in the operation of its gasoline plant." The leases and regulations clearly contemplate that the gasoline content of casing-head gas shall be conserved for the use of the Tribe. The oil lessee is accorded the right to extract the gasoline from the gas. Some of the oil recovered is in liquid form; some in saturation with gas. To recover the latter, an additional step separation from the gas is necessary, a step as essential as lifting crude oil to the surface. Such separation requires compressors and a gasoline plant, which require fuel for their operation. Section 1 of Regulations approved July 23, 1919, reduces the royalty on casing-head gas to be paid by the oil lessee, as an inducement to it to construct and operate casing-head gasoline plants.
Extraction of the gasoline being clearly contemplated as a part of the operation or development of an oil lease by the oil lessee, the use of residue gas as fuel for the extraction plant falls fairly within the terms of the lease and regulations.
The Cross-Appeal.
The trial court decreed that the oil lessee should account to the gas lessee for residue gas theretofore used by the oil lessee for operating and developing leases owned by it within the Osage Reservation which were not adjoining touching the leases from which the gas was produced; and also for residue gas delivered by the oil lessee to other parties as a bonus for selling their casing-head gas to the oil lessee. From this part of the decree, the oil lessee appeals.
It is not contended in this court that such use of residue gas is permitted by Paragraph 49 of the Regulations approved May 13, 1919, or by Paragraph 11 of the Regulations approved July 23, 1919. Clearly it is not, for bonus gas is not used for development or operating its own leases; and a lease which does not touch does not adjoin. It is contended, however, that since the gas lessee has the option to decline to take the residue gas, with the accompanying obligation of a royalty to the Tribe and a service charge to the oil lessee, the regulation is void for uncertainty. The cases cited[2] involve contracts without consideration, the agreement of one party being so indefinite as to impose no obligation upon him. The leases here are supported by ample consideration. Nor is the provision indefinite or uncertain. The real complaint is that the option is unfair to the oil lessee, in that it does not require the gas lessee to give notice of its intention to take or cease taking, nor require a taking for a definite time. There is no present basis for complaint in this regard, for the gas lessee has demanded all of the residue gas in dispute and tendered payment therefor. If cause for complaint on this score arises in the future, doubtless it can be taken care of by an amendment to the regulation; if not, it will then be time enough to discuss the rights of the parties.
We are of the opinion that the decree below determined the rights of the parties in accordance with the leases and pertinent regulations.
While the point was not raised below or here,[3] we have been reluctant to construe these leases and the regulations in the absence of the Osage Tribe or the Secretary of the Interior, parties thereto. We have not, and cannot, adjudicate the rights of the Tribe in this litigation. The decree below does not act prospectively; injunctive relief was denied, and the only relief granted was a money judgment for the value of residue gas theretofore used by the oil lessee for certain purposes, which was held to be the property of the gas lessee. Even as to the past, the *661 decree does not bind the Tribe; it is open to it to claim, for example, that it has been deprived of royalties on residue gas by an improvident use of it for repressuring purposes that the oil recovered by that process was not worth the gas expended in the recovery; or any other claim it has to make against either lessee.
At the same time, we have construed two words in leases to which the Osage Tribe is a party, and in its absence; and while the decree does not bind it, the opinion will be an authority if later litigation ensues. It would have been better practice to have made the Tribe a party. While both parties disclaim knowledge as to the means of getting all parties into court in one litigation, the record does not disclose such impossibility.
While there is some lack of uniformity in nomenclature, the rules as to parties are well settled. A party is "indispensable"[4] if a decree cannot be entered without injuriously affecting his rights, or leaving the controversy in a situation inconsistent with equity and good conscience. An indispensable party should either be joined or the case dismissed. Franz v. Buder (C. C. A. 8) 11 F.(2d) 854; Skeen v. Lynch (C. C. A. 10) 48 F.(2d) 1044, certiorari denied 284 U.S. 633, 52 S. Ct. 17, 76 L. Ed. 539; South Penn Oil Co. v. Miller (C. C. A. 4) 175 F. 729. The reason underlying this rule is that courts cannot adjudicate rights of a party in his absence; it is most frequently applied in cases where title to a thing must be fully determined, or a will finally construed, and where all parties in interest may be brought in by substituted service.
Others having an interest in the subject-matter of the litigation and whose rights therein may conveniently be determined but need not be, are "proper" parties.[5] The rule as to them is one of propriety and not of jurisdiction. Chief Justice Marshall said, in this regard:
"It is contended, that he is a tenant in common with others, and ought not be permitted to sue in equity, without making his co-tenants parties to the suit. This objection does not affect the jurisdiction, but addresses itself to the policy of the court. Courts of equity require, that all the parties concerned in interest shall be brought before them, that the matter in controversy may be finally settled. This equitable rule, however, is framed by the court itself, and is subject to its discretion. It is not, like the description of parties, an inflexible rule, a failure to observe which turns the party out of court, because it has no jurisdiction over his cause; but being introduced by the court itself, for the purposes of justice, is susceptible of modification, for the promotion of those purposes. * * * In the exercise of its discretion, the court will require the plaintiff to do all in his power to bring every person concerned in interest before the court. But if the case may be completely decided as between the litigant parties, the circumstance that an interest exists in some other person, whom the process of the court cannot reach, as, if such party be a resident of some other state, ought not prevent a decree upon its merits." Elmendorf v. Taylor, 10 Wheat. 152, 166, 6 L. Ed. 289.
The equity rules embody the substance of this principle. Equity Rule 39 (28 USCA § 723). Rule 44 (28 USCA § 723) gives the court power, where there is a defect in the parties, to render a decree, saving the rights of the absent parties. To the same effect is section 50, Jud. Code, 28 USCA § 111.
All those claiming an interest in real estate are proper parties to a suit to quiet title thereto; they are not indispensable parties, for a title may be quieted against one claimant without affecting the rights of another who is not made a party. The rights of two claimants to property may be determined inter sese, without joining all claimants. Williams v. United States, 138 U.S. 514, 11 S. Ct. 457, 34 L. Ed. 1026; Daniels v. Wagner, 237 U.S. 547, 35 S. Ct. 740, 59 L. Ed. 1102, L. R. A. 1916A, 1116, Ann. Cas. 1917A, 40; Texas Co. v. Central Fuel Oil Co. (C. C. A. 8) 194 F. 1. In Silver King Coalition Mines Co. v. Silver King C. M. Co., 204 F. 166, Ann. Cas. 1918B, 571, the Eighth Circuit Court of Appeals, speaking through Judge Walter H. Sanborn, applied the same rule to a suit on a contract of assumption. It was there held that a judgment could be rendered against a party assuming a debt without joining the original debtor, although later litigation, involving the same contract, might ensue between the original debtor and the one who assumed the debt. Actions by a beneficiary against a life insurance company, without joining the personal representative of the insured, further illustrates the principle that a suit may be maintained between two parties to a contract, without joining the third.
*662 From these authorities, it appears that while a decree cannot be entered affecting the rights of an absent party, an opinion may be handed down which will be an authority in later cases between other parties. One must be a party before the doctrine of res adjudicata is invoked against him; he need not be a party if the rule invoked is that of stare decisis. Bienville Water Supply Co. v. Mobile, 186 U.S. 212, 217, 22 S. Ct. 820, 46 L. Ed. 1132.
The Osage Tribe is not an indispensable party within these rules. The decree herein impliedly, if not expressly, saves all the rights of the Tribe. The decree below is for a money judgment against the oil lessee, and does not in any way affect the Tribe, nor leave the matter in such shape as to be inconsistent with equity and good conscience.
The Osage Tribe is a proper party. Is it in accord with the proprieties that the decree below be affirmed in the absence of the Tribe? It clearly appears from the record that the Department of the Interior, and the Osage Tribe, knew of the use of this gas for these purposes, and knew of the controversy over it. Correspondence between the Superintendent of the Osage Agency and the Commissioner of Indian Affairs, and the testimony of the chief of the oil and gas division of the Tribe, make this fact indisputable. This record discloses therefore that the gas used for repressuring and for fuel was so used with the knowledge of the lessor, without objection. There is therefore no reason of substance why the right to the gas already used, as between the only disputants the oil and gas lessees should not be determined. If a situation develops where the Tribe's interests are concerned if it should claim that the use of such gas is not an efficient operation it can be heard at any time, unaffected by this decree. That this opinion may be cited as an authority in that suppositions case does not make the Tribe an indispensable party.
There is a practical side of the matter: The controversy over the use of residue gas has gone on for several years. The Interior Department, representing the Tribe, has invited this litigation by declining to make a regulation until the courts acted. The oil and gas lessees join in urging a decision notwithstanding the absence of the lessor. The controversy is narrow in scope, has been thoroughly tried and briefed by both sides, and a comprehensive opinion written by the trial court. To send the case back for the purpose of making the lessor a party would accomplish nothing except to keep all parties in a state of uncertainty while the case went again through the courts.
The decree below is therefore, in all respects,
Affirmed.
NOTES
[1] "No part should perish by construction." Judge Walter H. Sanborn in Uinta Tunnel Min. & Transp. Co. v. Ajax Gold Min. Co. (C. C. A. 8) 141 F. 563, 567; Pressed Steel Car Co. v. Eastern R. Co. of Minnesota (C. C. A. 8) 121 F. 609, 611; E. I. Du Pont De Nemours & Co. v. Claiborne-Reno Co. (C. C. A. 8) 64 F.(2d) 224, 228, 89 A. L. R. 238; Williston on Contracts, § 619.
[2] Cold Blast Transp. Co. v. Kansas City Bolt & Nut Co. (C. C. A. 8) 114 F. 77, 57 L. R. A. 696; Oakland Motor Car Co. v. Indiana Automobile Company (C. C. A. 7) 201 F. 499; Woerheide v. Barber Asphalt Paving Company (C. C. A. 8) 251 F. 196; Nebraska Aircraft Corp. v. Varney (C. C. A. 8) 282 F. 608; Weston Paper Mfg. Co. v. Downing Box Company (C. C. A. 7) 293 F. 725; United Fuel Gas Co. v. Swiss Oil Corporation (C. C. A. 6) 41 F. (2d) 4.
[3] The court may raise the question, sua sponte. United States v. Bean (C. C. A. 8) 253 F. 1.
[4] Courts sometimes use "necessary" as synonymous with "indispensable."
[5] Some courts describe such parties as "necessary" in contradistinction to "indispensable." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/775640/ | 272 F.3d 239 (4th Cir. 2001)
EDDIE L. HIGHTOWER, Plaintiff-Appellee,v.GMRI, INCORPORATED, Defendant-Appellant.
No. 01-1302
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Argued: September 26, 2001Decided: November 14, 2001
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge.
(CA-00-187-5-BR)COUNSEL ARGUED: Keith Ashley Warren, FORD & HARRISON, L.L.P., Memphis, Tennessee, for Appellant. Carmen J. Battle, Fayetteville, North Carolina, for Appellee. ON BRIEF: Carl K. Morrison, David P. Knox, FORD & HARRISON, L.L.P., Memphis, Tennessee, for Appellant. Walter T. Johnson, Jr., Greensboro, North Carolina, for Appellee.
Before WILKINSON, Chief Judge, and NIEMEYER and KING, Circuit Judges.
Reversed and remanded by published opinion. Chief Judge Wilkinson wrote the opinion, in which Judge Niemeyer and Judge King joined.
OPINION
WILKINSON, Chief Judge:
1
Defendant GMRI, Inc. appeals the district court's denial of its motion to compel arbitration. Because Plaintiff Hightower agreed to the binding arbitration provision in GMRI's Dispute Resolution Procedure ("DRP") by, inter alia, acknowledging receipt of the DRP materials and remaining employed after the DRP became effective, we reverse and remand with instructions to compel arbitration.
I.
2
Plaintiff Eddie Hightower began employment with the Olive Garden, which is owned and operated by Defendant GMRI, Inc., in March 1998. In June 1998, he was assigned to an Olive Garden restaurant in Fayetteville, North Carolina where he served first as the service manager and then as the culinary manager.
3
In August 1998, Hightower attended a mandatory weekly restaurant meeting. The parties dispute what actually occurred at this meeting. GMRI states that the meeting was a DRP "roll out" to inform employees at the Fayetteville franchise about the implementation of the DRP as the exclusive means of resolving employment disputes. Yet, Hightower claims that only one percent of the meeting was devoted to the DRP and that the GMRI representative who conducted this portion of the meeting stated that there would be more information provided at a DRP training session in the future.
4
However, it is undisputed that Hightower attended the August meeting and signed an attendance sheet acknowledging receipt of GMRI's DRP materials. The top of the form that Hightower signed stated: "I have attended a DRP meeting and have received the information in regards to DRP."
5
GMRI's DRP became effective on August 3, 1998. GMRI's Dispute Resolution Procedure consists of four steps: (1) open door policy for informal review of work-related disputes; (2) peer review; (3) mediation; and (4) binding arbitration. As a manager, Hightower was responsible for informing employees that by continuing to work after August 3, 1998 they were accepting the DRP. However, Hightower claims that he never trained any employees about the DRP.
6
Hightower was fired on November 17, 1998. On December 14, 1998, Hightower voluntarily submitted racial and religious discrimination claims for resolution under the mediation portion of the DRP. However, no settlement agreement was reached and Hightower refused to proceed to the fourth step of the DRP process, arbitration. Instead, he filed a charge of discrimination with the EEOC, which subsequently issued a "right to sue" letter on December 17, 1999.
7
On March 20, 2000, Hightower filed this suit against GMRI in the U.S. District Court for the Eastern District of North Carolina alleging discriminatory conduct under Title VII of the Civil Rights Act of 1964 and the Thirteenth Amendment. On August 18, 2000, GMRI filed a motion to dismiss or, in the alternative, to stay Hightower's action and compel arbitration under the DRP. GMRI sought relief pursuant to the Federal Arbitration Act ("FAA "), 9 U.S.C. SS 3-4.
8
On February 12, 2001, the district court, without explanation, denied GMRI's motion to compel arbitration. GMRI appeals from this order pursuant to 9 U.S.C. SS 16(a)(1)(A)-(B), which provide for an appeal from an interlocutory decision refusing to grant a stay under 9 U.S.C. S 3 or denying an order to compel arbitration under 9 U.S.C. S 4.
9
On April 26, 2001, the district court granted a motion to stay proceedings pending appeal to this court. In this order, the district court explained that it denied GMRI's motion to compel arbitration because there was conflicting evidence as to whether Hightower assented to the DRP process. Therefore, the district court concluded that no arbitration agreement could be found to exist.
II.
10
In the FAA, 9 U.S.C. SS 1-16, Congress endorsed arbitration as a less formal and more efficient means of resolving disputes than litigation. The Supreme Court has noted that the FAA represents "a liberal federal policy favoring arbitration agreements." Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). Because FAA provisions are mandatory, courts must compel arbitration when a valid arbitration agreement exists. See Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 218 (1985). This prevents parties from rushing to court whenever the prospect of arbitration appears uninviting. To allow them to do so would undermine the clear federal directive in support of arbitration.
A.
11
In order for a court to compel arbitration, the court must first find that an arbitration agreement exists between the parties. If an agreement is found to exist, the court must then decide whether the dispute at issue falls within the scope of the agreement. To determine whether the parties agreed to arbitrate, courts apply state law principles governing contract formation. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995). There is no dispute that North Carolina law controls in this case and that the present dispute would fall within the scope of GMRI's DRP.
12
Under North Carolina law, a valid contract "requires offer, acceptance, consideration, and no defenses to formation." Koltis v. N.C. Dep't of Human Res., 480 S.E.2d 702, 704 (N.C. Ct. App. 1997). At issue in the present case is whether there was mutual assent, established by way of offer and acceptance, to the DRP program such that an agreement to arbitrate was formed between GMRI and Hightower.* There is no dispute that GMRI intended to be bound by its DRP. Therefore, we are required to determine whether, under North Carolina law, Hightower also intended to be bound by the DRP.
13
North Carolina has expressed strong support for utilizing arbitration to settle disputes. Johnston County, N.C. v. R.N. Rouse & Co., 414 S.E.2d 30, 32 (N.C. 1992). This "strong public policy" has led the North Carolina courts to conclude that "where there is any doubt concerning the existence of an arbitration agreement, it should be resolved in favor of arbitration." Martin v. Vance, 514 S.E.2d 306, 309 (N.C. Ct. App. 1999). Thus, North Carolina law directs us to favor arbitration in cases in which the facts support the conclusion that the parties formed an arbitration agreement.
B.
14
The facts of this case plainly indicate the presence of an arbitration agreement between GMRI and Hightower. It is undisputed that Hightower attended the August, 1998 DRP meeting and signed an attendance sheet acknowledging receipt of the DRP materials. After he learned that the DRP was the exclusive method for resolving employment disputes, Hightower continued working at the Olive Garden for approximately three months. These facts lend support to GMRI's assertion that Hightower knew of and assented to the DRP.
15
Indeed, the Court of Appeals of North Carolina has held in similar circumstances that continuing employment after learning of the existence of a DRP constitutes an employee's agreement to be bound by an arbitration agreement. In Howard v. Oakwood Homes Corp., 516 S.E.2d 879 (N.C. Ct. App.), review denied, 539 S.E.2d 288 (N.C. 1999), the court of appeals held that a plaintiff who received a copy of the company's dispute resolution procedure in the mail and continued work for less than three months after its effective date was bound by the arbitration provision in the dispute resolution procedure. Id. at 882. The plaintiff was bound despite the fact that she did not sign the agreement. Id. at 882-83. The Howard court noted that the plaintiff had received actual notice of the terms of the arbitration agreement and had previously submitted a claim for resolution under the DRP. The court concluded that this evidence was "sufficient to show plaintiff knew that the terms of the DRP would apply to her should she continue in her employment, and that by doing so, plaintiff mutually assented to the program." Id. at 882. In fact, under North Carolina law, "[c]ontinued employment with actual notice of the implementation of a dispute resolution program evidences an employee's mutual assent to the binding arbitration agreement contained therein." King v. Oakwood Home, Inc., No. Civ. 1:99CV0059, 2000 WL 1229753 (M.D.N.C. Aug. 3, 2000); see also Howard, 516 S.E.2d at 882-83.
16
The facts of the present case closely parallel those in Howard. Hightower signed an attendance sheet at the August 1998 meeting acknowledging receipt of the DRP materials. Thus, he had actual notice of the DRP and knew that his assent to the DRP was a condition of continued employment with GMRI. After acknowledging receipt of the DRP information, Hightower continued to work for GMRI. By continuing employment with GMRI for three months after he knew that the terms of the DRP would apply to him, Hightower demonstrated acceptance of the DRP. Therefore, Hightower is bound by its final, binding arbitration provisions.
17
If there was any doubt that Hightower assented to binding arbitration, it is also telling that he was responsible for informing other employees that reporting to work after the DRP's August 3, 1998 implementation date constituted acceptance of its terms. And Hightower initially brought his current claim under the mediation provision of the DRP before deciding he would rather go to court. Accordingly, the evidence shows that Hightower agreed to be bound by the arbitration provision in the DRP.
III.
18
For the foregoing reasons, we reverse the judgment of the district court and remand with instructions to stay Hightower's action and compel arbitration.
REVERSED AND REMANDED
Notes:
*
Hightower does not contend that consideration was lacking or that there is a defense to contract formation. | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1549721/ | 256 B.R. 814 (2000)
In re Ellen Ann HINCKLEY, Debtor.
No. 99-3188-8B3.
United States Bankruptcy Court, M.D. Florida, Tampa Division.
November 16, 2000.
*815 *816 Stephen R. Leslie, Stichter, Riedel, Blain, Prosser, P.A., Tampa, FL, for Debtor.
Terry E. Smith, Bradenton, FL, Chapter 13 Trustee.
Attorney General of United States/Department of Justice, C/O Mary A. Hervey, Washington, DC, for Internal Revenue Service.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
THOMAS E. BAYNES, Jr., Bankruptcy Judge.
THIS CAUSE came on for final evidentiary hearing on the Amended Objection to the Internal Revenue Service's ("IRS's") Claim filed by Ellen Ann Hinckley ("Debtor"). The Court, having considered arguments by counsel, the entire record of this case, live testimony of the Debtor, and all other relevant evidence, enters the following findings of fact and conclusions of law. See Fed.R.Civ.P. 52; Fed. R. Bankr.P. 7052. Preliminarily, the Court notes the parties filed cross Motions for Summary Judgment prior to the hearing. At the start of the hearing, the Court denied both Motions as genuine issues of material fact remain at issue.
