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https://www.courtlistener.com/api/rest/v3/opinions/1595160/ | 28 So. 3d 58 (2010)
R.M.F.
v.
STATE.
Nos. 5D09-2611, 5D09-2612.
District Court of Appeal of Florida, Fifth District.
February 9, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595164/ | 954 So. 2d 1145 (2005)
TEMUND SANCHEZ TORBERT
v.
STATE
No. CR-04-1813.
Court of Criminal Appeals of Alabama.
October 7, 2005.
Decision without opinion. Reh. denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595158/ | 28 So. 3d 614 (2009)
Harry VINSON, Appellant,
v.
Elizabeth Vinson VIDAL, Appellee.
No. 2008-CA-00653-COA.
Court of Appeals of Mississippi.
June 23, 2009.
Rehearing Denied December 1, 2009.
Certiorari Denied February 25, 2010.
*615 B. Sean Akins, Ripley, attorney for appellant.
Elizabeth Vinson Vidal (pro se).
Before LEE, P.J., GRIFFIS and CARLTON, JJ.
LEE, P.J., for the Court.
FACTS AND PROCEDURAL HISTORY
¶ 1. In August 2004, Harry Vinson (Vinson) filed a petition in the DeSoto County Chancery Court seeking visitation with his granddaughter, Reagan Vinson. Reagan is the daughter of Elizabeth Vinson Vidal (Elizabeth) and Harry's son, Brad Vinson. Elizabeth and Brad had divorced in 1999, and Elizabeth had been awarded physical custody of Reagan. Brad died in 2004, instigating the petition for grandparent's visitation.
¶ 2. The chancellor awarded Vinson temporary visitation. The parties agreed to expand visitation, and as of March 2006, Vinson received one Saturday per month for visitation with Reagan. Another chancellor was assigned to the case, and a hearing was held on the matter. In August 2007, the chancellor denied Vinson's petition for grandparent's visitation and ordered Vinson to pay $18,226.79 to Elizabeth for her attorney's fees. Vinson now appeals, asserting that the chancellor erred in terminating his visitation and in awarding attorney's fees to Elizabeth.
STANDARD OF REVIEW
¶ 3. Absent an abuse of discretion, this Court will not reverse the decision of the chancellor. Martin v. Coop, 693 So. 2d 912, 914 (Miss.1997). "This Court will not disturb the factual findings of the chancellor unless said factual findings are manifestly wrong or clearly erroneous." Id. (citing McAdory v. McAdory, 608 So. 2d 695, 699 (Miss.1992)).
DISCUSSION
¶ 4. We first note that Elizabeth has failed to file a brief in this matter. This Court has long held that an appellee's failure to file a brief is tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and the brief of the appealing party, that there was no error. Varvaris v. Perreault, 813 So. 2d 750, 752(¶ 5) (Miss.Ct. App.2001) (citing Dethlefs v. Beau Maison Dev. Corp., 458 So. 2d 714, 717 (Miss.1984)). "Automatic reversal is not required where [the] appellee fails to file a brief." Id. (quoting N.E. v. L.H., 761 So. 2d 956, 962(¶ 14) (Miss.Ct.App.2000)). In order to merit reversal, "[t]he appellant's argument `should at least create enough doubt in the judiciousness of the trial court's judgment that this Court cannot say with confidence that the case should be affirmed." Id. (citing Selman v. Selman, 722 So. 2d 547, 551(¶ 13) (Miss.1998)). After considering the record and brief, we can say with confidence that there was no error.
I. TERMINATION OF VINSON'S VISITATION
¶ 5. In his first issue on appeal, Vinson argues that the chancellor erred in terminating his visitation rights. It is well settled that "[n]atural grandparents have no common-law `right' of visitation with their grandchildren. Such right, if any, must come from a legislative enactment." In re Adoption of Minor, 558 So. 2d 854, 856 (Miss.1990) (citing Olson v. Flinn, 484 So. 2d 1015, 1017 (Miss.1986)). In 1983, the Mississippi Legislature enacted the *616 grandparents' visitation rights statutes, codified at Mississippi Code Annotated sections 93-16-1 to -7 (Rev.2004). These statutes outline how a grandparent may seek the opportunity to secure visitation with a grandchild. According to section 93-16-3(1) (Rev.2004), "either parent of the child's parents who was not awarded custody . . . or who has died . . . may petition the court . . . and seek visitation rights with such child."
¶ 6. Although a grandparent has standing to petition for visitation, a natural grandparent's statutory right to visit his grandchild is not as comprehensive as a parent's visitation rights. Settle v. Galloway, 682 So. 2d 1032, 1035 (Miss.1996). As always, the best interest of the child is the paramount consideration when determining visitation. Morgan v. West, 812 So. 2d 987, 992(¶ 13) (Miss.2002). In Martin, our supreme court listed ten factors that should be considered in determining grandparent visitation. The factors are as follows:
1. The amount of disruption that extensive visitation will have on the child's life. This includes disruption of school activities, summer activities, as well as any disruption that might take place between the natural parent and the child as a result of the child being away from home for extensive lengths of time.
2. The suitability of the grandparents' home with respect to the amount of supervision received by the child.
3. The age of the child.
4. The age, and physical and mental health of the grandparents.
5. The emotional ties between the grandparents and the grandchild.
6. The moral fitness of the grandparents.
7. The distance of the grandparents' home from the child's home.
8. Any undermining of the parent's general discipline of the child.
9. Employment of the grandparents and the responsibilities associated with that employment.
10. The willingness of the grandparents to accept that the rearing of the child is the responsibility of the parent, and that the parent's manner of child rearing is not to be interfered with by the grandparents.
Martin, 693 So.2d at 916. The Martin court acknowledged that this list was not all-inclusive, stating that the chancellor should weigh "all circumstances and factors he [or she] feels to be appropriate." Id.
¶ 7. The chancellor addressed all of the factors in Martin, ultimately finding that it was in the best interest of Reagan to cease visitation with Vinson. In regard to the first factor, the chancellor found that visitation with Vinson caused disruption in Reagan's life. The chancellor noted that Reagan was unhappy visiting with Vinson and would become physically ill the week preceding the visits. Reagan testified that she had a heart condition, for which she takes medication. In regard to the second factor, the chancellor found no evidence that Vinson's home was unsuitable. In regard to the third factor, the chancellor found that Reagan was thirteen years old, and she would take Reagan's preference into consideration. Reagan testified that she would keep visiting Vinson if the chancellor ordered her to do so, but she would rather visit him when she chose to do so. The chancellor also noted that Reagan's activities will increase as she grows older, possibly creating problems with visitation.
¶ 8. In regard to the fourth factor, the chancellor found Vinson to be a young grandparent in good health. In regard to the fifth factor, the chancellor found that although Vinson and his longtime girlfriend, *617 Patty, loved Reagan, Reagan did not appear to have the same emotional attachment to Vinson. However, the chancellor put most of the blame on Elizabeth for instilling in Reagan a fear of Vinson. Elizabeth and Vinson had a contentious relationship at best and had not spoken with each other in approximately seven years.
¶ 9. In regard to the sixth factor, the chancellor noted her concern that Vinson and his girlfriend, Patty, had been together for almost twenty years and living together for more than ten years, but they had never officially married. In regard to the seventh factor, the chancellor found that the distance from Vinson's house to Reagan's was a concern because of the length of time spent in the car on visitation days. The trip from Vinson's house to Reagan's house took approximately one and one-half hours, and the chancellor voiced her concern over Reagan spending three hours a day in the car. In regard to the eighth factor, the chancellor found no issue due to the fact that there was no testimony that Vinson undermined Elizabeth's discipline. In regard to the ninth factor, the chancellor found that Vinson and Patty had flexible work schedules which would not affect their visitation with Reagan.
¶ 10. In regard to the tenth factor, the chancellor was concerned about the lack of communication between the parties. The chancellor was concerned that Vinson did not know Elizabeth's "manner of child rearing" and might not be able to handle certain situations. Although the chancellor noted that Vinson had handled certain situations in a responsible manner, she found this factor weighed against Vinson.
¶ 11. The chancellor then found that it was not in Reagan's best interest to continue visitation with Vinson. The chancellor stated that "I don't think it is fair to traumatize a child and make her continue to have forced visitation. . . . [C]hildren that age do not like to be pressured[,] and she is already feeling pressure from Elizabeth to not go and to not want to have anything to do with [Vinson]." The chancellor ceased Reagan's visitation with Vinson and urged Vinson and Elizabeth to repair their relationship. The chancellor hoped that Reagan would want to resume visitation at some later date, rather than being forced to visit with Vinson.
¶ 12. Even though the chancellor realized that Elizabeth was the cause of Reagan's negative feelings toward Vinson, the chancellor decided that it was in Reagan's best interest to cease visitation. The chancellor relied heavily upon Reagan's testimony that she did not want to be forced to visit Vinson. We note that visitation with Vinson had occurred without incident for approximately two years, and many of the instances that Elizabeth cited as causing stress to Reagan either happened approximately seven or eight years ago during Elizabeth's divorce proceedings with Brad or were unrelated to the visitation. However, the chancellor found that it was in Reagan's best interest to allow her the freedom to visit with Vinson when she chose to do so. The chancellor weighed the Martin factors and determined that it was in Reagan's best interest to cease visitation. We cannot find that the chancellor abused her discretion in doing so; thus, we affirm.
II. AWARD OF ATTORNEY'S FEES TO ELIZABETH
¶ 13. In his other issue on appeal, Vinson argues that the chancellor erred in awarding Elizabeth attorney's fees in the amount of $18,226.79. Vinson contends that the chancellor mistakenly relied upon Mississippi Code Annotated section 93-16-3(4) (Rev.2004) in awarding attorney's fees. Section 93-16-3(4) states as follows:
*618 Any petition for visitation rights under subsection (2) of this section shall be filed in the county where an order of custody as to such child has previously been entered. If no such custody order has been entered, then the grandparents' petition shall be filed in the county where the child resides or may be found. The court shall on motion of the parent or parents direct the grandparents to pay reasonable attorney's fees to the parent or parents in advance and prior to any hearing, except in cases in which the court finds that no financial hardship will be imposed upon the parents. The court may also direct the grandparents to pay reasonable attorney's fees to the parent or parents of the child and court costs regardless of the outcome of the petition.
Section 93-16-3(2) allows grandparents who are not authorized to petition for visitation rights pursuant to section 93-16-3(1) another manner of seeking visitation. See Miss.Code Ann. § 93-16-3(2) (Rev. 2004). Vinson petitioned for visitation pursuant to 93-16-3(1) and, therefore, contends that subsection (4) is not applicable to a petition filed pursuant to subsection (1). The chancellor found that the award of attorney's fees in grandparent visitation cases is not limited to a petition filed under subsection (2).
¶ 14. In Zeman v. Stanford, 789 So. 2d 798, 805(¶ 28) (Miss.2001), the grandparent filed a petition under subsection (1), and the chancellor denied attorney's fees finding that the father had the ability to pay the attorney's fees. The supreme court affirmed, finding that an award of attorney's fees is "largely a matter entrusted to the sound discretion" of the chancellor, and absent an abuse of discretion, the chancellor's decision will be upheld. Id. at 806(¶ 30). In Solomon v. Robertson, 980 So. 2d 319, 322(¶ 8) (Miss.Ct.App.2008), this Court upheld the chancellor's decision to deny the mother attorney's fees in a grandparent-visitation case filed under subsection (1). We agreed with the chancellor's determination that the mother failed to prove financial hardship and inability to pay. Id. These cases do not specifically discuss whether subsection (4) applies to cases filed pursuant to subsection (1), and we can find no cases that hold as such. However, these cases ultimately rested upon whether the chancellor abused his discretion in determining whether to award attorney's fees. In the present case, we find that the chancellor did not abuse her discretion in awarding Elizabeth attorney's fees. The chancellor found that Elizabeth did not have the financial ability to pay the attorney's fees. Elizabeth testified that she had lost her home through foreclosure, worked at a low-paying job, and had trouble paying for Reagan's clothes. We reiterate that subsection (4) states that the court may direct the grandparents to pay attorney's fees to the parent "regardless of the outcome of the petition." Miss.Code Ann. § 93-16-3(4). We affirm the decision of the chancellor awarding attorney's fees to Elizabeth.
¶ 15. THE JUDGMENT OF THE DESOTO COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595155/ | 28 So. 3d 204 (2010)
Nicholas AGATHEAS, Appellant,
v.
STATE of Florida, Appellee.
No. 4D06-4870.
District Court of Appeal of Florida, Fourth District.
February 24, 2010.
Rehearing Denied February 24, 2010.
*205 Richard L. Rosenbaum of Arnstein & Lehr, LLP, Fort Lauderdale, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
ON MOTION FOR REHEARING AND REHEARING EN BANC
DAMOORGIAN, J.
Nicholas Agatheas filed a Motion for Rehearing and Rehearing En Banc. We deny appellant's motions, withdraw our opinion of December 16, 2009, and substitute the following.
After being tried and convicted of first degree murder with a firearm, Nicholas Agatheas ("the defendant") appeals. We affirm.
On September 20, 2006, the defendant was arrested for murdering Thomas Villano *206 ("the victim"). The State's theory at trial was that the defendant hated the victim and retaliated against the victim for allegedly raping one of the defendant's friends. The State argued that, on the night of the murder, the defendant showed up at the victim's house and fatally shot him eight times in the head and neck.
The defendant's former girlfriend testified that weeks prior to the murder, she walked in on the defendant in her bedroom dressed in black clothes wearing a bandana on his face and holding a revolver-type gun in his hand. She described the defendant's appearance as that of a "gangster." When she started to laugh, he grew very serious and told her that this was the way he was now.
On the day of the murder, the defendant and the former girlfriend fought, and the defendant made arrangements to stay at a friend's house that night. The former girlfriend then went to work and did not return home until later that evening. Shortly after arriving home, she noticed that the backpack in which the defendant stored his gun was missing from her closet. She had not spoken to the defendant since their fight earlier that day. Several hours after retiring to bed that night, she was awoken by the defendant's phone call. According to the former girlfriend, the defendant called her from a pay phone and asked her to contact his friend and arrange for his friend to pick him up. The former girlfriend agreed and made the call.
A few nights later, while the former girlfriend and the defendant were watching TV, a news story aired about the victim's murder. At this time, the defendant bragged to the former girlfriend that he murdered the victim because the victim raped one of his friends. He also admitted to her that he took off his t-shirt and left it at the scene of the crime. After murdering the victim, he drove the victim's car around listening to music very loudly before abandoning it.
During the investigation of the murder, the police recovered a black t-shirt with the defendant's DNA in the front yard of the victim's residence. The police also recovered the victim's vehicle near the pay phone the defendant used to call his former girlfriend on the night of the murder. The radio in the recovered vehicle was set at a high volume. Although there was evidence connecting the defendant to the crime, he was not charged at that time. It was not until the former girlfriend came forward years later that there was sufficient evidence to charge the defendant. With the former girlfriend's statement, the police arrested the defendant for the murder. At the time of the arrest, the defendant had in his possession a backpack, which contained, among other things, a .45 caliber revolver and latex gloves nestled inside another pair of gloves.
At trial, the State introduced the actual contents of the defendant's backpack and photographs of the contents, which included the .45 caliber revolver, latex gloves nestled inside another pair of gloves, a flashlight, batteries, a lighter, a screwdriver, and a bandana. However, as established by uncontroverted expert testimony, the gun used to murder the victim was a ".38 caliber gun or a .38 class gun." The defendant's counsel did not object at trial to the introduction of this evidence.
On appeal, the defendant claims that his trial counsel was ineffective for failing to object to the introduction of the .45 caliber revolver and the other contents of his backpack, and that the facts giving rise to this claim are apparent on the face of the record. See Jones v. State, 815 So. 2d 772, 772 (Fla. 4th DCA 2002) ("[Ineffective assistance of counsel will only be addressed on direct appeal for the first time *207 when the facts giving rise to the claim are apparent on the face of the record, a conflict of interest is shown, or prejudice to the defendant is shown."). The defendant also argues that the introduction of the revolver was highly prejudicial and that it was fundamental error for the trial court to admit this evidence because the State failed to connect the revolver to the murder.
We first address the defendant's ineffective assistance of counsel claim. An ineffective assistance of counsel claim is a mixed question of law and fact that is subject to de novo review. Bowman v. State, 748 So. 2d 1082, 1083-84 (Fla. 4th DCA 2000). In State v. Pearce, the Florida Supreme Court cited the U.S. Supreme Court's ineffective assistance of counsel test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and noted the heavy burden a defendant faces in order to prevail on an ineffective assistance of counsel claim:
[I]n ineffective assistance of counsel claims two requirements must be satisfied: (1) the claimant must identify a particular act or omission of the lawyer that is outside the broad range of reasonably competent performance under prevailing professional standards, and (2) the clear, substantial deficiency shown must further be shown to have affected the fairness and reliability of the proceeding so that confidence in the outcome is undermined. As to the first prong, the defendant must establish that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. There is a strong presumption that trial counsel's performance was not ineffective.
994 So. 2d 1094, 1099 (Fla.2008) (citations and quotation marks omitted).
As to the first prong of the Strickland test, as cited in Pearce, the defendant argues that his trial counsel should have objected to the admissibility of the backpack contents because the State failed to show how the contents were linked to the murder, and the evidence suggested that the defendant had a propensity to engage in criminal activities. We disagree and conclude that this evidence was relevant to corroborate the former girlfriend's testimony. See Czubak v. State, 570 So. 2d 925, 928-29 (Fla.1990); Williams v. State, 834 So. 2d 923, 926 (Fla. 3d DCA 2003), rev'd on other grounds, 863 So. 2d 1189 (Fla.2003) (citing Allen v. State, 662 So. 2d 323, 327 (Fla.1995)); Kirby v. State, 625 So. 2d 51, 53 (Fla. 3d DCA 1993) (stating that a photograph is admissible if relevant to an issue at trial, either independently or to corroborate other evidence, unless the probative value is outweighed by undue prejudice). On several occasions throughout the trial, the defendant's trial attorney attacked the former girlfriend's credibility, arguing, among other things, that she fabricated the story after a private investigator leaked information to her. The .45 caliber revolver and bandana recovered from the defendant's backpack corroborated her testimony regarding her observations around the time the crime was committed. The photographs of these items were, therefore, relevant to her credibility. We also conclude that the latex gloves and photographs of the gloves were relevant and admissible because latex gloves like the ones found in the defendant's backpack were found along the path from the victim's vehicle to the pay phone that the defendant used to contact the former girlfriend on the night of the murder. The defendant's trial attorney was not ineffective for failing to object to evidence that we conclude was relevant and admissible.
Although we have not found, and the State has not identified, any evidence *208 connecting the flashlight, batteries, lighter, and screwdriver to the murder, we conclude that the erroneous admission of these items did not undermine confidence in the outcome of this cause and that the admission of this evidence was harmless. See State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla.1986). Accordingly, we hold that the defendant has not stated a claim for ineffective assistance of counsel regarding the trial attorney's failure to object to these items.
Having concluded that the .45 caliber revolver, bandana, and latex gloves, and photographs of these items were relevant and admissible, and that the admission of the other backpack contents was harmless error, we need not address the defendant's claim that the admission of this evidence constitutes fundamental error.[1]
We find no merit to any of the other issues raised.
Affirmed.
MAY and CIKLIN, JJ., concur.
NOTES
[1] The defendant correctly notes that fundamental error is the appropriate standard of review for this issue. Although a preserved argument regarding the admissibility of evidence is reviewed for abuse of discretion, the issue was not preserved for appellate review because no contemporaneous objection was made at trial; an unpreserved argument is reviewed only for fundamental error. See State v. Calvert, 15 So. 3d 946, 948 (Fla. 4th DCA 2009). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595165/ | 28 So. 3d 627 (2009)
In the Matter of the ESTATE OF Ollie M. THOMAS, Deceased:
John D. Thomas, Jr., Appellant,
v.
Lynda Thomas Thoms, Carol Thomas Deady And Cathy Thomas May, Appellees.
No. 2008-CA-00462-COA.
Court of Appeals of Mississippi.
July 28, 2009.
Rehearing Denied December 1, 2009.
Certiorari Denied February 25, 2010.
*629 James T. Knight, James Ray Mozingo, Ridgeland, attorneys for appellant.
Moran M. Pope, Hattiesburg, attorney for appellees.
EN BANC.
ISHEE, J., for the Court.
¶ 1. After administering the will of Ollie Mae Thomas (Ollie Mae), the executor, John D. Thomas, Jr. (John), filed a petition to close the Estate of Ollie Mae (Estate) and discharge the executor. In response, John's sisters Lynda Thomas Thoms (Lynda), Carol Thomas Deady (Carol), and Cathy Thomas May (Cathy) filed a petition alleging maladministration of their mother's estate and the family business, Gibson Products. John and his three sisters were the beneficiaries under the will. Following a hearing on the matter, the Chancery Court of Forrest County ruled in favor of the sisters.
¶ 2. The chancellor entered a judgment refusing to close the Estate and removing John as administrator for two trusts created by the decedent. Additionally, the chancellor ordered John's interest in the Estate to be surcharged $267,477.41 for failing to account for the Estate's assets. That amount included $142,000 that John spent for the real property contained in *630 the Estate. Each of the three sisters was awarded $30,382.52 for the business, and they received attorney's fees in the amount of $67,382.83.
¶ 3. Aggrieved by the judgment, John appeals. He asserts the following points of error: (1) whether the chancellor erred by refusing to approve John's accounting, by refusing to close the Estate, and by allowing the litigation of corporate matters in the estate actions; and (2) whether the chancellor erred in surcharging John and entering a judgment against him and in favor of his sisters.
FACTS AND PROCEDURAL HISTORY
¶ 4. The estate action in this case was initially commenced in 1999 following the death of Ollie Mae. The decedent left a will, which named John as executor, and John admitted the will to probate on July 13, 1999. The case was assigned to Chancellor Sebe Dale, Jr., but because he was unavailable at the time, Chancellor James Thomas, Jr., signed the decree admitting the will to probate and authorizing the issuance of letters testamentary to John. According to the provisions of the will, the decree waived the requirements of inventory, appraisal, and annual accounting.
¶ 5. The terms of the will directed that the decedent's real property, which included a condominium in Destin, Florida, and a chalet in Gatlinburg, Tennessee, be placed in a trust along with $100,000 to operate and maintain the properties. John was named as the trustee of the trust. The residual property of the Estate was to be divided evenly among the decedent's four children-Carol, Lynda, Cathy, and John. Lynda's share was to be placed in the previously-created Lynda Thomas Thoms Trust, for which John also served as trustee. The will also contained an in terrorem clause, which disinherited any beneficiary who challenged the will.
¶ 6. In addition to serving as executor of his mother's estate and trustee of the aforementioned trusts, John was the sole officer, director, and employee of Gibson Products of Hattiesburg, Inc. the family corporation. Stock ownership in the corporation was approximately twenty-six percent held by the Estate, nineteen percent held by John, and eighteen percent held by each of the three sisters. Besides voting his own shares, as executor and trustee, John was able to vote the shares controlled by the Estate and those controlled by Lynda's trust. Therefore, John could effectively vote a majority of the stock in Gibson Products. His sisters pointed out that, at the Gibson Products directors' meeting, of which John was the sole director, he voted himself a salary of $1,200 per month, which increased to $2,000 per month beginning on June 1, 2000.
¶ 7. From 1999 through 2005, John managed the Estate, the two trusts, and the family corporation. On November 17, 2005, he filed a Petition to Close Estate and Discharge Executor. Despite numerous letters from James Knight-the attorney that John had retained to assist him in closing the Estate, Carol and Lynda refused to assent to the closing. On May 8, 2006, Carol and Lynda filed a response to the petition to close the Estate. The chancellor found that the Estate was not ready to be closed and granted Carol and Lynda sixty days to file pleadings in the case. On August 17, 2006, Carol, Lynda, and Cathy filed a petition alleging maladministration of the Estate by John. Initially, Cathy had filed a Waiver of Process and Entry of Appearance, but she later revoked her assent to the Estate's closing and joined her sisters' petition. John again sought to close the Estate, but the chancellor refused *631 and ordered him to file an inventory and accounting.
¶ 8. After filing an inventory and accounting of the Estate, John filed a Petition for Approval of Inventory and Final Accounting and Discharge of Executor. Thereafter, Carol, Lynda, and Cathy filed a complaint against John individually, as executor, as trustee for both trusts, and in his capacity as president, secretary, treasurer, and sole director of Gibson Products. The complaint sought to (1) compel John to file a complete inventory and accounting, (2) remove John as trustee of the two trusts, (3) distribute the assets of the Estate under the court's supervision, (4) impose liability upon John for damages caused by his breach of fiduciary duties, and (5) award attorney's fees. John responded and requested that his sisters be disinherited from the decedent's will pursuant to the in terrorem clause, and he also sought attorney's fees.
¶ 9. A trial was held on the matter from October 16-17, 2007. John testified that the Estate consisted of various checking and investment accounts; real property in Florida, Tennessee, Alabama, and Mississippi; personal property; and stock in Gibson Products and in O.T. Properties, Inc. For his work on the Estate, the chancellor had approved two petitions filed by John seeking $3,881.25 and $16,932.50 in attorney's fees. When he sought to close the Estate, he requested an additional $37,089 in attorney's fees. He also requested $5,000 in attorney's fees for Knight. At trial, John requested $78,699 in attorney's fees for himself and an additional $55,574.89 for Knight. Additionally, John filed a petition with the chancery court in which he sought permission to sell the decedent's homestead and her two automobiles. He sold the house, but he kept one of the cars and took it to Arkansas with him.
¶ 10. After hearing from the parties and attempting to reconcile John's expenditures on behalf of the Estate with the accounting that he filed, the chancellor entered an order refusing to close Ollie Mae's estate. The chancellor surcharged John $267,477.41. That amount included $142,000 that was spent in excess of the $100,000 set aside for the real property. The difference represented the amount for which the chancellor could not determine the purpose of the expense. As for the expenses that the chancellor could find were for the benefit of the Estate, the chancellor stated the following:
The Court notes (a) that in 1999, there was a check written to Hulett-Winstead Funeral Home in the amount of $13,427.64, which the Court assumes was for funeral expenses; (b) that in 2000, there were four (4) checks written to the four (4) beneficiaries of the Estate in the amount of $25,000.00 each, which the Court assumes was a partial distribution from the Estate; (c) that in 2000, there was a check in the amount of $152,834.00 made payable to the Mississippi State Tax Commission; a check in the amount of $10,723.00 made payable to the Tennessee Department of Revenue; a check in the amount of $1[,]716.00 made payable to the Alabama Department of Revenue; the Court assumes these checks were for taxes related to the Estate[;] (d) that in 2001, there was a check payable to Thomas Law Firm in the amount of $16,932.50, which figure matches the amount authorized by the Court; (e) that in 2002, there was a check in the amount of $3,881.25 payable to Thomas Law Firm, which figure matches the amount authorized by the Court; (f) that in 2004, there were four (4) checks written to the four beneficiaries of the Estate in the amount of $100,000.00 each, which the Court assumes was a partial *632 distribution from the Estate; (g) that in 2005, there were four (4) checks written to the beneficiaries of the Estate in the amount of $12,500.00 each, which the Court assumes was a partial distribution from the Estate; (h) in 2006, there were four (4) checks in the amount of $7,500.00 each written to the four (4) beneficiaries, which the Court assumes was a partial distribution from the Estate; and (i) that $100,000.00 of the Estate of Ollie M. Thomas was used to fund the Ollie Thomas Real Property Trust. The Court will not make further assumptions about the purpose of the remaining checks written on the Estate's checking account given the complete incomprehensibility of the so-called accounting and the amount of time and the number of opportunities [John] had to prepare an accounting.
¶ 11. Finding that the sisters' attorney essentially represented the Estate, the chancellor awarded the sisters the sum of $67,382.83 in attorney's fees. The chancellor awarded $37,089 in attorney's fees to John, an amount which had been agreed to by his sisters. For violating his duties as sole officer, director, and attorney for Gibson Products, the chancellor ordered John to pay each of his sisters the sum of $30,382.52. The chancellor also removed John as trustee of both trusts and prohibited him from spending any money from the Estate without court approval. From this judgment, John filed the present appeal.