INTRODUCTION
The portion of the IRS's Claim at issue in this case involves an understatement of tax. The Debtor's Objection is based on 26 U.S.C. § 6015.[1] This Internal Revenue Code section governs what is commonly referred to as "innocent spouse" relief.[2]*817 Specifically, the Debtor seeks relief under § 6015(b)(1)(C), alleging the Debtor "... did not know, and had no reason to know, that there was such an understatement."[3] Alternatively, the Debtor argues she "... signed the return[s] under duress." § 6015(c)(3)(C).[4]
The parties stipulated that all of the other elements under § 6015(b)(1) are met, including: joint returns exist for the years in question;[5] the returns contain "an understatement of tax attributable to erroneous items of one individual filing the joint return[s]";[6] equity favors the debtor,[7] the IRS concedes, stating "... we have no evidence to support a finding that it's inequitable for her to have innocent spouse relief ... [w]e gave it to her for 1991.";[8] and the Debtor timely elected the benefits of innocent spouse relief when she filed her Objection to Claim.[9] The parties agree that whether the Debtor knew or had reason to know of the omission, and whether the debtor signed the returns under duress are the only two issues that need to be tried.[10]
The parties stipulated to the following facts for the purpose of the hearing:[11] The tax returns at issue are for the years 1994 and 1995. The Debtor signed tax returns for both of these years.[12] The tax deficiency solely concerns the failure to include as income the approximately $90,000.00 annual pension benefit received by Debtor's former spouse.[13]
BACKGROUND FACTS
The Hinckley's married in 1961.[14] The couple have four grown children, ages 29 to 37 years.[15] During most of the marriage, *818 the Debtor stayed at home and cared for the children.[16] The couple separated in May of 1997,[17] and the marriage was dissolved on January 5, 1999.[18] Pursuant to the Marital Settlement Agreement, the Debtor was assigned Mr. Hinckley's pension benefit.[19]
The problems in this case began prior to the couple's separation when Mr. Hinckley decided in 1995 that the pension income was not taxable income. For the prior tax years that he received the pension, he reported it as income on the couple's joint returns.[20] Beginning with the 1994 tax return, he stopped including the pension as income because he thought it could be excluded from gross income under § 104 of the Internal Revenue Code.[21] The IRS did not agree.[22] On or about April 20, 1995, Mr. Hinckley penned a letter in response to the IRS's rejection of his theory.[23] He presented this letter to his wife for her signature, and she became aware for the first time of his position concerning the pension income.
OPINION
A. § 6015(b)(1)(C)
Whether the Debtor knew or had reason to know of the understatement of tax when she signed the 1994 and 1995 returns is the first question the Court must answer. The law is clear that it is not sufficient to merely conclude she primarily attended to home matters and deferred to her husband's judgment in business matters as a basis for relief, though that is the case here. Kistner v. Comm'r of Internal Revenue, 18 F.3d 1521, 1525 (11th Cir.1994). The Court must decide whether "a reasonably prudent taxpayer under the circumstances of the spouse at the time of signing the return could be expected to know that the tax liability stated was erroneous or that further investigation was warranted." Id. at 1525 (citing Stevens v. Comm'r of Internal Revenue, 872 F.2d 1499, 1505 (11th Cir.1989)).[24]
Under the law, this standard establishes a duty to inquire on the part of the person seeking innocent spouse relief. Id. The factors relevant to the Court's determination of whether the Debtor had a reason to know of the understatement include:
... (1) the alleged innocent spouse's level of education; (2) the spouse's involvement in the family's business and financial affairs; (3) the presence of expenditures that appear lavish or unusual when compared to the family's past levels of income, standard of income, and *819 spending patterns; and (4) the culpable spouse's evasiveness and deceit concerning the couple's finances. Id. (citing same).
Applying these factors to the instant case, the Court reaches the following conclusions.
1. Debtor's Level of Education
When the Hinckley's married, the Debtor had a degree in nutrition from St. Mary's College.[25] She never completed any formal education in business or financial matters.[26] She worked from 1959 to 1961, holding jobs in the dietetics nutrition field, and as a fifth grade teacher.[27] She stopped working when she married Mr. Hinckley in 1961.[28] Thirty years later, she returned to college and earned a Masters Degree in Art History from the University of Cincinnati.[29] She returned to the work-force on a part-time basis in 1990 when she began to teach college courses.[30] She also worked as a substitute teacher on occasion.[31]
The Debtor's level of education is advanced in that she holds bachelor and master degrees in nutrition and art history, respectively. However, none of her higher education was directed toward the field of business, finance, or tax matters, nor did her employment contribute in any way to furthering her understanding in these matters. Thus, while her level of education is higher than the average person's, these endeavors do not appear to have prepared her to decipher tax matters.
2. Debtor's Involvement in the Family Finances
Mr. Hinckley held a Bachelor's Degree in Business and a Law Degree from Marquette University prior to marrying the Debtor. He later obtained a Masters of Law Degree in Taxation Law from Wayne State University in 1973, and a Masters in Business Administration from Xavier University in 1986.[32] Mr. Hinckley held various positions of responsibility in the insurance industry.[33] His career reached its height when he became President and CEO of Union Central Life Insurance Company ("Union Central"), a position he held for from 1985 to 1988. He was with Union Central from 1973 to 1988.[34]
Mr. Hinckley kept all business affairs strictly to himself.[35] He refused to discuss his work with his wife, keeping a permanent division between his business and personal lives.[36] He never discussed investment or tax strategies with her.[37] Typically, they maintained a joint bank account as well as individual accounts.[38] The Debtor never met with any attorney during her marriage until she met with a bankruptcy attorney.[39] Mr. Hinckley would bring her, for example, a completed *820 will to sign, but she never participated in the preparation of any legal documents.[40]
Throughout the approximate 37½ years of their marriage, Mr. Hinckley completed all tax returns for the family.[41] The Debtor testified it was a matter of pride for him to do so given his degree in taxation law.[42] She further testified that she had, on occasion through the years, signed blank tax returns.[43] The record is clear, she did not typically review the returns.[44] The Debtor has very little knowledge of the appropriate forms and schedules required when filing a tax return.[45] She was unaware that she signed amended returns (forms 1040X), on occasion, and did not understand the effect of these forms.[46] While Mr. Hinckley often had loose ends to settle with the IRS, until the difficulties addressed in this case surfaced, he always handled any problems with the returns without significant incident.[47]
The Debtor's involvement in the family's business and financial matters was merely routine. She balanced her own checkbook and paid household bills. However, she had absolutely no involvement in her husband's business endeavors, and was largely unaware of the details of the family's financial resources and debts. She was, however, aware of the pension income.
3. Lavish lifestyle
There is no evidence in the record that the Hinckleys indulged in any lavish expenditures during the years at issue.[48] In fact, there is evidence that financial difficulties plagued their last years of marriage when the couple underwent a significant reduction in income.[49] These difficulties also appear to stem from Mr. Hinckley's habits regarding the payment of financial obligations, and his theories on tax liability.[50]
4. Mr. Hinckley's Capacity for Evasiveness and Deceit
Some historical facts are very relevant to this point of the analysis. In October 1987, Mr. Hinckley suffered a severe head injury in a bicycle accident, requiring a month long hospitalization and seven operations to repair.[51] Following the accident, he was dismissed from his job as President and CEO of Union Central.[52] It is at this time that he negotiated a pension package, apparently through threatened litigation, the terms of which he never discussed with the Debtor.[53]
In the years following the dismissal from Union Central, he suffered other head injuries, and his mental acuity gradually *821 declined.[54] The Debtor testified the decline was not readily apparent, and occurred over the better part of a decade.[55] During these years, Mr. Hinckley, once an astute businessman, became increasingly forgetful and irrational. In addition to the decline, in early 1997 the Debtor discovered over one hundred pages of typewritten notes regarding a secret life Mr. Hinckley had been leading for 25 years.[56]
Today, Mr. Hinckley resides in an assisted living facility at the Beachwood Home for Incurables in Cincinnati, Ohio.[57] This care is paid for by the Hinckley's eldest son.[58] There is no anticipated date for Mr. Hinckley to leave the nursing home.[59]
Mr. Hinckley's evasiveness and deceit concerning the family's finances is evident in the record. In addition to the Debtor's testimony regarding his lifelong secretiveness about all matters related to his business life,[60] the secret alternative lifestyle presumably required expenditures the Debtor could not have known about, or even guessed.[61] Other than the day-to-day household and family expenses, the Debtor was largely in the dark about all business and financial matters.
While she knew the amounts of, for example, the mortgage payment[62] and other household expenditures, she did not know the amounts of money the family had in savings, stocks, or other investments.[63] The Debtor testified she never even knew the amount of her husband's salary at Union Central until she prepared for the instant litigation in 1999.[64] She was, however, aware of the $7,500.00 per month income from the pension during the tax years in question.[65] She also began to take over all of the family's bill paying around 1994 to 1995 because her husband stopped paying their debts, due in part to the mental decline after his accident.[66]
There is also evidence in the record that Mr. Hinckley signed his wife's name on important documents without authorization on at least one occasion. Specifically, on March 9, 1995, a form 1040X was filed for the taxes due in 1993, amending the 1993 return and requesting a refund.[67] The Debtor testified at deposition and at trial that the signature on this form is not hers, but a forgery by her husband.[68] Mr. *822 Hinckley also kept notices concerning the IRS from the Debtor, and later kept notices and information concerning the bankruptcy case from her, partly by insisting on collecting all of the couple's mail.[69]
Relying on his extensive legal and business background, and particularly his specialized degree in taxation law, Mr. Hinckley appears to have kept his own counsel with regard to all family financial and tax matters. He clearly felt qualified to prepare the family's tax returns, to make his own determination about the taxable nature of his pension income, and to propound his theory to the IRS.[70] He also made it very clear to his wife that any questions or concerns she had about his theory were grounded in her lack of education, and were ill-advised in light of his superior knowledge and skill.
B. § 6015(b)(1)(C) Analysis
These factors may seem to suggest a conclusion that the Debtor might not have a reason to know that her husband of then 34 years, who had always prepared and paid their taxes, would suddenly develop a theory that their primary source of income should be tax free.[71] She simply signed their annual tax return. The difficulty arises in the fact that the Debtor signed the April 20th letter to the IRS that detailed her husband's theory about the pension income at the same time the 1994 return is being filed.
1. The 1994 Return
As mentioned above, the Debtor became aware of her husband's unique theory regarding the taxable nature of his pension on or about April 20, 1995, when he insisted she sign the joint letter detailing his position to the IRS.[72] The record indicates the tax return for 1994 was filed May 1, 1995.[73] The Court concludes on this record, however, the Debtor did not actually know of the understatement in 1995 when the 1994 return was filed. In other words, she did not review the return and see the omission. She discovered the likelihood of the omission when her husband presented her with the April 20th letter.[74]
The Debtor asserts she did not want to sign the letter because she disagreed with its content.[75] Nevertheless, she did sign the April 20th letter, and in doing so, had a reason to know there was at least a strong potential that the return filed that same day[76] contained an understatement of tax. The Court believes that a reasonably prudent taxpayer would have *823 questioned, as the Debtor admittedly did, the advisability of not reporting the income. At this point, the Debtor had a duty to inquire further to at least ask to review the return before filing. She chose not to do so.[77] The law is clear that turning a blind eye cannot shield her from tax liability for the 1994 taxes. See Stevens, 872 F.2d at 1507. The Court determines the Debtor knew of the understatement when the 1994 return was filed.
2. The 1995 Return
The Debtor, by her own admission, signed the 1995 return in 1996 at a time when she knew of her husband's theory.[78] She admitted at trial that she knew the 1995 return did not include the pension income, and she knew of the position he had taken with the IRS.[79] The Court determines the Debtor knew of the understatement when she signed the 1995 return.[80]
3. Mental Abuse as a Factor
In the Kistner opinion, the Eleventh Circuit added a factor for consideration under the reason to know analysis. In the context of what is now a § 6015(b)(1)(C) analysis, the Kistner Court stated that though an
... innocent spouse's complete deference to [a] husband's [sic] judgment ..., standing alone, is insufficient to establish that the spouse had no reason to know[,] ... where physical or mental abuse is shown, even when the abuse does not rise to the level of coercion, a basis may exist for allowing innocent spouse relief. Kistner, 18 F.3d at 1526.
Addressing a history of physical abuse in its facts, the Kistner Court reversed a Tax Court ruling that the spouse did not qualify for innocent spouse relief. The reasoning in Kistner factored the abuse history into the reason to know analysis, and remanded the case for further consideration, in spite of the fact that the spouse in its case did not assert that she signed the returns due to deception or coercion. Kistner, 18 F.3d at 1526.[81] Other courts have taken a similar approach. See, e.g., Aude v. Comm'r of Internal Revenue, 74 T.C.M. (CCH) 993 (T.C.1997).
*824 In the record before this Court, there is evidence of mental abuse to the Debtor. The Kistner Court explicitly recognizes the role of mental abuse, even short of actual coercion, in the innocent spouse analysis. However, in this case, unlike the spouse in Kistner, the Debtor is able to raise the issue of duress under the innocent spouse statute. In light of its conclusion that the Debtor had actual knowledge of the understatement of tax in this case, this Court finds it more appropriate to proceed with an analysis of whether those returns were a product of duress, rather than to examine whether long term mental abuse is per se a factor limiting the Debtor's knowledge. Because the Court finds the Debtor knew of the understatement of tax in both 1994 and 1995, it denies innocent spouse relief under § 6015(b)(1)(C), and turns to an analysis of the issue of duress.
C. § 6015(c)(3)(C) Duress
The present innocent spouse statute explicitly excepts a taxpayer from liability, under certain circumstances, where the spouse establishes the tax returns in question were signed under duress. See § 6015(c)(3)(C). Proving the returns were signed under duress is the only avenue for relief where a Court determines the spouse "... had actual knowledge, at the time such individual signed the return, of any item giving rise to a deficiency (or portion thereof)...." Id. At trial, the parties presumed that if this Court determined the Debtor had actual knowledge under § 6015(b)(1)(C), that determination would suffice to establish actual knowledge under § 6015(c)(3)(C). However, whether the standards for actual knowledge in the two separate provisions are the same may be open to interpretation.
In a recent case, Cheshire v. Comm'r of Internal Revenue, 115 T.C. No. 15, 2000 WL 1227132 (T.C. Aug. 30, 2000) (page references unavailable), the Tax Court held "... the electing spouse must have an actual and clear awareness of the omitted income." Id. The Court further held the electing spouse need not know "whether the entry on the return is or is not correct." Id.[82] Under the facts in the instant case, this Court concludes the Debtor's knowledge of the omitted income is sufficient to establish actual knowledge under § 6015(c)(3)(C).[83]
As duress is not defined in the Internal Revenue Code, the Court must first look to case law for guidance. The law concerning the issue of duress and the filing of joint tax returns pre-dates the existence of modern innocent spouse provisions of the Internal Revenue Code. See *825 Furnish v. Comm'r of Internal Revenue, 262 F.2d 727, 731-3 (9th Cir.1958); Stanley v. Comm'r of Internal Revenue, 45 T.C. 555, 560-61, 1966 WL 1239 (T.C.1966). In the Furnish opinion, the Ninth Circuit defined duress broadly: "`Duress' may exist not only when a gun is held to one's head while a signature is being subscribed to a document. A long continued course of mental intimidation can be equally as effective, perhaps more so, in constituting duress." Furnish, 262 F.2d at 733. In contrast to the reasonable taxpayer under the reason to know analysis, the standard used in determining the existence of duress is wholly subjective. Id. Thus, the focus is on the mind of the individual at the relevant time in question, "rather than [on] the means by which the given state of mind was induced...." Stanley, 45 T.C. at 561.
The definition of duress was further refined in the Tax Court's Stanley opinion. In Stanley, the court found that, though the spouse seeking relief in that case was the victim of long term physical abuse at the hands of her husband, she failed to prove she signed the returns in question under duress. Stanley, 45 T.C. at 564. Because she could point to no specific reason for her reluctance to sign the relevant returns, other than a general unwillingness, she did not prove that "but for" the threats, she would not have signed the returns. Id. at 563-64. The Stanley court stated "[n]ot only must fear be produced in order to constitute duress, but the fear must be a cause inducing entrance into a transaction, and though not necessarily the sole cause, it must be a cause without which the transaction would not have occurred." Id. at 564. Thus, while the Stanley spouse lived in constant fear of her husband's physical abuse, the required causal link between that fear and her signing the relevant returns was not established. Id.
The Stanley court concluded it lacked proof of a causal connection between the abuse and the signing of the tax returns, identifying the spouse's inability to articulate a specific reason for her reluctance to sign the relevant returns as one cause of the lack of proof. Id. at 563-64. Expounding on the difficulty of the missing causal connection, the court stated "... a reason or explanation for some opposition to signing would add support to [the spouse's] bare claim of unwillingness, just as proof of specific incidents at the time of the signing would add such support." Id. While proof of specific incidents at the time of the signing of the returns is not required to show duress, in the absence of a stated reason for the reluctance, proof of specific incidents becomes increasingly relevant. Id. at 564.
In the years following the Furnish and Stanley cases, courts continue to recognize duress as a defense to joint tax liability for innocent spouses. See, e.g., Malkin v. United States, 3 F.Supp.2d 493, 498-99 (D.Ct.N.J.1998); Pirnia v. Comm'r of Internal Revenue, 60 T.C.M. (CCH) 554 (T.C.1990) (page references unavailable); Brown v. Comm'r of Internal Revenue, 51 T.C. 116, 119-21, 1968 WL 1502 (T.C.1968). The analysis set out in Stanley is generally accepted in these cases, and is generally stated in two parts. See id.[84] The Court must determine that (1) the Debtor was unable to resist Mr. Hinckley's demands that she sign the returns, and (2) the Debtor would not have signed the returns without the constraint Mr. Hinckley placed on her. See Malkin, 3 F.Supp.2d at 499; Pirnia, 60 T.C.M. (CCH) 554; Brown, 51 T.C. at 119.
Duress Analysis
As the test for defining duress is subjective, it is appropriate to examine the time in question from the vantage point of the Debtor. The Debtor testified that Mr. *826 Hinckley had "... the most forceful will of any human being."[85] Always in complete control of the family's business matters, "... his word was law."[86] Throughout the course of their marriage, the Debtor and her family "... worked around [his personality] ..." by avoiding any interference in the family business and tax matters.[87] It appears from the record that Mr. Hinckley had a dynamic presence and strong opinions.
The two years in question in this case come at an unusual and stressful time in the Hinckley's 37 year marriage history.[88] The couple had to move after many years of belonging to a community where Mr. Hinckley held a respectable and responsible position with a large company and played a leadership role in the business community;[89] the same community where the Debtor was involved in her own pursuits and in raising their four children.[90] The couple found themselves alone for the first time in years.[91] Mr. Hinckley struggled to find new employment, and never truly succeeded.[92] Mrs. Hinckley testified she felt very isolated after leaving all of her friends.[93]
During this time, the Debtor also began to notice the gradual decline of her husband's mental acuity and self control. Always forceful, he became belligerent and prone to "rages."[94] She testified that he would become "... like a rabid dog...," that he would forget where he was, and that he was prone to throw and destroy items that were valuable to her.[95] She also testified that he was very cruel to their two and one half year old granddaughter, and that she felt this was because of her own close relationship to the child.[96] While Mr. Hinckley never physically attacked the Debtor, nor did he threaten to physically harm her, the Debtor testified specifically that she became very afraid he would kill her during those last two years together.[97] He did threaten to kill himself.[98] Those two years are also the years significant to the Court's inquiry.
At the time relevant to the signing of the tax returns in question, the Debtor testified she signed the returns only to placate her husband.[99] When she questioned him about the contents of the April 20th letter, he flew into a rage. He ordered her to sign the document and not to question his judgment in matters she did not understand. He became very agitated and, in the end, she signed.[100] He adamantly opposed her suggestion that she *827 file a separate return.[101] She testified there was a similar argument the following year when she again questioned his theory about the pension income. In 1996, she capitulated again.
The Court notes at this point the significance of Mr. Hinckley not being an average tax protester. Federal jurisprudence contains many cases involving individuals who assert novel arguments such as "... they [are] not taxpayers within the meaning of the tax laws, that wages are not income, that the Sixteenth Amendment does not authorize the imposition of an income tax on individuals, and that the Sixteenth Amendment is unenforceable." See Cheek v. United States, 498 U.S. 192, 195, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991).[102] Many federal courts, including this Court, are very familiar with these arguments.