STANDARD OF REVIEW
¶ 12. Our review of a chancellor's judgment is limited. In re Estate of Carter, Frazier v. Shackelford, 912 So. 2d 138, 143(¶ 18) (Miss.2005) (citing Miller v. Pannell, 815 So. 2d 1117, 1119(¶ 9) (Miss.2002)). Generally, we will not disturb a chancellor's findings unless the chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal standard. Id.
DISCUSSION
¶ 13. On appeal, John cites two alleged points of error. However, each of his allegations actually contains multiple issues, and we have divided them as such for clarity.
I. The Accounting and Petition to Close the Estate
¶ 14. To begin, John argues that the chancellor erred by refusing to approve the inventory and accounting that he filed and by refusing to close the Estate. He makes a number of arguments in support of his position: (1) the chancellor had waived an accounting per the terms of the will; (2) the accounting filed by John was accurate and fully reflected all the disbursements from the Estate; (3) objections to the accounting were untimely; and (4) all issues with the accounting were addressed at trial.
¶ 15. Even though an accounting may be waived by a testator through the will, a chancellor has the power to nullify the waiver. Shackelford, 912 So.2d at 146(¶ 26). "[T]he chancery court may require an accounting even when the testator has waived it where there are charges of mismanagement or maladministration of the estate." Id. (quoting In re Estate of Hollaway; Hollaway v. Hollaway, 631 So. 2d 127, 134 (Miss.1993)). In Shackelford, the supreme court noted the broad equitable powers of the chancellor in ensuring that an executor properly exercises his fiduciary powers in administering the estate:
According to Mississippi law, "one serving in the capacity of executor or administrator is an officer of the court and holds a fiduciary relationship to all parties having an interest in the estate." Hollaway, 631 So.2d at 133. Based on *633 this relationship, Mississippi law provides a chancellor with broad equitable powers and encourages the imposition of regulatory measures which insure that an estate and the will of its owner are protected from fraud. It is therefore the distinct duty of a chancellor to hold those serving in positions of trust accountable for their administrative actions and, in this way, hold a fiduciary fully accountable for the property with which the fiduciary has been entrusted.
Id. at 147(¶ 29). While Shackelford is not directly on point with the present case, we find the reasoning espoused by the supreme court to be applicable to the situation at hand.
¶ 16. The temporary chancellor initially waived an accounting of the Estate, which was an acceptable practice because the testator provided in her will that an accounting should be waived. However, after the sisters filed charges of maladministration, it was within the chancellor's discretion to order a complete accounting. The supreme court has even stated that it is possible for a chancellor to reopen a closed estate upon charges of maladministration. Id. "[W]hen indicia of fraudulent activity are present, there is no legal barrier preventing a chancellor, clothed with the powers of equity, from reopening a closed estate and demanding a fiduciary to produce evidence in an effort to disprove maladministration." Id. Accordingly, we find that the chancellor did not err in ordering John to provide an accounting.
¶ 17. As for the sufficiency of the accounting at issue, the chancellor repeatedly expressed his disapproval of the inadequate information that John had provided to the court. The accounting included a date, an amount spent, a check number, and a payee, but for the most part, it did not reflect the purpose of the transaction. Rule 6.05 of the Uniform Chancery Court Rules requires an accounting to include the purpose of any disbursement. The accounting by John did not reflect the purposes of the disbursements that he had made throughout the more than six years he served as executor. The attorneys attempted to go through the entire accounting with John in order to inform the chancellor of the purposes of the transactions. However, the questions were mostly limited to whether the transactions were for the benefit of the Estate or the real-property trust, and the actual purpose behind each transaction remained unclear. The supreme court has stated the following regarding the purpose of an accounting:
An accounting is an important mechanism for the chancery court to employ in order to monitor the administration of an estate. Moreover, an accounting is an opportunity for an individual charged with the distribution of the assets of an estate to document and justify his/her lawful execution of the duties conferred upon him/her.
Shackelford, 912 So.2d at 146(¶ 26).
¶ 18. In the final judgment, the chancellor stated the following regarding the accounting:
The Court has painstakingly gone through the so-called accounting filed by the Executor and the copies of the more than 1,200 checks written by the Executor on the Estate's checking account, most of which contain nothing whatsoever on the "memo line." The Court is asked by [John] to approve his so-called accounting, but to do so would be to approve the unknown; what was the money spent for and where did it come from. The Court cannot approve such an accounting.
After reviewing the accounting submitted by John, we find no error with the chancellor's determination that it was incomplete. It generally failed to disclose the purpose *634 for the various expenses, and the testimony at trial did little to clear up that discrepancy.
¶ 19. We also see no merit to John's arguments that the filing was untimely and that all the issues with the accounting were resolved when he gave his testimony concerning the accounting. First, John makes no allegation that the statute of limitations had expired on his sisters' claim. He merely argues that his sisters did not file their claim for maladministration within the sixty days provided for by the chancellor. Second, the sisters made no stipulation that the items in the accounting were accurate or complete, and the chancellor repeatedly noted that John's testimony did not resolve the issues with the accounting. It was for the chancellor to resolve those issues, and he did so in the final judgment.
II. The Corporate Matters
¶ 20. Next, John takes issue with the fact that the chancellor allowed the litigation of corporate matters relating to John's control of Gibson Products. He argues that it was not proper to litigate the corporate matters in an estate action. Instead, he argues that his sisters should have filed a shareholder derivative suit on behalf of Gibson Products. John relies on Bruno v. Southeastern Services, Inc., 385 So. 2d 620, 622 (Miss.1980) to support his position. In Bruno, the supreme court stated:
We adopt the rule in Mississippi that an action to redress injuries to a corporation, whether arising in contract or in tort cannot be maintained by a stockholder in his own name, but must be brought by the corporation because the action belongs to the corporation and not the individual stockholders whose rights are merely derivative.
Id.
¶ 21. More recently, the supreme court has addressed this issue and decided that Mississippi would take the position that:
[i]n the case of a closely held corporation. . ., the [chancery] court in its discretion may treat an action raising derivative claims as a direct action, exempt it from those restrictions and defenses applicable only to derivative actions, and order an individual recovery, if it finds that to do so will not (i) unfairly expose the corporation or the defendants to a multiplicity of actions, (ii) materially prejudice the interests of creditors of the corporation, or (iii) interfere with a fair distribution of the recovery among all interested persons.
Era Franchise Sys., Inc. v. Mathis, 931 So. 2d 1278, 1281(¶ 9) (Miss.2006) (quoting Derouen v. Murray, 604 So. 2d 1086, 1091 n. 2 (Miss.1992)); see also Griffith v. Griffith, 997 So. 2d 218, 222(¶ 15) (Miss.Ct.App. 2008).
¶ 22. Prior to trial, John filed a motion in limine requesting that the corporate matters be excluded from the estate action. In the order denying John's motion in limine, the chancellor stated that he examined the issue and considered its ramifications. The chancellor found that:
inasmuch as the said corporation is a part and property of this Estate, and further that the actions of John D. Thomas, Jr. as Executor herein, his actions as President and Sole Officer and Director of that corporation, and his actions as attorney for the Estate are so inextricably intertwined as to render it inefficient, impractical[,] and contrary to equitable principles and judicial economy to effect separation of any or all his said actions into independent legal proceedings.
The chancellor reiterated this finding in the final judgment and also noted that he considered the factors listed in Derouen.
¶ 23. All of the shareholders of Gibson Products were a party to the lawsuit, *635 and there was no evidence that treating the sisters' claim as a direct action would expose the corporation to a multiplicity of lawsuits or that it would prejudice the corporation's creditors. Based on the chancellor's consideration of the issue and in light of the fact that the supreme court has granted the chancellor discretion in deciding whether to treat such derivative actions as direct actions, we find that the chancellor was within his discretion in hearing issues relating to John's management of Gibson Products. Accordingly, we find no merit to this issue.
III. Surcharging the Executor
¶ 24. John's argument concerning the amount he was surcharged can be broken down into two sub-issues: (1) the amount he was surcharged as a result of what the chancellor deemed to be an insufficient accounting and (2) the amount he was surcharged for expenses related to the upkeep of the real property.
¶ 25. The chancellor found that the court-approved expenses totaled $879,514.39, and the amount expended by John was $1,146,991.82. The chancellor found the difference in the amounts to be $267,477.41,[1] with $142,000 of that amount being the excess that John spent on the real property and the remaining amount representing estate expenditures for which John could not account.
¶ 26. John's argument concerning the accounting is that his sisters suffered no prejudice as the result of his actions and that he should not be penalized for failing to strictly comply with the antiquated practice of filing vouchers with the accounting. Contrary to John's argument, the chancellor did not penalize John for failing to file vouchers, as required by statute. The chancellor made it clear that the issue with John's accounting was its incomplete nature the fact that the purposes of the expenditures were not disclosed. When examining the accounting, the chancellor regarded it as "an accounting which does not tell me to whom the money was paid, for what purpose it was paid, and whether it's an estate purpose or a personal purpose, or to a beggar on the street." In the final judgment, the chancellor found that absent the filing of vouchers, "[p]lacing the style of the case and the cause number on the check, showing to whom paid and for what purpose the money was paid, the amount, and the date of the Court Order authorizing payment, would satisfy the substance, if not the form, of a statutory `voucher.'" The chancellor noted that John wrote more than 1,200 checks on the Estate's account, which totaled more than $1,100,000, and only two of those two payments of attorney's fees to John were approved by the court. Accordingly, we see no merit to John's claim that the chancellor penalized him for failing to file vouchers.
¶ 27. Next, we address John's argument concerning the real-property trust. He contends that he was protecting the assets of the Estate with his expenditures on the real property, and furthermore, the trust had not yet come into existence because it had not been funded. John cites Harper v. Harper, 491 So. 2d 189, 196 (Miss.1986) in support of his argument that the real-property trust did not come into existence. In Harper, the supreme court found that the testamentary trust did not come into existence because it had not been funded with a corpus, and the will did not grant the executor any authority to transfer estate property into the trust. Id. As the supreme court stated: "It is elementary that there can be no trust without a res, that there must be a definite subject matter." Id. (quoting Warner v. *636 Merchs. Bank & Trust Co., 2 Conn.App. 729, 483 A.2d 1107, 1110 (1984)). We find Harper distinguishable. In the present case, the trust was funded with real property in Florida and Tennessee and with $100,000 to maintain the properties.
¶ 28. Furthermore, as the chancellor found, John's actions revealed that he believed that the trust had been activated. In the 2005 Petition to Close the Estate and Discharge Executor, John included as Exhibit H a Schedule of Remaining Trust Funds to Be Distributed by Estate. The schedule listed the funds expended on behalf of the real-property trust and calculated the funds that remained from the $100,000 that had been set aside.
¶ 29. At trial, John tallied the accounting figures and stipulated to the fact that he had spent $242,000 on maintaining the real property over the course of the Estate's administration. This was clearly in excess of the $100,000 that the will provided to maintain the property. John argues that this figure is irrelevant and arbitrary in that the real-property trust never came into existence. However, we see nothing arbitrary about the figure when the will provided that $100,000 would be placed in the real-property trust for the maintenance of the trust's property. Additionally, we have already found that the trust was funded with the real property and the $100,000. The trust provided $100,000 for maintenance of the real property. Without seeking court approval, John spent $242,000 for that purpose. We find no error with the chancellor surcharging him the difference in those amounts; therefore, this argument is without merit.
IV. Attorney's Fees
¶ 30. John next takes issue with the chancellor's award of attorney's fees to his sisters and the chancellor's refusal to award attorney's fees to John. He argues that the fees he requested were reasonable and were spent for the benefit of the Estate. He also argues that there was no authority allowing the chancellor to grant attorney's fees to his sisters.
¶ 31. "Although attorney's fees are the personal obligation of the administrator or executor, where they have benefitted the estate, they may be paid out of the estate as administration expenses." In re Estate of Collins v. Collins, 742 So. 2d 147, 149(¶ 6) (Miss.Ct.App.1999) (citing Scott v. Hollingsworth, 487 So. 2d 811, 813 (Miss. 1986)). However, "[if] the estate has not benefitted by those services, equity suggests that the estate should not pay for those services." Id. In the present case, the chancellor found that John had breached fiduciary duties to his sisters and maladministered his mother's estate. The chancellor also found that: John refused to cooperate with his sister when she inquired, as was her right, into the Estate's finances; John claimed to have spent an exorbitant amount of time creating an accounting that was unsatisfactory; and John unnecessarily hired Knight as a lawyer despite the fact that John had acted as the Estate's attorney for more than six years. The chancellor did, however, award John the $37,089 in attorney's fees that his sisters had previously agreed for him to receive.
¶ 32. Ultimately, the chancellor concluded that the services of John and Knight were "not `proper and [not] rendered in good faith.'" See Miss.Code Ann. § 91-7-281 (Rev.2004). Supporting the chancellor's refusal to award attorney's fees was the finding that:
In Estate of Carter, 912 So. 2d 138, 145 [(¶ 23)] (Miss.2005), the Mississippi Supreme Court described an executrix's repeated failure to "provide [any] substantiation for the expenditure of a large portion of [the estate's] assets" as a *637 "monumental dereliction." The failure of [John] in this case to provide "[any] substantiation for the expenditure of a large portion of [the estate's] assets" rivals the dereliction in the Carter case. What makes it worse is that the Executor is an attorney, with an undergraduate degree in accounting together with two (2) law degrees: a J.D., and a Masters of Law in Taxation.
Furthermore, the chancellor found that it was "patently unbelievable" that John spent almost sixty hours preparing such an inadequate accounting. We find this to be within the chancellor's discretion, and we decline to disturb the chancellor's ruling refusing John's request for attorney's fees.
¶ 33. As for the sisters' attorney's fees, the chancellor found that their attorney essentially had to act as attorney for the Estate and that equity required that the sisters be reimbursed for their attorney's fees. According to the chancellor, John and Knight discouraged the sisters from asking questions concerning the Estate, and it was their lack of cooperation that forced the sisters to hire an attorney to ensure a proper handling of their mother's estate. The chancellor noted that the sisters had no option but to hire an attorney in order to get John to disclose the details of their mother's estate. In support of their request for attorney's fees, the sisters offered the testimony of William Andrews, a local attorney, who testified that the bill for $67,382.83 was reasonable in light of the work done for the Estate.
¶ 34. In light of John's lack of cooperation and the fact that the sisters had to hire their own attorney to get any answers about the Estate, we find no error with the chancellor's decision to award them attorney's fees. The supreme court has held that "even where there is no specific statutory authority for imposing sanctions, courts have an inherent power to protect the integrity of their processes, and may impose sanctions in order to do so." Selleck v. S.F. Cockrell Trucking, Inc., 517 So. 2d 558, 560 (Miss.1987) (citing Ladner v. Ladner, 436 So. 2d 1366, 1370 (Miss.1983)). The supreme court went on to state that "where a party's intentional misconduct causes the opposing party to expend time and money needlessly, then attorney's fees and expenses should be awarded to the wronged party." Id. In the present case, there should have been no need for John's sisters to hire an attorney to resolve the deficiencies in John's accounting. Furthermore, John would have been entitled to attorney's fees if his services and those of Knight had been rendered in good faith. Based on the foregoing, we find no error with the chancellor's decision to award the sisters' attorney's fees. This issue is without merit.
V. In Terrorem Clause
¶ 35. In John's last assignment of error, he argues that the chancellor erred in not enforcing the in terrorem clause contained in the will. It is John's contention that his sisters violated the clause when they challenged his actions as executor; therefore, they should have been disinherited from the will. Article Four of the will reads as follows:
If any Beneficiary hereunder shall protest the probate or validity of this Will or any provision thereof, or shall institute or join in (except as a party defendant) any proceeding to contest the validity of this Will or to prevent any provision thereof from being carried out in accordance with its terms (regardless of whether or not such proceedings are instituted in good faith and with probable cause), then all benefits provided for such Beneficiary are revoked and such benefits shall pass to the residuary Beneficiaries of this will (other than the persons joining in such contest) who are *638 living at my death and who would have been distributees had I died intestate a resident of the State of Mississippi and had the person or persons contesting my will died immediately before me. Each benefit conferred herein is made on the condition precedent that the Beneficiary shall accept and agree to all of the provisions of this will and the provisions of this Article are an essential part of each and every benefit.
¶ 36. In the ruling on this issue, the chancellor concluded that the purpose of the above-quoted clause was "to discourage the beneficiaries from contesting the Will, not challenging the administration of the Estate or the Trusts-which is what Carol, Lynda[,] and Cathy's Complaint does, and the Court so finds." As the chancellor further noted, "[t]o hold otherwise, would mean that an Executor and/or a Trustee is free to spend a decedent's money without accountability to anyone.. . ." We find no error with this holding, and we find that the chancellor properly refused to apply the in terrorem clause. Therefore, this issue is without merit.
¶ 37. THE JUDGMENT OF THE CHANCERY COURT OF FORREST COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ROBERTS, AND MAXWELL, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY. GRIFFIS, J., NOT PARTICIPATING.
NOTES
[1] The difference in the amounts actually comes out be $267,477.43 | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595337/ | 621 N.W.2d 844 (2001)
9 Neb.App. 898
Michael FITZGERALD et al., Appellees,
v.
Harold CLARKE, Appellant.
No. A-99-798.
Court of Appeals of Nebraska.
January 30, 2001.
*846 Don Stenberg, Attorney General, and Melanie J. Whittamore-Mantzios, for appellant.
George L. Shepard and Leo Boerger, pro se.
HANNON, INBODY, and MOORE, Judges.
HANNON, Judge.
In this case, the State appealed from a May 18, 1999, order of the district court which ordered Harold Clarke, director of the Nebraska Department of Correctional Services, and those under his authority to not confiscate or remove from the possession of inmate Leo Boerger any eight-track tape, cassette tape, or compact disc which would not be contraband or excessive property under regulations existing prior to January 17, 1997, but which would constitute contraband under subsequent regulations. The appeal was duly perfected and was fully briefed and set for argument before this court. Shortly before the time for argument, this court learned that Boerger had died on February 13, 2000. To allow the State to determine its position and advise the court thereof, no further action was taken. The State has given notice that it opposes the dismissal of its appeal. We now consider the State's position and conclude that the appeal stands dismissed and cannot be revived.
PROCEDURAL HISTORY
Michael Fitzgerald and several other inmates of the Nebraska State Penitentiary sued Clarke concerning a newly adopted regulation controlling inmates' personal property in the prison. The part of the regulation which was principally litigated was administrative regulation No. 204.1, dated February 13, 1997, which provides: "Each inmate may possess twenty-five (25) cassette tapes, eight track tapes or compact discs or a combination of cassette tapes, eight track tapes or compact discs not to exceed twenty-five (25)." The regulation further provides:
Property in excess of that permitted in living quarters and not authorized for storage must be sent out of the institution by having it shipped/mailed to a location designated by the inmate, or by having it picked up and signed for at the institution by an approved visitor.
Eleven inmates brought the instant lawsuit, but all of them except Boerger were eventually dismissed as plaintiffs. Six plaintiffs remained at the time of trial. On April 19, 1999, the matter came on for trial and was thoroughly tried. At the end of the plaintiffs' evidence, the State moved to dismiss all claims by all of the plaintiffs except Boerger and argued that the evidence did not show that the other plaintiffs had established that they possessed more than 25 tapes, and that therefore they had no standing. The court denied the motion at that time.
The court specifically found in its subsequent written order that the action was not a class action, although the plaintiffs made an attempt to have it treated as such. The court further found that there was no evidence any plaintiff except Boerger possessed more than 25 tapes, that Boerger possessed 47 tapes, and that he *847 had not sent any of them from the prison facility as required by administrative regulation No. 204.1. The court reconsidered the State's previous motion to dismiss and found that it was correct, and sustained the motion to dismiss as to the other plaintiffs' claims without prejudice "for lack of standing." None of the other plaintiffs appealed from the dismissal, and Boerger remained the only plaintiff in the action. The trial court found that the regulation concerning the tapes violated Boerger's constitutional rights and entered the following order:
IT IS THEREFORE, HEREBY ORDERED, ADJUDGED, AND DECREED that the Defendant and all those acting under his authority, direction, control or influence, shall not confiscate or remove from the possession of plaintiff Leo Boerger any eight-track tape, cassette tape or compact disc which would not be contraband or excessive property under the Administrative Regulations of the Department and Operative Memoranda of the Nebraska State Penitentiary in effect prior to January 17, 1997.
No judgment for costs was entered. The State appealed.
INSTANT ACTION
The appellees' brief states that it was filed on behalf of Boerger and George L. Shepard. Shepard was one of the plaintiffs whose claim was dismissed earlier in the action. The coversheet of the brief states "George L. Shepard & Leo Boerger" under "Brief of Appellee," and the last page states that the brief was submitted by Shepherd and Boerger, and contains both of their signatures. The certificate of service is signed by Shepard; however, the appellees' brief contains no attempt by Shepard to cross-appeal from the order dismissing him as a plaintiff. Therefore, the only matter that was appealed to this court was the district court's order directing Clarke as aforesaid.
The State has filed a "Notice of Appellant's Position Regarding Rule 7C," see Neb. Ct. R. of Prac. 7C (rev.2000), in which it seeks to have this court determine whether the Department of Correctional Services may constitutionally enforce administrative regulation No. 204.1 without compensating inmates for any reduction of their property. The State approaches the issue presented as one of mootness and cites Elstun v. Elstun, 257 Neb. 820, 600 N.W.2d 835 (1999); Williams v. Hjorth, 230 Neb. 97, 430 N.W.2d 52 (1988); and State ex rel. Coulter v. McFarland, 166 Neb. 242, 88 N.W.2d 892 (1958). These are cases in which the passage of time rendered the judgment appealed from moot and the Nebraska Supreme Court concluded it would decide the issues presented because the question involved was one of public interest. We find no authority in Nebraska where a cause was continued upon the death of a party pursuant to the public interest exception. None of the cases cited by the State involve a situation where a litigant has died, and we do not believe they apply to a situation where the only plaintiff, who had prevailed in the trial court, died after the appeal was perfected.
REVIVAL AND ABATEMENT
"Revival" is the term given to the procedure by which a new party, having a right to prosecute or defend a cause of action which survives the death of an original plaintiff or defendant, is substituted for the deceased party and the action is continued in the name of the substituted party. 1 Am.Jur.2d Abatement, Survival, and Revival § 110 (1994). The State ignores clear statutory provisions for abatement and revival upon the death of a party in an action. Neb.Rev.Stat. § 25-1410 (Reissue 1995) provides:
Upon the death of the plaintiff in an action, it may be revived in the names of his representatives, to whom his right has passed. Where his right has passed to his personal representative, the revivor *848 shall be in his name; where it has passed to his heirs or devisees, who could support the action if brought anew, the revivor may be in their names.
The Nebraska Supreme Court held in Keefe v. Grace, 142 Neb. 330, 6 N.W.2d 59 (1942), that the provisions relative to abatement and revival of actions were applicable to cases in the appellate courts. See, also, Sheibley v. Nelson, 83 Neb. 501, 119 N.W. 1124 (1909); Schmitt & Bro. Co. v. Mahoney, 60 Neb. 20, 82 N.W. 99 (1900). It has also been held that when a party to appellate proceedings dies and the party's interest in the litigation passes to his or her heirs, the heirs are necessary parties to the proceedings. Urlau v. Ruhe, 63 Neb. 883, 89 N.W. 427 (1902).
In Spradlin v. Myers, 200 Neb. 559, 560, 264 N.W.2d 658, 660 (1978), the Supreme Court noted the general rule stated in 1 Am.Jur.2d, supra, § 107: "`As a general rule, actions in contract or in tort, and actions involving personal property, survive to or against the personal representative of a deceased party....'"
In 1 C.J.S. Abatement and Revival § 158 at 219 (1985), it states:
Although the action is one which ordinarily should be revived in the names of the personal representatives of plaintiff after his decease, his heirs may, under some statutes, revive the suit or be made parties plaintiff where no one can be found who will administer on the estate, or where there is no administration and no necessity for any because all debts of the estate have been paid.
Under these authorities, Boerger's death at least caused the case to become dormant, but the case retained the possibility of revival pursuant to Neb.Rev.Stat. §§ 25-1405 to 25-1417 (Reissue 1995). Section 25-1414 provides that an action may not be revived after the expiration of 1 year, and § 25-1415 provides that if the action cannot be revived, it shall be stricken from the docket. In this case, the 1 year period is about to expire, but we must also consider the issue of whether Boerger's cause of action is one that may be revived.
Neb.Rev.Stat. § 25-322 (Reissue 1995) provides: "An action does not abate by the death or other disability of a party, or by the transfer of any interest therein during its pendency, if the cause of action survive or continue." Neb.Rev.Stat. § 25-1401 (Reissue 1995) provides:
In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to real or personal estate, or for any deceit or fraud, shall also survive, and the action may be brought, notwithstanding the death of the person entitled or liable to the same.
Neb.Rev.Stat. § 25-1402 (Reissue 1995) states: "No action pending in any court shall abate by the death of either or both the parties thereto, except an action for libel, slander, malicious prosecution, assault, or assault and battery, or for a nuisance, which shall abate by the death of the defendant." The personal representatives of a deceased party cannot prosecute or defend a suit unless the cause of action on account of which it was brought is one that survives by law; if the cause of action is one which dies with the original party, the action abates and cannot be revived. 1 Am.Jur.2d Abatement, Survival, and Revival § 110 (1994). We note that the judgment appealed by the State in the instant case is an order in the nature of an injunction. It applies only to Boerger and purports to protect only his property. Boerger was awarded no damages, and no costs were ordered paid in the order. The order purports to litigate only strictly personal rights of Boerger. Since it relates only to conduct while in prison, it could not affect the rights of anyone who might succeed to ownership of Boerger's property which was affected by the decree.
*849 This is an appeal from a case in equity. Neb.Rev.Stat. § 25-1925 (Reissue 1995) provides that appeals of suits in equity are tried de novo in the Nebraska Supreme Court and this court. The cases of the Supreme Court which consider the abatement of purely personal actions are mostly limited to divorce actions. In Westphalen v. Westphalen, 115 Neb. 217, 212 N.W. 429 (1927), the court cited the statute which is now designated as § 25-1925 and its requirement that upon appeal, equity cases are to be tried de novo in the appellate court. In light of that statute, the court referred to the trial court's judgment as an "interlocutory decree" that was not controlling.
In Holmberg v. Holmberg, 106 Neb. 717, 184 N.W. 134 (1921), the court cited and discussed survival statutes and then concluded that divorce proceedings after the death of one of the parties would be useless and of no avail, and therefore the action did not survive, even though a divorce action was not mentioned in §§ 25-1401 and 25-1402 as an action which abated or did not survive upon the death of a party. Further, in Williams v. Williams, 146 Neb. 383, 387, 19 N.W.2d 630, 632 (1945), the court stated, quoting Holmberg, supra:
"The general rule in the United States is that a suit does not abate on the death of either party after a verdict or decision by the court, or of entering of an interlocutory judgment, when the cause of action survives. But where the cause of action does not survive, the action abates as if the death had occurred before the verdict or interlocutory judgment or decision, unless saved by a statute. ..."
(Emphasis supplied.) The above quote utilizes the authority that "[If] the trial is in all respects de novo in the reviewing court, death during the pendency of the appeal has the same effect as death while the matter is pending in the nisi prius court." 4 Am.Jur.2d Appeal and Error § 279 at 773 (1962). See, also, 1 C.J.S. Abatement and Revival § 119 (1985). The Williams court observed that the statutes purporting to prevent the abatement of pending actions could not prevent an action in divorce from abating upon the death of one of the parties even if given a most liberal interpretation, because the death destroys the subject matter which is the basis of the action.