Unlike the typical tax protester, Mr. Hinckley has a graduate degree in taxation law. When he concluded that his income was excludable from gross income under § 104 of the Code, which governs compensation for injuries or sickness, he was not making a tax protester's usual frivolous argument.[103] Mr. Hinckley asserted that, rather than a pension, he actually received a settlement for foregoing tortious litigation against Union Central.[104] While the validity of this argument is not before the Court, and the Court makes no comment of the likelihood of success on the merits should Mr. Hinckley have pursued his theory in court, this Court notes the issues involved in his assertion are certainly being litigated by others.[105]
The IRS argues the Debtor did not prove duress because she failed to offer sufficient evidence of specific threats or incidents at or near the moment the Debtor signed the returns. Dismissing Mr. Hinckley's rages as shouting and arm waving, the IRS asserts that a continued course of mental intimidation is required for mental intimidation to rise to the level of duress.[106] The Court agrees that mental intimidation over a long period of time is recognized by courts as an effective way to constrain another individual's will. See Furnish, 262 F.2d at 733. However, the Court disagrees it is required to constitute duress by mental coercion. Further, while proof of specific incidents of threatening behavior at the moment of signing the tax return is significant, it is not the only proof a taxpayer must offer to prove duress. See Stanley, 45 T.C. at 563-64.
*828 In this case, the Debtor does not assert Mr. Hinckley held a gun to her head in order to force her to sign the joint returns in question. The record does establish, however, Mr. Hinckley is not an average husband. To begin with, he has a uniquely sophisticated and specialized knowledge of tax issues and law, especially when compared to the average person. During the thirty-plus years that he prepared the couple's tax returns, he brooked no argument, but also managed not to run afoul of the IRS in all of that time until 1995.
Unlike the spouse in Stanley, the Debtor articulates a very specific reason for her reluctance to sign the returns in question she thought his theory was very likely incorrect. Additionally, she testified she would not have signed the returns were she not afraid of what her husband would do, either to her, or to himself, if she refused. Thus, the signing of these returns took place at a time when the Debtor was in fear, and was reluctant to participate. She capitulated only to avoid further verbal and mental assaults from a strong willed, well-educated husband. At the time in question, Mr. Hinckley's unpredictability and volatility are reaching a peak that will ultimately end in his entering a nursing home. Under these conditions, the Court concludes, the Debtor's acts were not voluntary and were the product of duress.[107]
After viewing the Debtor's demeanor, hearing or reviewing her testimony, and considering other evidence, the Court finds she could not resist her husband's demands.[108] The Court also finds the Debtor would not have willingly signed tax returns without the income included, but for Mr. Hinckley's constraint on her will. The Debtor signed the 1994 and 1995 tax returns while under duress, entitling her to innocent spouse relief under § 6015(c)(3)(C).
Accordingly, it is
ORDERED, ADJUDGED, AND DECREED that the Objection to Claim filed by the Debtor, Ellen Ann Hinckley, be, and the same is hereby, sustained. The Internal Revenue Service's claim is disallowed.
NOTES
[1] Throughout this opinion, all section references are to Title 26 of the United States Code unless otherwise indicated.
[2] Enacted in 1998, § 6015 replaced prior § 6013(e). See Internal Revenue Service Restructuring and Reform Act of 1998, Pub.L. No. 105-206, § 3201, 112 Stat. 734 (1998) (codified as amended at 26 U.S.C. § 6015 (2000)). Interestingly, a commentary in Tax Notes Today states that "[t]wo years after enactment, the innocent spouse statute is providing anything but relief to taxpayers, practitioners, the IRS, and the Tax Court, panelists agree at a June 13 Community Tax Law Project conference at the University of Richmond T.C. Williams School of Law...." Stratton, S. & Field, E., Innocent Spouse Issues Plague Practitioners, IRS, and Courts, Tax Notes Today (Wed., June 14, 2000). The article addresses many of the inconsistencies and difficulties practitioners and courts face when applying or interpreting the new language and concepts in § 6015. Id.
[3] Section 6015(b)(1) essentially affords the same relief found in former § 6013(e). See Tr. at pp. 9-10. Thus far, the Tax Court has on two occasions generally applied the case law analyzing § 6013(e) to cases under § 6015(b). See Cheshire v. Comm'r of Internal Revenue, 115 T.C. No. 15, 2000 WL 1227132 (T.C. Aug. 30, 2000) (page references unavailable); Charlton v. Comm'r of Internal Revenue, 114 T.C. No. 22, 2000 WL 626760 (T.C. May 16, 2000) (page references unavailable).
[4] The IRS objected at trial to the defense of duress, arguing it was not sufficiently pled in the Debtor's Objection to Claim, and not brought to light during discovery. See Tr. at pp. 12-29. For reasons stated on the record in open court, the Court overruled the objection by the IRS and allowed the trial to proceed on the duress issue. Id.
The Debtor also argued § 6015(f) should afford her relief. For reasons stated on the record in open court, the Court concluded this relief is not within the Court's jurisdiction to entertain. Tr. at pp. 29-32. A recent decision by the Tax Court also supports this conclusion. See Cheshire, 115 T.C. No. 15, 2000 WL 1227132 (T.C. Aug. 30, 2000) (page references unavailable) (holding the Tax Court may review a denial of relief under § 6015(f) after an individual applies to the Secretary and is rejected, and overturning a portion of the Secretary's decision as an abuse of discretion). Here, the Debtor has never applied for § 6015(f) relief with the Secretary. See Tr. at pp. 11, 31-33. See also Charlton, 114 T.C. No. 22, 2000 WL 626760 (T.C. May 16, 2000) (page references unavailable).
[5] See (b)(1)(A).
[6] See (b)(1)(B).
[7] See (b)(1)(D).
[8] Tr. at p. 51.
[9] See (b)(1)(E) & (c)(3)(C) (regarding duress). See Tr. at pp. 53-57.
[10] Tr. at pp. 53-55. To some extent, the parties differed regarding the extent of a(b)(1)(C) analysis. The IRS asserts there is no need to reach the issue of whether the Debtor had a reason to know because, they argue, she had actual knowledge of the pension, which is sufficient to deny relief. Id. at p. 54. The Debtor asserts the reason to know analysis is relevant on these facts. Id.
[11] Tr. at pp. 51-57.
[12] Neither party was able to produce the original or a copy of the 1994 joint return at trial. The parties stipulated that it exists, and that the Debtor signed it, at the start of the trial. See Tr. at p. 50.
[13] Tr. at p. 91.
[14] Tr. at p. 59.
[15] Tr. at p. 60.
[16] Tr. at p. 62.
[17] Tr. at pp. 71-72.
[18] Tr. at p. 73; Dep. Tr. at p. 22.
[19] Dep. Tr. at pp. 42-43. A copy of the Marital Settlement Agreement can be found at IRS Exh. 7-3 (exhibits to Dep. of Debtor taken February 9, 1999). Admitted as IRS Exh. 7, Tr. at p. 102.
[20] See Tr. at p. 92; IRS Exh.'s 7-4, 7-7, & 7-8 (exhibits to Dep. of Debtor taken February 9, 1999). Admitted as IRS Exh. 7, Tr. at p. 102.
[21] 26 U.S.C. § 104; Dep. Tr. at pp. 83-4; Debtor's Exh. 4 (admitted Tr. at pp. 77-78).
[22] See Debtor's Exh. 4. See also Dep. Tr. at pp. 118-119.
[23] Debtor's Exh. 4, p. 1. The letter is in response to the "disallowance of our claim for refund." Id. Mr. Hinckley also amended returns around this same time in March of 1995. The amended returns covered at least two previous years, asserting the pension was not income and requesting a refund. See IRS Exh.'s 7-5, 7-9, & 7-8 (exhibits to Dep. of Debtor taken February 9, 1999). Admitted as IRS Exh. 7, Tr. at p. 102. Those prior amended returns are not at issue in this case.
[24] This standard originated in the Fifth Circuit Court of Appeals case Sanders v. United States, 509 F.2d 162, 167 (5th Cir.1975). See Stevens, 872 F.2d at 1505. The standard applies in cases involving either omissions or deductions. See id. at n. 8. But see, Reser v. Comm'r of Internal Revenue, 112 F.3d 1258, 1267 (5th Cir.1997) (holding Sanders standard applied in omission cases, but adopting a different standard for deduction cases).
[25] Tr. at p. 58.
[26] Tr. at p. 58-9, 62.
[27] Tr. at p. 60-62.
[28] Tr. at p. 62.
[29] Tr. at p. 63.
[30] The Debtor's college teaching is discussed fully in her deposition. Dep. Tr. at pp. 17-22.
[31] Dep. Tr. at pp. 111, 115.
[32] Copies of Mr. Hinckley's degrees, as well as his admission to the Ohio bar, are in evidence. See Composite Exh. C. to Debtor's Mot. for Summ. J., found in Debtor's Exh. 9. Admitted Tr. at p. 69.
[33] A detailed account of Mr. Hinckley's career is in evidence. See Debtor's Exh. 5. Admitted Tr. at p. 65-6.
[34] Mr. Hinckley's work summary indicates Union Central is a "Four Billion Dollar Combination of Companies." See id.
[35] Tr. at pp. 63-4.
[36] Tr. at p. 63; Dep. Tr. at p. 29.
[37] Tr. at pp. 63-4; Dep. Tr. at pp. 92-3.
[38] Dep. Tr. at pp. 43-50.
[39] Dep. Tr. at p. 92.
[40] Dep. Tr. at p. 92.
[41] Tr. at pp. 69-70; Dep. Tr. at p. 79.
[42] Tr. at p. 69; Dep. Tr. at p. 79.
[43] Tr. at p. 70.
[44] Dep. Tr. at p. 96.
[45] Dep. Tr. at pp. 89, 108.
[46] Dep. Tr. at p. 102.
[47] Tr. at pp. 70-71.
[48] The Debtor speculates that Mr. Hinckley's corporate expenditures at the expense of Union Central may have led to his dismissal in 1987. Tr. at p. 71.
[49] Tr. at p. 76. Mr. Hinckley's salary in the year he left Union Central was $360,000, which he retained the first year after his dismissal. Id. The following year, the pension dropped to $300,000.00. Id. From the third year to the present, he received the approximately $90,000.00 at issue in this case. Id.
[50] Dep. Tr. at p. 35. The Debtor also testified that she would give Mr. Hinckley paid bills to mail to creditors and he would send in some, but not others. Id. at p. 57.
[51] Dep. Tr. at pp. 28-9. Mr. Hinckley's injury required extensive reconstructive surgery over a period of at least one and one half years, and included severe complications. Id.
[52] Tr. at p. 71. The relationship between the two events is unclear in the record.
[53] See Debtor's Exh. 4; Dep. Tr. at p. 66, 88.
[54] Dep. Tr. at pp. 29-32.
[55] Dep. Tr. at pp. 29-32.
[56] Tr. at pp. 71-2; 82-3; Dep. Tr. at pp. 24-25. The Court also notes the discovery of this secret life precipitated the Debtor's separation from her husband. Tr. at pp. 71-2.
[57] Dep. Tr. at pp. 33-4.
[58] Dep. Tr. at p. 34.
[59] Dep. Tr. at p. 34.
[60] Dep. Tr. at pp. 29, 64.
[61] Tr. at pp. 82-3.
[62] Dep. Tr. at pp. 60, 74.
[63] Dep. Tr. at p. 92.
[64] Tr. at p. 63.
[65] Tr. at p. 88. The Debtor knew of the $90,000 per year pension as early as 1991 four years after Mr. Hinckley was terminated. Tr. at p. 88; Dep. Tr. at pp. 64-65.
[66] Dep. Tr. at pp. 54-7.
[67] IRS Exh. 7-9 (exhibit to Dep. of Debtor taken February 9, 1999). Admitted as IRS Exh. 7, Tr. at p. 102. The Court notes a 1040X for the 1991 tax year with the same theory regarding the exclusion of the pension from income appears as IRS Exh. 7-5 and bears what appears to be Debtor's signature. This 1040X is dated March 2, 1995, some 7 days prior to the date on the 1040X for 1993. See Exh. 7-9. The Debtor testified that Mr. Hinckley was very angry when she questioned signing the 1040X for 1991. Tr. at p. 79; Dep. Tr. at p. 86. She signed that document on March 2, 1995. Tr. at p. 79. As mentioned above, the IRS previously granted innocent spouse relief to the Debtor for other deficiencies for the 1991 tax year. See Tr. at pp. 14-15.
[68] A review of the document in comparison to the other documents that bear her acknowledged signature supports the conclusion that someone else, presumably Mr. Hinckley, signed her name. See IRS Exh. 7-9 (exhibit to Dep. of Debtor taken February 9, 1999). Admitted as IRS Exh. 7, Tr. at p. 102. The Debtor also testified that Mr. Hinckley, in connection with his pension settlement, signed her name to a document permitting the pension benefit to end at the death of her husband. Tr. at p. 76. The Court notes, however, that the Debtor also testified some years she never saw a tax return, that Mr. Hinckley signed her name. Dep. Tr. at p. 89.
[69] Tr. at p. 95.
[70] According to the Debtor's testimony, Mr. Hinckley was very confident about his theory. Dep. Tr. at pp. 83-4, 117-9.
[71] Indeed, at this point, the Debtor did not know that Mr. Hinckley, as discussed previously, had already forged her signature twice; once in March of 1995 on a 1040X form amending their prior year's return, Tr. at p. 80, and once on a document that signed away all of her rights to the pension income upon his death. Tr. at p. 76.
It also appears from the record that he initiated an Objection to Claim in the couple's original joint bankruptcy, based upon the same theory he espoused in the returns at issue, without Debtor's knowledge or consent. Dep. Tr. at pp. 86-89. That case was severed from the instant bankruptcy case on March 4, 1999. Finally, the Debtor testified at deposition that Mr. Hinckley sued the United States Government on behalf of both parties without her knowledge. Dep. Tr. at p. 87.
[72] Tr. at p. 94.
[73] The parties stipulated to this date. Tr. at p. 80.
[74] Tr. at pp. 93-4.
[75] Tr. at p. 94.
[76] Tr. at p. 93.
[77] Tr. at p. 94.
[78] Tr. at p. 100.
[79] Tr. at p. 100.
[80] In light of its conclusion that the Debtor knew of Mr. Hinckley's omission of income on the returns in question, it is unnecessary for the Court to determine whether mere knowledge of the pension's existence, i.e. knowledge of the underlying transaction that produced the income, would be sufficient to deny innocent spouse relief. However, much of the case law suggests knowledge of the underlying transaction would be sufficient in omission cases. See, e.g., Reser v. Comm'r of Internal Revenue, 112 F.3d 1258, 1267 (5th Cir.1997); Resser v. Comm'r of Internal Revenue, 74 F.3d 1528, 1535 (7th Cir.1996); Erdahl v. Comm'r of Internal Revenue, 930 F.2d 585, 589 (8th Cir.1991) (discussing knowledge of the underlying transaction that produced income as the standard in cases involving omission of income in contrast to cases involving deductions that give rise to an understatement of tax); Price v. Comm'r of Internal Revenue, 887 F.2d 959, 963 at n. 9 (9th Cir. 1989) (same); Purcell v. Comm'r of Internal Revenue, 826 F.2d 470, 474 (6th Cir.1987) (applying the standard in omission case that knowledge of the transaction itself is at issue, not an understanding of the tax consequences of the understatement).
The Court further notes a finding of actual knowledge arguably obviates the need to apply the factors of the reason to know analysis. The IRS argued this point to the Court in this case. See supra note 10. However, in the interest of thorough analysis, there is no reason to ignore the factors. Further, there is no reason for the Court to make findings of fact regarding the factors and not record them in light of its ultimate conclusion. Other courts have blurred this line as well. See, e.g., Wiksell v. Comm'r of Internal Revenue, 67 T.C.M. (CCH) 2360 (T.C.1994).
[81] On remand, the Kistner spouse was afforded innocent spouse relief in light of the appeals court ruling and further consideration of the equity of holding the spouse responsible. See Kistner v. Comm'r of Internal Revenue, 69 T.C.M. (CCH) 1873 (T.C.1995) (page references unavailable).
[82] The Cheshire majority's holding is criticized in a lengthy dissent, which argues that a review of "... the legislative history unequivocally shows that the Congress intended to require the Commissioner to prove that the putative innocent spouse knew that his or her tax return was incorrect." Cheshire, 115 T.C. No. 15 (Colvin, J. dissenting, joined by Marvel, Gale, and Parr, JJ.) The dissent also criticizes the Tax Court's failure to address its earlier opinion in Charlton, 114 T.C. No. 22, 2000 WL 626760 (T.C. May 16, 2000) (page references unavailable), where the Tax Court drew a distinction between a spouse knowing of, and having access to, correct information under (b)(1)(C), and proof of actual knowledge under (c)(3)(C). See Cheshire, 115 T.C. No. 15 (Colvin, J. dissenting).
This Court also notes the reasoning in an even earlier Fourth Circuit opinion, Grossman v. Comm'r of Internal Revenue, 182 F.3d 275, 279-80 (4th Cir.1999), where the court held an individual ineligible for innocent spouse relief by inferring that the Tax Court's finding of civil tax fraud necessarily included a finding of actual knowledge of the omitted income. Id. Though the Grossman court concludes the putative innocent spouse's ineligibility is due only to his actual knowledge of underpayments, the court also noted he intended to defraud the IRS, thus implicitly including a conclusion that the individual knew of the error in the return. See id.
[83] The Debtor testified that, at the very least, she suspected the returns were incorrect due to the omission of income. See, e.g. Dep. Tr. at pp. 41-42. Thus, even under the more stringent standard urged in the Cheshire dissenting opinion, this Debtor demonstrated actual knowledge. See Cheshire, 115 T.C. No. 15 (Colvin, J. dissenting).
[84] This may be due in part to the Stanley court's clarification that a Federal standard of duress should be implemented when interpreting the Internal Revenue Code, rather than allowing the use of varied state laws. See Stanley, 45 T.C. at 561-2.
[85] Dep. Tr. at p. 28 (referring to his reaction to his 1987 head injury).
[86] Dep. Tr. at p. 93.
[87] Dep. Tr. at p. 92.
[88] Tr. at p. 84.
[89] Debtor's Exh. 5 (Mr. Hinckley's Curriculum Vitae).
[90] Tr. at p. 62-3, 84.
[91] Tr. at p. 84.
[92] Dep. Tr. at p. 75.
[93] Tr. at p. 84.
[94] Dep. Tr. at p. 85.
[95] Tr. at pp. 81-2; Dep. Tr. at pp. 84-5.
[96] Tr. at pp. 82, 84; Dep. Tr. at p. 85. In her deposition, the Debtor recounts a particularly disturbing incident involving her husband and the grandchild. The Court will not recount the details here, but notes the incident evidences the extreme nature of Mr. Hinckley's controlling and domineering personality.
[97] Dep. Tr. at p. 85.
[98] Tr. at pp. 93-4; Dep. Tr. at p. 85.
[99] Tr. at pp. 79-81; Dep. Tr. at p. 86.
[100] The Court notes the Debtor testified that she stood up to Mr. Hinckley and argued with him about signing the letter, but he countered by telling her, "I have two law degrees and you have to do this and I am your husband and you have to sign this." Tr. at p. 77. The Debtor also testified that Mr. Hinckley was very angry when she questioned signing the 1040X for 1991, (IRS Exh. 7-5). She signed that document on March 2, 1995.
[101] Tr. at pp. 81, 96.
[102] Accord Stoecklin v. Comm'r of Internal Revenue, 865 F.2d 1221, 1224 (11th Cir.1989) (characterizing similar theories as patently frivolous); McNair v. Eggers, 788 F.2d 1509, 1510 (11th Cir.1986) (same); see also, In re Bertelt, 250 B.R. 739, 745-46, 748-50 (Bankr. M.D.Fla.2000) (rejecting similar arguments, including argument that Debtor's income is "foreign" income as Debtor resides in Florida, a state foreign to the United States); Commonweal, Inc. v. Internal Revenue Service (In re Commonweal), 171 B.R. 405, 407-09, 411 (Bankr.M.D.Fla.1994) (piercing the corporate veil of Debtor as nominee of Stoecklin (supra this note) as sham to avoid taxes).
The IRS investigates illegal tax protesters and maintains records regarding the activities of these groups. See Clarkson v. Internal Revenue Service, 811 F.2d 1396, 1397 (11th Cir. 1987).
[103] 26 U.S.C. § 104; Dep. Tr. at pp. 83-84.
[104] A cursory examination of cases involving § 104 disputes reveals the standard to determine questions of the taxable nature of judgments or settlements requires a court to ask "`[...] in lieu of what was the judgment or litigation settlement awarded?'" Srivastava v. Comm'r of Internal Revenue Service, 220 F.3d 353, 365 (5th Cir.2000) (quoting Knuckles v. Comm'r., 349 F.2d 610 (10th Cir.1965)). The intent of the payor, Union Central here, "... carries the most weight." Id. at 365-66. Had his theory ever gone to trial, Mr. Hinckley would have born the burden to prove it was excludable from income under § 104. See Taggi v. United States, 35 F.3d 93, 95 (2nd Cir.1994).