With the exception of divorce actions, there are limited situations where the value of a decedent's significant right is so personal that there is nothing to survive upon his or her death. See, Jacobson v. Nemesio, 204 Neb. 180, 281 N.W.2d 552 (1979) (surviving spouse's right to wearing apparel and certain other personal items of decedent was personal in nature and died with spouse); In re Estate of Samson, 142 Neb. 556, 7 N.W.2d 60 (1942) (right to widow's allowance abated and did not survive her death). See, generally, Smith v. Long Island Jewish-Hillside, 118 A.D.2d 553, 499 N.Y.S.2d 167 (1986) (cause of action based upon use of infant's picture without parental permission abated upon infant's death); Eichner v. Dillon, 73 A.D.2d 431, 426 N.Y.S.2d 517 (1980) (action for permission to discontinue life support system was personal and did not survive); People v. Mintz, 20 N.Y.2d 753, 229 N.E.2d 712, 283 N.Y.S.2d 120 (1967) (criminal case abates upon defendant's death while on appeal even if death occurs following conviction).
In Pierce v. Board of Supervisors, 392 So.2d 465 (1980), a tenured instructor brought suit for declaratory judgment and injunctive or mandatory relief against the state university concerning her tenure. The district court dismissed the suit, and the instructor appealed, but died before the appeal was heard. The university filed a motion to dismiss based on mootness. The Louisiana court held that the instructor's cause of action was purely personal and abated with her death. The court dismissed the appeal in spite of the personal representative's argument that a resolution *850 of the case would affect similar issues raised by others in the future.
Further, in State ex rel. Turner v. Buechele, 236 N.W.2d 322 (Iowa 1975), the Iowa Supreme Court held that where a county supervisor appealed from a trial court decision that he should be removed from office and died after the appeal was filed, the right to hold office was so personal that the supervisor's death abated the appeal proceeding. The State argued that the case fell within the public interest exception; however, the court stated: "[The] likelihood of recurrence is negligible.... The facts ... present a situation which is most unique and novel." Id. at 324.
The above-cited cases are analogous to the case at hand. Similarly, the instant case is most unique and novel. Boerger's claim was personal in nature and cannot be revived by statute. Any right he might have had to possess personal property while incarcerated was exclusive to him and could not possibly affect any successors to his property. Any proceedings to determine whether the Department of Correctional Services' destruction of Boerger's tapes would violate his Fifth Amendment rights would be useless. Further, in light of this court's de novo review of the cause, the district court's order is interlocutory and would not be controlling in other cases. Therefore, Boerger's cause of action did not survive his death, and the instant action abated upon his death as if he had died before the district court's order was entered.
The State argues that the Department of Correctional Services needs a decision in this case to aid them in their future enforcement of its regulations cited above; however, the courts of this state do not render advisory opinions, but simply decide cases and controversies. Gas 'N Shop v. State, 234 Neb. 309, 451 N.W.2d 81 (1990); Vrana Paving Co. v. City of Omaha, 220 Neb. 269, 369 N.W.2d 613 (1985); Ellis v. County of Scotts Bluff, 210 Neb. 495, 315 N.W.2d 451 (1982). Accordingly, we can find no authority for deciding the issues the State seeks to have this court resolve under the doctrine of public interest because the reason and purpose of the action has ceased to exist. We must simply dismiss the case from the court's docket because it was abated by Boerger's death and cannot be revived.
APPEAL DISMISSED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595341/ | 426 F.Supp. 1052 (1977)
T. L. ALLEN, Petitioner,
v.
Darrel RADACK, Superintendent, South Dakota Human Services Center, Yankton, South Dakota, Respondent.
No. CIV77-5001.
United States District Court, D. South Dakota.
February 10, 1977.
*1053 Ronald E. Brodowicz, Rapid City, S.D., for petitioner.
Judith A. Atkinson, Asst. Atty. Gen., Pierre, S.D., for respondent.
MEMORANDUM OPINION
BOGUE, District Judge.
I. FACTUAL BACKGROUND
Petitioner in the above-entitled matter is presently in the custody of Respondent, having been first committed to such custody shortly after being acquitted by reason of mental illness of the charge of murder in the South Dakota Circuit Court for the Seventh Judicial Circuit. Under South Dakota law, an acquittal by reason of mental illness means that the defendant has sufficiently raised the issue of his or her sanity at the time of the offense, and that the prosecution has failed to prove beyond a reasonable doubt that the defendant was sane at the time of the offense. State v. Waugh, 80 S.D. 503, 509, 127 N.W.2d 429, 432 (1964). See also State v. Graves, 83 S.D. 600, 609, 163 N.W.2d 542, 547 (1968); II South Dakota Pattern Jury Instructions, 106 § 2-14-5c, e, f (1970).
Shortly after the jury returned its verdict on August 15, 1975, the presiding judge called petitioner herein and his counsel before the bench and orally made certain findings which provided the predicate for petitioner's commitment. The presiding judge began by stating that the jury verdict invoked a presumption that petitioner was insane, and then stated that the Court deemed petitioner to be dangerous to the public peace and to the safety of other persons, particularly in light of his addiction to alcohol. The judge further noted the Court's responsibility to ensure that petitioner received psychiatric care and treatment, and ordered petitioner
. . . committed forthwith to the Human Services Center at Yankton, South Dakota for psychiatric treatment and for treatment with respect to your addiction to alcohol, and there to remain until you are no longer mentally ill or addicted to alcohol and, additionally until you are no longer a danger to yourself, to the public peace or the safety of the people and the State of South Dakota, and then only are you to be released upon a determination by a Court in this state of competent *1054 jurisdiction. Transcript of August 15, 1975, proceedings at page three.
On August 18, 1975, a written Order of commitment was entered by the trial judge. The written Order contained verbatim the operative language of the Court's oral commitment Order quoted above.
The State trial judge's findings were in conformity with the holding of the South Dakota Supreme Court in the case of State ex rel. Barnes v. Behan, 80 S.D. 370, 374, 124 N.W.2d 179, 181 (1963). His Order was authorized by S.D.Comp.Laws §§ 23-45-20, 21 (1967), which read:
The court may [upon a verdict of not guilty by reason of mental illness] . ., if the defendant is in custody and it deems his discharge dangerous to the public peace or safety, order him to be committed [to a hospital for mentally ill persons] . . . until he becomes sane.
On September 14, 1975, petitioner herein filed an application for a writ of habeas corpus in South Dakota Circuit Court for the First Judicial Circuit. The petition challenged the trial Court's jurisdiction to commit petitioner for alcohol addiction, challenged the indefinite term of commitment, and alleged that the petitioner was presently sane and entitled to be released. An evidentiary hearing was held on the state habeas corpus application on September 25, 1975. Following the hearing, petitioner herein was released. His release was predicated upon findings of fact that he was neither psychotic nor dangerous to himself or others at the time of the state habeas corpus hearing, and a conclusion that S.D.Comp.Laws §§ 23-45-20, 21 (1967) do not authorize commitment for alcoholism upon a verdict of not guilty by reason of mental illness.
The State of South Dakota appealed the judgment releasing petitioner, and the case was reversed and remanded on November 12, 1976. State of South Dakota ex rel. Allen v. Radack, S.D., 246 N.W.2d 661 (1976). In reversing the judgment and order of release, the South Dakota Supreme Court reviewed the testimony received at the hearing, and concluded:
The thrust of this case is not whether addiction to alcohol is within the scope of S.D.C.L. § 23-45-20 and § 23-45-21. The real question in this case is whether or not petitioner has an abnormal mental condition that makes it probable that he would be a danger to himself or others. Obviously, not all alcoholics are a danger to other persons. Petitioner, however, apparently has an abnormal mental condition that when coupled with an excess of alcohol creates a propensity to commit violent crimes and makes him dangerous to society. Certainly this is an "abnormal mental condition." The trial court in committing petitioner made such a finding. Under the meager record in this case, it certainly had every right to do so, if for no other reason than the presumption that an accused acquitted by reason of insanity is in fact insane. 246 N.W.2d at 663.
The South Dakota Supreme Court remanded the case for rehearing in accordance with the following list of guidelines:
1. The test to be applied is whether or not petitioner has an abnormal mental condition that renders him potentially dangerous to others and that all reasonable medical doubts and reasonable judicial doubts are to be resolved in favor of the public safety.
2. The burden of proof rests upon petitioner.
3. The quantum of proof is "beyond a reasonable doubt."
4. To discharge petitioner from such commitment, the burden is upon him to show beyond a reasonable doubt that if discharged he would no longer be a danger to the public. 246 N.W.2d at 664.
The fundamental principle underlying the decision on appeal in petitioner's state habeas corpus was expressed by the South Dakota Supreme Court in the earlier case of State ex rel. Barnes v. Behan, 80 S.D. 370, 124 N.W.2d 179 (1963) as follows:
*1055 An accused acquitted by reason of insanity is presumed to be insane. This presumption goes beyond the familiar principle that a condition of insanity once established is presumed to continue. The reach of . . . [S.D.Comp.Laws §§ 23-45-20, 21] is not whether a person, engaged in the ordinary pursuit of life, is committable to a mental institution under the laws governing civil commitments. This statute applies to an exceptional class of persons who have committed acts forbidden by law . . . and obtained a jury verdict of "not guilty by reason of insanity" and then found by the trial judge to be dangerous to the public peace and safety if left at large. 80 S.D. at 374, 124 N.W.2d at 181 (citations omitted).
In South Dakota, when a person (other than one acquitted by reason of mental illness and thus subject to S.D.Comp.Laws §§ 23-45-20, 21) is mentally ill, dangerous to self or others and in need of immediate treatment, that person may be civilly committed under the provisions of S.D.Comp. Laws §§ 27-7A-2 et seq. Under those provisions such a person may be ordered taken into custody immediately upon receipt and examination of a verified petition alleging the basis for commitment. A mental examination must take place within twenty-four hours after the person is apprehended. A hearing to determine whether there is a factual basis for commitment must be held within five days, and there must be five days' notice of the hearing. If the person is committed to the South Dakota Human Services Center, the administrator of the center may release him or her within the first ninety days he or she is in custody there if it is determined by the administrator that the person committed under S.D. Comp.Laws §§ 27-7A-2 et seq. is "no longer mentally ill and in need of treatment." § 27-7A-16.
The generally applicable definition of mental illness in South Dakota includes a behavioral standard of danger to self or others. S.D.Comp.Laws § 27-1-1(3). See also § 27-1-1.1(3), (4). Even in the absence of the emergency situation envisioned in S.D.Comp.Laws §§ 27-7A-2 et seq., supra, dangerous individuals may be committed under S.D.Comp.Laws §§ 27-7-1 et seq. Commitment under these provisions is initiated by the states attorney with the use of a verified petition, supported by a certificate of medical examination, which must state facts showing probable cause to believe that the person in question is mentally ill. If probable cause is demonstrated, notice and hearing will follow. If an individual is committed under these provisions, there must be periodic review of his or her mental condition. In some instances the administrator of the South Dakota Human Services Center is empowered to release committed persons, § 27-7-52; § 27-10-2, 2.2. Release is automatic if a review hearing is not conducted during the twelfth month of commitment. § 27-7-69.
In this case, the record discloses that petitioner's treatment differs from that of other persons committed to the South Dakota Human Services Center in at least two respects: 1) petitioner did not receive a hearing at which the evidence presented focused on his present mental condition (logically, the evidence at a criminal trial on the issue of sanity focuses on a defendant's mental condition at the time of an alleged offense. See State v. Waugh, 80 S.D. 503, 509, 127 N.W.2d 429, 432 (1964)); and 2) petitioner may not be released by the Human Services Center Administrator after periodic review, but may be released only after a judicial determination that he has proved his sanity beyond a reasonable doubt.
The instant petition alleges in substance that: 1) the lack of a hearing on petitioner's present mental condition prior to his initial commitment violates his right to due process of law; 2) that the disparity between his commitment procedure and that of those treated under either of Chapters 27-7 or 27-7A of the South Dakota Compiled Laws violates his right to equal protection of the laws; and 3) that the burden of proof imposed upon him by the decision of the South Dakota Supreme Court is constitutionally impermissive.
*1056 II. EXHAUSTION OF REMEDIES
Respondent contends that Petitioner has failed to exhaust his state remedies as required by 28 U.S.C. § 2254(b) because he has not availed himself of the remand ordered by the South Dakota Supreme Court. However, the very issues raised here were urged in petitioner's brief before the South Dakota Supreme Court (at, inter alia, pages 5 and 12-20) in urging affirmance of petitioner's release on constitutional grounds. Moreover, in the judgment of this Court, the South Dakota Supreme Court ruled on these issues. Petitioner's argument in his appeal brief was in effect an attack on the procedures approved and outlined in State ex rel. Barnes v. Behan, 80 S.D. 370, 124 N.W.2d 179 (1963), which the South Dakota Supreme Court expressly "decline[d] to modify." State ex rel. Allen v. Radack, S.D., 246 N.W.2d 661, 663 (1976).
The record does not indicate that there was any objection to petitioner's raising these issues on appeal, and the South Dakota Supreme Court did not reject petitioner's arguments on any procedural grounds. Accordingly, this Court can only conclude that the issues raised in the instant petition were raised and decided on their merits in the state court.
Further, under these circumstances it would be futile to require petitioner to go through the remand ordered by the South Dakota Supreme Court, since the lower state courts would be bound by the very decision he challenges. Complete exhaustion would require that petitioner make his record in the lower state courts, then take an appeal and attempt to convince the South Dakota Supreme Court to change its mind. On these facts, petitioner has exhausted his state remedies within the guidelines laid down in the case of Eaton v. Wyrick, 528 F.2d 477, 479 (8th Cir. 1975).
III. THE MERITS
In Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966), the United States Supreme Court reviewed a New York procedure whereby persons nearing the end of a prison term could be committed upon a hearing before a Surrogate's Court, while others civilly committed were entitled to a jury determination of mental illness. In holding that this procedure was violative of equal protection principles, the Court stated:
For purposes of granting judicial review before a jury of the question whether a person is mentally ill and in need of institutionalization, there is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal term from all other civil commitments. 383 U.S. at 111-112, 86 S.Ct. at 763.
Subsequently, in Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642 (1968), the District of Columbia Circuit Court of Appeals assessed the impact of Baxstrom v. Herold, supra, upon a statutory scheme in the District of Columbia which required summary commitment of those acquitted by reason of insanity at the time of an offense. The procedure in the District of Columbia further required a judicial determination of sanity as a condition precedent to release, and imposed a burden of proof beyond a reasonable doubt upon those seeking habeas corpus relief from confinement imposed after an insanity acquittal. The District of Columbia procedure for involuntary civil commitment required notice and hearing, periodic review of the condition of those civilly committed, and possible release by the hospital administrator without a court order.
The Bolton court noted repeatedly that the defense of insanity at a criminal trial, and consequently the evidence received on such a defense, focuses on past insanity, and that an acquittal by reason of insanity means only that there is a reasonable doubt as to whether the defendant was sane at the time of the offense. 395 F.2d 646-650. The Court then stated its position as follows:
Before the advent of Baxstrom and the new civil commitment safeguards of the 1964 Hospitalization of the Mentally Ill Act, [which created safeguards for civil commitment and release of those committed *1057 for mental illness], we said it was reasonable to treat those found not guilty by reason of insanity differently from other mentally ill persons because of the greater likelihood that the former will be dangerous to society, and that habeas corpus provided a sufficient safeguard for their rights. But in view of Baxstrom and the 1964 Act prior criminal conduct cannot be deemed a sufficient justification for substantial differences in the procedures and requirements for commitment, and habeas corpus may no longer be deemed to afford adequate protection against unwarranted detention. 395 F.2d at 649 (footnotes omitted).
After stating the general principle that equal protection analysis requires that persons acquitted of a crime by reason of insanity must be treated in a manner substantially similar to that of persons civilly committed for mental illness, the Bolton court recognized that differing treatment of these two classes of persons is justified in some respects. 395 F.2d at 651. The first of these justifiable differences is that, while one acquitted by reason of insanity must be given a hearing on present mental condition, see Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), summary commitment is permissible for a limited period of time necessary for examination as to present mental condition. Secondly, although one committed after an insanity acquittal is entitled to the same periodic reviews afforded those civilly committed, the requirement that only a court may decide whether such a person may be released is justifiable under the Bolton rationale. The Bolton court did, however, hold that equal protection requires that those seeking release through habeas corpus have imposed upon them no greater burden of proof than that traditionally imposed upon petitioners in habeas corpus proceedings. 395 F.2d at 653. To the extent made necessary by this portion of its holding, the Bolton court modified the previous case of Ragsdale v. Overholser, 108 U.S.App.D.C. 308, 281 F.2d 943, 947 (1960). Ragsdale is one of the cases relied upon by the South Dakota Supreme Court in State ex rel. Barnes v. Behan, 80 S.D. 370, 374, 124 N.W.2d 179, 181 (1963) and again in State ex rel. Allen v. Radack, S.D., 246 N.W.2d 661, 663 (1976).
The majority of the jurisdictions which have ruled on cases such as this since Bolton was decided have adopted the general Bolton rationale. State ex rel. Kovach v. Schubert, 64 Wis.2d 612, 219 N.W.2d 341 (1974), appeal dismissed 419 U.S. 1117, 95 S.Ct. 799, 42 L.Ed.2d 817 (1975), cert. denied, 419 U.S. 1130, 95 S.Ct. 816, 42 L.Ed.2d 829 (1975); People v. McQuillan, 392 Mich. 511, 221 N.W.2d 569 (1974); Wilson v. State of Indiana, 259 Ind. 375, 287 N.E.2d 875 (1972); Holderbaum v. Watkins, 42 Ohio St.2d 372, 328 N.E.2d 814 (1975); State v. Krol, 68 N.J. 236, 344 A.2d 289 (1975). But see State v. Allan, 166 N.W.2d 752, 760 (Iowa, 1969); Annotation, Validity of Statutory Provision For Commitment to Mental Institution of One Acquitted of Crime on Ground of Insanity Without Formal Determination of Mental Condition At Time of Acquittal, 50 A.L.R.3d 144 (1973).
The United States Supreme Court has not directly confronted the issues raised here. Cf. Lynch v. Overholser, 369 U.S. 705, 714-720, 82 S.Ct. 1063, 1069-1072, 8 L.Ed.2d 211. It has, however, acknowledged without disapproval the Bolton line of cases. Jackson v. Indiana, 406 U.S. 715, 724, 92 S.Ct. 1845, 1851, 32 L.Ed.2d 435 (1972). Some courts have construed the Jackson reference to Bolton and its progeny as an express approval of Bolton. People v. McQuillan, supra, 221 N.W.2d 569 at 575 (1974); State ex rel. Kovach v. Schubert, supra, 219 N.W.2d 341 at 344-345 (1974); cf. United States v. Ecker, 543 F.2d 178, 197 n. 74 (D.C.Cir.1976).
With respect to petitioner's initial commitment in the instant case, this Court adopts the reasoning of Bolton, supra. Petitioner's confinement violates his rights under the due process clause of the fourteenth amendment insofar as it is based solely on a "presumption of continuing insanity" arising from the acquittal by reason of mental illness. His commitment for treatment of a mental illness can be based *1058 only upon a finding, made at the time of the commitment, that he is presently insane. Such a finding can only be based upon evidence presented at a hearing held for that purpose. It should be noted that while evidence of past insanity and criminal conduct existing at the time of the offense may not itself provide the sole basis for commitment, it is nevertheless relevant to a determination of present insanity. Lynch v. Overholser, 369 U.S. 705, 714, 82 S.Ct. 1063, 1069, 8 L.Ed.2d 211 (1962). Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642, 647 (1968). Further, nothing in this opinion is intended to preclude the State of South Dakota from temporarily confining persons acquitted by reason of mental illness for the purpose of examining them as to their present mental condition. Id. at 651. Since S.D.Comp.Laws §§ 23-45-20, 21 (1967) can be construed to require a separate hearing on present mental condition, they need not be declared unconstitutional in this case.
Petitioner's confinement also violates his rights under the equal protection clause of the fourteenth amendment. The fact that the state failed to prove his sanity at the time of an offense beyond a reasonable doubt does not justify treating him in a manner substantially different from that of others civilly committed by reason of a mental illness which makes them dangerous. In this case, the State of South Dakota must initiate proceedings under the provisions of S.D.Comp.Laws Chapter 27-7 in order to establish a justification for petitioner's continued confinement. It should be noted, however, that nothing in this opinion is intended to preclude the State of South Dakota from enacting, within constitutional limits, a separate statutory procedure for the commitment of those acquitted by reason of mental illness. See United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969, 996-998 (1972). cf. Warner v. State, 244 N.W.2d 640, 642 n. 1 (Minn.1976).
With respect to the burden of proof imposed upon petitioner by the South Dakota Supreme Court, this Court adopts in part the reasoning of Bolton, supra. Bolton's holding that the "preponderance of evidence" standard must apply has come under criticism. Dixon v. Jacobs, 138 U.S.App. D.C. 319, 427 F.2d 589, 601-605 (1970) (concurring opinion of Judge Leventhal); United States v. Ecker, 543 F.2d 178, 192 n. 52 (D.C.Cir. 1976). This criticism has some merit since an acquittal by reason of insanity does establish beyond a reasonable doubt that the defendant committed the act with which he or she was charged. Lynch v. Overholser, 369 U.S. 705, 714, 82 S.Ct. 1063, 1068, 8 L.Ed.2d 211 (1962).
On the other hand, it seems incongruous to apply the "beyond a reasonable doubt" burden of proof to cases such as this. This standard of proof was developed at common law, and is embodied in our constitutional concept of due process, as a primary means of protecting individual liberty. In re Winship, 397 U.S. 358, 363-364, 90 S.Ct. 1068, 1072-1073, 25 L.Ed.2d 368 (1970); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 1890-1891, 44 L.Ed.2d 508 (1975). In this case, however, the standard is being applied as a means of ensuring confinement in all cases where a reasonable doubt can be found about the propriety of release. Because of this incongruity, created by the use of a standard peculiarly adapted to criminal prosecutions, this Court concludes that the burden imposed upon petitioner in State ex rel. Allen v. Radack, S.D., 246 N.W.2d 661 (1976) violates his fourteenth amendment due process rights.
The question of what standard should be applied in habeas corpus actions brought by those confined after a mental illness acquittal then remains. Bolton v. Harris, supra, held on equal protection grounds that persons confined by reason of an insanity acquittal have no greater burden of proof in habeas corpus actions than those civilly committed. 395 F.2d 642 at 653. Unfortunately, South Dakota law does not clearly reveal what burden of proof is imposed upon those seeking habeas corpus relief from civil confinement in the South Dakota Human Services Center. South Dakota case law does indicate that in general habeas corpus actions the standard of proof is somewhat flexible. In the case of State ex *1059 rel. Haff v. Schlachter, 21 S.D. 276, 111 N.W. 566 (1907) it was held that one seeking to attack the factual basis of an executive warrant extraditing him to another state must demonstrate his entitlement to relief by clear and satisfactory evidence. One seeking to directly contradict an original record, rather than supply an omission in it or establish an inconsistency within it, has a heavy burden in South Dakota. State ex rel. Parker v. Jameson, 75 S.D. 196, 61 N.W.2d 832 (1953).
This Court is thus faced with the task of attempting to fashion a standard of proof which will strike a balance between individual liberty interests and the societal interest in ensuring that persons who have committed violent criminal acts by reason of mental illness are not prematurely released. In the judgment of this Court, the "clear and convincing evidence" test should suffice to strike this balance. Of course, the state of South Dakota is free to adopt for future cases any standard it wishes, short of "beyond a reasonable doubt."
Throughout the instant litigation there has been some confusion as to whether petitioner may be committed to the Human Services Center for alcohol addiction. This Court wishes to note that nothing in this opinion is intended to disturb or criticize the statement of the South Dakota Supreme Court that
The real question in this case is whether or not petitioner has an abnormal mental condition that makes it probable that he would be a danger to himself or others. 246 N.W.2d at 663.
In summary, the State of South Dakota must initiate commitment proceedings under the provisions of S.D.Comp.Laws Chapter 27-7 (1967). In its brief, the State represents that it is prepared to begin these proceedings shortly. This Court will not release petitioner unless the State has failed to initiate such proceedings within thirty days of the date of the entry of the Order in this case. See Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642, 654 n. 70 (1968). If petitioner again attempts to seek habeas corpus relief in the state courts, the burden will be upon him to establish his entitlement to release by clear and convincing evidence. Petitioner does not present any issues concerning the applicability of periodic review and non-judicial release to his situation, and this Court does not decide any of these issues. It is hoped that South Dakota will take action to establish a clearly defined procedure for future treatment of those acquitted of crimes by reason of insanity.
The foregoing shall constitute this Court's findings of fact and conclusions of law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595393/ | 621 N.W.2d 106 (2001)
261 Neb. 14
STATE of Nebraska, Appellee,
v.
Larry G. BRACEY, Appellant.
No. S-99-1136.
Supreme Court of Nebraska.
January 12, 2001.
*107 Robert B. Creager, of Anderson, Creager & Wittstruck, P.C., Lincoln, for appellant.
Don Stenberg, Attorney General, and Marilyn B. Hutchinson, Lincoln, for appellee.
HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
GERRARD, J.
FACTUAL AND PROCEDURAL BACKGROUND
Larry G. Bracey was charged in the county court with one count of child abuse and one count of third degree assault. Bracey waived his right to a jury trial. After a bench trial, the county court found Bracey guilty of third degree assault, acquitted him of child abuse, and sentenced Bracey to serve 30 days in jail. Bracey filed in the county court his notice of appeal to the district court on February 18, 1999. The county court suspended Bracey's sentence during the appeal process. On May 4, finding no error on the record, the district court affirmed the judgment and sentence of the county court. The district court's order stated that if no further appeal was filed within 30 days of the order, the clerk of the district court was to issue a mandate consistent with the order to the county court.
The record shows that, for reasons unknown, neither Bracey nor his attorney received notice of the district court's May 4, 1999, decision affirming the county court's judgment. Thirty days thereafter, no further appeal having been taken, the clerk of the district court issued a mandate to the clerk magistrate of the county court in accordance with the May 4 order. The county court then received the mandate, entered judgment thereon, and ordered Bracey to begin serving the sentence imposed.
When Bracey received the order from the county court directing him to surrender himself to serve his jail sentence and his attorney first received notice from the county court on June 22, 1999, that the district court had affirmed Bracey's conviction, Bracey immediately filed a motion in the district court to recall its mandate so that he could appeal the affirmance of his conviction. Bracey also filed a motion in county court to defer execution of the sentence while his motion to recall the district *108 court's mandate was being considered in the district court.
Upon Bracey's motion to recall the mandate, the district court found that the county court's act of ordering Bracey to serve his sentence was not a "proceeding" sufficient to deprive the district court of jurisdiction to recall the mandate. On August 25, 1999, the district court entered an order to recall its mandate and allowed Bracey 30 days to file a notice of appeal in the district court. Bracey filed his notice of appeal in the district court on September 24 to challenge the assault conviction, and we, on our own motion, removed this matter to our docket.
ASSIGNMENTS OF ERROR
Bracey assigns that the district court incorrectly determined that the county court did not err in (1) admitting out of court declarations by the victim in violation of the Nebraska rules of evidence and (2) finding the evidence sufficient to support the conviction.
STANDARD OF REVIEW
The determination of a jurisdictional issue which does not involve a factual dispute is a matter of law which requires an appellate court to reach an independent conclusion. State v. Beyer, 260 Neb. 670, 619 N.W.2d 213 (2000).
ANALYSIS
Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. Id. The question presented in the instant case is whether the district court was divested of jurisdiction to recall the mandate it had issued to the county court after the county court took action upon the mandate by ordering Bracey to serve his sentence.
It is a well-established rule that, generally, once a trial court acts upon a mandate by an appellate court, the appellate court loses jurisdiction over the cause except upon a subsequent appeal. See State v. Belmarez, 254 Neb. 436, 577 N.W.2d 255 (1998). The same principle applies when a district court sits as an appellate court and issues a mandate to a county court. Thus, when a county court acts upon a mandate issued by a district court sitting as an appellate court, the district court loses jurisdiction over the cause except upon a subsequent appeal. See, id.; Rehn v. Bingaman, 152 Neb. 171, 40 N.W.2d 673 (1950); State Bank of Beaver Crossing v. Mackley, 118 Neb. 734, 226 N.W. 318 (1929).
In State Bank of Beaver Crossing v. Mackley, supra, we addressed a situation where we had ruled on a case and issued a mandate to the district court below. We recalled the mandate in that case because it appeared, at the time, that the district court had not acted upon our mandate. Id. However, it was subsequently discovered that the district court had taken action upon the mandate prior to our recall of the mandate. Id. Therefore, we stated that at the time we recalled the mandate and for some time prior to that date,
we had lost jurisdiction of the case because of the fact that the district court had taken action upon the mandate previously issued.... It is not conceivable that both [an appellate court] and the [trial] court could at the same time have jurisdiction of this cause. On the filing of the mandate in the district court, and some action being taken thereon by it, that court acquired jurisdiction, and this court lost any power thereafter to act in the case except upon a subsequent appeal.
... [W]hen some action was taken by the district court upon the mandate, that court acquired exclusive jurisdiction of the cause and did not lose jurisdiction because of its vacating a previous order by it entered.
Id. at 735, 226 N.W. at 318. In State Bank of Beaver Crossing v. Mackley, supra, because we had no power to act upon the case after the lower court had acquired *109 jurisdiction, we vacated all actions we had taken after the district court had acted upon our original mandate.
In the case at bar, the district court determined that even though the county court had ordered Bracey to begin serving his sentence, there had been no "proceedings" per se in the county court prior to the county court's issuing the order for Bracey to serve the sentence. Thus, the district court concluded that the action taken by the county court had not deprived it of jurisdiction to recall the mandate, and the district court did, in fact, recall its mandate. Although we can appreciate why the district court may have attempted to fashion a remedy under the circumstances, we conclude that the district court did not have jurisdiction to recall its mandate in the instant matter.
The county court clearly took action on the district court's mandate when it ordered Bracey to serve his jail sentence. Indeed, it is difficult to think of a more definitive act that a lower court could take than the act of ordering a defendant to serve a jail sentence. At the time the county court acted upon the district court's mandate, it acquired exclusive jurisdiction and divested the district court of jurisdiction over the instant case. See id. It is not conceivable that both the district court and the county court could at the same time have jurisdiction of this case. See id.
Therefore, the district court did not have jurisdiction to recall its mandate from the county court as the county court acquired jurisdiction at the time it took action on the district court's mandate by ordering Bracey to serve his jail sentence. As a result, the district court's order recalling the mandate is void. We have held that as a necessary incident to an appellate court's power to determine that it lacks jurisdiction over the merits of an appeal because the order appealed from was entered by a court lacking subject matter jurisdiction and was thus void, an appellate court has the power and duty to vacate the void order and, if appropriate, remand the cause for further proceedings. State v. Rieger, 257 Neb. 826, 600 N.W.2d 831 (1999). Likewise, we conclude that as a necessary incident to an appellate court's power to determine that it lacks jurisdiction over the merits of an appeal because the order allowing the appeal to be filed out of time was entered by a court lacking jurisdiction to do so and was thus void, an appellate court has the power and duty to vacate the void order and, if necessary, remand the cause with appropriate directions.
CONCLUSION
Because the district court did not have jurisdiction to recall the mandate it had issued to the county court, we vacate the district court's order recalling the mandate from the county court, dismiss the appeal, and remand the cause with directions to carry out the district court's original mandate. Bracey's remedy, if any, would be more appropriately sought in another action.
ORDER VACATED, APPEAL DISMISSED, AND CAUSE REMANDED WITH DIRECTIONS. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2722790/ | Case: 13-15323 Date Filed: 09/02/2014 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-15323
Non-Argument Calendar
________________________
D.C. Docket No. 2:12-cr-00193-MEF-WC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VERNON HARRISON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(September 2, 2014)
Before TJOFLAT, MARTIN, and FAY, Circuit Judges.
PER CURIAM:
Vernon Harrison appeals his convictions for one count of conspiracy to file
false claims, in violation of 18 U.S.C. § 286; eight counts of mail fraud, in
Case: 13-15323 Date Filed: 09/02/2014 Page: 2 of 6
violation of 18 U.S.C. § 1341; eight counts of aggravated identity theft, in violation
of 18 U.S.C. § 1028A(a)(1), (c)(5); and six counts of embezzlement of mail, in
violation of 18 U.S.C. § 1709. These charges relate to a scheme in which
Harrison, a former mail carrier, was charged with intercepting mail related to false
tax returns filed by co-conspirators. Harrison raises two issues on appeal. First, he
argues that the district court erred in denying his motion for a new trial because the
evidence weighed heavily against the verdicts. Second, he argues that the district
court erred in denying his motion for judgment of acquittal because the
government failed to prove the necessary elements of embezzlement of mail. After
careful review, we affirm.
I.
We review the denial of a motion for new trial for abuse of discretion.
United States v. Hansen, 262 F.3d 1217, 1236 (11th Cir. 2001) (per curiam). We
will affirm the district court unless we find that it made a clear error of judgment or
applied the wrong legal standard. United States v. Frazier, 387 F.3d 1244, 1259
(11th Cir. 2004).
When considering a motion for a new trial based on the weight of the
evidence, the district court “need not view the evidence in the light most favorable
to the verdict. It may weigh the evidence and consider the credibility of the
witnesses.” United States v. Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985).
2
Case: 13-15323 Date Filed: 09/02/2014 Page: 3 of 6
However, the court may not reweigh the evidence and set aside the verdict simply
because it feels some other result would be more reasonable. Id. at 1312–13. “The
evidence must preponderate heavily against the verdict, such that it would be a
miscarriage of justice to let the verdict stand.” Id. at 1313.
Harrison argues that the evidence from three key parts of the government’s
case, rather than supporting the verdict, actually weighed against it. First, he
argues that a statement he made to a special agent with the U.S. Postal Service’s
Office of the Inspector General was not the confession the government portrayed it
to be because he was not feeling well during the interview, which led him to be
incoherent. Second, he argues that the trial testimony of his alleged co-conspirator
Harvey James deserves no weight because James never made an in-court
identification and had a history of lying. And third, he argues that although the
pieces of mail identified in the indictment were addressed to residents on
Harrison’s mail route, suspicious mail was going to other routes as well and
residents on his route continued to receive suspicious mail after he was removed
from the route.
None of these three arguments persuade us that it would be a “miscarriage of
justice to let the verdict stand.” Martinez, 763 F.2d at 1313. On the first point, the
record reflects that Harrison coherently and unequivocally admitted in his
statement to giving pieces of mail to co-conspirator Greg Slaton in exchange for
3
Case: 13-15323 Date Filed: 09/02/2014 Page: 4 of 6
money. On the second point, we agree with the district court that James’s
testimony was adequately credible, and that the absence of an in-court
identification did not eliminate the reasonable inference that Harrison was the
person about whom James testified. In any event, the jury listened to James’s
testimony, heard about his criminal history, and was free to believe or disbelieve
him. See United States v. Chastain, 198 F.3d 1338, 1351 (11th Cir. 1999). On the
third point, the district court credibly found that the patterns of suspicious mail on
Harrison’s route weighed in favor of affirming the jury’s inference that Harrison
was involved in the crime. Harrison conceded that the majority of addresses used
to obtain fraudulent tax refunds were on his postal route. Taken together, the three
challenged pieces of evidence do not meet the standard for granting the motion for
a new trial. Thus, the district court did not abuse its discretion by denying
Harrison’s motion for a new trial.
II.
Harrison’s argument regarding the denial of his motion for judgment of
acquittal for embezzlement of mail hinges on the sole claim that the mail and debit
cards he gave to Slaton did not belong to the people whose names appeared on the
cards. We review de novo the denial of his motion for judgment of acquittal,
drawing all reasonable inferences in the government’s favor. United States v.
Bowman, 302 F.3d 1228, 1237 (11th Cir. 2002) (per curiam).
4
Case: 13-15323 Date Filed: 09/02/2014 Page: 5 of 6
Harrison’s argument is contradicted by the relevant statute and not supported
by any case law. The statute at issue, 18 U.S.C. § 1709, provides:
Whoever, being a Postal Service officer or employee, embezzles any
letter, postal card, package, bag, or mail, or any article or thing
contained therein entrusted to him or which comes into his possession
intended to be conveyed by mail, or carried or delivered by any
carrier, messenger, agent, or other person employed in any department
of the Postal Service, or forwarded through or delivered from any post
office or station thereof established by authority of the Postmaster
General or of the Postal Service; or steals, abstracts, or removes from
any such letter, package, bag, or mail, any article or thing contained
therein, shall be fined under this title or imprisoned not more than five
years, or both.
The government proved the necessary elements of embezzlement of mail. The
statute requires that the embezzled item was “intended to be conveyed by mail.”
18 U.S.C. § 1709. Despite Harrison’s claim, the statute does not require that the
item belong to the person whose name, if any, appears on it. Harrison cites no
authority for that proposition, and we have otherwise found none. Harrison refers
to only one case for support, which he admits “is not squarely on point with the
issue presented in the instant matter.”
Construed in the light most favorable to the government, the evidence
permitted the jury to find Harrison guilty of the embezzlement of mail charges
beyond a reasonable doubt. Bowman, 302 F.3d at 1237. As a result, the district
court did not err in denying Harrison’s motion for judgment of acquittal.
5
Case: 13-15323 Date Filed: 09/02/2014 Page: 6 of 6
III.
The district court did not abuse its discretion by denying Harrison’s motion
for a new trial, and it did not err in denying his motion for judgment of acquittal
for embezzlement of mail. Therefore, the district court is AFFIRMED.
6 | 01-03-2023 | 09-02-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1595162/ | 954 So. 2d 1231 (2007)
Estelle M. WHITTLESEY, n/k/a Estelle Mirande, Appellant,
v.
Horace M. WHITTLESEY, Jr., Appellee.
No. 2D05-5399.
District Court of Appeal of Florida, Second District.
April 20, 2007.
*1232 Ellen Ware and Jeanie E. Hanna of Ware Law Group, P.A., Tampa, for Appellant.
Lorena L. Kiely of Law Office of Lorena L. Kiely, Tampa, for Appellee.
STRINGER, Judge.
Estelle M. Whittlesey, the Former Wife, seeks review of the final judgment which dissolved her marriage to Horace M. Whittlesey, Jr., the Former Husband. The Former Wife raises several issues regarding the equitable distribution and alimony awards. We reverse for reconsideration of both awards based on our conclusion that the filing of the October 1991 Belgian divorce action did not trigger the cut-off date for identifying marital assets and liabilities.
The parties met in Mexico and married there in 1982. The Former Wife is French, and the Former Husband is an American born in Mexico to American parents. At the time of the marriage, the Former Husband worked as the general manager of American Standard Corporation in Mexico. The Former Wife quit her job as a translator for the Mexican government shortly before the 1981 birth of the parties' first child. The parties' second child was born in 1982, and their third child was born in 1984.
The Former Husband transferred to American Standard's Thailand office in 1985, and the family lived in Thailand until 1990. The Former Husband's generous salary and benefits allowed the family to live a lavish lifestyle which included a penthouse, chauffeurs, private schools for the children, maids, and frequent vacations. In 1990, the Former Husband was promoted and transferred to Ideal Standard Europe in Brussels, Belgium. There the higher cost of living resulted in a somewhat reduced, but still relatively affluent, lifestyle.
In October 1991, the Former Wife filed a divorce action in Belgium, but the divorce did not proceed after the Former Husband moved to China to work for American Standard's Asian division in July 1993. The Former Wife and the children moved to the south of France to live with the Former Wife's family shortly after the Former Husband moved to China. The Former Wife and children relocated to Spain in 1996, and the Former Wife remains there today. The Former Husband took early retirement in 2000 and moved to Florida. He filed for divorce in Hillsborough County, Florida, in November 2000.
One of the issues at trial was the cut-off date for identifying the parties' marital assets. The Former Wife argued that the cut-off date should be the date the Former Husband filed the petition for dissolution *1233 of marriage in Florida, which was November 2000. The Former Husband argued that the cut-off date should be the date the Former Wife filed the Belgian divorce action, which was October 1991. The trial court determined that October 1991 was the appropriate cut-off date to identify the parties' marital assets.
The final judgment of dissolution of marriage equitably divided the parties' marital assets using the October 1991 cut-off date to identify which assets were marital. As part of this process, the final judgment determined that the Former Husband's Thailand stock, which he sold in 2001 for nearly $800,000, was a nonmarital asset. The final judgment also awarded the Former Wife monthly permanent periodic alimony of $2500.
On appeal, the Former Wife raises two challenges to the equitable distribution award. First, the Former Wife argues that the trial court should not have used October 1991 as the date to identify the parties' marital assets. Second, the Former Wife argues that even using the October 1991 date, the trial court erred in classifying the Thailand stock as a nonmarital asset. The Former Wife also raises two challenges to the alimony award. First, the Former Wife argues that the alimony award is not supported by proper factual findings. Second, the Former Wife argues that the trial court failed to address her request for life insurance to secure the alimony award. We will address these arguments in turn.
Equitable Distribution
A. Cut-Off Date For Identifying Marital Assets
Section 61.075(6), Florida Statutes (2000), provides, in pertinent part:
The cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage.
(Emphasis added.) The trial court held that filing the Belgian divorce action triggered the cut-off date for identifying marital assets as "the date of the filing of a petition for dissolution of marriage" under this section. The court reasoned that the legislature's use of the phrase "a petition for dissolution of marriage" instead of "the petition for dissolution of marriage" indicated its intent to allow the filing of any petition for dissolution to trigger the cut-off date for identifying marital assets. The court explained that the legislature could have used the phrase "the petition for dissolution of marriage," which, according to the court, would refer to the specific petition filed for consideration by the trial court. The court also concluded that by choosing the earliest of the above three events to trigger the cut-off date, the legislature intended that the assets and liabilities acquired after the parties indicate an intent to live separately be considered nonmarital. The court found that the parties in this case had a "de facto divorce" from the time the Former Wife filed the divorce action in Belgium.
This case appears to present a question of first impression in Florida. The legal question before this court is whether the filing of the Belgian divorce action triggered the cut-off date for identifying marital assets and liabilities under section 61.075(6). We recognize that section 61.075(6) does not specifically require that the petition for dissolution of marriage be filed in a Florida jurisdiction in order to trigger the cut-off date. However, we cannot accept the trial court's conclusion that the legislature's use of the *1234 phrase "a petition for dissolution of marriage" instead of the phrase "the petition for dissolution of marriage" requires trial courts to identify marital assets as of the date of filing any petition for dissolution in any country in the world at any time in the past.
Furthermore, we do not agree with the trial court's conclusion that the legislature intended that the assets and liabilities acquired after the parties indicate an intent to live separately be considered nonmarital. If this were the case, the legislature would have chosen the date of separation as one of the trigger dates under section 61.075(6). Instead, the legislature chose three dates on which the parties took legal action to set the divorce process in motion.
This case is hopefully unique in that the original dissolution action remained unresolved for almost ten years in a foreign country before a petition for dissolution was finally filed in Florida. The record is devoid of evidence regarding the Belgian court's actions in the divorce proceedings or the status of the case when the Former Husband left Belgium in 1993. We note that the Former Husband could probably have precluded consideration of assets he acquired after October 1991 if he had just made himself available for the Belgian divorce proceedings.
Under the unusual circumstances in this case, we find that the filing of the Belgian divorce action did not trigger the date for identifying marital assets and liabilities under section 61.075(6). We therefore reverse and remand for the trial court to use November 2000 as the cut-off date for identifying marital assets and liabilities.
B. Thailand Stock
In 1988 or 1989, the Former Husband purchased a $50,000 interest in American Standard stock for $25,000 of his own money plus $25,000 loaned to him by American Standard. The Former Husband's interest was acquired as a result of Black & Decker's attempted hostile takeover of American Standard. American Standard incurred massive debt to fend off the attack but survived to become a private company. In order to encourage its executives to extraordinary levels of performance, American Standard offered an opportunity to buy shares by matching money through loans. In 1998, American Standard issued the stock certificates to the Former Husband after it went public. The Former Husband sold the stock certificates in 2001 for nearly $800,000.
The final judgment determined that the Thailand stock was a nonmarital asset based on its conclusion that the shares were acquired after the October 1991 cut-off date. The Former Wife argues that the Thailand stock was a marital asset because it was issued prior to the October 1991 cut-off date for identifying marital assets. Our determination that the trial court should have used November 2000 as the cut-off date for identifying marital assets renders the Former Wife's argument moot because the stock certificates were issued to the Former Husband in 1998. Therefore, the trial court should consider the Thailand stock as a marital asset for purposes of equitable distribution on remand.
Alimony
A. Factual Findings
This court's determination regarding the proper cut-off date for the identification of marital assets renders the Former Wife's argument regarding alimony moot to the extent that the court must reconsider the award in conjunction with the parties' assets as identified in the new equitable distribution award. In order to *1235 assist the court with this task on remand, we offer the following observations. We understand that determining the parties' standard of living is difficult because they have not lived together since 1991 and, for most of the marriage, they lived the lavish lifestyle of ex-patriots in impoverished countries. However, the court must still consider the Former Wife's actual need and the Former Husband's ability to pay in determining alimony. See Beck v. Beck, 852 So. 2d 934, 937 (Fla. 2d DCA 2003); O'Connor v. O'Connor, 782 So. 2d 502, 503-04 (Fla. 2d DCA 2001). The final judgment currently does not make sufficient findings on either factor.
B. Life Insurance
The final judgment does not address the Former Wife's request that the Former Husband obtain life insurance to secure alimony. On remand, the court should consider this issue as well. It appears that the Former Husband does currently have a life insurance policy for $537,000 and that the children are the current beneficiaries. However, we express no opinion on the merits of the issue.
Reversed and remanded.
ALTENBERND and SILBERMAN, JJ., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922152/ | 983 So. 2d 1159 (2008)
DAMIANO
v.
STATE.
No. 4D06-3665, 4D06-3666.
District Court of Appeal of Florida, Fourth District.
March 14, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595289/ | 621 N.W.2d 743 (2001)
Tammara Stimpert SCHONS, et al., Petitioners, Appellants,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent.
No. C6-99-1246.
Supreme Court of Minnesota.
February 8, 2001.
*744 Grannis & Hauge, P.A., Michael J. Dwyer, Virginia A. Dwyer, Eagan, for Appellants.
Meagher & Geer, P.L.L.P., Katherine A. McBride, Minneapolis, for Respondent.
Schwebel, Goetz & Sieben, P.A., Sharon L. Van Dyck, Minneapolis, for Amicus Curiae Minnesota Trial Lawyers.
Heard, considered, and decided by the court en banc.
OPINION
BLATZ, Chief Justice.
In this case, we are required to determine the proper application of Minn.Stat. § 65B.49, subd. 3a(5) (2000), of Minnesota's No Fault Automobile Insurance Act (the "No Fault Act") to the underinsured motorist (UIM) benefits claim of a passenger injured in an automobile accident involving two negligent drivers. Appellant Tammara Stimpert Schons seeks UIM benefits from her automobile policy with respondent State Farm Mutual Automobile Insurance Company because her damages exceed the UIM and liability benefits available to her under the negligent drivers' insurance policies. Schons now challenges summary judgment for State Farm, arguing that the district court and court of appeals erred in concluding that Schons cannot recover UIM benefits from her own policy because her $50,000 UIM limit is no greater than her host driver's $50,000 UIM limit. We affirm.
The facts of this case are not disputed. Schons was a passenger in Rebecca Vogl's automobile on January 17, 1997, when drifting snow caused the automobile to collide head-on with Donna Bjorklund's automobile. Schons suffered extensive physical injury and lost wages. Both drivers were negligent and both were underinsured.
Vogl had automobile insurance through State Farm with $50,000 each in liability and UIM coverage. Bjorklund had $50,000 in liability coverage through Austin Mutual. Schons had $50,000 in UIM coverage through State Farm on an automobile not involved in the accident. In settlement of her bodily injury claims, Schons received $50,000 in liability benefits *745 from Vogl's State Farm policy and $48,000 in liability benefits from Bjorklund's Austin Mutual policy.
Because Schons' damages exceeded the two drivers' liability limits, Schons sought UIM benefits from Vogl's policy. Vogl's insurer paid Schons $50,000 for Bjorklund's underinsured negligence, but Vogl's policy excluded UIM coverage for Vogl's negligence because her insurer had already paid liability benefits.
Despite this payment, Schons' damages still exceeded the amount of liability and UIM benefits she received. Schons therefore sought $50,000 in additional UIM benefits from her own State Farm policy to cover Vogl's underinsured negligence. State Farm denied coverage, claiming that section 65B.49, subd. 3a(5) of the No Fault Act prohibited Schons from receiving UIM benefits under her own policy because she had received maximum benefits from Vogl's policy and because the $50,000 UIM limit on Schons' policy did not exceed Vogl's $50,000 UIM limit. Schons then filed suit against State Farm in Lyon County District Court. The parties brought cross-motions for summary judgment. The district court agreed with State Farm's reasoning and granted its summary judgment motion while denying Schons'. The court of appeals affirmed in Schons v. State Farm Mutual Automobile Insurance Co., 604 N.W.2d 125, 128 (Minn. App.2000).
I.
On appeal from summary judgment, this court reviews whether there are any genuine issues of material fact and whether the lower courts erred in their application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The facts here are undisputed, so the only issue is the correct application of the No-Fault Act. Statutory interpretation is a question of law subject to de novo review. Hibbing Educ. Ass'n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).
Minnesota Statutes § 65B.49, subd. 3a(5) is the part of the No Fault Act that sets forth the order in which an injured party should seek UIM coverage from relevant policies. Thommen v. Ill. Farmers Ins. Co., 437 N.W.2d 651, 653 (Minn.1989). Section 65B.49, subd. 3a(5) states:
If at the time of the accident the injured person is occupying a motor vehicle, the limit of liability for uninsured and underinsured motorist coverages available to the injured person is the limit specified for that motor vehicle. However, if the injured person is occupying a motor vehicle of which the injured person is not an insured, the injured person may be entitled to excess insurance protection afforded by a policy in which the injured party is otherwise insured. The excess insurance protection is limited to the extent of covered damages sustained, and further is available only to the extent by which the limit of liability for like coverage applicable to any one motor vehicle listed on the automobile insurance policy of which the injured person is an insured exceeds the limit of liability of the coverage available to the injured person from the occupied motor vehicle.
Minn.Stat. § 65B.49, subd. 3a(5). The parties agree that as an unrelated passenger in Vogl's motor vehicle, Schons is not "an insured" with respect to this vehicle under the No-Fault Act, and that Schons' uncompensated damages remain greater than the $50,000 she seeks from her insurer. Therefore, Schons is entitled to receive "excess [UIM] insurance protection" from her policy "to the extent by which the limit of liability for like coverage applicable to any one [of Schons' own motor vehicles] exceeds the limit of liability of the coverage available to [Schons from Vogl's vehicle]." Id. This part of subdivision 3a(5) is the primary subject of this appeal.
Schons urges this court to reverse summary judgment for State Farm and hold that UIM benefits paid under Schons' policy *746 would not be "excess insurance protection" under subdivision 3a(5) because the UIM benefits paid under Vogl's policy covered Bjorklund'snot Vogl'sunderinsured negligence. In essence, Schons argues that where, as here, there are two underinsured tortfeasors, the No-Fault Act allows the injured passenger to look to the host driver's policy as primary coverage for the second driver's underinsured negligence, and to the passenger's own policy as primary coverage for the host driver's underinsured negligence. Schons therefore claims that because subdivision 3a(5) is inapplicable, she may collect the full extent of her own UIM coverage regardless of whether her UIM limits exceed Vogl's. This argument is unpersuasive.
First, we note that the reasoning set forth in the court of appeals cases cited by the parties does not directly address the issue before us. Schons relies on Davis v. American Family Mutual Insurance Co., 521 N.W.2d 366 (Minn.App.1994), and Lahr v. American Family Mutual Insurance Co., 528 N.W.2d 257 (Minn.App.1995), for the proposition that UIM coverage under Schons' own policy is not "excess" to UIM benefits received from Vogl's insurer for Bjorklund's negligence. In Davis, the court of appeals held that subdivision 3a(5) did not prohibit an injured passenger in a single-car accident from recovering UIM benefits under his own policy where an exclusion in the driver's policy prohibited the passenger from receiving UIM benefits from the driver. 521 N.W.2d at 369-70. Although the court reasoned that the passenger's own UIM coverage was not "excess insurance protection" because the passenger did not receive primary UIM benefits from the driver, the court also noted that subdivision 3a(5) applies to an injured passenger "only when that person seeks UIM benefits under his or her own policy after already qualifying for UIM benefits from another source." Davis, 521 N.W.2d at 369-70. Schons was involved in a two-car accident and received UIM benefits "from another source"i.e., from Vogl's policy. Consequently, the reasoning set forth in Davis does not apply to the issue before us.
The court of appeals' reasoning in Lahr v. American Family Mutual Insurance Co. is equally inapplicable. The court held that subdivision 3a(5) did not prohibit Lahr, an injured passenger who received UIM benefits from her own policy for the host driver's negligence, from recovering UIM benefits from her host driver's policy for the second driver's negligence. See Lahr, 528 N.W.2d at 260. Although Lahr potentially could recover UIM benefits both from her own policy and from the host driver's policy, the UIM limits on Lahr's policy exceeded those of the host driver's policy by more than the amount Lahr received from her own insurer. Id. at 258. Thus, the court of appeals did not decide whether Lahr could recover from both policies if her own UIM policy limits did not exceed the limits of her host driver's policy.
In affirming summary judgment for State Farm in the instant case, the court of appeals relied heavily on its decision in Jirik v. Auto-Owners Insurance Co., 595 N.W.2d 219 (Minn.App.1999), rev. granted and remanded on other grounds (Minn. Sept. 14, 1999). In Jirik, Danielle, a minor child, was injured when her mother's automobile collided with a truck. Id. at 220. Danielle's parents were divorced and Danielle apparently was insured under both parents' policies. Id. Her mother's policy paid UIM benefits to Danielle for the other driver's underinsured negligence, but Danielle sought additional UIM coverage from her father's policy for her mother's underinsured negligence. Id. at 221. Although Danielle was "an insured" under her mother's policy pursuant to the No-Fault Act, she argued that subdivision 3a(5) did not prohibit additional recovery because her father's policy would provide primary UIM coverage, not excess insurance protection, for her mother's underinsured negligence. Jirik, 595 N.W.2d at 222-23; see Minn.Stat. § 65B.49, subd. *747 3a(5) ("[I]f the injured person is occupying a motor vehicle of which the injured person is not an insured, the injured person may be entitled to excess insurance protection* * *.") (emphasis added). The court of appeals rejected Danielle's argument, holding that she could not seek benefits from her father's policy because she was an insured under the policy covering the host vehicle. Jirik, 595 N.W.2d at 223.
In Schons, the court of appeals cited Jirik as precedent for rejecting the claim that Schons sought primary, not excess, UIM coverage from her own insurer. Schons v. State Farm Mut. Auto. Ins. Co., 604 N.W.2d 125, 128 (Minn.App.2000). Jirik, however, did not involve the statutory language relevant here. Because the injured passenger in Jirik was "an insured" under the host driver's policy, the second sentence of subdivision 3a(5) rendered her ineligible for UIM coverage beyond that available from the host driver. Minn.Stat. § 65B.49, subd. 3a(5). Thus, Jirik does not resolve the issue in Schons' case, which centers on the third sentence of subdivision 3a(5).
Having determined that the reasoning set forth in the cases cited by the parties and lower courts does not address the specific question before us, we turn to subdivision 3a(5) itself. The function of subdivision 3a(5) is to connect an injured passenger's total UIM benefit recovery to the limit specified for the motor vehicle the passenger occupied. Hanson v. Am. Family Mut. Ins. Co., 417 N.W.2d 94, 96 (Minn. 1987) (recognizing that the 1985 amendments to the No-Fault Act "reflect a broad policy decision to tie underinsured motorist and other coverage to the particular vehicle involved in an accident"). An exception to this general rule occurs where an injured passenger has preselected a greater level of UIM coverage than the amount covering the host vehicle. Becker v. State Farm Mut. Auto. Ins. Co., 611 N.W.2d 7, 13 (Minn.2000). Because Schons' and Vogl's UIM limits are the same, Schons is not entitled to recover additional UIM benefits from her own insurer.[1]
This interpretation is supported by the third sentence of subdivision 3a(5), which specifically renders it irrelevant whether UIM benefits were paid for Vogl's or Bjorklund's underinsured negligence so long as Vogl's UIM coverage was "available" to Schons. Minn.Stat. § 65B.49, subd. 3a(5) (mandating a comparison between the UIM coverage limits on any motor vehicle owned by the injured passenger and the "limit of liability of the coverage available to the injured person from the occupied motor vehicle.") (emphasis added); see also Theodore J. Smetak, Underinsured Motorist Coverage in Minnesota: Old Precedents in a New Era, 24 Wm. Mitchell L.Rev. 857, 939 (1998) ("The [excess] coverage provision was designed to allow policy-holders the opportunity to pre-select the minimum level of insurance coverage that would be available for any given accident." (emphasis added)). Here, it is undisputed that $50,000 of UIM benefits was available to Schons from Vogl's policy, albeit for Bjorklund's underinsured negligence.