[105] See, e.g., Taggi, 35 F.3d at 95.
[106] See Post-Trial Br. by United States on Debtor's Objection to Claim, at p. 10 (citing Furnish, 262 F.2d at 733; Pirnia, 60 T.C.M. (CCH) 554).
[107] The Court notes it is not until the Debtor learns in early 1997 of the secret life her husband led for the last 25 years of their marriage, that she separates from him permanently. That year the Debtor filed her own separate tax return. She testified at trial that she reports the pension income to the IRS, which comes to her after the divorce, and she has Union Central withhold the tax from each check. It is only after the marriage ended that the Debtor sought outside opinions about the taxable nature of the income for the first time. Dep. Tr. at pp. 80-1, 104, 119.
[108] See Restatement (Second) of Contracts, § 175 cmt. c. Regarding the subjective test of inducement integral to the duress analysis, the comment states: "All attendant circumstances must be considered, including such matters as the age, background and relationship of the parties. Persons of a weak or cowardly nature are the very ones that need protection; the courageous can usually protect themselves." Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594320/ | 954 So.2d 1172 (2007)
MECHANIC
v.
STATE
No. 4D05-1574.
District Court of Appeal of Florida, Fourth District.
April 25, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2587111/ | 240 P.3d 659 (2010)
2010-NMCERT-004
STATE
v.
RANDY D.
No. 32,288.
Supreme Court of New Mexico.
April 16, 2010.
Denials of Certiorari. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3343011/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION
The motions for protective order and to quash subpoenas are denied at this time except as to pricing/price structure. Information claimed by a defendant to be his or its trade secret shall be subject to a particularized identification by that defendant and later determination by the court and, in the interim, shall be subject to the following:
PROTECTIVE ORDER
1. Until further order of the court, which order shall be made not later than the completion of jury selection, all information, documents and transcripts which the parties may obtain through the depositions of the defendants, including persons designated pursuant to Practice Book § 244(g) 6 and which the defendants particularly identify in good faith as a trade secret shall not be disseminated, shown, disclosed, divulged or transmitted by any one to any person or organization other than the parties to this lawsuit and their respective attorneys and to any investigators and potential expert witnesses retained by the parties to this lawsuit or their attorneys and stenographic personnel with a need and obligation to see and receive the same, PROVIDED, that no such information or document shall be disseminated, shown, disclosed, divulged or transmitted CT Page 13568 to any person whatsoever, other than to the parties and their attorneys, unless and until such other person first is shown a copy of this protective order, reads it, agrees to be bound by its terms and to the terms of any order supplementing this order, and signifies his or her agreement by signing both pages of this order.
2. All such documents and transcripts which an attorney representing any of the parties believes in good faith may be entitled to protection from disclosure after the completion of jury selection, shall be marked "CONFIDENTIAL: SUBJECT TO COURT ORDER" and shall be submitted to the court for review and appropriate order before being released from the protection afforded by this order.
3. Whenever any pleading, document or motion referencing, incorporating or attaching any documents described in paragraph 2 of this order is filed with the court or delivered to any judge thereof, it shall be filed or delivered under seal pending review by the court or judge and shall be marked by the party filing or delivering same "CONFIDENTIAL: SUBJECT TO COURT ORDER".
BY THE COURT
Bruce L. LevinJudge of the Superior Court | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1596503/ | (2008)
THE ROCKEFELLER UNIVERSITY, a New York Not-for-profit corporation, Plaintiff,
v.
LIGAND PHARMACEUTICALS INCORPORATED, a Delaware corporation, Defendant.
No. 08 Civ. 2755(PKC).
United States District Court, S.D. New York.
May 19, 2008.
MEMORANDUM AND ORDER
P. KEVIN CASTEL, District Judge.
Defendant Ligand Pharmaceuticals Incorporated ("Ligand") has moved to dismiss this action for lack of personal jurisdiction and improper venue. Alternatively, it seeks to transfer the action to the Southern District of California, pursuant to 28 U.S.C. § 1404(a). For the reasons set forth below, this court concludes that there is general jurisdiction over Ligand, venue is proper and the section 1404(a) factors do not favor transfer to another district. The motion is denied.
Background
The action was commenced in Supreme Court New York County by The Rockefeller University (the "University") and timely removed to this Court by Ligand invoking diversity jurisdiction. 28 U.S.C. §§ 1332, 1441(b).[1] The University alleges that in 1992 it licensed to Ligand certain technology, know-how and inventions relating to the tools to screen therapeutic drugs. It further alleges that Ligand granted a sublicense to a predecessor-in-interest to SmithKline Beecham ("SKB") and that Ligand has received milestone payments from SKB. The University alleges that Ligand breached the 1992 licensing agreement by failing to pay to the University its contractual share of the milestone payments.
The licensing agreement between the University and Ligand and made as of September 30, 1992 (the "Agreement"), recites that Ligand is a Delaware corporation with its principal place of business in San Diego, California, and that the University is a non-profit educational corporation organized under the laws of the state of New York with an office in Manhattan. The Agreement refers to the "valuable technology and know-how relating to peptidyl hormone mediated gene expression" developed by "Dr. James Darnell and his colleagues at Rockefeller and at NYU." The licensed territory is defined as the "entire world." The agreement contains a New York choice of law provision.
In June 1992, Ligand's representatives were invited to New York to meet with representatives of the University in connection with the negotiation of what eventually became the licensing agreement. (Letter of Giesar, June 17, 1992.) Following execution of the agreement, Dr. Darnell wrote to Ligand's Director of Research thanking him for his visit to the University. (Letter of Darnell, Dec. 22, 1992.) A January 25, 1993 meeting was scheduled between Dr. Darnell and Dr. John Rosen of Ligand and Darnell's administrative secretary arranged for housing accommodations for Rosen at a University facility. (Letter of Cousseau, Jan. 20, 1993.)
Ligand argues that there is no general or specific jurisdiction over it. It asserts that those Ligand employees who performed work pursuant to the agreement with SKB's predecessor did so in California and not in New York. (Decl. of Marschke, Mar. 20, 2008.) It states that, at the time of suit, it was not present in New York on a systematic or continuous basis. It neither owns nor leases real estate in New York; it maintains no telephone listing and has no employees in New York. (Decl. of Warfield-Graham, Mar. 19, 2008.) It concedes that it is authorized to do business in this state, but disputes whether such authorization is, alone, a sufficient basis for jurisdiction. Ligand sold the product AVINZA in New York from about 1998 to about 2007, but asserts that it no longer sells the product and that the product has nothing to do with the subject matter of this lawsuit. (Id.)
Discussion
A. Personal Jurisdiction
On a defendant's motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating that the court has jurisdiction. See In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 206 (2d Cir.2003) (per curiam). "[T]he nature of the plaintiff's obligation varies depending on the procedural posture of the litigation." Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.1990). Prior to discovery, a plaintiff may defeat a Rule 12(b)(2) motion by "pleading in good faith legally sufficient allegations of jurisdiction." Id. (citation omitted). Plaintiff must make a "prima facie showing" of personal jurisdiction. Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 184 (2d Cir.1998) (quotation omitted).
Personal jurisdiction may be exercised over any defendant "who could be subjected to the jurisdiction of a court of general jurisdiction in the state where the district court is located." Rule 4(k)(1)(A), Fed.R.Civ.P. If plaintiff is able to establish a factual predicate for jurisdiction under the laws of the forum statehere, New Yorkthen the court must consider whether the exercise of jurisdiction violates due process. Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 94 (2d Cir. 2000).
Under New York's general jurisdiction statute, N.Y. CPLR § 301, "a foreign corporation is subject to general personal jurisdiction in New York if it is `doing business' in the state." Wiwa, 226 F.3d at 95. "`[A] corporation is "doing business" and is therefore "present" in New York and subject to personal jurisdiction, with respect to any cause of action, related or unrelated to the New York contacts, if it does business in New York, "not occasionally or casually, but with a fair measure of permanence and continuity."'" Id. (quoting Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915 (1917)) (alteration in Wiwa). The corporation must be engaged in "a continuous and systematic course of `doing business' here...." Frummer v. Hilton Hotels Int'l, Inc., 19 N.Y.2d 533, 536, 281 N.Y.S.2d 41, 227 N.E.2d 851 (1967). There is no precise test for "doing business" in the state, and courts must look to "the aggregate of the corporation's activities in the State...." Laufer v. Ostrow, 55 N.Y.2d 305, 310, 449 N.Y.S.2d 456, 434 N.E.2d 692 (1982). There are, however, several traditional factors that courts consider when undertaking this analysis, and they are "whether the company has an office in the state, whether it has any bank accounts or other property in the state, whether it has a phone listing in the state, whether it does public relations work there, and whether it has individuals permanently located in the state to promote its interests." Wiwa, 226 F.3d at 98.
Here, plaintiff's claim of general personal jurisdiction over defendant rests on a theory of consent. Ligand has had on file with the Secretary of State of New York, from 1998 up to and including the date the summons was served, a proper authorization to do business. Under N.Y. Business Corporation Law § 1301(a), a foreign corporation may not "do business" in the state until it has been authorized to do so in accordance with the statute. Certain activities may be conducted in New York, e.g., shareholder meetings or maintenance of bank accounts, without such authority. Id. § 1301(b). An application for authority to do business is filed with the Department of State. Id. § 1304. The filing must state "[t]he county within the state in which its office is to be located." Id. § 1304(5). In this case, Ligand's current filing with the New York Department of State states: "County: New York." The application for authorization requires the designation of the Secretary of State as its agent upon whom service may be served and also designation of an address "within or without this state" to which process received by the Secretary of State is to be mailed. Id. § 1304(6). Ligand has supplied the address of CT Corporation System at 111 Eighth Avenue, New York, New York as the address where process ought to be mailed. In addition, the application permits, but does not require, the designation of a "registered agent ... upon whom process against [the corporation] may be served." Id. § 1304(7). Ligand has elected to avail itself of this provision and has listed CT Corporation System at its New York County address as its "Registered Agent."
Upon the filing by the Department of State of the application, the foreign corporation becomes authorized to do business and "[s]uch authority shall continue so long as it retains its authority to do such business in the jurisdiction of its incorporation and its authority to do business in this state has not been surrendered, suspended or annulled in accordance with law." Id. § 1305. Ligand has the power to "revoke or change the designation of a registered agent." Id. § 1309-A(3). It also may surrender its authority to do business. Id. § 1310. There is no claim that Ligand has done either.
As support for the proposition that authorization to do business is not the equivalent of consent to personal jurisdiction, Ligand relies upon dictum in Beja v. Jahangiri, 453 F.2d 959, 962 (2d Cir.1972), and a district court decision following Beja and concluding that there was no personal jurisdiction over a defendant authorized to do business in New York, Bellepointe v. Kohl's Dep't Stores, Inc., 975 F. Supp. 562 (S.D.N.Y.1997). Beja observed that "[a]lthough the mere authorization to do business, even though granted at a corporation's request, may not be conclusive on the issue of jurisdiction under NYCPLR § 301, ... it is certainly very strong evidence that the corporation is subject to in personam jurisdiction, ..." 453 F.2d at 962 (citations omitted).[2]
With the exception of Bellepointe and one other district court case, Wright v. Maersk Line, Ltd., No. 99 Civ. 11282(LMM), 2000 WL 744370, at *1 (S.D.N.Y. June 9, 2000), cases since Beja have found personal jurisdiction where a defendant has maintained an active authorization to do business on file with the Department of State. See Chong v. Healthtronics, Inc., No. CV-06-1287 (SJF) (MLO), 2007 WL 1836831, at *6 (E.D.N.Y. June 20, 2007) (criticizing Bellepointe and Wright for relying on dictum in Beja. and noting that they are "not persuasive in light of the majority of federal district courts and New York courts which hold that a filing for authorization to do business in New York is sufficient to subject a foreign corporation to general personal jurisdiction in New York" (citing Erne Shipping Inc. v. HBC Hamburg Bulk Carriers GmbH & Co. KG, 409 F. Supp. 2d 427, 436 (S.D.N.Y.2006), rejected on other grounds by Aqua Stoli Shipping Ltd. v. Gardner Smith Pty Ltd., 460 F.3d 434 (2d Cir. 2006))); see also, Cicalo v. Harrah's Operating Co., Inc., No. 06 Civ. 221(PKL), 2008 WL 1847665, at *4 (S.D.N.Y. April 24, 2008) (Leisure, J.); Obabueki v. Int'l Bus. Mach., No. 99 Civ. 11262(AGS), 99 Civ. 12486(AGS), 2001 WL 921172, at *5 (S.D.N.Y. Aug. 14, 2001); Amalgamet, Inc. v. Ledoux & Co., 645 F. Supp. 248, 249 (S.D.N.Y.1986).
In maintaining an active authorization to do business and not taking steps to surrender it as it has a right to do, defendant was on constructive notice that New York deems an authorization to do business as consent to jurisdiction. See Augsbury Corp. v. Petrokey Corp., 97 A.D.2d 173, 175, 470 N.Y.S.2d 787 (3d Dep't 1983) Augsbury, 97 A.D.2d at 175, 470 N.Y.S.2d 787 ("A voluntary use of certain state procedures... is in fact a form of constructive consent to personal jurisdiction which has been found to satisfy due process...."); Le Vine v. Isoserve, Inc., 70 Misc. 2d 747, 749, 334 N.Y.S.2d 796 (N.Y. Sup.Ct., Albany Co.1972) ("When a foreign corporation is licensed to do business in New York, it consents to be sued on causes of action arising within and without the State.").
Judge Cardozo, speaking for a unanimous New York Court of Appeals, had occasion to address whether the designation by a foreign corporation of an agent in New York upon whom service of process may be made amounted to consent to jurisdiction solely for claims arising out of the transaction of business in New York or to all claims, regardless of where they arose. The Court concluded that it was a general consent to jurisdiction:
The state of New York has said that a foreign stock corporation, other than a moneyed corporation, shall not do business here until it has obtained a certificate from the secretary of state....
To obtain such a certificate, however, there are conditions that must be fulfilled. One of them is a stipulation, to be filed in the office of the secretary of state, "designating a person upon whom process may be served within this state." ... The person designated is a true agent. The consent that he shall represent the corporation is a real consent. He is made the person "upon whom process against the corporation may be served." The actions in which he is to represent the corporation are not limited. The meaning must, therefore, be that the appointment is for any action which under the laws of this state may be brought against a foreign corporation. Code Civ. Proc. §§ 1780, 432. The contract deals with jurisdiction of the person. It does not enlarge or diminish jurisdiction of the subject-matter. It means that whenever jurisdiction of the subject-matter is present, service on the agent shall give jurisdiction of the person.
Bagdon v. Philadelphia & Reading Coal & Iron Co., 217 N.Y. 432, 436-37, 111 N.E. 1075 (1916).
There are differences between the statutory regime at issue in Bagdon and that in existence today and the case is not controlling. But it is illustrative of New York's long-held view that the designation of an agent for service of process is not merely a mechanism for transmitting process but a "real consent" to jurisdiction.
A respected commentator has observed that foreign corporations "have no one to blame but themselves if they do not actually do business in New York or fail to surrender their license when they stop doing business here. The continuing existence of the privilege to do business in New York, regardless of whether it is exercised, rightfully yields jurisdictional consequences if the consent to service on the Secretary of State goes unrevoked." V. Alexander, Practice Commentaries, McKinney's CPLR § 301 at C301:6 (West 2001).
This Court concludes that Ligand's unrevoked authorization to do business and its designation of a registered agent for service of process amount to consent to personal jurisdiction in New York.
Because jurisdiction is premised upon consent, it is doubtful that the minimum contacts test under the due process clause presents an impediment to the exercise of jurisdiction. See Burnham v. Sup. Ct., 495 U.S. 604, 616-22, 110 S. Ct. 2105, 109 L. Ed. 2d 631 (1990) (jurisdiction based upon transient presence in the jurisdiction is not subject to a due process minimum contacts analysis). Even if due process considerations come into play, they are satisfied here. The burden that the exercise of jurisdiction will impose on Ligand is slight given its voluntary decision to enter into the Agreement with a New York-based entity; also, the interests in adjudicating the case in this District is substantial given that the technology subject to Agreement was developed by a research institution headquartered in the District. See Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 568 (2d Cir.1996).
B. Venue
Defendants also move to dismiss for improper venue. Rule 12(b) (3), Fed. R.Civ.P. "A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, ..." 28 U.S.C. § 1391(a). Section 1391(c) provides that, "[f]or purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced." 28 U.S.C. § 1391(c). Personal jurisdiction over the sole corporate defendant provides a proper basis for venue. Cicalo, 2008 WL 1847665, at *6 (citing PDK Labs, Inc. v. Proactive Labs, Inc., 325 F. Supp. 2d 176, 182 (E.D.N.Y.2004) and Laumann Mfg. Corp. v. Castings USA, 913 F. Supp. 712, 719 (E.D.N.Y.1996)).
Defendant, citing 28 U.S.C. § 1404(a), alternatively argues that, if there is jurisdiction and venue is found to be proper then the Court ought to transfer the case to the Southern District of California for the convenience of the parties and witnesses and in the interests of justice. Among the factors to be considered in deciding whether to transfer under section 1404(a) are the following: "(1) the plaintiffs choice of forum, (2) the convenience of witnesses, (3) the location of relevant documents and relative ease of access to sources of proof, (4) the convenience of parties, (5) the locus of operative facts, (6) the availability of process to compel the attendance of unwilling witnesses, [and] (7) the relative means of the parties." D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 106-07 (2d Cir.2006) (quoting Albert Fadem Trust v. Duke Energy Corp., 214 F. Supp. 2d 341, 343 (S.D.N.Y.2002)) (alteration in D.H. Blair).
In this case, plaintiff, who is headquartered in New York, commenced the first filed action in New York County, the day after a tolling arrangement between the parties expired. Defendant commenced an action in the United States District Court, Southern District of California later the same day. LIGAND PHARM., INC. v. ROCKEFELLER Univ., 08 CV 401(BEN)(WMC), 2008 WL 1896551 (S.D.Cal. Mar. 4, 2008). The first-filed New York action principally seeks damages against Ligand for breach of contract. The second-filed California action seeks declaratory judgment that Ligand is not liable to the University. No special circumstances exist that would take this case out of the general rule that the first-filed action should be given priority; nor are there balancing convenience factors tipping in Ligand's favor. Employers Ins. of Wausau v. Fox Ent'mt Group, Inc., 522 F.3d 271, 274-76 (2d Cir.2008).
Ligand points out that the research work that gives rise to the University's claim took place in California by California residents, many of whom are no longer employed by Ligand. But the lawsuit arises out of the rights conveyed in the 1992 licensing agreement to which the know-how, technology and inventions of the University's New York-based researchers are central. Dr. Darnell is of advanced years, and is New York-based. SMK is located in nearby Philadelphia. Subpoenas for depositions of Ligand's former employees at their home locations should minimize any inconvenience to them. The claims in this action are for breach of contract, specific performance, quantum meruit and declaratory relief. Some slight weight should also be given to the choice-of-law provision in the 1992 Agreement, although no difficult or novel issue of New York law has been identified. Although an assessment of the credibility of the witnesses is important in every case, this is not one with scienter-based claims. Because the stakes appear to be sufficiently high and neither side may credibly claim financial hardship, this Court anticipates that, for the purpose of trial, the parties will elect to transport and lodge distant witnesses within their control. On balance the convenience factors do not require a disturbance of the plaintiffs selection of forum.
Conclusion
Defendant's motion to dismiss for lack of personal jurisdiction and improper venue and, alternatively, for a transfer of venue under section 1404(a) is denied.
SO ORDERED.
NOTES
[1] Because the requirements for diversity jurisdiction are satisfied, it is not necessary to decide whether there is also federal question jurisdiction under the patent laws, as Ligand asserts.
[2] Beja relied upon Saggese v. Peare, 33 A.D.2d 900, 307 N.Y.S.2d 118 (1st Dept.1970), which was decided in the context of an assertion of quasi in rem jurisdiction over an out-of-state insurer, a theory which, for other unrelated reasons, is no longer good law. See Shaffer v. Heitner, 433 U.S. 186, 207-12, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594302/ | 432 N.W.2d 826 (1988)
230 Neb. 635
In re Interest of S.L.P., a Child under 18 Years of Age.
STATE of Nebraska, Appellee,
v.
B.P. and L.P., Appellants.
No. 88-320.