Although Schons might have recovered more than $50,000 if she had preselected a higher level of UIM coverage, she could not reasonably expect to recover more than the $50,000 of UIM coverage for which she paid premiums. Schons received *748 exactly $50,000 coverage from her host driver's insurer. Regardless of whose underinsured negligence Vogl's UIM payments covered, the plain text of subdivision 3a(5) prohibits additional recovery under these facts because Schons' UIM coverage limits do not exceed the limit of UIM coverage "available * * * from the occupied motor vehicle." Consequently, the district court's grant of summary judgment for State Farm is consistent with the text of subdivision 3a(5) and with the goal of connecting a passenger's recoverable UIM benefits to the host vehicle's policy unless the passenger's preselected level of UIM coverage exceeds the host vehicle's UIM limits.
II.
Amicus curiae, the Minnesota Trial Lawyers Association, argues that subdivision 3a(5) is only a priority scheme that does not eliminate coverage available under Minn.Stat. § 65B.49, subd. 4a (2000). Subdivision 4a provides:
With respect to underinsured motorist coverage, the maximum liability of an insurer is the amount of damages sustained but not recovered from the insurance policy of the driver or owner of any underinsured at fault vehicle. If a person is injured by two or more vehicles, underinsured motorist coverage is payable whenever any one of those vehicles meets the [statutory] definition of underinsured motor vehicle * * *. However, in no event shall the underinsured motorist carrier have to pay more than the amount of its underinsured motorist limits.
Minn.Stat. § 65B.49, subd. 4a.
Although neither party discusses the effect of subdivision 4a on the instant case, amicus argues that subdivision 4a "clearly contemplates" the possible involvement of two or more vehicles in a single accident and only excuses an insurer from paying UIM benefits greater than the policyholder's UIM limits. It is not disputed that Schons' insurer is not being asked to pay more than Schons' $50,000 UIM policy limits. Amicus therefore argues that, regardless of subdivision 3a(5), primary UIM coverage is available from Schons' policy to cover Vogl's underinsured negligence.
Despite this characterization of the relationship between subdivisions 3a(5) and 4a, subdivision 4a's historical context indicates that the subdivision is largely irrelevant to the priority scheme in subdivision 3a(5). Prior to 1989 amendments, subdivision 4a stated:
With respect to underinsured motor vehicles, the maximum liability of an insurer is the lesser of the difference between the limit of underinsured motorist coverage and the amount paid to the insured by or for any person or organization who may be held legally liable for the bodily injury; or the amount of damages sustained but not recovered.
Minn.Stat. § 65B.49, subd. 4a (1988). Under this statutory format, an insurer liable for underinsured motorist benefits had a maximum liability of the policy's UIM limits minus any amount already paid by or on behalf of the at-fault party. Johnson v. Am. Family Mut. Ins. Co., 426 N.W.2d 419, 422 n. 1 (Minn.1988). Thus, UIM policy limits were reduced by other benefits paid to an injured party even if the benefits paid were not UIM benefits. This was known as the "limits less paid" approach. Neuman v. State Farm Mut. Auto. Ins. Co., 492 N.W.2d 530, 533 (Minn. 1992).
In 1989, subdivision 4a was amended to convert the "limits less paid" approach into an "add-on" approach. Neuman, 492 N.W.2d at 531 n. 3. To accomplish this goal, the statute as amended in 1989 entitles an injured party to the full extent of a policy's UIM coverage without having to subtract the amount already paid in liability benefits. Minn.Stat. § 65B.49, subd. 4a (2000). The statute also makes UIM coverage payable, but not necessarily required of a particular insurer, if any single automobile is underinsured in a multi-vehicle *749 accident. Id; see also 1 Michael K. Steenson, Minnesota No-Fault Automobile Insurance, 209 (2d ed., LEXIS® Law Publ'g Issue 9 1999). Finally, the statute ensures that a UIM insurer will not have to pay more than its policyholder's UIM limits. See Minn.Stat. § 65B.49, subd. 4a. Despite amicus' arguments that "subdivision 4a articulates the scope of the coverage available under any given policy," subdivision 4a only ensures that an insurer will not have to pay more than the lesser of the injured party's uncompensated damages or the UIM limits on the insured's policy. Subdivision 4a is therefore separate from subdivision 3a(5)'s priority and limitation scheme.
Accordingly, we hold that subdivision 3a(5) prohibits Schons from recovering UIM benefits from her insurer. We also conclude that subdivision 4a does not entitle Schons to such recovery. The decision of the court of appeals is affirmed.
Affirmed.
PAGE, J., (concurring specially).
I concur in the result. I write separately because I believe that the court's analysis is not only faulty, but unnecessary. This case involves a claim for UIM benefits under a policy of insurance issued to Schons for injuries received while an occupant in an underinsured motor vehicle involved in an accident with a second underinsured motor vehicle. Her injuries were caused by the negligence of both drivers involved in the accident. Schons received the occupied vehicle's liability policy limits of $50,000 and $48,000 from the $50,000 liability policy covering the second vehicle. Schons also received $50,000 in UIM benefits from the occupied vehicle's policy because of the second vehicle's UIM status. Because the occupied vehicle's insurance policy precluded Schons from receiving any UIM benefits based on its UIM status, Schons seeks to recover UIM benefits from a policy of insurance covering her own vehicle.
The court holds that Minn.Stat. § 65B.49, subd. 3a(5) (2000), precludes recovery under Schons' insurance policy because the UIM limits under her policy do not exceed the limit of UIM benefits available from like coverage contained in the occupied vehicle's policy. Section 65B.49, subdivision 3a(5), sets out when a person injured due to the negligence of the driver of an underinsured motor vehicle is entitled to excess insurance protection.[1] Under that section, "excess insurance protection is limited to * * * the extent by which the limit of liability for like coverage * * * exceeds the limit of liability of the coverage available to the injured person from the occupied motor vehicle." In this case, the occupied motor vehicle's insurance policy precludes Schons from recovering UIM benefits for the occupied vehicle's underinsured status. Thus, there is no like coverage available for Schons' automobile insurance policy to exceed and, therefore, the excess insurance protection provisions of Minn.Stat. § 65B.49, subd. 3a(5), are inapplicable to this case.
Moreover, the result reached by the court fails to meet the legislative purposes underlying the enactment of the No-Fault Act. Denying people like Schons UIM benefits from the policy covering their own vehicle does absolutely nothing to "relieve uncompensated victims from the economic stress caused by automobile accidents."[2]*750 The act's other purposes are not implicated. Schons has not received any payment for the underinsured status of the vehicle she was occupying at the time of the accident. Further, there is no source for such a payment other than the UIM benefits Schons purchased for her vehicle. Therefore, there is no danger of a duplicate recovery were she to receive UIM benefits under her policy. Further, there is no danger that she would be overcompensated because her damages exceed the amount available under all possible sources of insurance coverage, including the UIM benefits being sought here. Finally, there is no risk that Schons' UIM coverage would be effectively converted into liability coverage. Cf. Myers v. State Farm Mut. Auto. Ins. Co., 336 N.W.2d 288, 291-92 (Minn.1983) (upholding insurance policy language as properly preventing the conversion of UIM coverage into third-party liability coverage).
In addition to the legislative purposes being frustrated, it appears that the premium Schons paid for UIM coverage for her vehicle was wasted. As the occupant of a vehicle that had $50,000 in UIM coverage, she was entitled to and did receive the benefit of that coverage for the underinsured status of the other vehicle involved in the accident. Although Schons purchased UIM coverage, she will receive no UIM benefits to compensate her for the injuries she received as a result of the negligence of the driver of the occupied underinsured vehicle. Thus, having paid the premium, Schons gets nothing for it under these circumstances.
Because section 65B.49, subdivision 3a(5), does not apply, I believe that Schons, on the facts presented by this case and the purposes underlying the No Fault Act, absent any other provision precluding recovery, is entitled to recover UIM benefits from her automobile insurance policy.
Analysis of subdivision 3a(5) is unnecessary, however, because the outcome of this case is controlled by Minn.Stat. § 65B.49, subd. 3a(6) (2000), which expressly precludes recovery on these facts. Subdivision 3a(6) provides:
Regardless of the number of policies involved, vehicles involved, persons covered, claims made, vehicles or premiums shown on the policy, or premiums paid, in no event shall the limit of liability for uninsured and underinsured motorist coverages for two or more motor vehicles be added together to determine the limit of insurance coverage available to an injured person for any one accident.
Minn.Stat. § 65B.49, subd. 3a(6). The language of this provision is clear and unambiguous.[3] UIM coverages for two vehicles may not "be added together to determine the limit of insurance coverage available to an injured person for any one accident." Id. Because Schons seeks to add together the UIM coverage from the occupied vehicle with that of her own vehicle to "determine the limit of insurance coverage available," id., to her from the accident, subdivision 3a(6) operates to preclude recovery.
NOTES
[1] Relying on subdivision 3a(5)'s statement that excess insurance protection is available "only to the extent by which the limit of liability for like coverage applicable to [the insured's motor vehicle] exceeds the limit of liability of the coverage available * * * from the occupied motor vehicle" (emphasis added), Schons also argues that she is entitled to UIM benefits from her own insurer because the $50,000 her insurer would pay for Vogl's negligence is not like the $50,000 Vogl's insurer paid for Bjorklund's negligence. A plain reading of subdivision 3a(5) indicates, however, that "like coverage" simply refers to UIM coverage. Therefore, the statute only requires a comparison between UIM coverage limits on the host driver's vehicle and UIM limits on the passenger's own vehicle.
[1] "However, if the injured person is occupying a motor vehicle of which the injured person is not an insured, the injured person may be entitled to excess insurance protection afforded by a policy in which the injured party is otherwise insured." Minn.Stat. § 65B.49, subd. 3a(5).
[2] The No-Fault Act's stated purposes are "to (1) relieve uncompensated victims from the economic stress caused by automobile accidents, (2) prevent overcompensation of automobile accident victims, * * * and (5) prevent automobile accident victims from receiving duplicate recovery." Scheibel v. Ill. Farmers Ins. Co., 615 N.W.2d 34, 37 (Minn.2000) (citing Minn.Stat. § 65B.42 (2000)).
[3] We have recognized that subdivision 3a(6) was enacted in an effort to eliminate "stacking" of coverages. Broton v. W. Nat. Mut. Ins. Co., 428 N.W.2d 85, 88 (Minn.1988). "Stacking" refers to applying the coverage limits on multiple vehicles under which the injured person is insured to one accident, Wasche v. Milbank Mut. Ins. Co., 268 N.W.2d 913, 917 (Minn.1978), which is not what Schons seeks. While the elimination of stacking may have been the purpose behind subdivision 3a(6), "The letter of the law shall not be disregarded under the pretext of pursuing the spirit." Minn.Stat. § 645.16 (2000). By its terms, subdivision 3a(6) does much more than eliminate stacking. It expressly prohibits adding the limits of liability for any two or more motor vehicles to determine the limit of underinsured or uninsured coverage. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595253/ | 621 N.W.2d 49 (2001)
Douglas Wade KAISER, Petitioner, Appellant,
v.
STATE of Minnesota, Respondent.
No. C5-00-807.
Court of Appeals of Minnesota.
January 2, 2001.
*51 Deborah K. Ellis, St. Paul, for appellant.
Mike Hatch, Attorney General, St. Paul, James C. Backstrom, Dakota County Attorney, Phillip D. Prokopowicz, Assistant County Attorney, Hastings, for respondent.
Considered and decided by LANSING, Presiding Judge, PETERSON and STONEBURNER, Judges.
OPINION
LANSING, Judge.
Douglas Kaiser appeals the district court's denial of his motion to withdraw his guilty plea. Kaiser argues that because the district court failed to inform him of the ten-year sex-offender registration requirement before he entered his guilty plea, the plea was not intelligently entered. The registration requirement is a civil-regulatory consequence that is collateral to the entry of the guilty plea; thus the district court did not abuse its discretion in denying Kaiser's application to withdraw his plea. We affirm.
FACTS
In a four-count complaint, the Dakota County Attorney charged Douglas Kaiser with the crimes of use of minors in a sexual performance in violation of Minn. Stat. § 617.246 (1996), possession of pictorial representations of minors in violation of Minn.Stat. § 617.247 (1996), providing alcohol to minors in violation of Minn.Stat. § 340A.503 (Supp.1997), and contributing to the delinquency of a minor in violation of Minn.Stat. § 260.315 (1996). After plea negotiations that focused primarily on whether Kaiser would be required to serve time in jail, Kaiser pleaded guilty to one count of possession of pictorial representations of minors. The district court stayed imposition of sentence and placed Kaiser on probation for two years, conditioned on Kaiser's paying a $1,000 fine, having no unsupervised contact with juvenile females, following the probation department's rules, and remaining law abiding.
At the plea hearing, Kaiser responded affirmatively to both his attorney's and the district court's questions about whether he understood the plea agreement. Neither the district court nor Kaiser's attorney informed Kaiser that as a result of his plea *52 he would be required to register as a sex offender for ten years. About three months after the plea hearing, Kaiser learned of the requirement from his probation officer and filed a postconviction petition to withdraw his plea.
The district court considered the motion on stipulated testimony offered in lieu of an evidentiary hearing and denied Kaiser's motion. Kaiser appeals, contending that the postconviction court abused its discretion in denying his petition for plea withdrawal, that defense counsel's failure to advise him of the sex-offender reporting requirement constituted ineffective assistance of counsel, and that his guilty plea did not have the requisite factual basis.
ISSUES
I. Does Minnesota's sex-offender registration law constitute a direct consequence of the defendant's plea to an enumerated offense and thereby require that the court or counsel advise the defendant of the reporting requirement before entry of the plea in order for the plea to be valid?
II. Did defense counsel's failure to advise Kaiser of the sex-offender reporting requirement constitute ineffective assistance of counsel?
III. Is Kaiser's plea supported by an adequate factual basis?
ANALYSIS
I
A defendant does not have an absolute right to withdraw a guilty plea. Shorter v. State, 511 N.W.2d 743, 746 (Minn.1994). Allowing withdrawal of a guilty plea is within the district court's discretion and is reviewed under an abuse-of-discretion standard. Perkins v. State, 559 N.W.2d 678, 685 (Minn.1997). Appellate review is generally limited to determining whether sufficient evidence exists to sustain the district court's findings. Id.
Minnesota law requires persons convicted of certain enumerated offenses to register as a sex offender. "A person shall register under this section if * * * the person was charged with * * * possessing pictorial representations of minors in violation of section 617.247, and convicted of * * * that offense or another offense arising out of the same set of circumstances[.]" Minn.Stat. § 243.166, subd. 1 (1998).
District courts are required to inform persons of the registration requirement at the time of sentencing. "When a person who is required to register * * * is sentenced * * * the court shall tell the person of the duty to register under this section." Id., subd. 2 (1998). But the statute furnishes an alternative when the court fails to tell the defendant of the requirement. "If a person required to register * * * was not notified by the court of the registration requirement at the time of sentencing or disposition, the assigned corrections agent shall notify the person of the requirements of this section." Id.
Possessing pictorial representations in violation of section 617.247 is an enumerated offense requiring registration. See id., subd. 1(2) (1998). Kaiser was also charged with, but not convicted of, using a minor in a sexual performance in violation of section 617.246, another enumerated offense. See id. Registration is also required when a person is convicted of offenses not listed in the statute if the person was charged with an enumerated offense and the offenses arose out of the same set of circumstances. See Boutin v. LaFleur, 591 N.W.2d 711, 716 (Minn. 1999), cert. denied, 528 U.S. 973, 120 S. Ct. 417, 145 L. Ed. 2d 326 (1999). Thus, Kaiser was required to register not only because of the crime he was convicted of, but also because of an additional charged crime.
A court must allow a defendant to withdraw a guilty plea upon proof that "withdrawal is necessary to correct a manifest injustice." Minn.R.Crim.P. 15.05, *53 subd. 1. Because entry of a plea involves waiver of the constitutional right to a trial, a manifest injustice occurs if the guilty plea is not accurately, voluntarily, and intelligently entered. Alanis v. State, 583 N.W.2d 573, 577 (Minn.1998).
Kaiser maintains that his guilty plea was not intelligently entered. For a guilty plea to be intelligent, the defendant must be aware of the relevant circumstances and direct consequences of the plea. Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1469, 25 L. Ed. 2d 747 (1970); Alanis, 583 N.W.2d at 578. Direct consequences are those that flow definitely, immediately, and automatically from the guilty plea. Alanis, 583 N.W.2d at 578. On the other hand, ignorance of a collateral consequence does not entitle a defendant to withdraw a guilty plea. Id.
The distinction between direct and collateral consequences of a guilty plea turns on whether the result adds a definite, immediate, and automatic effect to the defendant's punishment. Id. If sex-offender registration is not punishment or does not add a definite, immediate and automatic effect to the punishment, it is a collateral consequence of a plea, and a defendant is not entitled to withdraw a guilty plea because he was not informed of that consequence at the time of the plea. In Alanis, the supreme court identified the direct consequences as the maximum sentence and any fine to be imposed. Id.
Minnesota courts have not addressed whether the sex-offender registration requirement is a direct or collateral consequence, but have held that deportation is a collateral consequence of a guilty plea, id., as is revocation of driving privileges, State v. Washburn, 602 N.W.2d 244, 246 (Minn. App.1999), and loss of the right to possess a firearm, State v. Rodriguez, 590 N.W.2d 823, 825 (Minn.App.1999), review denied (Minn. May 26, 1999). Courts in other jurisdictions have categorized as collateral the consequences of loss of civil-service employment, the right to vote and to travel freely abroad, United States v. Del Rosario, 902 F.2d 55, 59 (D.C.Cir.1990), habitual-offender or parole-revocation proceedings, and mandatory sex-offender DNA testing, State v. Ward, 123 Wash.2d 488, 869 P.2d 1062, 1075 (1994).
The majority of states that have addressed whether sex-offender registration is a direct or collateral consequence have held that it is a collateral consequence, either because it is not direct and automatic or because it is not punishment. See, e.g., Robinson v. State, 730 So. 2d 252, 254 (Ala.Crim.App.1998); State v. Young, 112 Ariz. 361, 542 P.2d 20, 22 (1975); People v. Montaine, 7 P.3d 1065, 1067 (Colo.Ct.App. 1999); Collie v. State, 710 So. 2d 1000, 1008 (Fla.Dist.Ct.App.1998); Ray v. State, 133 Idaho 96, 982 P.2d 931, 935 (1999); People v. Taylor, 203 Ill.App.3d 636, 149 Ill. Dec. 115, 561 N.E.2d 393, 394 (1990); State v. Pickens, 558 N.W.2d 396, 400 (Iowa 1997); State v. Burr, 598 N.W.2d 147, 159 (N.D. 1999); State v. Timperley, 599 N.W.2d 866, 869 (S.D.1999); Guzman v. State, 993 S.W.2d 232, 236 (Tex.Ct.App.1999), cert. denied, 528 U.S. 1161, 120 S. Ct. 1174, 145 L. Ed. 2d 1082 (2000); Ward, 869 P.2d at 1074; State v. Bollig, 232 Wis. 2d 561, 605 N.W.2d 199, 206 (2000); Johnson v. State, 922 P.2d 1384, 1387 (Wyo.1996). But see Peterson v. State, 988 P.2d 109, 115-16 (Alaska Ct.App.1999) (concluding that registration requirement is a collateral consequence, but statute requires court to warn defendants of requirement to avoid injustice); In re Birch, 10 Cal. 3d 314, 110 Cal. Rptr. 212, 515 P.2d 12, 16-17 (1973) (finding that trial court's duty is to inform defendant of requirement, and in absence of that information, guilty plea was not knowingly and intelligently made). Courts in the majority of jurisdictions have concluded that the registration requirement is directed toward a public-safety and protection purpose, rather than a punitive purpose. See, e.g., Bollig, 605 N.W.2d at 204.
We have previously decided that Minnesota's registration requirement does not constitute punishment, but rather is regulatory *54 in nature. State v. Manning, 532 N.W.2d 244, 248 (Minn.App.1995) (finding that Minnesota's registration requirement does not violate federal and state constitutional ex post facto prohibitions), review denied (Minn. July 20, 1995). We recognize that the duty to register follows from the guilty plea, but the consequences for failure to register are separate from the plea and are contingent on a prosecutor's action. Thus, because the consequences of failure to register are not definite, immediate, and automatic, and because the requirement is primarily regulatory rather than punitive, we conclude that the sex-offender registration requirement is collateral to the plea and that a defendant is not entitled to withdraw a plea solely on the basis that the court failed to inform the defendant of the requirement at the time of the plea.
To support his claim that registration is a direct consequence constituting punishment, Kaiser relies on this court's unpublished decision in Palmquist v. State, No. CX-99-1976, 2000 WL 890479, N.W.2d (Minn.App. July 3, 2000). We note that Palmquist was sentenced before the Minnesota Supreme Court in Boutin clarified that the requirement to register as a sex offender also applies when a person is charged with, but not convicted of, crimes that are enumerated in the sex-offender registration statute so long as all the crimes arose out of the same set of circumstances. See id.; Boutin, 591 N.W.2d at 713. Because, under Boutin, Palmquist was required to register as a sex offender, he petitioned to withdraw his guilty plea and appealed the district court's denial of that petition. Palmquist, 2000 WL 890479, at *1, at . This court determined that Palmquist should be permitted to withdraw his plea because of the particular circumstances surrounding the plea agreement and the timing of Boutin. Id. at *3, at . Palmquist had been aware of the registration requirement and negotiated a plea agreement principally to avoid registration. Id. at *1, at . Counsel, the court, and Palmquist relied on an interpretation of the law later determined to be mistaken in determining that the guilty plea would avoid the registration requirement. Id.
Unlike Palmquist's plea, Kaiser's plea was entered after the supreme court's decision in Boutin, and registration was not addressed in Kaiser's plea. He was unaware of the requirement and did not rely on the plea agreement to avoid this consequence. We do not have the same facts in this appeal and conclude that because the registration consequences are collateral rather than direct, the district court did not abuse its discretion in denying the postconviction petition.
II
Second, Kaiser argues that his attorney's failure to tell him of the requirement constitutes ineffective assistance of counsel. To receive postconviction relief based on ineffective assistance of counsel, Kaiser must show that first, "counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). "Second, the defendant must show that the deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. at 2064. Both prongs must be satisfied to grant relief. Id.
The proper standard for attorney performance in the plea process is that within the range of attorney competence in criminal cases. Hill v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369, 88 L. Ed. 2d 203 (1985). To establish Strickland's prejudice requirement, a defendant must show that absent his attorney's errors, he would not have pleaded guilty and would have insisted on a trial. Id. at 59, 106 S.Ct. at 370. Kaiser's claim fails on the first Strickland prong. Although it is unquestionably the better practice for attorneys to inform clients of the collateral consequences of a guilty plea, the failure to advise of the collateral consequences does not fall below *55 an objective standard of reasonableness that constitutes ineffective assistance of counsel. Alanis, 583 N.W.2d at 579; Berkow v. State, 583 N.W.2d 562, 564 (Minn. 1998) (failing to inform client of collateral consequence of deportation does not constitute ineffective assistance of counsel).
III
Finally, Kaiser contends that his guilty plea was not supported by an adequate factual basis. Kaiser maintains that his admission to possession of the incriminating videotape was based on his having access to the videotape and that possession requires more than access; it requires ownership or control.
The district court must establish a proper factual basis for an accurate guilty plea. State v. Ecker, 524 N.W.2d 712, 716 (Minn.1994). Typically, an adequate factual basis is established by questioning the defendant and asking the defendant to explain the circumstances surrounding the crime. Id.
Under oath, Kaiser admitted possessing the videotape that showed an undressed minor. He also admitted knowing of the images depicted on the videotape and that he had access to the videotape and could have showed it to others had he wished. He further answered "yes" to questions asking if he understood and had carefully reviewed and signed the written petition to plead guilty, had discussed the petition with his attorney, and was satisfied with his attorney's work. In light of Kaiser's admissions, the record supports a conclusion that there is an adequate factual basis for Kaiser's guilty plea.
Because a defendant is not entitled to withdraw a guilty plea on the basis of ignorance of that plea's collateral consequences, failing to inform of a collateral consequence does not constitute ineffective assistance of counsel, and there was an adequate factual basis underlying Kaiser's guilty plea, we conclude that the district court did not abuse its discretion in denying Kaiser's motion to withdraw his guilty plea.
DECISION
The district court did not abuse its discretion in denying the withdrawal of Kaiser's guilty plea or in concluding that Kaiser was not denied effective assistance of counsel. The plea has an adequate factual basis, and we affirm.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595310/ | 426 F. Supp. 516 (1977)
In re Resthaven Psychiatric Hospital, a California Corporation, Debtor.
RESTHAVEN PSYCHIATRIC HOSPITAL, a California Corporation, Plaintiff-Appellee,
v.
UNITED STATES of America, Defendant-Appellant.
No. BK 76-7531 (DWW) (CA).
United States District Court, C. D. California.
February 9, 1977.
*517 Shutan & Trost, Los Angeles, Cal., for debtor.
William D. Keller, U. S. Atty., Charles H. Magnuson, Asst. U. S. Atty., Chief, Tax Div., William J. James, Asst. U. S. Atty., Los Angeles, Cal., for U. S.
MEMORANDUM and ORDER
DAVID W. WILLIAMS, District Judge.
Taxpayer-Bankrupt-Appellee Resthaven Psychiatric Hospital ("RPH") accumulated unpaid withholding taxes in 1975. Due to its failure to pay over such taxes to the Appellant United States, it was assessed in excess of $190,000, and ultimately the Internal Revenue Service ("IRS") levied on and seized the real property of RPH at 765 College Street in Los Angeles on April 16, 1976. On May 24, 1976, RPH was notified that the IRS would begin advertising the property for sale no later than June 11, 1976. RPH filed a petition in bankruptcy under Chapter XI on June 1, 1976. On June 30, 1976, RPH filed a complaint for declaratory relief to enjoin the IRS from advertising for sale or selling the property. The Bankruptcy Court granted a temporary restraining order and on July 28, 1976, a preliminary injunction restraining the IRS from advertising for or proceeding in any way with the sale of any property of RPH. The United States moved to dismiss the complaint, and on September 15, 1976, the Bankruptcy Court denied such motion and, based on the evidence before it, rendered a declaratory judgment in favor of RPH. The matter is presently before the court on the consolidated appeals of the United States from the Bankruptcy Court orders of July 28, 1976 and September 15, 1976.
The United States advances two grounds for its appeal, the first of which can be handled in a rapid fashion. It contends that the Bankruptcy Court was prohibited from exercising summary jurisdiction over it in this matter by the doctrine of sovereign immunity. Since there is no provision in either § 314 of the Bankruptcy Act or Bankruptcy Rule 11-44 which makes specific reference to a waiver by the sovereign, the United States reasons that it cannot be bound by the Bankruptcy Court under the circumstances present here. However, the umbrella of In Re Dolard, 519 F.2d 282 (9th Cir., 1975) and In Re Gwilliam, 519 F.2d 407 (9th Cir., 1975), indicative of the proposition that little vitality remains in the doctrine of sovereign immunity in a bankruptcy context, seems to amply cover the legal and factual posture of this case, dispelling the correctness of the first argument of the government.
The second ground of attack is of much greater consequence. The government argues that if at the time of the filing of a petition in bankruptcy, property is in the actual or constructive possession of a claimant who is adverse to the bankruptcy petition and who is asserting a substantial claim, the Bankruptcy Court lacks jurisdiction to determine summarily the rights of such claimant to the property. Therefore, since the valid federal tax levy here reduced the property to the possession of the United States, the Bankruptcy Court lacked summary jurisdiction to adjudicate the United States' rights thereto.