Supreme Court of Nebraska.
December 16, 1988.
*828 Tom Dawson, Lincoln, for appellant L.P.
Michael J. Elsken, Lincoln, for appellant B.P.
James Elworth, Deputy Lancaster County Atty., for appellee.
Bruce A. Carpenter, guardian ad litem, for S.L.P.
HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.
HASTINGS, Chief Justice.
The parents of S.L.P., a minor child, have appealed from the adjudication of the juvenile court terminating their parental rights. The father assigns as error that the State failed to prove by clear and convincing evidence that his mental illness will continue for a prolonged, indeterminate time so as to justify a finding that it is in the best interests of the minor that his parental rights be terminated. The mother raises the same complaint, plus alleging that Neb. Rev.Stat. § 43-292 (Reissue 1984) unconstitutionally deprives her of equal protection of the law. Each parent is represented by a separate attorney and each has a separate guardian ad litem, as does the minor child.
In an appeal from a judgment terminating parental rights, the Supreme Court tries factual questions de novo on the record, and is thus required to reach a conclusion independent of the trial court. However, where the evidence is in conflict, this court may consider and give weight to the trial court's observation of the witnesses and acceptance of one version of the facts rather than another. In re Interest of D.C., 229 Neb. 359, 426 N.W.2d 541 (1988).
The father's appeal may nearly be rejected out of hand. In January of 1986, 8 months before the birth of the minor child, he severely assaulted his wife, the mother, causing her a severe fracture-dislocation of the left wrist, left elbow, and left hip; cuts underneath her chin; and a very large bruise on her left underarm. It was necessary that she undergo surgery to replace her hip and to insert a partial prosthetic elbow. She remains permanently disabled.
The father has a long history of violent behavior and mental illness. He has been diagnosed as schizophrenic, paranoid type. He has been confined almost continuously in one of the state regional centers since 1975. One of his physicians stated that he is probably the most difficult patient he had seen in years, and has "some of the most severe and intractable delusions" that he has ever seen. He said that the father is "extremely dangerous to himself" and is "a constant danger to other people." The father is presently confined in the most restrictive, most secure ward in the regional center. His physician stated that under the very best of circumstances, it would be a minimum of 5 to 10 years before he would be ready to even leave the security unit for a less restrictive area of the regional center.
Section 43-292(5) provides that parental rights may be terminated when "[t]he parents are unable to discharge parental responsibilities because of mental illness or mental deficiency and there are reasonable grounds to believe that such condition will continue for a prolonged indeterminate period." *829 The father does not contest the allegation that he is presently unable to discharge his parental responsibilities because of mental illness. His argument is that the State did not prove the second element, that is, that his mental illness will continue for a prolonged, indeterminate period.
The only evidence concerning the likelihood of the father's recovery, or even improvement, was that his prognosis was "extremely poor" and that it would be a minimum of 5 to 10 years before he was even transferred to a less restrictive ward within the regional center. The evidence fully supports the finding made by the juvenile court.
As to the mother, the record also confirms the finding made by the trial court. She has been diagnosed as a paranoid schizophrenic. She has been mentally ill since at least 1978, when she was hospitalized at the Norfolk Regional Center. While her psychiatrist now entertains some doubts about the paranoid schizophrenic label, he nevertheless firmly believes that she has a mental illness, namely, a psychotic disorder. Her other doctors agree that she is a schizophrenic, paranoid type.
The mother occasionally suffers from delusions and was, at least in 1987, "clearly nonfunctional." She has a history of crises, suicide threats, poor judgment, social skills difficulties, and chaotic and unsatisfactory relationships. Her illness is a "major psychiatric disorder" which is "chronic" and "long term."
After being taken to the hospital, she was delusional, hearing voices, and having hallucinations, and had "markedly impaired reality testing." The mother was then transferred to the Madonna care facility. Seven months later she left that facility, but returned a short time later, and then in the latter part of October 1986, she again left against medical advice.
Some 3 months later, the mother was taken to the Community Mental Health Center because she was unable to care for herself. Following surgery on her hip, she was transferred to the Lincoln Regional Center. At that time she was extremely suspicious, had a distinct body odor, was disheveled, had neglected herself, and felt that people were taking money from her. She had gone off her medication, her thinking was unclear, she was "grossly disorganized," her sentences did not make sense, and her emotions were inappropriate.
After 4 days of "stormy" treatment, she signed herself out, against medical advice. She collapsed in the street, and was brought back to the hospital within 2 hours. She then was admitted to Milder Manor, from which she attempted to run away after 3 or 4 weeks. Civil commitment proceedings were then initiated because she was jeopardizing her health, and she was placed in the Lincoln Regional Center, where she remained until April of 1987.
The mother then lived in her own apartment from April until November, when she was transported back to the regional center. At the time she was recommitted, she had been evicted from her apartment, but had refused to leave. She was extremely angry, loud, and hostile. She was also somewhat out of touch with reality.
For the most part, the mother has been unwilling to cooperate with attempts to treat her mental and physical problems. Her caseworker stated that she had thrown away her medications and refused to take them most of the time. She refused to keep her appointments with her physician or psychiatrist. She refused to accept help that was offered to her, and although her apartment during the time she lived there was unclean, she would not allow "chore services" to assist her.
Additionally, she was unwilling to complete court-ordered parenting classes and parenting assessment. The caseworker testified that she "would have much, much trouble living independently and would need an enormous amount of support on an ongoing basis," although if she were to maintain her medication program, *830 she could possibly, with assistance, live on her own. Her physicians were not that optimistic. One testified that she refuses to properly take her medications, and without them, she "regularly and demonstrably has decompensated to the point where she cannot take care of herself." Even if she were completely cooperative, took her medicines faithfully, kept her appointments, etc., none of which she had ever done, her psychiatrist said her functioning would be "marginal," and she could not function without substantial support from outside agencies. Even with total cooperation by the mother, that doctor stated that he would "have difficulty believing that she'll ever get to a level of being able to function on her own."
The mother's psychiatrist from the regional center stated that because of her mental illness, the mother is not able to care for small children. Even with complete cooperation, gradual progression through the steps with increasing levels of autonomy, looking after things for herself without a lot of external help, and close ties with supportive, helping persons, etc., it is "possible" that she would someday be able to care for a child. However, he said that would take a "substantial period of time," probably "years." At least six medical-type witnesses indicated that this was a hopeless case.
The evidence is abundant that the mother is now, and will be indefinitely, unable to care for a child. Furthermore, the evidence is clear that this inability is the result of her mental illness, notwithstanding that some of her disability is physical in nature. This all has been established by clear and convincing evidence.
It is true that, fortunately, neither the father nor the mother has had an opportunity to have this child in his or her care. Therefore, there is no evidence of any harm having as yet befallen the minor. However, a court need not await certain disaster to come into fruition before taking protective steps in the interest of a minor child. In re Interest of S.P., N.P., and L.P., 221 Neb. 165, 375 N.W.2d 616 (1985). In termination of parental rights cases, the primary consideration is the best interests of the juvenile. In re Interest of J.S., S.C., and L.S., 224 Neb. 234, 397 N.W.2d 621 (1986).
The mother's final argument is that the statutory scheme under which her parental rights were terminated violates her constitutionally guaranteed right to equal protection. She contends that since the State has not shown a compelling, nor even a legitimate, reason for differentiating between a parent with a mental deficiency and one with a physical deficiency, the statutes must be struck down.
The equal protection clause provides that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. In explaining the meaning of the clause, this court has stated, "Equal protection guarantees that similar persons will be dealt with similarly by the government." State v. Michalski, 221 Neb. 380, 384, 377 N.W.2d 510, 514 (1985). When examining a claim of deprivation of equal protection, then, the first inquiry is whether the statute discriminates among those who are similarly situated. See, e.g., In re Interest of M.B., R.P., and J.P., 222 Neb. 757, 386 N.W.2d 877 (1986).
It seems to be the mother's claim that because § 43-292(5) provides for termination of parental rights when the parents are unable to discharge parental responsibilities because of mental illness, and there is no corresponding specific provision whereby those rights may be terminated because of physical illness, there is disparate treatment. However, under the statutory scheme, there is no prohibition to terminating those rights because of physical illness. As a matter of fact, § 43-292(6) provides that parental rights may be terminated following a determination that the juvenile is as described in Neb.Rev.Stat. § 43-247(3)(a) (Reissue 1984) (a juvenile "who is homeless or destitute, or without *831 proper support through no fault of his or her parent ..."), and reasonable efforts have failed to correct the conditions leading to the determination. It may also be argued that § 43-292(2) applies to physically ill parents; i.e., a termination may be had where the parents have substantially and continuously or repeatedly neglected the juvenile and refused to give the juvenile necessary parental care and protection.
There is no merit to the mother's claim of deprivation of equal protection.
The adjudication of the trial court is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594309/ | 432 N.W.2d 754 (1988)
STATE of Minnesota, Respondent,
v.
Mark John ALTON, Appellant.
No. C4-87-1823.
Supreme Court of Minnesota.
December 9, 1988.
C. Paul Jones, State Public Defender, Elizabeth B. Davies, Deputy State Public Defender, Minneapolis, for appellant.
Hubert H. Humphrey, III, Atty. Gen., Tom Foley, Ramsey Co. Atty., Steven C. DeCoster, Asst. Co. Atty., St. Paul, for respondent.
Heard, considered, and decided by the court en banc.
OPINION
SIMONETT, Justice.
Defendant appeals his conviction for first degree murder, claiming that premeditation is lacking as a matter of law and that the trial court erred in admitting certain photographs of the murder victim's body. We affirm.
Defendant Mark John Alton had lived with his girlfriend, Philomena Bifulk, and her three children from a previous marriage from September 1984 to October 1986. In June 1986 the couple rented a house at 627 East Jessamine in St. Paul and both signed the 1-year lease.
In September 1986, Bifulk became romantically involved with Robert Carley and broke off her relationship with defendant. Alton moved out of the house in October, leaving several of his possessions behind, including a VCR and waterbed which had been jointly purchased by the couple. Carley moved in with Bifulk in November. Bifulk and Carley planned to be married on April 18, 1987.
*755 Defendant continued to have contact with Bifulk; he visited her at the Tom Thumb Store where she worked and called her on the phone. In November 1986, defendant removed some speakers from Bifulk's car. In their place he left a note saying Bifulk had made a lot of mistakes the last few months, she would have to suffer the consequences of her mistakes, and he had no control over what his brother or father might do.
On March 10, 1987, 15 days before the murder, defendant visited Bifulk at the Tom Thumb Store. Bifulk testified that defendant threatened her, saying Carley would be a dead man before her wedding came.
On the morning of March 25, 1987, Carley drove Bifulk to work at 5:20 a.m. Around 9:00 a.m. Bifulk received a call from defendant. She testified that he asked to meet her because he had something urgent for her to read. She told him to come over immediately but he said he could not make it until 1:00 p.m. They agreed to meet then.
Carley returned to the store between 8:15 and 9:00 a.m. and then went to breakfast with his father and brother. He returned to the Tom Thumb around 10:15. During this visit he tried to call an attorney representing his father. The attorney's receptionist logged Carley's call at 10:45 a.m. After leaving this message, Carley left the Tom Thumb for home.
Around 12:15 p.m. defendant again called Bifulk at the store. Bifulk testified defendant said he had just done something devastating and terrible, his life was definitely over now, and he loved her. Between 1:00 and 1:30 p.m., Philomena's sister, who was staying with her temporarily, returned to 627 Jessamine with her boyfriend. When they entered the house they discovered Carley's body on the floor. The sister immediately called the police.
Sergeant Laurence Johns of the St. Paul Police Department videotaped the crime scene. This videotape, narrated by Johns, was shown to the jury. There were signs of struggle in the room. The table was tipped over or broken, a chair was tipped over, a pair of glasses was found on the floor, and a wall hanging was lying on the floor. One of the windows was broken from the outside, and broken glass was found under the couch. A .22-caliber semiautomatic rifle was lying on the sofa with a pink towel draped over it. The rifle had been purchased by defendant from a K-Mart in St. Paul on March 20, 1987.
Several shell casings were found throughout the living room and dining area. One live round was also found in the dining area. One of the casings, labeled No. 7 by the State, had a crimp on its side. Police officer Mark Johnston testified that in his experience such a crimp would be caused by a weapon jamming. Rifles of .22 caliber have a dirty type of powder that can build up and cause jamming when the gun is fired repeatedly. To clear the rifle, the bolt has to be manually drawn back and the spent casing cleared by hand. If the bolt were drawn back more than once, a live round could be released. This would explain the presence of the live round next to the crimped casing. James Gag, a firearms expert, determined that one of the expended bullets found at the scene and one of the bullets removed from Carley's body had sufficiently detailed microscopic markings that they could be positively identified as having been fired from the rifle on the sofa.
The medical examiner, Dr. Michael McGee, observed seven entrance bullet wounds two to the head, three to the chest, one to the left arm, and one to the abdomen and one exit wound on the right side of the chest. Dr. McGee also observed an oval-shaped bruise above and below the right ear, caused, in his opinion, by a blow from the butt of the rifle administered with great force. Dr. McGee testified as to his theory concerning the order in which the wounds were inflicted. He thought that Carley was shot with at least two separate volleys. The first wound was to the abdomen. The next three wounds were to the chest. These wounds would cause Carley to fall to the ground. The final two wounds were to the head. Dr. McGee testified that due to the presence of powder *756 around the first wound to the head, it was likely that the muzzle was held only inches away from the skin. The second wound to the head had a crescent of abrasion and hemorrhaging around it which suggested to Dr. McGee that the muzzle made direct contact with the skin.
When Bifulk was permitted to reenter the house, she discovered several items missing. The wedding rings belonging to Carley and her had been taken from the upstairs bedroom. Carley's jacket, checkbook, and car were also missing. Bifulk also found a Pepsi can on the headboard of her bed, two empty Pepsi cans in the kitchen trash, a Player Light cigarette butt in an ashtray in the dining room, six to eight Player Light cigarette butts in her car, and a Player Light cigarette package in the kitchen trash. Bifulk's sister was the only person in the household who drank Pepsi and she denied having left a Pepsi can on the headboard. Bifulk testified that Carley only smoked Marlboro's and defendant smoked Player Lights because he was trying to quit.
On March 26, 1987, the day after the murder, Bifulk received a wedding RSVP in the mail. It read: "Name: Mr. Mark Alton. Number of persons attending: One. Ha-ha." On the back of the RSVP was written, "I don't make threats, Phil, I make promises. You took away my future, now I took yours! Paybacks are a mother-fucker. Have a good life. Take care. I love you, Mark." The card was postmarked March 25, 1987.
Defendant was arrested in Dresser, Wisconsin, on March 26, 1987. At the time of his arrest, defendant was driving Carley's car and had Carley's checkbook in his pocket. A rifle was lying on the back seat of the car. Defendant had purchased this second rifle from a K-Mart in Stillwater on March 25 at 11:35 a.m., using Carley's identification and check.
I.
On appeal, Alton argues that, as a matter of law, the evidence of the shooting death with a rifle purchased at a K-Mart store only 5 days before was insufficient to show premeditated murder under Minn. Stat. § 609.185(1) (1986). In reviewing the sufficiency of the evidence, this court makes a painstaking review of the record to determine if the evidence is sufficient to permit the jury to reach the conclusion that it did. State v. Richardson, 393 N.W.2d 657, 661 (Minn.1986). We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty of the offense charged. State v. McCullum, 289 N.W.2d 89 (Minn. 1979). Where a conviction is based on circumstantial evidence, the verdict will be sustained on appeal when the reasonable inferences from such evidence are consistent only with defendant's guilt and inconsistent with any rational hypothesis except that of guilt. State v. Threinen, 328 N.W.2d 154, 156 (Minn.1983).
Minn.Stat. § 609.18 (1986) defines premeditation as follows: "to consider, plan or prepare for, or determine to commit, the act referred to prior to its commission." Premeditation must usually be inferred from all of the circumstances surrounding the homicide. Extensive planning and calculated deliberation need not be shown; the plan to commit first degree murder can be formulated virtually instantaneously. State v. Wahlberg, 296 N.W.2d 408, 415 (Minn.1980).
The evidence presented by the state is essentially uncontradicted because defendant did not testify or call any witnesses on his behalf. The following evidence supports a finding of premeditation:
(1) Threats. Bifulk testified that Alton had threatened her twice. In November 1986 Alton wrote Bifulk a note saying that she had made mistakes, now she had to suffer the consequences of them. Then 15 days before the murder, on March 10, 1987, Alton told Bifulk that her fiance would be a dead man before the wedding day.
(2) Arming himself. Defendant purchased a rifle from K-Mart 5 days before the murder.
*757 (3) Lying in wait. The six to eight cigarette butts and three empty Pepsi cans found in the house suggest that Alton was at the residence for some time. During his stay he had time to take the wedding rings and remove an RSVP card from a wedding invitation. The evidence suggests that Alton did not have time to smoke the cigarettes or drink the Pepsis after the killing because the killing occurred in St. Paul sometime after 10:45 a.m. and before 11:35 a.m., the time at which Alton purchased a second rifle from the K-Mart in Stillwater, some miles away.
(4) The method of killing. Defendant fired seven shots into the victim. The testimony of Dr. McGee and Mark Johnston indicated that defendant had fired at least two separate volleys and that the two head wounds were inflicted at a very close range. Moreover, to inflict the rifle blow to Carley's head, Alton had to move toward him.
(5) Completion of plan. Alton sent the RSVP card to Bifulk: "I don't make threats, Phil, I make promises. * * *" The jury could reasonably conclude that Alton had followed through on his promise that Carley would be a dead man before the wedding.
While any one of the facts may be insufficient to show premeditation, taken as a whole, a jury could reasonably find premeditation beyond a reasonable doubt.
Defendant argues that there was no evidence of time between shots and that mere evidence of a series of shots or blows is insufficient to show premeditation. State v. Richardson, 393 N.W.2d 657 (Minn. 1986). There is evidence, however, of a time period between shots. Officer Johnston testified that the gun had jammed and Alton would have had to pull the bolt back manually to unjam it. Both Officer Johnston and Doctor McGee were of the opinion that there had been at least two separate volleys.
Defendant's alternative hypothesis that he went to the house without premeditation to collect his belongings does not follow from the evidence. Alton did not collect any of his belongings, such as the VCR, while he was there smoking six to eight cigarettes and drinking three cans of Pepsi.
Defendant compares the present case to State v. Swain, 269 N.W.2d 707 (Minn. 1978), where the court found insufficient evidence of premeditation to sustain a first degree murder conviction. In that case, however, the only evidence of premeditation the state produced was that defendant had threatened the victim 10 months before, that the murderer had attacked from behind, and that there were repeated blows to the victim's head. Id. at 713. In the present case, there is far more evidence of premeditation. Defendant threatened to kill only 15 days before the murder; he purchased a gun 5 days before the murder, he indicated that he did not make threats, he made promises (that he impliedly kept); he fired seven shots in at least two separate volleys with a break in between to unjam the rifle; and the final two shots were fired with the muzzle of the rifle at the victim's head.
II.
Defendant claims it was reversible error for the trial court to allow the admission of nine photographs of the crime scene and victim's body because they were prejudicial, inflammatory, and cumulative to the videotape. At trial, the photographic evidence consisted of the following: a 25-minute color videotape of the scene of the crime; 22 still color photographs of the crime scene, including 6 photographs of the victim's body; and 6 color autopsy photographs of the victim's wounds. Defendant objected to three of the 22 photographs of the crime scene, Exhibits 8, 10, and 11, which were admitted. Defendant also objected to all six of the autopsy photographs, Exhibits 59, 60, 61, 62, 63, and 64, which were also admitted.
The admission of photographs is in the discretion of the trial judge. State v. Daniels, 361 N.W.2d 819, 828 (Minn.1985); State v. Hines, 148 Minn. 393, 397, 182 N.W. 450, 451 (1921). The standard for admission of photographs was set out in State v. DeZeler, 230 Minn. 39, 46-47, 41 N.W.2d 313, 319 (1950):
*758 Photographs are admissible as competent evidence where they accurately portray anything which it is competent for a witness to describe in words, or where they are helpful as an aid to a verbal description of objects and conditions, provided they are relevant to some material issue; and they are not rendered inadmissible merely because they vividly bring to jurors the details of a shocking crime or incidentally tend to arouse passion or prejudice. This is the general rule, and any other would be an anachronism in this day when pictures are a common and recognized medium for the accurate portrayal of objects and events.
We find that the trial court did not abuse its discretion in admitting the photographs. The trial court properly determined that each of the photographs was relevant and not cumulative to the videotape or the other photographs. In particular, since the state was trying to establish premeditation by the pattern of shots, the photographs helped to illustrate Dr. McGee's testimony regarding the path of each bullet.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594212/ | 954 So.2d 346 (2007)
Dennis C. FORDHAM, et ux., Plaintiffs-Appellants
v.
NISSAN NORTH AMERICA, et al., Defendants-Appellees.
No. 41,987-CA.
Court of Appeal of Louisiana, Second Circuit.
April 4, 2007.
Culpepper & Carroll, PLLC by Bobby L. Culpepper, Jonesboro, for Appellants.
Cook, Yancey, King & Galloway, by Kenneth Mascagni, Michael K. Leachman, Shreveport, for Appellee, Jackson Parish Police Jury.
Samuel T. Singer, Winnsboro, for Appellee, Town of Jonesboro.
McCranie, Sistrunk, Anzelmo, Hardy, Maxwell, & McDaniel by Lance B. Williams, Metairie, for Appellee, Nissan North America, Inc.
Before STEWART, MOORE, and LOLLEY, JJ.
LOLLEY, J:
Dennis C. Fordham and Elinor Durr Fordham appeal a judgment of the Second Judicial District Court, Parish of Jackson, State of Louisiana, which granted the motion for summary judgment filed by the Jackson Parish Police Jury. For the following reasons, we affirm the trial court's judgment.
FACTS
On July 1, 2002, Dennis Fordham was operating a vehicle manufactured by Nissan when he was involved in a one-car accident on Gansville Road in Jackson Parish, Louisiana. As the record reflects, Fordham was proceeding southerly on *347 Gansville Road, when he crossed the centerline of the roadway into the lane of oncoming traffic, then he veered off the eastern side of the roadway to the left. He lost control of the vehicle when he left the paved roadway, then he re-entered the road, yawing to the left and then sharply to the right. His vehicle then commenced to slide down the road and flipped over.
Fordham ultimately filed suit against the Jackson Parish Police Jury (the "Police Jury"), alleging that his damages were due to the defective condition of Gansville Road.[1] In response, the Police Jury filed its motion for summary judgment arguing that: (1) it did not have notice of any alleged defect on the roadway; (2) the roadway did not present an unreasonable risk of harm; and, (3) the roadway did not cause the accident. Along with its motion, the Police Jury filed the affidavits of the investigating officer, the road maintenance supervisor, and an accident reconstruction and roadway design expert. After considering the Police Jury's motion and the opposition filed by Fordham, the trial court entered judgment granting the Police Jury's motion for summary judgment and dismissing Fordham's claims against the Police Jury with prejudice.[2] Fordham appeals that judgment.
DISCUSSION
On appeal, Fordham argues generally that the trial court erred in granting the Police Jury's motion for summary judgment. Fordham urges that the western side of the roadway contained a drop-off of sufficient depth so as to make the road unreasonably dangerous and the Police Jury did nothing about it. He maintains that there exist contested issues of fact, which can only be resolved at a trial of the matter. We disagree.
Appellate courts review summary judgments de novo using the same criteria that govern a district court's consideration of whether summary judgment is appropriate. Schroeder v. Board of Sup'rs. of Louisiana State University, 591 So.2d 342 (La.1991); Costello v. Hardy, XXXX-XXXX (La.01/21/04), 864 So.2d 129. A court must grant a motion for summary judgment "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). 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); Mosley v. Temple Baptist Church of Ruston, Louisiana, Inc., 40,546 (La.App.2d Cir.01/25/06), 920 So.2d 355.
The burden of proof is on the movant. If, as in this case, the moving party will not bear the burden of proof at trial on the matter before the court on the motion and points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action or defense, then the non-moving party must come forward with factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. La. C.C.P. art. 966(C)(2). If the non-moving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. La. C.C.P. arts. 966 and 967; Williams v. Shoney's, Inc., XXXX-XXXX (La.App. 1st Cir.03/31/00), 764 So.2d 1021.
In claims such as this, the law is clear. No person shall have a cause of *348 action against a public entity for damages caused by the condition of things within its care and custody unless such entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so. La. R.S. 9:2800. In order to recover against a public entity for damages due to road defects, the plaintiff must prove by a preponderance of evidence: (1) the thing that caused the damages was in the defendant's custody; (2) the thing was defective due to a condition that created an unreasonable risk of harm; (3) the defendant possessed actual or constructive notice of the defect, yet did not take corrective action within a reasonable period of time; and, (4) the defect was a cause-in-fact of plaintiff's harm. Johnson v. City of Bastrop, 41,240 (La.App.2d Cir.08/01/06), 936 So.2d 292, citing, Jones v. Hawkins, XXXX-XXXX (La.03/19/99), 731 So.2d 216. Here, Fordham is unable to demonstrate that the alleged defect (i.e. the drop-off on the western shoulder of Gansville Road) was a cause-in-fact of his harm.
The Police Jury offered several affidavits in order to show an absence of factual support for Fordham's claim. In response, Fordham failed to show that the alleged defect on the western edge of the roadway was the cause-in-fact of his harmone of the elements necessary to succeed in his claim against the Police Jury. Primarily, we note that even if there was a defect to the western shoulder of the roadway as Fordham alleges, this defect was not a cause-in-fact of Fordham's claim. This is clearly evidenced by the affidavit of Deputy Cody Cheatwood, a deputy with the Jackson Parish Sheriff's Office.
Deputy Cheatwood was dispatched to the accident and investigated the scene. His description of the accident is the most complete. He averred that upon arriving at the scene, he inspected the location of the collision and "identified the position of the yaw marks, gouge marks, scrape marks and other features showing the path" of Fordham's vehicle. According to Dep. Cheatwood:
[i]t was clear that the Fordham vehicle was proceeding south on Gansville Road and crossed into the oncoming lane of travel and departed the roadway to the left or to the east. Yaw marks on the east side or shoulder of Gansville Road show where the vehicle departed the roadway surface. The east shoulder was basically level with the roadway surface where the Fordham vehicle departed the road and where it reentered the roadway. (Emphasis added).
Deputy Cheatwood further stated that:
. . . the vehicle then reentered the Gansville Road, with marks showing where it reentered the road. The marks also showed that the rear of the vehicle then slide [sic] around to the right. The rear tire or tires departed the right hand side or western side of Gansville Road with the vehicle sliding sideways (with the vehicle pointing in an easterly or southeasterly direction and moving in a southerly direction). There was a very slight difference (approximately an inch or less) between the shoulder and the roadway surface where the Fordham vehicle departed the west side of the road. (Emphasis added).
Additionally, the Policy Jury offered the affidavit of Richard Robertson, a civil engineer, who had been previously recognized as an expert in roadway design, traffic engineering, and accident reconstruction. In connection with his investigation of the accident, he reviewed all the materials related to the accident, as well as inspecting the accident scene. He noted that it was clear from all available data that Fordham crossed the road's centerline into the lane *349 of oncoming traffic and crossed onto the shoulder on the eastern side of the road. Robertson opined that the roadway was not responsible for this initial action by Fordham, and that the shoulder on the eastern side of the roadway contained no defects.
Fordham claims that the defect in the roadway was on the western side and that defect caused him to lose control of his vehicle. However, the Police Jury's affidavits make clear that Fordham lost control of his vehicle when he crossed the center line onto the oncoming lane of traffic-for no explainable reason other than his own steering error.[3] It is evident that the claimed defect on the western side of the roadway, whether it existed or not, was not the cause-in-fact of Fordham's harm. He offered no evidence that a roadway defect caused him initially to lose control of his vehicle or that a roadway defect existed on the eastern shoulder of Gansville Road, where he first left the roadway. Nor did Fordham offer any evidence of a defect in the roadway that caused his vehicle to slide across the roadway until he left it again-this final time on the western side. Only at this point in time does Fordham claim that the roadway was defective, and the only proof to be offered by Fordham are merely his self-serving allegations and photographs purporting to depict a drop-off. We agree with the Police Jury that Fordham's claims of a defect to the western shoulder of the roadway are immaterial when the series of events are considered. Fordham failed to demonstrate that he would be able to meet his burden of proof as required under La. C.C.P. art. 966(C)(2). Considering that Fordham failed to make such a showing, the trial court properly granted summary judgment in favor of the Police Jury.
The Police Jury further submits that summary judgment was properly granted for another reason, arguing that Fordham also failed to render any evidence indicating that the Police Jury possessed actual or constructive notice of the alleged roadway defect and did not take corrective action within a reasonable period of. However, considering our conclusion herein, the Police Jury's knowledge of an alleged defect on the western shoulder of the roadway is immaterial. Thus, because that issue is moot, it need not be addressed herein.
CONCLUSION
For the foregoing reasons, the judgment of the trial court granting the Jackson Parish Policy Jury's motion for summary judgment is affirmed. Costs of this appeal are assessed to Dennis C. Fordham and Elinor Durr Fordham.
AFFIRMED.
NOTES
[1] He also named Nissan of North America as a defendant. It is not a party to this appeal. Fordham's wife, Elinor, was also a plaintiff in the suit.
[2] The trial court dismissed Elinor Fordham's claims as well; however, she is not referred to in this appeal.
[3] Fordham does have claims against the manufacturer of his vehicle, Nissan, asserting that some unknown mechanical defect caused his accident. That issue is not before this court on appeal, and we are not addressing or deciding that issue herein. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304592/ | HOWELL, J.
These two cases grew out of an automobile collision on Saunders Avenue in Nashville, between two cars, one driven by the plaintiff, Clara D. Simpkins, wife of the plaintiff A. W. Simpkins and other driven by the defendant Robert L. Manners and belonging to defendants O. 0. Manners and Ruby Manners.
The pleas were not guilty.
The cases were heard by the Circuit Judge and a jury and resulted in a verdict for Clara D. Simpkins for the sum of $5,500 and a verdict in favor of A. W. Simpkins for the sum of $1,000, both against the defendants Robert L. Manners, O. O. Manners, and Ruby Manners.
The defendants have by proper procedure perfected appeals to this Court and have assigned errors. The *246cases were consolidated and tried together in the Circuit Conrt and in this Court.
It is insisted for the defendants that there is no evidence upon which the verdicts could be based, that the contributory negligence of the plaintiff Clara D. Simp-kins bars a recovery and that the trial Judge should have granted the motion of defendants for peremptory instruction in their favor.
These assignments necessitate a review of the evidence.
The plaintiff Clara D. Simpkins testified that on the day of the accident she was driving her automobile North on Saunders Avenue, a twenty-one foot wide paved street, with two of her children in the car with her and that she was traveling about twenty-five to thirty miles per hour and on her proper side of the street, when she saw the automobile driven by the defendant Robert L. Manners approaching from the opposite direction and noticed that the defendants’ car was on her right side of the road, and therefore on his wrong side, and that when close to the defendants’ car she tried to avoid hitting it by pulling to her left. She remembered nothing after the impact of the cars and was carried to a hospital where she remained several days. There was other evidence as to the location of the cars and photographs of the front ends of both cars were exhibited. The testimony of the defendant Robert L. Manners directly contradicted that of the plaintiff as to the location of the cars just previous to the collision. There were no other eyewitnesses to the accident.
There was material substantial evidence therefore upon which the jury could find the question of fact in favor of the plaintiff and the law is well settled that *247in such cases, where the verdict of the jury is approved by the Trial Judge, it will not be disturbed by this Conrt. We do not consider that citations of anthority for this statement of the law are necessary. The question of the contributory negligence of the plaintiff in this case is also a question for the jury.
It is also insisted for the defendants that the trial Judge erred in refusing to charge a special request of the defendants setting out one of their theories as to how the accident happened.
We have carefully examined the charge and find it full and fair.
The trial Judge in the charge did not undertake to charge the theories of either the plaintiffs or the defendants.
In the case of St. Louis, I. M. & S. Railroad v. Hatch, 116 Tenn. 580, 94 S. W. 671, 674, Chief Justice Beard said: “But it is said on the part of the Pullman Company, that the trial Judge was in error in declining to give certain special requests that were submitted by its counsel. These requests embraced the theory of that company upon certain proven facts with the propositions of law which it sought to have applied to that theory. Granting that they were entirely sound, yet we think that the trial Judge cannot be put in error for declining to give these, inasmuch as he did not undertake to state the theory of either party to the lawsuit, but laid down, in general terms, and with unusual clearness, sound propositions of law which would guide the jury in reaching a correct solution of the case, as they might adopt the theory of facts of the plaintiffs or of the defendants. ’ ’
In the case of Union Transfer Co. v. Finch, 16 Tenn. App. 293, 64 S. W. (2d) 222, 225, this Court said: “It *248is insisted that this request contained the defendant’s theory which had not been charged. It is true that the conrt should charge the theory of the defendant, when requested, if he had already charged the plaintiff’s theory, bnt the court did not charge the plaintiff’s theory, hence it did not err in refusing to charge defendant’s theory. St. Louis, I. M. & S. Railroad v. Hatch, 116 Tenn. 580, 94 S. W. 671.”
It is also insisted that the trial Judge erred in not granting a special request of the defendant dealing with contributory negligence. The charge in this respect is full and complete and the matter contained in the request is covered by the charge.
It is insisted that the trial Judge erred in not sustaining defendants’ objection to the argument of counsel for the plaintiff before the jury in which he wrote certain figures on a blackboard in attempting to show the damages sustained by the plaintiffs. We find that the evidence warranted this argument to the jury. The suit of Mrs. Simpkins was for $10,000 and the figures counsel wrote down during his argument totaled $6,500. The jury verdict approved by the trial Judge was $5,500. We do not think this argument of counsel constituted reversible error. See Rice-Stix D. G. Co. v. Self, 20 Tenn. App. 498, 101 S. W. (2d) 132.
The verdicts of the jury are not excessive for the injuries sustained and necessary expenses and for the damage to plaintiffs’ car. The amount are amply justified by the evidence.
The defendants have had a fair and impartial trial and the jury has found against them and the verdicts are sustained by the evidence.
*249A judgment will be entered here in favor of plaintiff Clara D. Simpkins and against the defendants for $5,500 and interest from February 24, 1950, and in favor of A. W. Simpkins and against the defendants for $1,000 and interest from February 24, 1950', and the costs of the cases.
Affirmed.
Hickerson, J., and Kizer, Special Judge, concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1594205/ | 432 N.W.2d 469 (1988)
Jennifer Lee FRANKO, Petitioner, Appellant,
v.
COMMISSIONER OF PUBLIC SAFETY, Respondent.
No. C9-88-886.
Court of Appeals of Minnesota.
December 6, 1988.
*470 Robert L. McCormick, Minneapolis, for petitioner, appellant.
Hubert H. Humphrey, III, Atty. Gen., Joseph Plumer, Sp. Asst. Atty. Gen., St. Paul, for respondent.
Heard, considered and decided by SCHUMACHER, P.J., and FOLEY and HUSPENI, JJ.
OPINION
HUSPENI, Judge.
Appellant was arrested for driving while under the influence. The officer determined that appellant refused testing, and her driver's license was revoked. She petitioned for judicial review, and the trial court sustained the revocation. We affirm.
FACTS
On October 9, 1987, at approximately 2:00 a.m., State Trooper John Dennig observed appellant make an illegal turn across the grass covered median on Highway 494, and then noticed that her vehicle had expired license tabs. Upon stopping appellant's vehicle, the trooper noticed appellant had difficulty producing her license, emitted a strong odor of alcohol, had slurred, incoherent and rambling speech, and appeared "spaced out." He testified that she denied driving through the median, and was not aware her license tabs were expired.
The trooper did not offer appellant field sobriety tests because he believes the preliminary breath test is more accurate. He testified he has discovered that experienced drinkers can do well on field sobriety tests, *471 even when intoxicated. Appellant attempted to take the preliminary breath test twice, but was unable to complete it. She explained to the trooper that she had "diminished lung capacity."
Appellant was arrested for violation of Minn.Stat. § 169.121, subd. 1 (1986), and the implied consent advisory was read to her. After two readings, she indicated she understood it.
The trooper then offered appellant the choice between a blood or urine test. He did not offer her a breath test because she had previously indicated she had diminished lung capacity. Appellant decided to take the blood test, and the trooper transported her to Fairview Southdale Hospital. He completed the paperwork and the lab technician arrived. The technician put a plastic tourniquet on appellant's arm. Just as the technician was ready to insert the needle in appellant's arm, she refused to provide a blood sample because the technician was not wearing rubber gloves and appellant was afraid of contracting AIDS.
The trooper advised appellant that she had elected the blood test, and that was the test which he was offering her. She refused to provide a blood sample, and said she would take a urine test.
The trooper testified that appellant requested a urine test about two minutes after she refused the blood test. On cross-examination he testified that he determined a refusal had occurred, even though appellant was offering to provide a urine sample at that time. Appellant testified that she told the officer she refused the blood test, and then immediately requested the urine test.
Appellant's driver's license was revoked for refusing testing, pursuant to Minn.Stat. § 169.123, subd. 4 (1986), and she petitioned for judicial review. The trial court concluded that based upon the totality of the circumstances, the trooper had probable cause to believe appellant was driving, operating, or in physical control of a motor vehicle while under the influence of alcohol. It determined that appellant's refusal to submit to the blood test constituted a refusal under the law because she had already been given and made her choice.
ISSUES
1. Did the trooper have probable cause to believe appellant was driving while under the influence?
2. Did appellant, who initially agreed to a blood test and then refused the blood test and requested a urine test, refuse testing under the implied consent law?
ANALYSIS
I.
Appellant first challenges the trial court's probable cause determination. Probable cause exists when there are sufficient facts which would warrant a prudent person to believe that the individual was driving or operating a motor vehicle while under the influence. State v. Harris, 295 Minn. 38, 42, 202 N.W.2d 878, 881 (1972). The totality of the circumstances must be considered. Eggersgluss v. Commissioner of Public Safety, 393 N.W.2d 183, 185 (Minn.1986). Probable cause must be evaluated from the point of view of a prudent and cautious police officer at the scene. State v. Harris, 265 Minn. 260, 264, 121 N.W.2d 327, 332, cert. denied, 375 U.S. 867, 84 S. Ct. 141, 11 L. Ed. 2d 94 (1963). The duty of the reviewing court is to ensure the officer had a substantial basis for concluding probable cause existed at the time the implied consent law was invoked. State v. Olson, 342 N.W.2d 638, 641 (Minn. Ct.App.1984). Many signs of intoxication exist independently or in combination with others; all signs need not be present in every case. Holtz v. Commissioner of Public Safety, 340 N.W.2d 363, 365 (Minn. Ct.App.1983). Field sobriety tests are not required to support an officer's reasonable belief. Id.
A number of facts exist in this case to support probable cause to believe appellant had been driving while under the influence: the strong odor of alcohol; appellant's 2:00 a.m. driving behavior, in which she made an illegal turn when she drove over the grass covered median which divides *472 Highway 494; appellant's difficulty in retrieving her driver's license; her slurred, incoherent and rambling speech; and her "spaced out" appearance. The trial court properly determined, based upon the totality of the circumstances, that the trooper had probable cause, even without field sobriety tests, to believe appellant was driving while under the influence. Holtz, 340 N.W.2d at 365.
II.
Appellant next asserts that she did not refuse testing. She first contends that the trial court erroneously found that the trooper determined she had refused testing before she requested the urine test. Instead, she argues that she demanded the urine test immediately after she rejected the blood test. The witnesses' testimony is somewhat conflicting on this issue. However, there is support in the record for the trial court's findings and its determinations are not clearly erroneous. State, Department of Highways v. Beckey, 291 Minn. 483, 487, 192 N.W.2d 441, 445 (1971).
Appellant next argues that her act of choosing and then refusing a blood test, and instead requesting a urine test, did not in fact constitute a refusal. We cannot agree. The relevant version of the statute reads:
The peace officer who requires a test pursuant to this subdivision may direct whether the test shall be of blood, breath, or urine. Action may be taken against a person who refuses to take a blood test only if an alternative test was offered and action may be taken against a person who refuses to take a urine test only if an alternative test was offered.
Minn.Stat. § 169.123, subd. 2(c) (Supp. 1987).
Laws governing DWI violations are remedial statutes, and, as such, must be liberally interpreted in favor of the public interest and against the private interest of the drivers involved. State, Department of Public Safety v. Juncewski, 308 N.W.2d 316, 319 (Minn.1981). "Compliance with the procedures of the implied consent law is a prerequisite to revocation pursuant to the implied consent law." Tyler v. Commissioner of Public Safety, 368 N.W.2d 275, 280 (Minn.1985).