Under the authority of Phelps v. United States, 421 U.S. 330, 95 S. Ct. 1728, 44 L. Ed. 2d 201 (1975), and the persuasiveness *518 of Cecelia Ruth Walsh, dba Beaver Builders Bankruptcy Nos. A 76-52, 53, 54, 55, 56 (D.C.Alas., Oct. 26, 1976), the only subsequent United States District Court case that is on point, I find merit in the government's second argument. In Phelps, the Supreme Court held that a valid tax levy preceding a petition in bankruptcy divests the debtor of any rights which might have formed a basis for the exercise of jurisdiction by the Bankruptcy Court. The Court specifically stated: ". . . the pre-bankruptcy levy displaced any title of [the bankrupt] . . ." (421 U.S. at 337, n.8, 95 S.Ct. at 1733, n.8). Since possession of the property, and indeed substantial or colorable title to the property, resided in the United States, as is the situation here, the Court held that the Bankruptcy Court lacked jurisdiction summarily to adjudicate the controversy without the government's consent, and that the United States was entitled to have its claim adjudicated in a plenary suit.
In Walsh, under facts strikingly similar to those present here, the debtors argued, as does RPH, that the policies and statutes applicable to a Chapter XI case required a different result than in Phelps. Judge von der Heydt rejected such contention, as do I, with the following language:
"As recently as 1975 the Supreme Court held that a prebankruptcy levy by the IRS displaces the title of the debtor. Phelps v. United States, 421 U.S. 330, 337 n.8 [, 95 S. Ct. 1728, 44 L. Ed. 2d 201] (1975). Although Phelps was a liquidating bankruptcy proceeding that difference is not significant. As stated in the previous quotation from Collier on Bankruptcy, § 311 only extends the scope of summary jurisdiction to certain property held by third parties. The holding in Phelps that a tax levy creates a substantial claim of title removes this case from that extended scope of jurisdiction." (P. 3.)
Although the 9th Circuit Court of Appeals rejected in In Re Stockman Development Co., 447 F.2d 387, 391 (1971), the contention that a Chapter XI court's summary jurisdiction is based solely on possession, it explicitly acknowledged that its holding in In Re Barasch, 9 Cir., 439 F.2d 1393 (1971), affirmed as the rule of this circuit that the Bankruptcy Court does not acquire summary jurisdiction where the property is not in the debtor's possession and the debtor's title to it is disputed by a substantial adverse claim. See Collier on Bankruptcy, Vol. 8, § 913.02, pp. 162-63 (1976); Remington on Bankruptcy, Vol. 9, § 3573, pp. 214-18 (1955). That is the situation here as a federal tax levy creates a substantial claim of title. Walsh, at p. 2. Indeed, it may be credibly argued that the United States had more than a substantial claim to ownership here; it had a complete claim to ownership, because the unpaid withholding taxes are more than simply a debt of the employer to the government, they are funds held by the employer specifically in trust for the government.
RPH offers two alternate theories upon which the Bankruptcy Court has summary jurisdiction to restrain the United States from proceeding to advertise or sell RPH's real property. First, it points to decisions holding that a Chapter XI court has jurisdiction over equity in property which is in excess of the amount of a lien, E. g., In Re Victor Builders, Inc., 418 F.2d 880 (9th Cir., 1969); In Re Freed & Co., 534 F.2d 1235 (6th Cir., 1976). Since the amount of the United States' tax lien is approximately $191,000 and the construction costs of the subject property were in excess of $2 million, RPH argues that the Bankruptcy Court was vested with summary jurisdiction over the excess equity in its real property and was empowered to enter appropriate orders to protect such asset for the benefit of unsecured creditors.
Second, RPH refers to decisions holding that the Bankruptcy Court in a Chapter XI case has summary jurisdiction to prevent threatened action by an adverse party where the action threatened would render impossible the formulation, proposal and confirmation of a plan of arrangement. E. g., In Re Tracy, 194 F. Supp. 293 (N.D.Cal. 1961); In Re Shokbeton Industries, 449 F.2d 321 (5th Cir., 1971); In Re Merritt Lumber *519 Co., 336 F. Supp. 325 (E.D.Pa.1971). RPH contends that its viability as an ongoing entity would have been seriously jeopardized and the possibility of its effectuating an arrangement with its creditors under Chapter XI would have been substantially impaired, if not completely precluded, if the proposed advertising of the property and sale had not been enjoined. Accordingly, the Bankruptcy Court was empowered to act as it did so that the primary purpose of the arrangement proceeding would not be completely frustrated.
After due consideration, I reject both theories offered by RPH. None of the cases cited by RPH in their support involved a federal tax levy. The federal tax levy is a unique procedure authorized and controlled by specific statutes, 26 U.S.C. § 6331, and case law, and references to cases which deal with other kinds of enforcement procedure are not controlling. It is important to note that 26 U.S.C. § 6342(b) governs a taxpayer's interest in surplus proceeds from the sale of seized property and provides an adequate vehicle at law to recover any such excess. Further, I am unconvinced that if the Bankruptcy Court did not act as it did, the primary purpose of the Chapter XI arrangement proceeding would have been completely frustrated. Quite the contrary, I view the Bankruptcy Court's action as a direct frustration of the purposes of the federal tax levy provisions.
In light of the above discussion, I conclude that the Bankruptcy Court's orders of July 28, 1976 and September 15, 1976 should be vacated on the ground that it lacks jurisdiction to determine summarily the rights of the United States to the property at issue. The United States is entitled to have its claim adjudicated in a plenary suit.
So Ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599296/ | 467 N.W.2d 748 (1991)
Clarence and Phyllis FIEGEN, Leroy and Shirley Kasma, Clarence and Anna Marie Frost, Norwin and Peggy Bittner, James and Sandra Terveen, Phillip and Audrey Olson, and Ed Zylstra, Plaintiffs and Appellants,
v.
NORTH STAR, LTD., a corporation, Les Hawkey, and Les Hawkey d/b/a P & S, Inc., Dixie Hawkey, William Ezell, Charles A. Schindler, and Charles Stintson, Defendants and Appellees.
No. 17054.
Supreme Court of South Dakota.
Argued February 12, 1991.
Decided March 27, 1991.
Thomas L. Fiegen, Cedar Rapids, Iowa, for plaintiffs and appellants.
Thomas K. Wilka of Hagen and Wilka, Sioux Falls, for defendants and appellees North Star, Ltd., Les Hawkey and Dixie Hawkey.
Charles A. Schindler, Lenexa, Kan., pro se.
HERTZ, Acting Justice.
Clarence and Phyllis Fiegen, Leroy and Shirley Kasma, Clarence and Anna Marie Frost, Norwin and Peggy Bittner, James and Sandra Terveen, Phillip and Audrey Olson, and Ed Zylstra (collectively referred to as producers) bring this intermediate appeal from an order of the trial court denying their motion, brought pursuant to *749 SDCL 21-1-4.1 (the statute), to allow discovery relating to punitive damages. We reverse and remand.
FACTS
In October 1986, producers brought an action for consequential and punitive damages for breach of contract, common law deceit and fraud, obtaining money under false pretenses, fraudulent inducement, conspiracy to breach contract, and conspiracy to defraud against North Star, Ltd., Les Hawkey, P & S, Inc., Dixie Hawkey, William Ezell, Charles A. Schindler, and Charles Stintson (collectively referred to as defendants). The facts that gave rise to this action concern the solicitation of producers to enter defendants' planned Rex rabbit fur business. This appeal involves only the denial of producers' motion to permit discovery relating to their punitive damage claim.
Producers contended at the hearing held on December 4 and 22, 1989, that the following facts established their right to obtain discovery on their punitive damage claim under the statute. Producers were first introduced to the Rex rabbit business of North Star, Ltd. when they responded to a newspaper advertisement that put them in contact with Les and Dixie Hawkey. Defendants personally contacted prospective producers to persuade them to enter the Rex rabbit business. In addition, defendants distributed promotional information touting the advantages of joining their rabbit growing and marketing business, such as "performance guaranteed," "knowledgeable guidance," "management assistance," "trouble shooting," and "central grading, storage, [and] auctions." Other information outlined management's obligations to process, distribute and market pelts and carcasses. Included in the promotional information were projected net income figures which, by the third year, were to reach $39,557 based on what were called conservative estimates. The rabbit business of North Star was also promoted as "The Ultimate Tax Shelter," with instructions on how to structure the operation to "pay little or no income tax."
Serious prospects were brought to Hawkeys' farm where the rabbit business was operated. During Clarence and Anna Marie Frost's visit to the farm, Les Hawkey and Charles Schindler allowed Frosts to tape record their sales pitch for another prospective purchaser who was unable to come to Hawkeys' farm. This tape was introduced at the hearing, and Les Hawkey later admitted making several promises to the prospective producers. He admitted that in that conversation he made statements such as: "We'll guarantee you that we'll buy the pelts at market price"; "We will buy the pelts back from you until we get organized and get ten or twenty thousand"; and "We're working right now on a processing plant." However, Hawkey's testimony at the hearing was that "we had never, ever intended to buy fifteen to twenty thousand pelts and keep them on hand."
In 1983, producers each entered into a contract with North Star, Ltd. and its principals Les Hawkey, Dixie Hawkey, and William Ezell. Each paid approximately $12,000 in exchange for eighteen breeding rabbits, cages, expert advice, slaughtering facilities, and processing and marketing breeding rabbits, fur, and meat raised by producers. However, the contract they were required to sign recited a payment of only $495.00. It also included standard merger language that "there are no oral or other conditions, promises, covenants, representations or inducements in addition to or at variance with any of the terms [of the contract.]"
After signing up with North Star, Ltd., producers encountered many problems and broken promises. The rabbits became sick and some did not reproduce. Defendants failed to provide trouble-shooting guidance by experts, and to come to producers' farms to pick up mature rabbits. No processing plant was ever built, the rabbits were not processed in a federally inspected plant but in Hawkeys' barn, the meat was not marketed, and the pelts were not prepared for marketing. Producers claimed that in May 1984 Hawkey told them that he and North Star were out of the Rex rabbit business and had given up on the enterprise. *750 Producers Jim Terveen and Ed Zylstra testified that they did not even see evidence that North Star had even prepared to perform their obligation to collect, process, and market the rabbit pelts and meat.
After hearing this evidence, the trial court observed that "[m]ost of the evidence... goes to the issue of breach of contract." On February 21, 1990, the trial court ruled that producers had failed to satisfy the statutory prerequisites for discovery on their punitive damages claim. We subsequently granted producers' petition for intermediate appeal.
ISSUE
DID THE TRIAL COURT ERRONEOUSLY DENY PRODUCERS' MOTION FOR DISCOVERY RELATING TO PUNITIVE DAMAGES PURSUANT TO SDCL 21-1-4.1?
ANALYSIS
In their brief, producers challenge the trial court's decision on three bases: (1) the statute employs a burden of proof inconsistent with Aschoff v. Mobil Oil Corporation, 261 N.W.2d 120 (S.D.1977); (2) the statute is a form of summary judgment and decisions under the statute must comport with traditional summary judgment standards; and (3) the statute is an unconstitutional deprivation of producers' right to a jury trial and right to pursue a common law remedy. Producers ask us to interpret the validity of SDCL 21-1-4.1 to evaluate whether the trial court erroneously denied their motion for discovery. We need not address these claims, however, because it is apparent that the evidence produced at the hearing was sufficient to satisfy the statute. We will not engage in statutory interpretation unless it is necessary to resolve the merits of the controversy. Wold v. Lawrence County Comm'n, 465 N.W.2d 622 (S.D.1991). See State v. Big Head, 363 N.W.2d 556 (S.D.1985) (constitutionality reviewed only if necessary to make a decision on the merits).
SDCL 21-1-4.1 reads:
In any claim alleging punitive or exemplary damages, before any discovery relating thereto may be commenced and before any such claim may be submitted to the finder of fact, the court shall find, after a hearing and based upon clear and convincing evidence, that there is a reasonable basis to believe that there has been willful, wanton or malicious conduct on the part of the party claimed against.
When seeking to obtain discovery regarding a claim for punitive damages, the moving party must establish, based on clear and convincing evidence, that a reasonable basis exists to believe that there has been willful, wanton or malicious conduct. Vreugdenhil v. First Bank, 467 N.W.2d 756 (S.D.1991); Flockhart v. Wyant, 467 N.W.2d 473 (S.D.1991). The statute requires a preliminary showing of a reasonable basis to support a claim for punitive damages to prevent the bringing of unfounded claims for the purpose of harassment. See Driscoll, Statutory Restrictions on the Discovery and Trial of Punitive and Exemplary Damage Claims in South Dakota, 33 S.D.L.Rev. 247, 251 (1988).
When reviewing the trial court's interpretation of the legal effect of the evidence presented, we are presented with a mixed question of fact and law which is fully reviewable. Permann v. Department of Labor, Unemployment Ins. Div., 411 N.W.2d 113, 116 (S.D.1987). The facts presented at producers' hearing were sufficient as a matter of law to entitle them to obtain discovery on their claim for punitive damages based on fraud. Hawkey testified at the hearing that "we [defendants] had never, ever intended to buy fifteen to twenty thousand pelts and keep them on hand." But he later went on to admit that he promised producers "We will buy the pelts back from you until we get organized and get ten or twenty thousand" and "we'll take all the pelts we can get." Hawkey's own testimony discloses that a promise was made to buy ten to twenty thousand pelts from producers but that defendants never in fact intended to buy the pelts. This testimony of Hawkey, together with his admissions, evidences at a minimum willful *751 conduct sufficient to establish a reasonable basis for a claim of fraud. See Northwest Realty Co. v. Colling, 82 S.D. 421, 433, 147 N.W.2d 675, 683 (1967) (essential elements of fraud).
The trial court reviewed the producers' request for admissions, including Hawkey's statements that North Star, Ltd. guaranteed that they would buy the pelts back at market price, and that they would buy ten to twenty thousand pelts. The court disregarded these statements, however, stating "I suppose that's what the contract says[,]" and denied producers' motion because "most of the evidence ... goes to the issue of breach of contract." Apparently, the trial court failed to review the contracts which were in evidence. If it had, it would have discovered that the promise to buy twenty thousand pelts was not part of the written contract, but a statement made to convince producers to buy into their rabbit enterprise. The trial court failed to recognize that Hawkey's testimony that they, the defendants, never actually intended to buy twenty thousand pelts provided evidence of fraudulent inducement to enter into the contracts. On this basis alone the trial court erred in not granting producers' motion for discovery.
Furthermore, producers James Terveen, Ed Zylstra and Clarence Frost testified during the hearing about the promises which they relied on in entering into the contracts with North Star, Ltd. Terveen testified that Charles Schindler told him that North Star, Ltd. would come to the producers' farm to pick up rabbits, and would then slaughter and process the meat and prepare the pelts for marketing, at the Hawkey farm. Terveen and Ed Zylstra also testified about the problems they encountered in breeding the rabbits delivered to them by North Star, Ltd. and that they received no expert help to deal with these problems. A number of producers built or remodeled buildings to accommodate the projected growth in the numbers of rabbits. When producers did not receive payment for their first deliveries of rabbits to North Star, Ltd., they called a meeting with Hawkey. Hawkey then told them they would have to find a market on their own because they, defendants, were all done and were out of the rabbit business.
Les Hawkey's testimony did not refute the testimony of the producers and former North Star sales representative regarding the representations made to induce producers to contract with North Star. Most of Hawkey's testimony centered on his attempts to locate markets for pelts and meat. When asked about promises made, rabbits delivered to him or meetings with producers, Les Hawkey frequently said that he couldn't remember any of the events.
The testimony and evidence necessary to satisfy SDCL 21-1-4.1 is a lower order of proof than that required at trial. Vreugdenhil, 467 N.W.2d at 760. The statute requires only that there be a reasonable basis to believe that there has been willful, wanton, or malicious conduct and that this be proven by clear and convincing evidence. Id.; Flockhart, 467 N.W.2d at 475. As a matter of law, the facts before the trial court were sufficient to satisfy the statute, and it was error for the trial court to deny producers' motion for discovery.
The order of the trial court denying producers' motion for discovery relating to punitive damages is reversed, and the matter is remanded for proceedings consistent with this opinion.
MILLER, C.J., and WUEST, HENDERSON and SABERS, JJ., concur.
AMUNDSON, J., not having been a member of the Court at the time this case was considered, did not participate. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/411857/ | 695 F.2d 617
224 U.S.App.D.C. 423
WEST COAST MEDIA, INC., Appellant,v.FEDERAL COMMUNICATIONS COMMISSION, Appellee,John B. Musselman, Jonathan D. Lewis, Intervenors.
No. 81-1548.
United States Court of Appeals,District of Columbia Circuit.
Argued March 16, 1982.Decided Dec. 7, 1982.
Eric L. Bernthal, Washington, D.C., with whom Mania K. Baghdadi, Washington, D.C., and Donald B. McCann, Cleveland, Ohio, were on the brief, for appellant. David Tillotson, Washington, D.C., also entered an appearance for appellant.
L. Andrew Tollin, Counsel, F.C.C., Washington, D.C., with whom Stephen A. Sharp, Gen. Counsel and Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Washington, D.C., were on the brief, for appellee.
Anne B. Roberts, Beverly Hills, Cal., with whom Charles M. Firestone, Beverly Hills, Cal., was on the brief, for intervenors.
Before MIKVA and GINSBURG, Circuit Judges, and BAZELON, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge BAZELON.
BAZELON, Senior Circuit Judge:
1
Appellant West Coast Media (West Coast) appeals the Federal Communication Commission's denial of the license renewal for its radio station. The intervenors are two residents of the station's listening area who initially filed the petition to deny. This appeal follows FCC denial of a petition for reconsideration, in which the FCC rejected the arguments now before this court. We affirm.
BACKGROUND
2
In 1970, a group of business people with no broadcast experience formed West Coast Media, Inc. ("West Coast"), and purchased an FM radio station in Orange County, California. Roughly six months later, West Coast acquired a second FM station, KDIG in San Diego. Severe financial difficulties beset West Coast almost immediately, and its principal, McCann, decided to infuse large amounts of capital and tighten the operations. Pursuant to the latter goal, West Coast filed an amendment to the pending renewal applications for both stations in December 1971 ("1971 Amendment").
3
The 1971 Amendment requested relief from the stations' earlier programming promises. McCann described his financial problems and told the Commission that "a substantial reduction (or elimination) of time proposed to be devoted to News, Public Affairs and other [nonentertainment] programs" was necessary to keep the stations viable. Accordingly, McCann made the following promises:
4
(a) As a temporary matter, KDIG will broadcast only 0% news, 1.1% public affairs, and 0% other non-entertainment programming.
5
(b) That programming will not be supplied by acquiring tapes from other producers.
6
(c) Competent personnel will aggressively report and take editorial positions concerning the community's problems.
7
(d) One staffer will search the community, investigate stories, and prepare three five-minute public affairs programs each day, seven days a week.
8
(e) "[I]t is intended that well before the next license renewal time [KDIG] will be devoting more than just an adequate or minimum of time to news, public affairs, religious and instructional types of programs ...."
9
(emphasis added). 79 F.C.C.2d 625, 627-28 (1978). In July 1972, the Commission approved the 1971 Amendment, noting its expectation "that increased programs will be broadcast during the coming renewal period year consistent with the proposal." Id.
10
When West Coast applied for the renewal of KDIG's license in July 1974, two residents of the listening area represented by a public interest group filed a petition to deny with the FCC. In response to that petition, the FCC designated four issues for a hearing: (i) promise-versus-performance, (ii) whether KDIG's non-entertainment programming was responsive to community needs, (iii) some claimed technical violations, and (iv) whether, in light of the other issues, renewal would be in the public interest. 61 F.C.C.2d 577, 585 (1976). The FCC placed the burden of proof on each of these issues on the licensee. The Commission denied a motion by intervenors to enlarge the designated issues to include whether West Coast had made misrepresentations to the FCC.
11
The ALJ found that: (1) due to KDIG's negligence, the record of its programming over the license term was inadequate to carry the burden of proof on the promise-versus-performance issue (KDIG had lost most of its program logs); (2) even under its own representations, KDIG had fallen substantially short of its program commitments; (3) the station's financial difficulties did not excuse its non-compliance; (4) West Coast failed to carry its burden of proving that its programming responded to community needs; (5) the public interest would not be served by renewal "[i]f further performance is to be surmised solely from past performance." 79 F.C.C.2d 625, 640-645 (1978). The ALJ decided, however, that West Coast would obtain a "short-term" (one year) renewal because its failures resulted from the inexperience of its principals, and in the future such "misjudgments are less likely to occur." Id. at 645.
12
On appeal, the Commission adopted most of the ALJ's findings and conclusions. It concluded, however, "that the record indicates the licensee made initial proposals to the Commission which it did not then intend to effect, that with the passage of time the licensee did not make sincere efforts to carry out its proposals, and that it did not convincingly demonstrate that resources were not available to allocate to non-entertainment." 79 F.C.C.2d 610, 621-22 (1980). The Commission decided that there was "simply no justification to give the inexperienced broadcasters the advantage of performing below minimal renewal standards for a license term without suffering the same consequences that experienced broadcasters would incur." Id. at 622. Accordingly, the Commission denied renewal. It also agreed with the ALJ that West Coast had not responded to community needs, but expressly refused to rely on that ground in denying renewal. West Coast submitted a petition for reconsideration which the FCC rejected. 86 F.C.C.2d 331 (1981). Both FCC decisions were unanimous.
13
Appellant makes three arguments in this appeal. First, appellant contends that the FCC conclusion that West Coast never intended to fulfill its promises constitutes, in essence, a finding that West Coast was guilty of misrepresentation. Because the FCC had not designated misrepresentation as an issue, petitioner claims the FCC deprived it of notice and the opportunity to be heard. Appellant's second claim is that the Commission failed to follow or distinguish its own precedent in two respects: (i) by not accepting West Coast's financial difficulties as an excuse for the company's programming shortfalls and (ii) by not imposing a sanction less severe than license nonrenewal. Finally, petitioner contends the Commission's conclusions regarding West Coast's "good faith" were not supported by substantial evidence.
DISCUSSION
14
A. Was West Coast deprived of notice?
15
The Communications Act,1 the Administrative Procedure Act,2 and the due process clause require the FCC to designate the issues to be considered in a renewal hearing. The purpose of designating issues is to provide a licensee adequate opportunity to rebut charges made against it. West Coast argues that the Commission deprived it of this opportunity in making two conclusions: (i) that West Coast "never intended" to fulfill its 1971 programming promises, and (ii) that certain aspects of KDIG's 1974 renewal application were "inherently misleading." West Coast claims that these conclusions amounted to a finding that the licensee engaged in "misrepresentation" (a specific intent to deceive), which was not a designated issue. We disagree.
16
The FCC described its inquiry on the promise-versus-performance issue as follows: "To determine whether West Coast Media, Inc., made reasonable and good faith efforts to carry out its non-entertainment proposal as set forth in its 1971 application for renewal of license...." 61 F.C.C.2d 577, 585 (emphasis added). Inquiry into a licensee's good faith does not only involve examination of the fruits of the licensee's labors. It may also examine the licensee's efforts, and the conscientiousness of those efforts. See KORD, Inc., 31 F.C.C. 81 (1961); Rust Communications Group, Inc., 53 F.C.C.2d 355 (1975). The latter may be particularly important where the Commission finds a discrepancy between the licensee's promises and its performance, as it did in this case.
17
In the instant case, however, the FCC examined not only appellant's state of mind in meeting its proposals, but its state of mind in making those proposals as well. It concluded that appellant had no intention of meeting its proposals even at the time they were made. Because those proposals were made for the benefit of the FCC, an intention not to meet them closely resembles an intent to deceive the FCC, which is at the heart of misrepresentation cases. Such intentions should not be discussed by the Commission in the absence of a designated misrepresentation issue. The FCC's reference to appellant's intent when making the programming proposals was imprudent.
18
Under the circumstances of this case, however, appellant's burden to establish its good faith makes it difficult to see how the FCC's conclusions deprived appellant of notice. Wide discrepancies existed between the licensee's proposals and its performance from the outset.3 From the very beginning of the period, the licensee failed to "commit the personnel and resources necessary to carry out [the] programming promises,"4 and offered little evidence of factors that would excuse these shortfalls.5 In light of this extremely poor showing, the FCC questioned the licensee's sincerity in making the proposals.
19
Appellant's claim that he was harmed by lack of notice tries to turn the FCC's analysis on its head. The Commission's statements about the licensee's intent were characterizations of the weakness of the licensee's explanation of its programming shortfalls. The FCC's decision in this case does not reflect lack of notice by the licensee: instead, it reflects the licensee's difficulty in explaining egregious discrepancies between programming proposals and efforts to meet them. Although the Commission was imprudent in its language, we cannot agree that appellant was harmed by lack of notice.
20
On petition for reconsideration, moreover, the FCC explicitly addressed West Coast's concern that the agency found it guilty of misrepresentation. The agency stated:
21
To the extent our Decision referred to the licensee's intent, we did not mean to suggest that our inquiry focused on anything but the licensee's reasonable and good faith efforts to adhere to its promises.... We underscore that our Decision rested on findings of West Coast's lack of reasonable and good faith efforts to fulfill its commitments, and not on findings of misrepresentation.
22
86 F.C.C.2d at 334, 335 (footnote omitted). Given this explication, it would serve no purpose to send this case back to the FCC for a clearer statement of the basis of its decision.
23
B. FCC precedents.
24
Although an agency has flexibility to reexamine its previous holdings, such changes must be rationally and explicitly justified. Atchison, Topeka & Santa Fe Railway Co. v. Wichita Board of Trade, 412 U.S. 800, 806-09, 93 S. Ct. 2367, 2374-75, 37 L. Ed. 2d 350 (1973); Office of Communication etc. v. FCC, 560 F.2d 529, 532 (2d Cir.1977). This requirement ensures "that the standard is being changed and not ignored, and ... that [the agency] is faithful and not indifferent to the rule of law." Columbia Broadcasting System, Inc. v. FCC, 454 F.2d 1018, 1026 (D.C.Cir.1971). If a change in policy is explained, however, our review is limited to whether the basis of the change was so unreasonable as to be arbitrary and capricious. Greater Boston Television Corp. v. FCC, 444 F.2d 841 (D.C.Cir.1970), cert. denied, 403 U.S. 923, 91 S. Ct. 2233, 29 L. Ed. 2d 701 (1971). West Coast contends that the FCC failed to observe or distinguish precedent in two respects: 1) by not excusing West Coast's programming shortfalls in light of its financial difficulties, and 2) by applying the sanction of nonrenewal in the absence of a finding of misrepresentation.
25
1. Financial difficulty.
26
Petitioner relies heavily on Hubbard Broadcasting, Inc., 41 R.R.2d 979 (1977), to establish a "longstanding" FCC policy that financial difficulties excuse programming shortfalls. That policy, according to petitioner, rests on the FCC's premise that the public interest is served by allowing "infant" stations to reduce non-entertainment programming until their financial position improves.
27
We cannot agree that Hubbard controls this case.6 More importantly, however, the FCC did not ignore that case. It distinguished that opinion in both its original decision and on petition for reconsideration. Those distinctions were eminently reasonable. Unlike Hubbard, the record in this case established that KDIG was losing money when West Coast acquired it and when it made its programming promises. The programming promises were made in light of and despite those losses. No showing of a dramatic worsening of the financial situation was made.
28
In addition, the record suggested that KDIG programming suffered because of deliberate neglect by its owners in favor of another station. This situation was absent in Hubbard. In light of that evidence, the Commission required that West Coast make a "station-specific" showing that uncontrollable financial problems at KDIG justified the programming shortfall.7 No such proof was provided, partly because of the inadequacy of appellant's own record-keeping. Appellant maintains that overall losses for West Coast should be sufficient. We do not agree. The FCC's licensing scheme requires each station to serve the needs of its city of license. The owners of KDIG disserved the citizens of San Diego while they devoted their resources to a station in a different city. It was reasonable for the FCC to conclude that West Coast could only meet its burden by showing the nature of losses experienced by KDIG as a single entity.8
29
B. Sanction.
30
This case is apparently the first time a license renewal has been denied solely because of a promise-versus-performance failure. Such derelictions in the past have been remedied through fines or short-term renewals. West Coast argues that the Commission did not convincingly explain its decision to impose such a severe sanction.