A driver is given the option of an alternative when offered either a blood or urine test because a person may have a reasonable aversion to giving a blood or urine sample. State v. Boland, 299 Minn. 198, 199, 217 N.W.2d 491, 492 (1974); Haugen v. Commissioner of Public Safety, 389 N.W.2d 222, 224 (Minn.Ct.App.1986). This court has stressed the importance of giving the driver the choice of tests authorized by the legislature. Meyers v. Commissioner of Public Safety, 379 N.W.2d 219, 221 (Minn.Ct.App.1985).
Appellant was given the choice mandated by the statute, and made her choice. Once the choice was made, she was bound by it. In Nyflot v. Commissioner of Public Safety, 369 N.W.2d 512, 517 n. 4 (Minn.), appeal dismissed 474 U.S. 1027, 106 S. Ct. 586, 88 L. Ed. 2d 567 (1985), the supreme court indicated refusal was a final decision. "[T]he testing officers should not be required `to await the driver's convenience of a different time or place' to submit to the statutory requirement." State v. Palmer, 291 Minn. 302, 308-09, 191 N.W.2d 188, 191-92 (1972) (citation omitted), quoted in Nyflot, 369 N.W.2d at 517 n. 4.
Appellant urges that we apply the reasoning in Gonzales v. Colorado Department of Revenue, 728 P.2d 754 (Colo.Ct. App.1986). However, Gonzales involves interpretation of a Colorado statute[1] dissimilar to the relevant Minnesota provision here, and we do not find Gonzales applicable.
*473 The statute does not provide a time period during which the driver may change her mind as to her choice of tests. Once the choice of tests is made, the driver is bound by that choice, just as a decision not to take the test is final. See Nyflot, 369 N.W.2d at 517 n. 4. There is no reason to distinguish between the situation where a driver is offered a breath test, refuses, and then later agrees to the test, and the situation here, where the driver is offered a choice, makes the choice, and then changes her mind. While the better police practice may have been to allow appellant a urine test, the trooper was not required, under the statute, to do so. We cannot read something into the statute which the legislature did not include. Boland, 299 Minn. at 199, 217 N.W.2d at 492. The trial court properly determined appellant refused testing.
DECISION
The order of the trial court sustaining appellant's driver's license revocation is affirmed.
AFFIRMED.
NOTES
[1] Colo.Rev.Stat. § 42-4-1202(3)(a)(II) (1982) reads in relevant part:
Any person who drives any motor vehicle upon the streets and highways * * * may be required to submit to a chemical test of his breath or blood for the purpose of determining the alcoholic content of his blood or breath, if arrested for any misdemeanor offense arising out of [DWI]. * * * If such person requests that said chemical test be a blood test, then the test shall be of his blood; but, if such person requests that a specimen of his blood not be drawn, then a specimen of his breath shall be obtained and tested. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594791/ | 426 F. Supp. 1141 (1977)
Robert ADAMS et al., Plaintiffs,
v.
HEMPSTEAD HEATH COMPANY et al., Defendants.
No. 75 C 810.
United States District Court, E. D. New York.
February 16, 1977.
Eisner, Levy, Steel & Bellman, P. C. (Richard F. Bellman and Richard A. Levy), New York City, for plaintiffs.
Von Oister & Carter (James W. Carter), Port Jefferson, N.Y., for defendants.
MEMORANDUM AND ORDER
PRATT, District Judge.
After a bench trial in this housing discrimination action, the court by memorandum and order dated September 30, 1976 dismissed the claims of plaintiffs Charles Falzone and Nancy Falzone and awarded plaintiff Adams compensatory damages of $3,180, punitive damages of $500, and attorneys' fees of $1,000. Plaintiffs' attorneys moved to increase the amount of attorneys' fees to $4,560. Defendants cross moved to eliminate the compensatory damages. By memorandum and order dated December 3, 1976 the court denied defendants' cross motion and scheduled a hearing on the question of attorneys' fees. At that hearing on January 28, 1976 attorneys Richard F. Bellman and Richard A. Levy both testified as to the services they had rendered in this action. They were cross-examined by defendants' attorney. No other witnesses testified.
Counsel fees may be awarded in actions such as this under 42 U.S.C. § 3612(c).[1] In a memorandum and order issued September 30, 1976, the court explained the $1,000 fee awarded plaintiff Adams as follows:
In an action such as this, where an illegal discriminatory practice has been established and plaintiff is financially unable to afford his own representation, the court may allow attorneys fees to the successful plaintiff, 42 U.S.C. § 3612(c), Stevens v. Dobs, Inc., 373 F. Supp. 618 (E.D.N.C.1974), even when plaintiff is not personally obligated to his attorneys as in the case of representation by a nonprofit legal services organization. Hairston v. R & R Apartments, 510 F.2d 1090 (C.A. 7 1975). On the evidence here, the court finds that plaintiff Adams is not financially able to assume the burden of his attorneys' fees, and is therefore entitled, as additional relief, to a reasonable attorneys' fee.
This case took two days to try and was carefully prepared and presented by plaintiff's attorneys. Approximately one-half of the work, however, was taken up with the claims of Mr. and Mrs. Falzone, which have been dismissed. Accordingly, the court finds that a reasonable *1142 attorneys' fee to the plaintiff Adams' attorney for work done in connection with the Adams claim would be $1,000.
After weighing all of the factors bearing upon the question of attorneys' fees and after considering the interaction of those factors with the circumstances of this case and the policies pertaining to the awarding of attorneys' fees in actions such as this, the court grants plaintiffs' motion for an increase in the attorneys' fees. A fair, reasonable, and appropriate fee to plaintiffs' attorneys, under all the circumstances of this case, would be $1,500.
Plaintiffs' attorneys argue that they have expended a total of 152 hours on this case, including approximately 40 hours in court. Mr. Bellman testified that the usual hourly rate in his firm is $75, but in this case (for reasons which were not disclosed) they were asking only $60 per hour. In making their calculations which led to the requested amount of $4,560, plaintiffs' attorneys acquiesced in the court's determination set forth in the memorandum and order dated September 30, 1976 that approximately 50% of the work in this case was related to the dismissed claims of Mr. and Mrs. Falzone. Plaintiffs' attorneys argue that they could not afford to handle cases such as this for an attorneys' fee of only $1,000. It developed on the hearing, however, that plaintiffs' attorneys had entered into a contingent fee arrangement with plaintiff Adams. Plaintiffs' attorneys were to be paid one-third of the total amount of compensatory and punitive damages recovered, with the amount of attorneys' fees awarded directly by the court to be offset against that one-third contingency. The actual fee which would be received by plaintiffs' attorneys under the court's original decision would, therefore, be $1,226.67. Even this sum, plaintiffs' attorneys argue, would be inadequate to warrant their taking such cases in the future.
Plaintiffs' attorneys further argue that they are qualified attorneys, experienced in the civil rights and housing field, and that the entire expense burden of this case should rest upon the defendants who were found guilty of a constitutional and statutory tort. There is no question but that attorney Bellman is eminently qualified in this field of law. Mr. Levy has spent a substantial amount of time in civil rights matters, both teaching and litigating; how much of that experience was in the field of housing discrimination was not made clear. For purposes of this motion, the court has assumed him to be fully qualified.
In opposition to the motion by plaintiffs' attorneys, defendants argue that the $1,000 awarded by the court for counsel fees was "not only proper, but liberal". Specifically, defendants argue that hours alone cannot be the measure of compensation. They point out that trial preparation can never truly be termed "completed", that the amount of time devoted to a particular case is solely within the control of the attorney involved, and that the hours themselves do not provide an objective standard or measure by which "the efficiency or necessity of that preparation" can be determined. Defendants further point to the additional work required because plaintiffs' attorneys failed to include the Falzones as parties plaintiff in the original complaint. This required an amendment to the complaint which was done by motion, although no request for a stipulation was made.
Defendants also protest the 32 hours claimed by defendants' attorneys to have been devoted to the preparation of the posttrial memorandum. A pretrial memorandum by plaintiffs had been prepared outlining the applicable law and the anticipated testimony of the witnesses. Plaintiffs' attorneys reported a total of 12 hours for the preparation of that memorandum. The posttrial memorandum reviewed the testimony actually given, and cited additional cases which had been reported in the 9 months following preparation of the original trial memorandum.[2]
*1143 It appears to the court that this was not a difficult or complex case. It involved no untested legal issues and, insofar as it related to plaintiff Adams, it presented a simple, straight-forward, factual exposition of Adams' single visit to the apartment house, his subsequent difficulty in finding housing, and the telephone calls and visits made by the "testers" for Suffolk Housing Services. There did not then, nor does there now, seem to be a need for having two attorneys present at the trial of this case.
Moreover, the "testers" who testified for plaintiff at the trial were employees of Suffolk Housing Services who were apparently familiar with the duties and procedures of their testing activities. One of the functions of Suffolk Housing Services is ferreting out and assisting in the prosecution of race related housing cases. The witnesses from that organization are trained personnel. While it never came out whether they had testified before, certainly the preparation of their testimony should not have occupied any significant quantity of time.
If a straight "hours expended" approach were to be adopted in cases such as this, the result would be to grant a "blank check" to the plaintiffs' attorneys. Without implying any criticism whatsoever of plaintiffs' attorneys here, all trial attorneys have experienced the conflict between the desire to do a thorough, masterful job, and the practical, economic limitations of a case. Many interesting and demanding factual and legal problems arise in cases which, as a practical matter, simply do not warrant thorough research, exposition, and analysis. Similar practical considerations must enter into a court's evaluation of a "reasonable" attorney's fee to be awarded to the successful plaintiff in a housing discrimination case. A simple case such as this, involving no novel questions of law, having no significant ramifications for the public, and resulting merely in damages to the complaining party, cannot merit an attorney's fee equal to what might be appropriate in a complex case involving novel questions of law and having widespread ramifications for the public.
From other cases in the civil rights field, it is clear that the courts have not applied a mechanical, time-clock approach to attorney's fees such as urged by the plaintiffs. $750 was awarded in Sanborn v. Wagner, 354 F. Supp. 291 (D.Md.1973), although plaintiff's attorneys had expended 175 hours. A similar amount was awarded to the successful plaintiff for attorney's fees in Knight v. Auciello, 453 F.2d 852 (C.A. 1 1972), after a trial which consumed three days. The subject trial consumed two days, roughly half of which pertained to Adams' claim.
One indicator of the reasonable value of the work done by plaintiffs' attorneys is the damages which were awarded. Here, they totaled $3,680.
Another approach to counsel fees in cases such as this which involve an element of "pro bono" work applies the standards of compensation set forth in the Criminal Justice Act, 18 U.S.C. § 3006A, although without the maximum limitation therein. See Knight v. Auciello, 453 F.2d 852 (C.A. 1 1972); Stevens v. Dobs, Inc., 373 F. Supp. 618 (E.D.N.C.1974). That section compensates attorneys for indigent defendants in criminal cases at the rate of $20 per hour out of court and $30 per hour in court. If applied to the hours reported by plaintiffs' attorneys in this case, we find a total of 152 hours listed. 22 of those hours, however, were expended by a second attorney in final trial preparation and time at trial. Those 22 hours should be eliminated as unnecessary. The remaining 130 hours must be divided in half, consistent with the court's finding that only one-half of the work related to the successful Adams claim, a finding acquiesced in by defendants' attorneys, leaving 65 hours. 18 of those hours represent in-court time, which, if compensated at $30 per hour, would give $540; 47 of *1144 those hours represent out-of-court time, which, if compensated at $20 an hour, would give $940, yielding a total of $1,480.
Despite the foregoing analysis, the court recognizes that there is no mathematical formula by which a reasonable attorney's fee can be determined in any particular case. There is no question that plaintiffs' attorneys did an excellent job in preparing and arguing their case. The thrust of the court's decision is that they overdid it; the case actually presented in the courtroom did not justify all of the time which was expended in its preparation. The same result could have been accomplished with far less time and effort.
The court realizes that such a determination results, in part, from the point of view of the "Monday morning quarterback", and that the actual trial of an action is full of uncertainties. Much preparation must be devoted to possible issues which never materialize. Nevertheless, a slavish adherence to the time-clock approach cannot be the only test of a just award. The practical consequences of a purely time-clock approach in awarding attorney's fees in litigation of this sort would be far beyond Congress's intent in authorizing attorney's fees which are "reasonable".
Accordingly, after weighing all the above factors and considerations the court concludes that plaintiffs' motion for an increase in the amount of attorneys' fees should be granted to the extent of increasing the attorneys' fees awarded to plaintiff Adams for all services in connection with this action to date to the sum of $1,500.
SO ORDERED.
NOTES
[1] Subsection (c) of 42 U.S.C. § 3612 provides:
The court may grant as relief, as it deems appropriate, any permanent or temporary injunction, temporary restraining order, or other order, and may award to the plaintiff actual damages and not more than $1,000 punitive damages, together with court costs and reasonable attorney fees in the case of a prevailing plaintiff: Provided, That the said plaintiff in the opinion of the court is not financially able to assume said attorney's fees.
[2] The delay between the original trial memorandum and the actual trial was not the fault of any party. Both parties had been told by the court they were going to trial in November, 1975. Other demands on that judge's calendar, however, prohibited the trial of the case at that time. Eventually, the case was reassigned to the undersigned judge in May of 1976 and reached for trial in August, 1976. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3070944/ | THE THIRTEENTH COURT OF APPEALS
13-14-00632-CV
EWING CONSTRUCTION CO., INC., RODDY BLACK, AND WILLIAM EWING JR.
V.
MCM COMMERCIAL CONCRETE, INC.
On Appeal from the
347th District Court of Nueces County, Texas
Trial Cause No. 2013DCV-3887-H
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes the appeal should be dismissed. The Court orders the appeal
DISMISSED in accordance with its opinion. Costs of the appeal are adjudged against
the party incurring same.
We further order this decision certified below for observance.
May 14, 2015 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1594359/ | 19 So. 3d 314 (2009)
HAITHCOX
v.
STATE.
No. 1D09-3451.
District Court of Appeal of Florida, First District.
October 1, 2009.
Decision without published opinion affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594381/ | 954 So. 2d 1127 (2006)
Kevin LAWSON
v.
STATE of Alabama.
CR-05-0010.
Court of Criminal Appeals of Alabama.
August 25, 2006.
Rehearing Denied October 6, 2006.
*1129 William Morgan Rayborn, Brantley, for appellant.
Troy King, atty. gen., and Nancy M. Kirby, asst. atty. gen., for appellee.
PER CURIAM.
Kevin Lawson appeals his August 3, 2005, conviction for second-degree robbery, violation of § 13A-8-42, Ala.Code 1975, by the Montgomery Circuit Court. He was sentenced in accordance with the Habitual Felony Offender Act, § 13A-5-9, Ala.Code 1975, to 20-years' imprisonment. He was also ordered to pay court costs, restitution, and $50 to the victims compensation fund in accordance with § 15-23-17(b), Ala.Code 1975.
Lawson and an accomplice robbed a Spectrum convenience store in Montgomery on April 28, 1995. He was arrested the same day, and he posted a $10,000 appearance bond and was released from the Montgomery County jail on May 1, 1995. (C. 2.) He was indicted on June 30, 1995. (C. 2.) From July 10 until August 2, 1995, Lawson was incarcerated at the Autauga County jail on a different charge. He was then released to the Clanton Police Department. (C. 94.) A letter contained in the record from Autauga County Sheriff Herbie Johnson states: "A hold had been placed by Montgomery County and when they were notified subject was being released, they advised they had nothing on him." (C. 94.)
The matter was set for trial on August 28, 1995, but Lawson failed to appear for trial. The trial was reset for September 19, 1995, but again Lawson failed to appear for trial. A capias warrant was issued for Lawson on September 22, 1995.
Sometime before December 1995, Lawson was incarcerated at Rikers Island, a jail for New York City. (C. 14.) He was to be released from Rikers Island on August 26, 1996, but a robbery charge was pending in New York City. (C. 39.) From 1996 until 2004, Lawson was incarcerated in the State of New York, apparently for the conviction of the aforementioned robbery charge. (R. 13.) While Lawson was incarcerated in New York, Autauga County placed a detainer on Lawson. He waived extradition, but Autauga County decided not to prosecute Lawson, and the detainer was removed.
On June 9, 2005, Lawson was detained by the New York State Division of Parole on the Montgomery County robbery charge. (R. 4.) Lawson waived extradition, and the capias warrant was executed on July 2, 2005. (R. 4; C. 2.) A two-day trial was held August 2-3, 2005, before a Montgomery County jury which found Lawson guilty of second-degree robbery. (C. 3.)
*1130 I.
Lawson argues on appeal that he was not properly arraigned for the robbery charge and that the trial court thus committed reversible error. The State, in a 12-line argument in its brief, summarily dismisses Lawson's argument as not properly preserved for appellate review. A review of the record, however, makes it obvious that this issue was properly preserved for our review.[1]
In his "Motion to Dismiss for Failure to Provide a Speedy Trial" filed July 6, 2005, Lawson stated:
"The case action summary sheet does not indicate that [Lawson] was arraigned; however, there is an entry dated August 28, 1995, stating that [Lawson] failed to appear for trial, at which time a forfeiture and capias was issued. It does not appear, however, from the file that [Lawson] was ever notified of his trial date."
(C. 47)(emphasis added). Further, in his "Motion for Defendant to be Released on Bail" filed July 7, 2005, Lawson stated:
"The case action summary sheet indicates that [a forfeiture and capias] was issued on August 28, 1995; however, [Lawson] has advised the undersigned attorney that he was never advised of his trial date. Further, the case action summary sheet does not indicate that the Defendant was ever arraigned."
(C. 45)(emphasis added). Immediately before trial, the trial judge held a hearing on Lawson's motion to dismiss on speedy-trial basis, during which Lawson testified. During his testimony, the following occurred:
"Q. [Defense Counsel]: Were you ever arraigned-arraignment is where you plead either guilty or not guilty. You go before the judge and plead either guilty or not guilty. Were you ever arraigned on the charge of Robbery Two here in Montgomery?
"A. [Lawson]: No, I was not."
(R. 5.) After Lawson testified, the following exchange occurred:
"[DEFENSE COUNSEL]: Your Honor, I would ask the court to take judicial notice of the documents that are in the court file. And would call the court's attention to a letter which I'm going to introduce into evidence as a part of this hearing marked Defendant's Exhibit 1. It purports to be a letter from the sheriff of Autauga County stating that Mr. Lawson was incarcerated in the Autauga County jail from July 10, '95 through August 2, '95.
"That he had been brought to that facility by Steve Roberts Bonding Company. And that Mr. Lawson was released from the Autauga County jail to the Clanton Police Department. That a hold had been placed by Montgomery County. And when Montgomery County was notified that Mr. Lawson was being released, Montgomery County advised that they had nothing on him.
"[PROSECUTOR]: Judge, I'm going to object to that being admitted as evidence. [Defense counsel] has failed to authenticate that.
"THE COURT: It is part of the court file. All of that is going to be considered and [Defense counsel] just at the same time your client has just testified he didn't know anything about this until '05. The court file reflects that he was *1131 served in 1995. So that's the reason we have a '95 case number. So just so that the file is clear and the testimony is clear, I know your client says he didn't know, he failed to show up for the first trial we had set back in August of '05 after being served. Okay.
"[DEFENSE COUNSEL]: Judge, just for the sake of clarity. When you say after being served, you mean served with the indictment or
"THE COURT: Yes, sir. They wouldn't have made a file. I wouldn't have this red file marked 1995 unless he was served with a copy of the indictment. The red file is not created until he is served.
"[DEFENSE COUNSEL]: Judge, with all due respect, the Alabama Rules of Criminal Procedure provide that if somebody has been arrested for a criminal offense and is released on bond, that that person is not rearrested after indictment unless the bond changes. If the bond goes higher, then the person is due to be rearrested in order for that person to make the higher bond.
"So I think that was the procedure back in 1995 where the indictmentthe defense attorney would be notified that [Lawson] had been indicted and then normally the defense attorney would advise the client of that fact or mail the client a notice, have the client appear to plead either guilty or not guilty or to sign a plea of not guilty and waiver of arraignment.
"In this case there is nothing on the case action summary sheet to indicate that [Lawson] was ever advised of being indicted. And there is nothing on the case action summary sheet to indicate that he was ever arraigned on the indictment.
"THE COURT: It is because he absented himself from the jurisdiction for the trial. Had he been here, those matters would have been taken care of."
(R. 7-11) (emphasis added). The trial court then stated:
"THE COURT: Of course he knows he has a trial. He made bond to start with. Of course he knows he has a case here. So sorry I can't agree with you on that. And the records will speak for whatever the records say."