31
Appellant relies heavily on Steadman v. SEC, 603 F.2d 1126 (5th Cir.1979), aff'd, 450 U.S. 91, 101 S. Ct. 999, 67 L. Ed. 2d 69, rehearing denied, 10 S. Ct. 2008 (1981). That decision required the SEC to provide compelling justification for its decision to impose "the most potent weapon in the Commission's 'arsenal of flexible enforcement powers.' " Id. at 1139. This case differs from Steadman because of differences in the regulatory schemes at issue. Steadman involved the Commission's decision permanently to bar an investment adviser from further practice of his trade. In FCC license renewal cases, in contrast, the FCC is required to make an affirmative finding that the public interest will be served by granting the license. As Judge Mikva recently explained:
32
[There are] emphatic differences between a broadcast applicant before the FCC and one who faces the possibility of punishment.... [D]enial of a renewal application "is not a penal measure." .... [T]he FCC's purpose is not to punish licensees for past wrongs, but to ensure that these "fiduciaries of a great public resource" will "satisfy the highest standards of character commensurate with the public trust that is reposed in them."
33
RKO General, Inc. v. FCC, 670 F.2d 215, 232 (D.C.Cir.1981). This court has often emphasized that in a renewal proceeding, an incumbent licensee "must literally 'run on his record.' " United Church of Christ v. FCC, 359 F.2d 994, 1007 (D.C.Cir.1966). In this case, the ALJ concluded that "[s]tated simply, the station failed to operate fully in the public interest...."9 The ALJ tempered his remedy because of the licensee's inexperience. The Commission explicitly disagreed with this justification for leniency, and offered a full explanation of why denial was appropriate.
34
Finally, it should be noted that courts give considerable deference to FCC discretion concerning the appropriate sanction to apply to licensee misconduct. FCC v. WOKO, Inc., 329 U.S. 223, 228-29, 67 S. Ct. 213, 215-16, 91 L. Ed. 204 (1946); Lorain Journal Co. v. FCC, 351 F.2d 824, 831 (D.C.Cir.1965), cert. denied sub. nom. W.W.I.Z., Inc. v. FCC, 383 U.S. 967, 86 S. Ct. 1272, 16 L. Ed. 2d 308 (1966). "[T]he Commission is [not] bound ... to deal with all cases at all times as it has dealt with some that seem comparable." 329 U.S. at 228, 67 S.Ct. at 215. Given that discretion we cannot say the sanction was inappropriate in this case.
35
C. Substantial evidence.
36
Appellant's final claim is that the Commission did not have substantial evidence to support its finding that West Coast did not make good faith efforts to meet its programming proposals. The licensee had the burden of proof on this issue and the Commission determined that West Coast failed to carry that burden in light of, inter alia, the following evidence:
37
--KDIG's actual non-entertainment programming was virtually zero throughout the term and was never close to what it had promised.
38
--West Coast poured resources and staff into its Orange, Calif. station at the expense of KDIG, reducing the staff at KDIG to three, and thereby making it virtually impossible to comply with its programming promises.
39
--West Coast's principal acknowledged he was unaware of the nature of KDIG's programming during most of the term.
40
--The station employees charged with developing public affairs programming neither saw the station's ascertainment survey nor were told of its results.
41
--"only as renewal time approached was any effort made to provide a trained employee for the full-time production of non-entertainment programming."
42
We cannot say the Commission's conclusion was unsupported or arbitrary or capricious.
43
Affirmed.
1
47 U.S.C. Sec. 309(e) (1976)
2
5 U.S.C. Sec. 554(b)(3) (1976)
3
79 F.C.C.2d 610, 618 (1980)
4
Id. at 619
5
Id. at 619; 79 F.C.C.2d 625, 644
6
Hubbard and the other cases cited by appellant, Loudon County Broadcasting Co., 4 F.C.C. 188, recon. denied, 5 F.C.C.2d 13 (1966); Northwest Broadcasters, 3 F.C.C.2d 571, 572 (1966), do not establish that programming shortfalls will necessarily be excused if financial difficulties are found. At most, they establish that when good faith efforts are made, and the actual programming is not wholly inadequate, financial difficulties may excuse deviations of programming from proposals. The Commission did not depart from this policy in this case
7
In Hubbard, the court stated that "[a] review of the financial information discloses a full and open assessment of [the station's] financial condition as it related to its ability to support non-entertainment programming." 41 R.R.2d 987
8
The Commission concedes that KDIG may have been losing money throughout the license term. 79 F.C.C.2d 610, at 620 (1980). Without specific data concerning KDIG's financial situation, however, the Commission could not determine the magnitude of those losses, and whether they were the result of irresponsible allocation of resources between the two stations
9
79 F.C.C.2d 625, 644 (1978) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/788626/ | 392 F.3d 114
CTI/DC, INCORPORATED, Plaintiff-Appellant,v.SELECTIVE INSURANCE COMPANY OF AMERICA, Defendant-Appellee.
No. 04-1236.
United States Court of Appeals, Fourth Circuit.
Argued: September 29, 2004.
Decided: December 9, 2004.
COPYRIGHT MATERIAL OMITTED ARGUED: Craig Alan Holman, Holland & Knight, L.L.P., Washington, D.C., for Appellee. ON BRIEF: Stephen J. Annino, Kasimer & Annino, P.C., Falls Church, Virginia, for Appellant. Brandon H. Elledge, Holland & Knight, McLean, Virginia, for Appellee.
Before WIDENER, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge GREGORY wrote the opinion, in which Judge WIDENER and Judge TRAXLER joined.
OPINION
GREGORY, Circuit Judge:
1
CTI/DC appeals an order of the district court granting Selective Insurance Company of America's ("Selective Insurance") motion to dismiss under Fed.R.Civ.P. 12(b)(6). CTI/DC challenges the district court's finding that on the face of the pleadings it failed to satisfy the notice requirements of the Maryland "Little Miller Act." Md. State Fin. & Proc.Code § 17-101 et seq. Finding no error, we affirm.
I.
2
HR General Maintenance ("HRGM") entered into a contract with Prince George's County, Maryland to both renovate and add an addition to the Cheverly Health Center in Cheverly, Maryland. On October 12, 2000, pursuant to the dictates of the Maryland `Little Miller Act, Md. State Fin. & Proc.Code § 17-101 et seq.,' HRGM obtained a payment bond on the project from Selective Insurance. Selective Insurance is a New Jersey corporation principally engaged in supplying payment and performance bonds on construction projects. The payment bond named Selective Insurance as a surety on the project.
3
HRGM subcontracted a portion of the construction work under this contract to Selby Construction ("Selby"). Selby then entered into a separate contract with CTI/DC under which CTI/DC agreed to act as a "materialman," delivering concrete supplies and other materials to Selby for the project. CTI/DC is a Washington, D.C. corporation principally engaged in the business of furnishing, contracting, and supplying concrete and concrete related supplies for use in commercial construction.
4
CTI/DC performed as promised and completed its performance on October 1, 2002. However, Selby failed to pay CTI/DC for the materials and supplies provided, leaving a balance of $111,755.04. On December 3, 2002, CTI/DC sent HRGM a letter requesting copies of the payment and performance bonds for construction project number 2484200. In full, this letter stated:
RE: Cheverly Health Center
Subject: Request for Bonds
5
CTI/DC Inc. supplied ready mixed concrete to the referenced project. We have an outstanding balance of ONE HUNDRED TWELVE THOUSAND TWO HUNDRED AND SIXTY ONE DOLLARS ($112,261.00) ON INVOICES.
6
We respectfully request copies of the payment and performance bonds provided by your office to the Prince George's County as owner of the building.
7
The permit issued for this construction project is no. 2484200. The building is located directly across the street from the Prince George's Hospital Center on Hospital Drive in Cheverly, Maryland.
8
Your cooperation and prompt attention to this matter is appreciated.
9
J.A. 43. CTI/DC avers that prior to the mailing of this letter, representatives from CTI/DC, HRGM, and Selby met to discuss the outstanding invoices owed on the project. CTI/DC further avers that at this meeting HRGM assured CTI/DC that it would be paid for the materials supplied to Selby.
10
On January 10, 2003, counsel for CTI/DC sent a second letter to both HRGM and Selective Insurance, explicitly stating that CTI/DC supplied concrete to Selby Construction under a separate contract for the Cheverly Health Center construction project. This second letter further stated that CTI/DC was owed $112,263.97 by Selby, and intended to make a claim on the payment bond provided by Selective Insurance if immediate payment was not remitted.
11
When payment on the invoices was not remitted, CTI/DC filed suit in the United States District Court for the District of Maryland, Southern Division on March 3, 2003. After CTI/DC filed an amended complaint, Selective Insurance made a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). The district court granted Selective Insurance's motion to dismiss, finding that CTI/DC failed to satisfy the notice requirements of the Little Miller Act. Specifically, the district court found that the first letter failed to satisfy the explicit requirements of the Act because it did not name the subcontractor to whom the materials were supplied and the second letter failed because it was untimely. From that decision, CTI/DC brought this appeal.
II.
12
We review a district court's dismissal under Fed.R.Civ.P. 12(b)(6) de novo. Mylan Lab., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). "In general, a motion to dismiss for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief." Id. "In considering a motion to dismiss, the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Id.
13
The contract in question was formed in Maryland, which is a lex loci contractus jurisdiction. Ward v. Nationwide Mut. Auto. Ins. Co., 328 Md. 240, 614 A.2d 85, 88 (1992). Because we are a federal court sitting in diversity — CTI/DC is a Washington D.C. Corporation while Selective Insurance Company of America is a New Jersey Corporation — we apply Maryland substantive law to determine whether the district court's grant of a 12(b)(6) dismissal was proper. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). Where state law is unclear on an issue, this court must interpret the law as it appears that the Maryland Court of Appeals would. See Wells v. Liddy, 186 F.3d 505, 528 (4th Cir.1999).
III.
14
On appeal, CTI/DC presents several arguments challenging the district court's finding that on the face of the pleadings CTI/DC failed to satisfy the notice requirements of the Maryland `Little Miller Act.' Md. State Fin. & Proc.Code § 17-101 et seq. CTI/DC contends that (1) the district court erred in failing to read the December 3, 2002 letter in conjunction with HRGM's actual knowledge of the debt to find sufficient notice; (2) the district court erred in failing to read the timely letter (December 3, 2002) in conjunction with the untimely letter (January 10, 2003) to find sufficient notice; and (3) the complaint alleges sufficient facts to raise a factual issue concerning the existence of an implied-in-fact contract between CTI/DC and HRGM.
15
We find CTI/DC's arguments unconvincing, and now address each in turn.
A.
16
Maryland's "Little Miller Act" requires a contractor on a public project to post payment and performance bonds for any state contract exceeding $100,000. Md. State Fin. & Proc.Code § 17-103. The Act permits a supplier to:
17
sue on [the] payment security if the supplier:
18
(1) supplied labor or materials in the prosecution of work provided for in a contract subject to this subtitle; and
19
(2) has not been paid in full for the labor or materials within 90 days after the day that the person last supplied labor or materials for which the claim is made.
20
Id. at § 17-108. When the Act was adopted, the preamble to the Act stated "[t]he main purpose of the Bill is to provide greater protection to sub-contractors on contracts awarded by the state." Atlantic Sea-Con, Ltd. v. Robert Dann Co., 321 Md. 275, 582 A.2d 981, 984 (1990). "The obvious purpose of the payment bond is to protect subcontractors and materialmen on State or other public projects where they have no lien on the work." Stauffer Constr. Co. v. Tate Eng'g, Inc., 44 Md.App. 240, 407 A.2d 1191, 1193 (Md.Ct.Spec.App.1979).
21
In keeping with this purpose, courts liberally interpret the "Little Miller Act" in order to protect subcontractors and materialmen.1 See State Roads Comm'n v. Contee Sand & Gravel Co., 308 F. Supp. 650, 652 (D.Md.1970)(holding that notice received by ordinary mail was sufficient, despite statutory directive to use registered mail); Stauffer, 407 A.2d at 1194 (holding that the 90 day period runs from the last day materials were supplied or from the last day work necessary to complete the contract was performed); Westinghouse Elec. Corp. v. Minnix, 259 Md. 305, 269 A.2d 580, 583 (1970) (rejecting a restrictive interpretation of the notice provision that would have required a specific statement that the supplier was looking to the contractor for payment).
B.
22
CTI/DC first contends that the under the liberal construction generally afforded the "Little Miller Act," the December 3, 2002 letter should be viewed as having substantially complied with the statute. CTI/DC argues that as a result of the meeting that took place prior to the mailing of the December letter, HRGM had actual knowledge of the subcontractor to whom the concrete had been supplied. Specifically, CTI/DC asserts that the December 3rd letter and the alleged meeting that took place between CTI/DC, Selby, and HRGM were sufficient to provide notice to HRGM that stated the name of the sub-contractor with "substantial accuracy." The district court ruled that the December 3, 2002 letter was insufficient notice because it failed to name the subcontractor to whom the supplies were provided.
23
In order to bring suit under the payment bond, the Little Miller Act requires that written notice be given to the general contractor within ninety days, and that such notice "(i) shall state with substantial accuracy the amount claimed and the person to whom the labor or material is supplied." Md. State Fin. & Proc.Code § 17-108(b)(2)(i). In defining "substantial accuracy" as the term is used in the Federal Miller Act, courts find it sufficient that "there exists a writing from which, in connection with oral testimony, it plainly appears that the nature and state of the indebtedness has been brought home to the general contractor." Houston Fire and Cas. Ins. Co. v. United States ex rel. Trane Co., 217 F.2d 727, 730 (5th Cir.1954); see also United States v. A & L Mech. Contractors Inc., 677 F.2d 383, 386-87 (4th Cir.1982) (noting that the statute requires substantial accuracy, not precision).
24
While the statute as a whole is designed to afford additional protection to subcontractors, the notice requirements aim to protect the general contractor. Interpreting the notice provisions of the Federal Miller Act, the First Circuit stated "[t]he notice provision serves an important purpose: it establishes a firm date after which the general contractor may pay its subcontractors without fear of further liability to the materialmen or suppliers of those subcontractors." United States ex rel. Water Works Supply Corp. v. George Hyman Constr. Co., 131 F.3d 28, 32 (1st Cir.1997). As such, although courts liberally interpret the Federal Miller Act's requirements concerning the method by which such notice is given, the rules regarding the contents of such notice are more rigidly applied. See Maccaferri Gabions, Inc. v. Dynateria Inc., 91 F.3d 1431, 1437 (11th Cir.1996).
25
It is plain that the December 3, 2002 letter, in and of itself, fails to satisfy the explicit content requirements of the "Little Miller Act" because it fails to name the subcontractor to whom the materials were supplied. In apparent recognition of this, CTI/DC argues that the deficient letter should be read in conjunction with HRGM's actual knowledge to form sufficient notice. CTI/DC cites no Maryland authority for the proposition that an insufficient letter may be read in combination with oral testimony to constitute substantially accurate notice under the "Little Miller Act." Instead, CTI/DC cites multiple cases interpreting the Federal Miller Act in which courts have found written notice that omitted the name of the subcontractor to be `substantially accurate' by reading the written notice in conjunction with prior conversations the parties had regarding the debt in question. See United States ex rel. Kelly-Mohrhusen Co. v. Merle A. Patnode Co., 457 F.2d 116, 119 (7th Cir.1972); Houston Fire and Cas. Ins. Co. v. United States ex rel. Trane Co., 217 F.2d 727, 729-30 (5th Cir.1954).
26
In our opinion, both of these cases can easily be distinguished from the case at hand because the written notice in Kelly-Mohrhusen and Houston Fire explicitly referenced the prior conversations about the debt owed by a particular subcontractor. See United States ex rel. Kelly-Mohrhusen Co., 457 F.2d at 119 ("[w]e believe that the letter in this case (which expressly referred to the telephone conversation), together with the other facts, including the general contractor's knowledge of the identity of the roofing contractor, satisfied the `substantial accuracy' requirement of the statute."); Houston Fire and Casualty Insurance Co., 217 F.2d at 729-30 (holding plaintiff's oral notice to the principal contractor and a written acknowledgment of that specific request was sufficient to satisfy the Federal Miller Act's notice requirements). In contrast, the December 3, 2002 letter in this case makes absolutely no reference to any prior conversations held about the debt in question.
27
Therefore, we hold that because CTI/DC's notice failed to state the name of the subcontractor or reference any conversation held about the debt, CTI/DC failed to comply with an explicit prerequisite for bringing suit under the "Little Miller Act." The name of the subcontractor is the crucial aspect of the "Little Miller Act's" notice requirements. Absent this information, the safeguards built in by the legislature to protect the general contractor are vitiated because the general contractor is left to use his or her imagination to attempt to determine which subcontractor not to pay. As the Second Circuit stated, "[w]e think the need for exercising imagination was what the notice provision of the Miller Act was intended to prevent." United States ex rel. A. Edwards & Co. v. Thompson Const. Corp., 273 F.2d 873, 877 (2nd Cir.1959).
28
Here, the December 3, 2002 letter fails to identify who the delinquent subcontractor is. It is devoid of any reference to the name of the subcontractor. Further, it makes no reference to the conversation CTI/DC argues provided the general contractor with actual notice. We recognize that the Maryland Court of Appeals has repeatedly acknowledged the need to liberally interpret the Act.2 Stauffer, 407 A.2d at 1194; Montgomery County Bd. of Educ., 225 A.2d at 455. However, we believe that finding adequate notice in this situation would be beyond a liberal construction. A liberal construction is not one that contravenes the plain language of the statute. See Pepper Burns Insulation, 970 F.2d at 1343. Where a statute requires that written notice be given, and the written notice is entirely deficient, a finding that the statutory requirements were satisfied would effectively write the "name" requirement out of the statute. This we cannot do.
29
Therefore, on the facts of this case, we find that CTI/DC's December 3, 2002 letter simply fails to provide such statutorily satisfactory notice.
C.
30
CTI/DC next contends the district court erred by failing to consider the letter of December 3, 2002, in conjunction with the letter of January 10, 2003, to determine whether adequate notice was provided. The district court found that the January 10, 2003 letter was untimely, and therefore could not be considered in making the determination of whether or not adequate notice was given.
31
Again, the "Little Miller Act" allows a supplier to sue on a payment security, provided that the supplier satisfies the notice requirements of § 17-108. Specifically, the Act states that a supplier may sue on the security "if the supplier gives written notice to the contractor within 90 days after the labor or materials for which the claim is made were last supplied in the prosecution of work covered by the security." Md. State Fin. & Proc.Code § 17-108(b)(1). While the main purpose of the statute as a whole "is to provide greater protection to subcontractors on contracts awarded by the state," Atlantic Sea-Con, 582 A.2d at 984, "[t]he obvious purpose of the ninety day provision is to protect the prime contractor so that after the ninety days he can safely pay a subcontractor, provided he has received no written notice from latter's materialmen or subcontractors." Stauffer, 407 A.2d at 1193.
32
Maryland courts have never considered the exact issue of whether or not an untimely letter may be read in combination with a timely but deficient letter to constitute adequate notice under the "Little Miller Act." In United States ex rel. San Joaquin Blocklite, 770 F.2d 862, 865-66 (9th Cir.1985), the Ninth Circuit faced a Federal Miller Act claim where the first letter was deficient and the second letter was untimely.3 There, the Ninth Circuit held that in the context of the communications between the contractor and the materialman, the two letters should be read together despite the fact that the second letter was untimely. See id. at 866.
33
However, there is also authority for the opposite conclusion. In United States ex rel. Jinks Lumber Co. v. Federal Insurance Co., 452 F.2d 485 (5th Cir.1971), the Fifth Circuit refused to consider an untimely letter in conjunction with a timely letter, stating:
34
The letter of 20 January arrived after that 90-day period, while the letter and carbon of 19 December arrived well within it. Unless the letter of 19 December provided adequate notice, Jinks is barred from asserting a claim against Dyson.
35
Id. at 487.4 Additionally, in United States ex rel. Carter Schneider-Nelson v. Campbell, 293 F.2d 816 (9th Cir.1961), a Ninth Circuit case not cited in San Joaquin Blocklite, the Court confronted a situation where there were four deficient letters (3 timely, 1 untimely). Id. at 820-21. There, the Court refused to read the late notice (the only notice the Court found to be adequate) in combination with the timely letters, ultimately holding that adequate notice had not been given. Id.
36
This Court cannot accept the proposition that the Maryland Court of Appeals would adopt a construction of the Act that would effectively vitiate the ninety-day notice protections the statute offers to general contractors. CTI/DC did not provide adequate notice until one hundred and one days after materials and supplies were last furnished. As the Fifth Circuit stated, "[w]ithout a statutory period, materialmen might delay claims unreasonably, thus frustrating the general contractor's need to be able to commit his funds to other activities." United States ex rel. Jinks Lumber Co., 452 F.2d at 487. Were this Court to conclude that such a delay is acceptable, we would place the ninety-day notice requirement on the proverbial "slippery slope," further impairing the legislative goal of protecting the general contractor. If one hundred and one days is acceptable, where is the logical stopping point? Parties would be able to extend the deadline ad infinitum simply by filing a defective notice within the legislated time frame and then seeking to relate adequate but untimely notice back to the date of the deficient notice. Again, a liberal construction is not one that contravenes the plain language of the statute. See Pepper Burns Insulation, 970 F.2d at 1343.
37
The "Little Miller Act" explicitly requires that notice be given to a contractor within ninety-days. The statute contains no provisions for extensions or the "relating back" of any notices. As such, we refuse to read the two letters together, and find that adequate notice was not given.
D.
38
Finally, CTI/DC contends that the complaint alleges sufficient facts to raise an issue as to whether there was an implied-in-fact contract between themselves and HRGM. CTI/DC's argument for an implied-in-fact contract centers around an alleged promise made at a meeting held prior to the mailing of the December 3, 2002 letter. Specifically, CTI/DC alleges HRGM was aware that plaintiff was supplying Selby with the concrete for the project and that Shelby owed CTI/DC a substantial amount of money. CTI/DC also alleges HRGM assured CTI/DC that it would be paid for the material on the project.
39
"An implied contract is an agreement which legitimately can be inferred from intention of parties as evidenced by the circumstances and the ordinary course of dealing and the common understanding of men." County Comm'rs of Caroline County v. J. Roland Dashiell & Sons, Inc., 358 Md. 83, 747 A.2d 600, 606 (2000); see Alternatives Unlimited, Inc. v. New Baltimore City Bd. of School Comm'rs et al., 155 Md.App. 415, 843 A.2d 252, 289 (Md.Ct.Spec.App.2004)("A true implied contract or contract implied in fact, does not describe a legal relationship which differs from an express contract: only the mode of proof is different.").
40
The formation of a contract requires mutual assent (offer and acceptance), an agreement definite in its terms, and sufficient consideration. See Peer v. First Federal Sav. and Loan Ass'n of Cumberland, 273 Md. 610, 331 A.2d 299, 301 (1975). The Restatement Second of Contracts defines consideration as follows:
41
(1) To constitute consideration, a performance or a return promise must be bargained for.
42
(2) A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise.
43
(3) The performance may consist of
44
(a) an act other than a promise, or
45
(b) a forbearance, or
46
(c) the creation, modification, or destruction of a legal relation.
47
(4) The performance or return promise may be given to the promisor or to some other person. It may be given by the promisee or by some other person.
48
Restatement (Second) of Contracts § 71.
49
Many courts, this Court included, have recognized the proposition that a general contractor can become liable directly to a supplier of its subcontractor in circumstances where the oral representation or agreement works to the detriment of the supplier. For example, in American Cas. Co. of Reading Pa. v. Southern Materials Co., 261 F.2d 197, 198-99 (4th Cir.1958), the subcontractor fell delinquent in payments to the materialman, and the materialman notified the contractor of his plans to notify the bonding company and the public works officer. The contractor requested that the materialman forego giving such notice, continue to perform, and verbally agreed to pay the materialman for the concrete previously delivered. See id. The materialman performed under this new agreement and the district court ultimately found the general contractor liable. See id.
50
However, in every case CTI/DC cites for this proposition, the court in question made a specific finding that consideration had passed from the materialman to the general contractor for the promise to cover the subcontractor's debt.5 For example, in American Casualty the Court explicitly found that the materialman furnished consideration for the contractor's promise to pay the subcontractor's debt
51
when the materialman relinquished its right to give written notice and continued to deliver concrete to the site after the agreement. Id.
52
By contrast, CTI/DC makes no allegation that any consideration passed to HRGM for the promise to cover the debts of the subcontractor. CTI/DC last furnished materials/supplies to HRGM on or about October 1, 2002. The meeting at which CTI/DC alleges HRGM made the promise to pay took place on or about December 3, 2002. There is no allegation of continued performance (or even a promise of continued performance) by CTI/DC after the alleged promise because CTI/DC had completed its obligations in October of that year. Nor is there any allegation that CTI/DC forewent the exercise of any rights it held as a result of the alleged promise. In short, the amended complaint is devoid of any allegation that any acceptable form of consideration passed from CTI/DC to HRGM for the promise to cover Selby's debt.
53
As such, the district court correctly ruled that CTI/DC's argument has no basis in the factual allegations made in the amended complaint, and thus properly dismissed the claim for failing to state a claim for which relief could be granted.
IV.
54
Therefore, we find that the district court did not err in granting Selective Insurance's rule 12(b)(6) motion. The judgment of the district court is hereby affirmed.
AFFIRMED
Notes:
1
Given that the "Little Miller Act" was patterned after the Federal Miller Act, it is not surprising that courts interpreting the Maryland "Little Miller Act" have occasionally looked for guidance to federal court decisions construing similar provisions of the Federal Miller ActSee Atlantic Sea-Con, 582 A.2d at 985; Westinghouse, 269 A.2d at 582. However, Maryland courts are not bound by Federal court decisions interpreting the Federal Miller Act when interpreting the "Little Miller Act," and take divergent views when such views are mandated by Maryland law. Compare Montgomery County Bd. of Educ. ex rel. Carrier Corp. v. Glassman Constr. Co., 245 Md. 192, 225 A.2d 448, 455 (1967) (finding that "Little Miller Act's" 90 day provision was satisfied when notice was mailed, but not received within ninety days.), with Pepper Burns Insulation, Inc. v. Artco Corp., 970 F.2d 1340, 1343 (4th Cir.1992) (finding that notice provision of Federal Miller Act required that notice be received within 90 days.).
2
Indeed, on at least one occasion the Maryland Court of Appeals has applied a more liberal reading of the notice provisions than this Court was willing to applyCompare Montgomery County Board of Education, 245 Md. 192, 225 A.2d 448, with Pepper Burns Insulation, Inc., 970 F.2d 1340 (4th Cir.1992).
3
CTI/DC cited two other cases for the proposition that the letters should be read togetherSee United States ex rel. Bailey v. Freethy, 469 F.2d 1348 (9th Cir.1972); Liles Construction Co. v. United States, 415 F.2d 889 (5th Cir.1969). However in both cases, both letters appear to have been timely. See Freethy, 469 F.2d at 1350; Liles Constr., 415 F.2d at 891. Thus, these cases are far from dispositive on the issue at hand.
4
Ultimately the Court found sufficient notice by reading a letter and a carbon, both sent on the same day, togetherSee United States ex rel. Jinks Lumber Co., 452 F.2d at 488.