(R. 11-12.) After the trial, Lawson filed a motion in arrest of judgement or for a new trial in which he stated:
"This Motion In Arrest of Judgment/Motion For New Trial is due to be granted unless the State can prove that the court file affirmatively shows that [Lawson] was arraigned and entered a plea to the indictment. O'Leary v. State, [417 So. 2d 214 (Ala.Crim.App. 1980)]."
and
"The indictment against [Lawson] should have been dismissed in that [Lawson] was denied a speedy trial. [Lawson] was indicted by the Montgomery County Grand Jury on June 30, 1995. The Case Action Summary Sheet does not reflect that [Lawson] was ever arraigned, nor does the court file reflect that [Lawson] was ever given notice of his trial date."
(C. 88-89).
It is readily apparent from the foregoing that before trial Lawson placed the trial court on notice that he had not been arraigned, and the trial court still failed to arraign him. Thus this issue is preserved for our review.
B.
We now turn to the merits of Lawson's argument that the trial court committed reversible error by not arraigning *1132 him. Section 15-15-20.1(c), Ala.Code 1975, states:
"Upon the filing of an information, the court shall ascertain whether the defendant has retained counsel, and, shall appoint counsel if the defendant is indigent. The court shall set an arraignment date to enable the defendant to formally enter a plea of guilty in open court. Arraignment may be held and the guilty plea entered at any time after the filing of an information."
The Alabama Rules of Criminal Procedure also address this issue:
"(a) In General. Except as provided in section (b), no defendant shall be tried for the commission of any misdemeanor or felony offense until he has been arraigned in open court."
Rule 14.1, Ala. R.Crim. P. Arraignment may happen any time before trial. In fact, a defendant may be arraigned after the jury has been empaneled. Carroll v. State, 445 So. 2d 952 (Ala.Crim.App.1983).
A defendant waives arraignment if he does not timely object to not being arraigned. "`Even arraignment and plea can be waived by a defendant's failure to object to the lack thereof until after the jury has returned a verdict.'" Soriano v. State, 527 So. 2d 1367, 1372 (Ala.Crim.App. 1988) (quoting Smith v. State, 507 So. 2d 579, 580 (Ala.Crim.App.1987)).
However, if a defendant brings to the trial court's attention before trial the fact that he has not been arraigned, and the trial court fails to remedy the situation, this Court must reverse the trial court's judgment and remand the case for a new trial. Benson v. State, 473 So. 2d 1132 (Ala.1985). See also Hovater v. State, 552 So. 2d 191 (Ala.Crim.App.1989); McMurray v. State, 373 So. 2d 872 (Ala. Crim.App.1979); Pugh v. State, 343 So. 2d 793 (Ala.Crim.App.1977); and Rorex v. State, 44 Ala.App. 112, 203 So. 2d 294 (1967).
We have thoroughly reviewed the record and find no indication that Lawson was ever arraigned in this matter or that he waived arraignment. This supports Lawson's sworn testimony that he was never arraigned. Therefore, the trial court's judgment must be reversed, and the case remanded for a new trial. The trial court is also instructed to arraign Lawson before the new trial.
II.
Lawson also argues that he was deprived of his right to a speedy trial guaranteed by the Sixth Amendment to the United States Constitution. Although the judgment is being reversed on other grounds, we shall address the merits of this issue because it may be raised again during any new trial.
Over 10 years elapsed between when the commission of the crime and Lawson's trial on the charges stemming from the crime. Lawson alleges this was an undue delay that prejudiced his ability to properly defend the charges. We disagree.
No fixed and hardened rule can be used to determine whether an individual has been unduly prejudiced by a delay between arrest and trial. Instead, a balancing test which weighs four factors is to be applied: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his right to a speedy trial, and (4) prejudice suffered by the defendant due to the delay. Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).
A. Length of Delay
Under the Barker analysis, "[u]ntil there is some delay which is presumptively prejudicial, there is no necessity *1133 for inquiry into the other factors that go into the balance." 407 U.S. at 530, 92 S. Ct. 2182. In this matter, Lawson was arrested on April 28, 2005, and was indicted on June 30, 1995, but his trial did not commence until August 2, 2005. (C. 3). Obviously, a 10-year delay is presumptively prejudicial. See, e.g., State v. White, [Ms. CR-05-0034, June 30, 2006] ___ So.2d ___ (Ala.Crim.App.2006) (42-month delay presumptively prejudicial); Irvin v. State, (2005) 940 So. 2d 331 (Ala.Crim.App.2005) (32-month delay presumptively prejudicial); Lofton v. State 869 So. 2d 533 (Ala. Crim.App.2002); and (41-month delay presumptively prejudicial). Thus, we proceed to examine the remaining Barker criteria.
B. Reason for Delay
In analyzing the reason for a delay, the Alabama Supreme Court has stated:
"The State has the burden of justifying the delay. See Barker, 407 U.S. at 531, 92 S. Ct. 2182; Steeley v. City of Gadsden, 533 So. 2d 671, 680 (Ala.Crim. App.1988). Barker recognizes three categories of reasons for delay: (1) deliberate delay, (2) negligent delay, and (3) justified delay. 407 U.S. at 531, 92 S. Ct. 2182. Courts assign different weight to different reasons for delay. Deliberate delay is `weighted heavily' against the State. 407 U.S. at 531, 92 S. Ct. 2182. Deliberate delay includes an `attempt to delay the trial in order to hamper the defense' or `"to gain some tactical advantage over (defendants) or to harass them."' 407 U.S. at 531 & n. 32, 92 S. Ct. 2182 (quoting United States v. Marion, 404 U.S. 307, 325, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971)). Negligent delay is weighted less heavily against the State than is deliberate delay. Barker, 407 U.S. at 531, 92 S. Ct. 2182; Ex parte Carrell, 565 So.2d [104,] 108 [(Ala.1990)]. Justified delay which includes such occurrences as missing witnesses or delay for which the defendant is primarily responsibleis not weighted against the State. Barker, 407 U.S. at 531, 92 S. Ct. 2182; Zumbado v. State, 615 So. 2d 1223, 1234 (Ala.Crim.App. 1993) (`"Delays occasioned by the defendant or on his behalf are excluded from the length of delay and are heavily counted against the defendant in applying the balancing test of Barker."') (quoting McCallum v. State, 407 So. 2d 865, 868 (Ala.Crim.App.1981))."
Ex parte Walker, 928 So. 2d 259, 265 (Ala. 2005).
Apparently while awaiting trial in this matter, Lawson traveled to New York, where he was incarcerated on another robbery charge. It is undisputed the reason for the delay between Lawson's arrest and his trial was his incarceration in New York. However, "[a]n accused's right to a speedy trial remains undiminished even when he is already serving a prison sentence." Aaron v. State, 497 So. 2d 603, 604 (Ala.Crim.App.1986). See also Smith v. Hooey, 393 U.S. 374, 89 S. Ct. 575, 21 L. Ed. 2d 607 (1969). In most cases where a defendant has absented himself from the jurisdiction, his absence would be considered justified delay. However, because of Smith v. Hooey and its progeny, Lawson's absence cannot be considered justified delay. The record is devoid of any indication that the State intentionally did not seek to bring Lawson back to Alabama for trial in order to thwart his defense or to gain a tactical advantage over Lawson. Thus, the State's failure to have Lawson returned to Alabama for trial constitutes negligent delay which weighs slightly against the State. In analyzing this matter, it should be noted that this matter was scheduled for trial three months after Lawson's arrest. Lawson failed to appear for trial, and the trial was rescheduled for a month later. Again Lawson failed to *1134 appear. Lawson thus was provided an opportunity for trial 10 years before his trial actually occurred.
C. Assertion of the Right
The record is devoid of any indication that Lawson asserted his right to a speedy trial until July 6, 2005, when he filed a motion to dismiss the prosecution against him premised upon the State's failure to provide him with a speedy trial. Lawson's trial was held less than a month after he filed this motion. Lawson's failure for 10 years to assert his right to a speedy trial "`"tends to suggest that he either acquiesced in the delays or suffered only minimal prejudice prior to that date. Stevens v. State, 418 So. 2d 212, 214 (Ala.Cr. App.1982)." Lewis v. State, 469 So.2d [1291,] 1294 [(Ala.Crim.App.1984)].' Vincent v. State, 607 So. 2d 1290, 1294 (Ala. Crim.App.1992)." State v. White, ___ So.2d at ___.
D. Prejudice to the Defendant
"Because `pretrial delay is often both inevitable and wholly justifiable,' Doggett [v. United States], 505 U.S. [647,] 656, 112 S. Ct. 2686 [(1992)], the fourth Barker factor examines whether and to what extent the delay has prejudiced the defendant. Barker, 407 U.S. at 532, 92 S. Ct. 2182. The United States Supreme Court has recognized three types of harm that may result from depriving a defendant of the right to a speedy trial: `"oppressive pretrial incarceration," "anxiety and concern of the accused," and "the possibility that the [accused's] defense will be impaired" by dimming memories and loss of exculpatory evidence.' Doggett, 505 U.S. at 654, 112 S. Ct. 2686 (quoting Barker, 407 U.S. at 532, 92 S. Ct. 2182, and citing Smith v. Hooey, 393 U.S. 374, 377-79, 89 S. Ct. 575, 21 L. Ed. 2d 607 (1969); United States v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 15 L. Ed. 2d 627 (1966)). `Of these forms of prejudice, "the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system."' 505 U.S. at 654, 112 S. Ct. 2686 (quoting Barker, 407 U.S. at 532, 92 S. Ct. 2182)."
Ex parte Walker, 928 So.2d at 266-67.
At the hearing on Lawson's motion to dismiss for failure to provide a speedy trial, Lawson's attorney argued that he had been prejudiced because he was unable after 10 years to locate Tina Stollenweck, an employee of the Spectrum convenience store at the time it was robbed. Although Lawson's attorney searched the City Directory of the City of Montgomery and spoke with Stollenweck's relatives, no one knew of her whereabouts. During the hearing, Lawson's attorney stated: "So we don't know what Tina Stollenweck may have had to say. But it is certainly conceivable if thatif she was there on that occasion or if she had some knowledge of what had happened, we have lost out on the opportunity to call her as a witness." (R. 21.) In his brief to this Court, Lawson concedes that "[w]e only know through the power of suggestion that Ms. Stollenweck could have aided Mr. Lawson." (Appellant's reply brief, p. 10). In order to show prejudice, Lawson must point to specific facts in evidence and not just mere speculation of what a witness may or may not have known. "`"[S]peculative allegations, such as general allegations of loss of witnesses and failure of memories, are insufficient to demonstrate the actual prejudice. . . ."' that the appellant must establish." Irvin v. State, 940 So. 2d 331, 344 (Ala.Crim.App.2005) (quoting Haywood v. State, 501 So. 2d 515, 518 (Ala.Crim.App.1986), quoting in turn United States v. Butts, 524 F.2d 975, 977 (5th Cir.1975)). Thus, Lawson failed to *1135 show any prejudice which occurred because of the delay.
The 10-year delay between Lawson's arrest and trial, while presumptively prejudicial, does not constitute a Sixth Amendment violation. Lawson's case was set for trial twice within four months of his arrest, yet Lawson failed to appear. Although the State should have attempted to have Lawson extradited from New York to stand trial, such inaction was negligent, at most. Lawson further failed for 10 years to assert his right to a speedy trial. Finally, Lawson failed to show that he was prejudiced by this delay. Because his right to a speedy trial was not violated, Lawson is not entitled to any relief as to this claim.
Because the record fails to reflect that Lawson was arraigned before trial, the judgment of the Montgomery Circuit Court is reversed, and the case remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
COBB, J., concurs specially, with opinion, joined by McMILLAN, P.J., and BASCHAB and SHAW, JJ.; WISE, J., recuses herself.
COBB, JUDGE, concurring specially.
Only because this Court is bound by the precedent of the Alabama Supreme Court, see § 12-3-16, Ala.Code 1975, and "has no authority to declare unsound and overrule cases of the supreme court" do I concur with the other members of this Court in reversing the Montgomery Circuit Court and remanding this matter for a new trial. Hampton v. State, 455 So. 2d 149, 152 (Ala. Crim.App.1984) (abrogated on other grounds by McKinney v. State, 511 So. 2d 220 (Ala.1987)).
Arraignment proceedings have their origins in English common law. As Justice Mayfield of the Alabama Supreme Court explained almost a century ago:
"An arraignment at English common law was much more formal than with us now. Under the former, Lord Hale says: `An arraignment consists of three things: First, the calling of the prisoner to the bar by his name and commanding him to hold up his right hand, which, though it may seem a trifling circumstance, yet it is of importance, for, by holding up his hand, constat de persona indictati, and he owns himself to be of that name; second, reading the indictment distinctly to him in English, that he may understand his charge; third, demanding of him whether he be guilty or not guilty, and if he pleads not guilty then the clerk joins issue with him cul. prist, and enters the prisoner's plea, then demands how he will be tried. The common answer is "By God and the country," and thereupon the clerk enters po. se., and prays to God to send him a good deliverance.'
"With us, however, it is nothing more than calling the accused to the bar of the court, and reading or explaining the indictment to him, and demanding his plea. Its only purpose is to obtain from the accused his answer or plea to the indictmentCrain v. United States, 162 U.S. 625, 16 S. Ct. 952, 40 L. Ed. 1097 [(1896)]; Early v. State, 1 White & W. 248, 28 Am. Rep. 409 [(1876)]. Our statutes (section 7565 of the Code of 1907[[2]]) directs that if the defendant on arraignment refuses or neglects to plead, or stands mute, the court must cause the plea of not guilty to be entered from him. Under our practice and statutes, one charged of a capital offense is required to be arraigned, and his plea *1136 to be interposed, at least one entire day before the day of the trial, so that it may be determined whether or not he is entitled to a special venire for his trial. If, on arraignment, he pleads `guilty,' he is not entitled to the special venire; if he pleads `not guilty,' he is, and this special venire, together with a copy of the indictment, must be served upon him or upon his counsel one entire day before trial. Code, §§ 7566, 7840."
Howard v. State, 165 Ala. 18, 27-28, 50 So. 2d 954, 957-58 (1909).
More recently this Court observed, "the `common law formalities attendant on arraignment are no longer required. Boyd v. State, 41 Ala.App. 507, 138 So. 2d 60 (1962). Its only purpose is to obtain from the accused his answer or plea to the indictment.' See also, Carroll v. State, 445 So. 2d 952 (Ala.Cr.App.1983); Watts v. State, 460 So. 2d 204 (Ala.1983)." O'Neal v. State, 494 So. 2d 801, 803 (Ala.Crim.App. 1986) (quoting Headley v. State, 51 Ala. App. 148, 151, 283 So. 2d 458 (Crim.1973)).
As early as 1891, the Alabama Supreme Court held that "[t]here can be no trial on the merits in a criminal case until the defendant has pleaded not guilty, or this plea has been entered for him by the court." Jackson v. State, 91 Ala. 55, 57-58, 8 So. 773, 774 (1891). In the intervening decades, this Court has intermittently been faced with similar situations and has held that reversible error occurs when the trial court fails to arraign a defendant and the defendant places the trial court on notice prior to trial of this omission. See, e.g., Collins v. State, 21 Ala.App. 192, 106 So. 624 (1925); Howard v. State, supra; Presley v. State, 22 Ala.App. 167, 113 So. 485 (1927); Chesnut v. State, 35 Ala.App. 376, 47 So. 2d 248 (1950); Rorex v. State, 44 Ala.App. 112, 203 So. 2d 294 (1967); Pugh v. State, 343 So. 2d 793 (Ala.Crim. App.1977); McMurray v. State, 373 So. 2d 872 (Ala.Crim.App.1979); Hovater v. State, 552 So. 2d 191 (Ala.Crim.App.1989). As recently as 1985 the Alabama Supreme Court reaffirmed this proposition of law. See Ex parte State, 473 So. 2d 1132 (Ala. 1985).
The record clearly indicates that although Lawson may not have been arraigned, he received a fair trial before a jury of his peers. The trial court treated Lawson like any other defendant who had been properly arraigned and pleaded not guilty to the offense charged. Lawson thus suffered no prejudice by the trial court's apparent failure to arraign him.
Because of controlling precedent, this Court is forced to reverse and remand this matter on a technicality even though the record reveals that Lawson received a fair trial and all the constitutional guarantees afforded an indictee who has been properly arraigned and advised of his other rights. Remanding this matter for retrial is a wasteful use of Alabama's tax dollars and an insult to the concept of judicial economy. I therefore encourage the Alabama Supreme Court to reconsider the precedent set forth by Jackson, supra, Ex parte State, supra, and their progeny so that valuable judicial resources will not be wasted in such a manner as this.
NOTES
[1] The issue that the appellant now argues was brought to the attention of the trial court by able trial counsel and was extensively discussed with the trial court at a hearing before trial. This Court is at a loss as how it could be argued that this issue is not preserved for appellate review.
[2] Currently codified as § 15-15-1, Ala.Code 1975. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594393/ | 172 Mich. App. 485 (1988)
432 N.W.2d 348
PEOPLE
v.
MANSER
Docket No. 102281.
Michigan Court of Appeals.
Decided October 18, 1988.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of the Criminal Division, and Carolyn Schmidt, Assistant Prosecuting Attorney, for the people.
Jaroslaw Dobrowolskyj, and Carl Ziemba, of Counsel, for defendant on appeal.
Before: CYNAR, P.J., and SULLIVAN and J.R. ERNST,[*] JJ.
PER CURIAM.
On July 9, 1985, following his conviction of second-degree criminal sexual conduct, MCL 750.520c; MSA 28.788(3), defendant was sentenced to a five-year term of probation by Wayne Circuit Judge William Leo Cahalan. On March 25, 1987, defendant appeared before Detroit Recorder's Court Judge Beverly Anne Jasper charged with violating probation by failing to comply with several conditions of probation which did not involve the commission of a crime. Following a probation violation hearing, defendant's probation was revoked and he was sentenced to a term of from five to sixteen years imprisonment. Defendant now appeals by leave granted, and we reverse.
Before the violation hearing, defendant moved to have the case transferred to Judge Cahalan, the original sentencing judge. Judge Jasper denied the motion, stating, "We checked and we are going to be unable to give you a date for Judge Cahalan to hear the matter. This case has been drawn to this Court's docket. Judge Cahalan will not have any further input in this matter."
After oral arguments, the court indicated that it needed to hear from the defendant. After defendant *487 was questioned by defense counsel, the court interrogated him concerning his place of employment, amount of wages earned, amount paid toward restitution, number of hours contributed to community service, and number of sessions defendant had attended in a group therapy program for sex offenders. The defendant was found guilty of violating his probation. Before sentencing, defendant unsuccessfully moved to vacate the judgment of violation of probation and to disqualify Judge Jasper from the proceeding.
This Court has held that a judge who sentences a defendant to probation retains jurisdiction over the case in all subsequent proceedings, including revocation of probation. "The underlying policy is simply to insure that revocation will be considered by the judge who is most acquainted with the matter." People v Clemons, 116 Mich. App. 601, 604; 323 NW2d 300 (1981).
MCR 2.613(B) provides that "[a] judgment or order may be set aside or vacated, and a proceeding under a judgment or order may be stayed, only by the judge who entered the judgment or order, unless that judge is absent or unable to act." In the present case there was no showing that Judge Cahalan was absent or unable to act as required by MCR 2.613(B). Defendant's objection to proceeding before Judge Jasper was timely. Defendant's conviction of probation violation must be reversed and the matter remanded for further proceedings before Judge Cahalan.
Defendant also claims that the trial court erred in requiring him to answer various questions after he had elected not to testify. MCL 771.4; MSA 28.1134 provides that hearings on "revocation shall be summary and informal and not subject to the rules of evidence or of pleadings applicable in criminal trials." However, it is axiomatic that a *488 probation revocation hearing is an integral part of the criminal prosecution/sentence process. "In case such probation order is terminated or revoked the court may proceed to sentence such probationer in the same manner and to the same penalty as it might have done if such probation order had never been made." MCL 771.4; MSA 28.1134.
No person shall be compelled in any criminal case to be a witness against himself.[1] This fundamental privilege against compulsory self-incrimination accompanies a criminal defendant throughout the entire course of every criminal prosecution, including both sentencing and any subsequent probation revocation proceeding.
We perforce conclude that it was error for the trial court to call upon defendant where defendant had not testified or otherwise first waived the privilege. See People v Staley, 127 Mich. App. 38, 41; 338 NW2d 414 (1983), citing People v Bobo, 390 Mich. 355, 359; 212 NW2d 190 (1973); People v Nesbitt, 86 Mich. App. 128, 134-135; 272 NW2d 210 (1978).
Reversed and remanded.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] US Const, Am V; Const 1963, art 1, § 17. | 01-03-2023 | 10-30-2013 |
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