5
See United States ex rel. Billows Electric Supply Co. Inc. v. E.J.T. Construction Co. Inc., 517 F. Supp. 1178, 1182-83 (E.D.Pa.1981) (The court found a contractual relationship where a materialman notified the contractor that it would discontinue performance until the outstanding balance was paid, the general contractor agreed to pay both the outstanding balance and for any future orders, and the materialman performed.); United States ex rel. Keener Gravel Co. v. Thacker Constr. Co., 478 F. Supp. 299, 301-02 (E.D.Mo.1979) (The court found that "the job created at the very least an implied contractual relationship" where a materialman notified the contractor that he would discontinue performance if they did not accept deliveries and pay a specified price, the contractor verbally agreed to this arrangement, and the materialman performed); United States ex rel. Greenwald Supon, Inc. v. Gramercy Contractors, Inc., 433 F. Supp. 156, 160 (S.D.N.Y.1977) (The court noted that "[i]n consideration for this express promise from defendant, plaintiff remained on the job at West Point and completed its contractual obligations ... the contractor and plaintiff were operating under, at the very least, an implied contractual relationship."); United States ex rel. Strona et al. v. Bussey et al., 51 F. Supp. 996, 998 (S.D.Ca.1943) ("The evidence further shows that there was a direct contract between the intervenor, House, and the defendant, Bussey, whereby Bussey promised intervenor that if he would continue his work on the Cal-Aero Airport Bussey would pay the same"). | 01-03-2023 | 04-19-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1595216/ | 426 F.Supp. 794 (1976)
The FROUGE CORPORATION, Plaintiff,
v.
The CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), Defendant.
No. 75 Civ. 4660.
United States District Court, S. D. New York.
December 9, 1976.
*795 Hart & Hume, New York City, for plaintiff; Roger A. Goodnough, New York City, of counsel.
Dewey, Ballantine, Bushby, Palmer & Wood, New York City, for defendant; Kenneth H. Holmes, John M. Friedman, Jr., John M. Goodman, New York City, of counsel.
MEMORANDUM
BONSAL, District Judge.
Plaintiff, The Frouge Corporation ("Frouge"), commenced this action against the defendant, The Chase Manhattan Bank, National Association ("Chase"), for an accounting of earnings realized by Chase from the alleged unauthorized use of funds deposited by Frouge in an account with Chase entitled "Frouge-Trumbull Trust Account No. 1."
It appears undisputed that during the summer of 1964 Frouge sought a loan from Chase secured by a second mortgage on its shopping center in Trumbull, Connecticut and that Frouge arranged for the loan to be guaranteed by Gulf Oil Corporation of California ("Gulf") in return for which Gulf was to receive a guarantee fee. Pursuant to the agreement between Frouge and Gulf,[*] Frouge opened an account with Chase in August 1964, which account was entitled "Frouge-Trumbull Trust Account No. 1." Rents from the Trumbull Shopping Park tenants were deposited in this account and Frouge then drew upon the funds in this account to pay specified expenses, including debt service to Chase, Gulf's guarantee fee and any other payments permitted by Gulf.
In the complaint, Frouge contends that the account with Chase was a "trust account" and that Chase commingled the funds in this account with its general funds, earning a substantial profit thereon, in breach of its fiduciary duty. Accordingly, Frouge has demanded that Chase account for its unauthorized use of the funds in the Frouge-Trumbull Trust Account No. 1.
Chase now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the ground that there is no genuine issue as to any material fact and that Chase is entitled to judgment as a matter of law. Specifically, Chase contends *796 that the account opened by Frouge was a business checking account, that it was treated as such by Chase during the 10 years that the account was active, that Frouge did not question the manner in which the account was handled and did not ask for an "accounting" or the payment of interest or earnings with respect to the account, and that Chase had no intention of paying interest or earnings on this account because such payments on this type of account would violate federal law.
Frouge has cross-moved for summary judgment contending that Chase has breached its fiduciary duty and that it is entitled to an accounting as a matter of law.
In the motion for summary judgment, the Court's function is not to try issues of fact but rather to decide whether there are any such issues to be tried. In making that determination, "it must resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought, United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962), with the burden on the moving party to demonstrate the absence of any material factual issue genuinely in dispute, Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)." Heyman v. Commerce and Industry Insurance Company, 524 F.2d 1317, 1320 (2d Cir. 1975); see also, United States v. Bosurgi, 530 F.2d 1105 (2d Cir. 1976).
Moreover, cross-motions for summary judgment "do not warrant the court in granting summary judgment unless one of the moving parties is entitled to judgment as a matter of law upon facts that are not genuinely disputed." 6 Moore's Federal Practice ¶ 56.13 at 56-341 (1976); see Heyman v. Commerce and Industry Insurance Company, supra; American Manufacturers Mutual Insurance Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272 (2d Cir. 1967), cert. denied, 404 U.S. 1063, 92 S.Ct. 737, 30 L.Ed.2d 752 (1972); Oil Trading Associates v. Texas City Refining, 201 F.Supp. 846 (S.D.N.Y.1962).
Here, it is undisputed that (1) Frouge opened the Frouge-Trumbull Trust Account No. 1 with Chase in August 1964 and that for nearly 10 years, during which time the account was active, Chase did not pay interest or earnings on the account nor did it render any accounting of the funds on deposit other than the usual monthly statements rendered for business checking accounts; (2) that Frouge, prior to January 18, 1974, made no demand on Chase that it be paid interest on this account; and (3) that payment of interest or earnings on the account and the segregation of moneys deposited in it was not necessary to effectuate the underlying agreements. See Defendant's Statement Pursuant to General Rule 9(g) and Plaintiff's Counter-Statement Pursuant to General Rule 9(g).
From the papers submitted by Chase in support of its motion for summary judgment, it appears that Frouge authorized the opening of an account entitled "Frouge-Trumbull Trust Account No. 1" through a set of corporate resolutions embodying Chase's standard form for authorizing a corporate checking account, see Exhibit "A" attached to Chase's motion for summary judgment dated July 9, 1976 (hereinafter "Chase's motion"), and that signature cards for this account were prepared on the standardized forms for checking accounts. See Exhibit "B" attached to Chase's motion. A business checkbook was also issued to Frouge. See Exhibit "C" attached to Chase's motion. In addition, Chase asserts that Frouge drew several hundred checks on this account during the 10 years that the account was active and that monthly statements were sent to Frouge showing no accrual of interest or other similar sums. These assertions have not been disputed by Frouge.
While Frouge contends that the funds in the account were "trust funds" and could only be used for certain disbursements, see Exhibit "E" attached to Frouge's cross-motion for summary judgment dated September 1, 1976 (hereinafter "Frouge's cross-motion"), it appears that authorization was given by Gulf to Frouge to make periodic *797 disbursements from this account covering the general operating expenses of the Trumbull Shopping Park. Exhibit "M" attached to Frouge's cross-motion. To this extent, it appears that the account functioned as a business checking account.
Frouge sent a letter to Chase, dated January 18, 1974, seeking interest payments on the funds in the account in view of a recent decision of the Queens County Small Claims Court. That decision was later reversed on appeal, Tierney v. Whitestone Savings & Loan Association, 83 Misc.2d 855, 373 N.Y. S.2d 724 (App.Term 1975), rev'g 77 Misc.2d 284, 353 N.Y.S.2d 104 (Small Claims 1974), and it is clear that Chase could not pay interest on a demand or checking account without violating Section 19 of the Federal Reserve Act. 12 U.S.C. § 371a (1970). Moreover, it appears that Chase would not be required to render an accounting on this type of account. Surrey Strathmore Corp. v. Dollar Savings Bank of New York, 36 N.Y.2d 173, 366 N.Y.S.2d 107, 325 N.E.2d 527 (1975).
In Surrey, a corporate mortgagor made installment payments to an institutional mortgagee for real estate taxes on the mortgaged premises. In an appeal on an action seeking an accounting on the installment payments, the New York Court of Appeals held that "[t]here being no express agreement of the parties and no predicate for any inference that such an agreement was intended, we conclude that this mortgagor is not entitled to the relief it now seeks." Id at 177, 366 N.Y.S.2d at 111, 325 N.E.2d at 530.
Here, there was no express agreement between Chase and Frouge for the payment of any interest on the account nor any understanding that an accounting would be rendered on any monies earned. Frouge submits that a preliminary internal memorandum of Chase referred to the deposit of $800,000.00 in a so-called "trust account". See Exhibit "B" attached to Frouge's cross-motion. This memorandum, however, merely explained the arrangements between Frouge and Gulf and did not reflect any agreement between Frouge and Chase.
Moreover, the mere reference to the account as a "trust account" in Frouge's corporate resolution is not determinative. Rather, the parties' intentions as to their rights and obligations as manifested by the terms of the written agreement, with parol evidence to clarify ambiguities, if any, is the proper means of construction. See Corbin on Contracts § 573 (1960).
Since it is clear on the basis of the papers submitted that Frouge's account with Chase was treated as a business checking account by both parties and that issues of interest or segregation of the funds were not raised by either party when the account was established, nor for 10 years thereafter, the inevitable conclusion is that the account was an ordinary commercial account and not a trust account in so far as Chase was concerned.
Accordingly, the motion by Chase for summary judgment is granted and the cross-motion by Frouge for summary judgment is denied.
Settle Judgment on Notice.
NOTES
[*] See Exhibit "A" attached to Frouge's Complaint filed September 23, 1975. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595218/ | 621 N.W.2d 332 (2001)
2001 ND 11
Sidney NORD, Joyce Nord, Lyder Nord, and Gloria M. Nord, Plaintiffs and Appellees,
v.
David HERRMAN and Richard Herrman, Defendants and Appellants, and
Arlen Peterson, Intervenor and Appellant.
No. 20000063.
Supreme Court of North Dakota.
January 30, 2001.
*333 Todd A. Schwarz (on brief), Wheeler Wolf, Bismarck, ND, for plaintiffs and appellees.
J. Thomas Traynor, Jr. (on brief), Traynor, Rutten & Traynor, P.C., Devils Lake, ND, for defendants, intervenor, and appellants.
SANDSTROM, Justice.
[¶ 1] David Herrman, Richard Herrman, and Arlen Peterson appealed from a judgment in a quiet title action entered after our remand in Nord v. Herrman, 1998 ND 91, 577 N.W.2d 782 ("Nord I"). The trial court apportioned the property interests of Peterson, the Herrmans, and Sidney, Joyce, Lyder, and Gloria Nord to a portion of the 1992 shoreline of Devils Lake's East Bay, and awarded the Nords *334 $2500 for property damages. We conclude the trial court's method of apportioning the property boundaries adequately satisfies the legal requirement of proportional allocation, and its award of damages is not clearly erroneous. We affirm.
I
[¶ 2] The factual background of this case is set forth in Nord I and need not be repeated here. In Nord I, the trial court was called upon to determine property boundaries below the meander line at a time when the waters of Devils Lake were receding. The court relied on a method to apportion new property lines between the parties that was based on this Court's decision in North Shore, Inc. v. Wakefield, 530 N.W.2d 297 (N.D.1995). David Hovendick, the expert witness for the Herrmans and Peterson, had advocated an alternative use of the "colonial" or "tide water" method of apportionment, and testified use of the North Shore method would, under the circumstances, deny the Herrmans and Peterson any access to the lake. We held:
North Shore and Gardner [v. Green, 67 N.D. 268, 271 N.W. 775 (1937),] require allocation of the new shoreline in proportion to each owner's share of the original shoreline. The method of extending section lines and government lot survey lines approved in North Shore adequately met the legal requirement of proportional allocation. But to simply use the North Shore method to extend a quarter section line in a manner that deprives landowners of a proportional allocation in the new shoreline is not consistent with the North Shore and Gardner requirement of proportional allocation.
....
We do not hold the trial court was required to use Hovendick's proposed colonial method for proportional allocation in this case, even though it appears to more closely achieve the proportional allocation of the shoreline requirement than does the method used by the trial court. We only hold the method used by the trial court here, which has deprived some owners of any proportional allocation of the shoreline, was erroneous as a matter of law. We remand for further proceedings to achieve proportional allocation of the new shoreline. Because the $2,500 damage award was based on this improper proportional allocation, the award must be reversed.
Nord I, 1998 ND 91, ¶¶ 23, 25, 577 N.W.2d 782.
[¶ 3] At another evidentiary hearing on remand, Hovendick again testified as an expert witness for the Herrmans and Peterson, and Harley Swenson testified as an expert witness for the Nords. The trial court again rejected Hovendick's proposal based on the colonial method, and chose the method advocated by Swenson. The court ruled:
By use of the survey notes from the original survey of the property, the south boundary of Lot Four (4) which is the south boundary of the Nord property shall be extended in a straight line due west to the water's edge when the land was patented in 1883, which was an elevation of 1434.4 feet above median sea level.
....
After the above extension of the Lot Four (4) boundary to the west, the court next adopts the use of parallel lines running westward from the meander line to extend each property line to the 1434.4 feet level as illustrated on Plaintiff's Exhibit # 5. From the point where the parallel lines reach the 1883 shoreline, each property owner shall receive a proportional allocation of the 1992 shoreline as illustrated in Plaintiff's Exhibit # 5. Exhibit # 5 shall be incorporated into this Conclusion of Law.[1]
....
*335 The extension of government lot lines to the 1883 survey water's edge with parallel boundary lines for each property owner to the 1883 water's edge and then providing a proportional amount of 1992 shoreline based on the amount of 1883 shoreline each property owner receives meets the legal requirements of proportional allocation of the new shoreline as established by North Dakota case law.
The court also ruled $2500 was an appropriate amount to award the Nords for damage to their property.
[¶ 4] The trial court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal by the Herrmans and Peterson is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.
II
[¶ 5] The Herrmans and Peterson argue the trial court erred in adopting Swenson's method of apportioning the 1992 shoreline.
[¶ 6] Any division of accretions must be equitable and proportional so as to give each shore owner a fair share of the land to be divided and a due portion of the new shore line proportionate to the shore on the original line of the water. See Nord I, 1998 ND 91, ¶ 18, 577 N.W.2d 782; North Shore, 530 N.W.2d at 303. Any survey method that results in equitable allocation of the new shoreline in proportion to each owner's share of the original shoreline will satisfy the legal requirement of proportional allocation. Nord I, at ¶¶ 23, 25.
[¶ 7] The weight and credibility given to an expert's opinion is a question of fact subject to the clearly erroneous standard of N.D.R.Civ.P. 52(a). In re J.K., 1999 ND 182, ¶ 13, 599 N.W.2d 337. A trial court's findings of fact are clearly erroneous if they are induced by an erroneous view of the law, there is no evidence supporting them, or, although there is some evidence supporting them, on the entire record we are left with a definite and firm conviction a mistake has been made. Tulintseff v. Jacobsen, 2000 ND 147, ¶ 16, 615 N.W.2d 129.
[¶ 8] In this case, much of the dispute between the expert witnesses centered on where to begin the process of equitable apportionment. Hovendick advocated beginning the process at the meander line, resulting in the Nords, the Herrmans, and Peterson each receiving a larger amount of 1992 lakefront footage. Swenson advocated beginning the process at the 1883 shoreline elevation of 1,434.4 feet, resulting in a smaller amount of 1992 lakefront footage for the parties. Swenson testified his proposal was consistent with the North Shore method, and Hovendick's method inappropriately applied "accretion rules to land that is not accreted land." Swenson also testified Hovendick's proposal was unfair because the property lines would encroach upon property belonging to persons not parties in this proceeding, whereas his method "doesn't encroach onto adjacent property owners." Hovendick admitted the colonial method he proposed had never been used in North Dakota, but testified the colonial method would work all around Devils Lake and would "guarantee equitable apportionment to all property owners that abut up against the meander line as it was laid out." Hovendick acknowledged use of the colonial method around the entire lake would require a redrawing of the boundary lines approved by this Court in North Shore.
[¶ 9] The trial court questioned Swenson about the difference between his proposal and the one this Court rejected in Nord I:
THE COURT: So from your opinion and your comprehension, that is the error this court made in it[ ]s first determination, it didn't extend the line out to the 1434.4 elevation but only to the 1426.
....
*336 THE WITNESS: Well, it's my opinion that it should be at 1434.4 elevation and I think I've testified
THE COURT:I understand why, you've said that, but I did not use that. I used the standard of 1426 which was the lakebed elevation of the ordinary high watermark.
THE WITNESS: It's my opinion that everything below the elevation at the time the land was patented which was in 1883 which was an elevation of 34.4, the land below that elevation is subject to the laws and rules of accretion. And that would mean proportioning new shore line and proportioning the owner, based on the ownership, at the elevation of 1434.4. It's all accreted property below that elevation. And you were right in extending the land lines to that point. Where I guess I would differ from your decision is that at that point I would start applying the laws of accretion.
[¶ 10] Swenson testified his method and the colonial method would "give you very similar results in this particular case" and would "do an equitable job of dividing the accretion...." Hovendick testified Swenson's method gave the Nords 237 feet of 1992 lakefront footage and Hovendick's method would give the Nords 341 feet. Hovendick also testified Swenson's method gave the Herrmans and Peterson 67 feet of 1992 lakefront footage, while Hovendick's method would give them "over a hundred feet."
[¶ 11] In rejecting Hovendick's proposal, the trial court noted the meander line is not the legal property boundary as established by survey treatises and case law, but is merely a means to determine the size of a body of water and to describe a particular tract of land. See Nord I, 1998 ND 91, ¶ 16, 577 N.W.2d 782; North Shore, 530 N.W.2d at 301. The court also noted the 1883 survey notes were available and "must become a part of the determinable water's edge and land boundary of this disputed property." The court reasoned:
The Court declines to use the Hovendick proposal because it ignores the survey notes, and our case law. It does not recognize the first deed to property as superior, the natural extension of government lot lines nor the riparian rights granted to the upland owner as established in earlier decisions. While the Hovendick proposal seems a simple fix to the rise and fall of the lake level which plagues this property, simple solutions are not the best solution when it is contrary to our established law. If the meander line is to become a legal boundary for Devils Lake shore owners, it must be established by other than this trial court.
[¶ 12] The methods advanced by both of the expert witnesses grant the parties proportional allocation of the 1992 shoreline. When a trial court is faced with conflicting opinions by expert witnesses for the parties, and the court could have relied on either party's expert witness, the court's choice between the two permissible views of the weight of the evidence is not clearly erroneous. Johnson v. Hamill, 392 N.W.2d 55, 59 (N.D.1986). On this record, we cannot say the trial court's adoption of Swenson's method of apportionment is clearly erroneous, and we conclude the plan adopted by the court adequately satisfies the legal requirement of proportional allocation.
[¶ 13] The Herrmans and Peterson argue adoption of Swenson's method results in a judgment that is not final, clear, or definite because his method applies only to the water level in 1992 when this action was commenced. Because Devils Lake rises and falls, they argue property lines would have to be redrawn periodically, resulting in further litigation if the parties failed to reach an agreement. However, changes in property boundaries caused by rising and falling waters is a natural consequence of riparian land ownership. In North Shore, Inc. v. Wakefield, 542 N.W.2d 725, 729 (N.D.1996) (internal *337 citations omitted), this Court said "[r]iparian landowners are by necessity subject to losses and gains caused by the water; under well-established principles of law a riparian landowner `"is without remedy for his loss in this way [and] cannot be held accountable for his gain."'" It is the nature of riparian land ownership, not the trial court's use of Swenson's method of apportionment, which makes the judgment appear to be non-final or indefinite.
[¶ 14] In Nord I, at ¶ 24, we noted "a proper determination of the dispute between these three parties may require joinder of most, if not all owners around the lake." Contrary to our caveat, the parties did not believe a class action was necessary, and, contrary to our caveat, the trial court said a class action would not be "practical." Consequently, the trial court's judgment is limited to affecting only the property interests of the Nords, the Herrmans, and Peterson among themselves. See Woodland v. Woodland, 147 N.W.2d 590, 602 (N.D.1966). The judgment is not binding on other property owners in the area who were not made parties to this action and who might have a claim to the subject property. Id.
III
[¶ 15] The Herrmans and Peterson argue the trial court erred in awarding the Nords damages for injury to the Nord's property. The Nords requested almost $37,000 in damages, but the trial court awarded them only $2500 "for destruction of surface structures."
[¶ 16] In an appeal challenging a trial court's award of damages in a bench trial, the appropriate standard of review is whether the trial court's findings of fact on damages are clearly erroneous. See Roise v. Kurtz, 1998 ND 228, ¶ 6, 587 N.W.2d 573. During the infancy of this boundary dispute, David Herrman admitted cutting down trees, which had formed a property boundary, and he and Peterson admitted taking down a boundary fence constructed by the Nords. The trial court also found Herrman and Peterson pushed large rocks from the front of their lots over to the Nords' property. Under the method the trial court used to apportion the property, the actions of Herrman and Peterson damaged the Nords' property.
[¶ 17] We conclude the trial court's award of $2500 to the Nords for property damage is not clearly erroneous.
IV
[¶ 18] The judgment is affirmed.
[¶ 19] GERALD W. VANDE WALLE, C.J., and WILLIAM A. NEUMANN, MARY MUEHLEN MARING, CAROL RONNING KAPSNER, JJ., concur.
*338 APPENDIX
NOTES
[1] Plaintiff's Exhibit # 5 appears in the Appendix. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595224/ | 426 F.Supp. 944 (1977)
DOREY CORPORATION et al., Plaintiffs,
v.
E. I. duPONT de NEMOURS AND COMPANY et al., Defendants.
No. 74 Civ. 3826.
United States District Court, S. D. New York.
January 24, 1977.
*945 *946 Pomerantz Levy Haudek & Block, New York City (Abraham L. Pomerantz, Stanley M. Grossman, New York City, of counsel), Dickstein, Shapiro & Morin, New York City (David I. Shapiro, Arthur J. Galligan, New York City, of counsel), David Berger, P.A., Philadelphia, Pa. (David Berger, H. Laddie Montague, Jr., Philadelphia, Pa., of counsel), Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa. (Seymour Kurland, Judah I. LaBovitz, Philadelphia, Pa., of counsel), Cochrane & Bresnahan, St. Paul, Minn. (John A. Cochrane, St. Paul, Minn., of counsel), for plaintiffs and plaintiff class.
Milgrim Thomajan & Jacobs, New York City (David P. Langlois, Robert A. Meister, Griffith B. Price, Jr., New York City, of counsel), for Objecting Class Members, Springs Mills, Inc., J. P. Stevens & Co., Inc., CPC International Inc., West Point-Pepperell, Inc., Fieldcrest Mills, Inc., H. Lowenstein & Sons, Inc., Texfi Industries, Inc., Deering Milliken, Inc., Cono Mills Corp., Greenwood Mills, Spartan Mills, Beaunit Corp., United Merchants and Manufacturers, Inc.
Bergson, Borkland, Margolis & Adler, Washington, D.C. (Donald L. Hardison, Herbert A. Bergson, Robert A. Burka, Washington, D.C., of counsel), for Burlington Industries, Inc.
Donovan Leisure Newton & Irvine, New York City (George S. Leisure, Jr., New York City, of counsel), for defendant American Cyanamid Company.
OPINION
BONSAL, District Judge.
Following the settlement of this antitrust class action, the Court received two petitions for allowances of attorneys' fees and disbursements as follows:
1) Petition of Dickstein, Shapiro & Morin; Pomerantz Levy Haudek & Block; David Berger, P.A.; and Wolf, Block, Schorr & Solis-Cohen, counsel for plaintiffs-class representatives in these consolidated class actions (hereinafter referred to as "petitioners"), seeking an allowance of attorneys' fees in the amount of $2,300,000 together with reimbursement of expenses and costs of paralegal services in the amount of $92,407.93;
2) Petition of Cochrane & Bresnahan, St. Paul, Minnesota, and associate counsel (hereinafter referred to as "Cochrane"), seeking an allowance of attorneys' fees in the amount of $485,000 and reimbursement of expenses in the amount of $10,809.79.
Briefs objecting to these attorneys' fees have been filed on behalf of Burlington Industries, Inc., which claims an 11% interest in the distributable settlement fund, and on behalf of Springs Mills, Inc. and other mills which are members of the settlement class claiming a 17.8% share in the distributable settlement fund. A public hearing was held on October 22, 1976 to consider the plan of distribution of the settlement funds and the petitions for attorneys' fees and disbursements.
Background
On July 18, 1974, an indictment was filed in the United States District Court for the District of New Jersey charging the defendants herein with having criminally conspired to fix and maintain, at artificially high levels, the prices of various dyestuffs and related products in violation of the Sherman Act (15 U.S.C. § 1). Subsequently, each of the defendants pled nolo contendere. The United States also instituted a civil action, naming the same defendants, seeking only injunctive relief.
On September 4, 1974, this action was commenced by the petitioners' filing of a complaint on behalf of Dorey Corporation and others. (Civil Action No. 74 Civ. 3826) (the "Dorey Complaint"). An additional plaintiff, Calina Industries, Inc., also represented by petitioners, filed a separate action on September 5, 1974 (74 Civ. 3842). On October 31, 1974 the Dorey and Calina actions were consolidated.
*947 On December 27, 1974, a class action was instituted in the United States District Court for the District of Minnesota which action was substantially identical to the Dorey action. Another action was instituted in the United States District Court for the Central District of California on behalf of Lorber Industries and four other named plaintiffs. Both of these actions were eventually transferred to this district and consolidated with Dorey.
Following some limited pretrial discovery, settlement negotiations were entered into and a stipulation of settlement and compromise was signed on April 28, 1975. By Order dated April 30, 1975, this Court directed that notice of the proposed settlement be mailed to each class member identified by defendants' records. A hearing was held on September 2, 1975 to determine the fairness, reasonableness and adequacy of the proposed settlement and, in a Memorandum decision filed October 22, 1975, as amended by Order filed November 5, 1975, this Court approved the settlement pursuant to Rule 23(e) of the Federal Rules of Civil Procedure. Jurisdiction was retained for the purposes of passing on attorneys' fees and expenses and any issues arising out of the administration of the settlement. Dorey Corp. et al. v. E. I. duPont de Nemours and Company, et al., CCH Trade Rep. ¶ 60,576 (S.D.N.Y.1975).
The settlement established a fund of $15,000,000 on which interest has been accruing, so that at the present time the settlement fund is in excess of $16,700,000. The plan of distribution was filed with the Court on September 17, 1976 and it is estimated therein that the members of the plaintiff class will recover over 55% of the damages sustained as a result of the alleged price fixing by the defendants. The plan of distribution, as amended, was approved by the Court at a hearing on October 22, 1976.
After the fixing of attorneys' fees, and barring appeals, it is expected that the settlement fund will be promptly distributed to the plaintiff class.
Services Rendered by Petitioners
Immediately after the filing of the Dorey Complaint, petitioners sought to intervene in the New Jersey criminal action by requesting the trial judge to refuse any nolo pleas and to have the Grand Jury documents impounded for use in the Dorey action. Both efforts were unsuccessful.
Following limited discovery, in the course of which defendants produced voluminous documents relating both to liability and damages, the parties entered into settlement negotiations in the early spring of 1975 which resulted in the settlement agreement. A Claims Committee was established consisting of representatives of the plaintiffs and the defendants and was charged with the responsibility of establishing proper procedures to verify the claims and implement the settlement. The work of the Claims Committee was complex, involving the analysis of 1,730 claims representing total purchases of relevant products in the aggregate amount of $711,465,935.62. Base prices were established for each dye purchased by each claimant in order to determine the amount of purchases made below the pre-conspiracy prices. Since there were approximately 20,000 different dyes involving thousands of different calculations, a computer firm was hired to help in the analysis. In addition, a full-time paralegal was hired to administer the claims depository in Washington, D.C.
Services Rendered by Cochrane
In the fall of 1974, following the filing of the criminal indictment against the defendants in New Jersey, Cochrane was approached by Carolina Yarns Processors, Inc. regarding the filing of a civil antitrust action against the defendants and, in December 1974, Cochrane instituted an action in the United States District Court for the District of Minnesota denominated as a "national class action." The defendants moved to transfer the action to New York and, on February 18, 1975, with the consent of the plaintiff, the action was transferred to this Court and eventually consolidated with Dorey.
Cochrane participated in the negotiations leading to the settlement of these actions *948 and has been active in the work of the Claims Committee in the review and processing of the twenty claims each of which was in excess of $5,000,000.
Discussion
A. Petitioners' Application
The record of these proceedings discloses that the petitioners obtained a favorable settlement for the Class in a very short time after the criminal proceedings were instituted against the defendants. There is no doubt that the petitioners demonstrated great skill and ingenuity in bringing about a speedy resolution of these matters. There is also no doubt that the petitioners have a solid reputation in the antitrust field and that the defendants were represented by skilled and able attorneys. Finally, there is no doubt that the class as a whole stands to be benefitted by the services rendered, receiving a possible 55% of the maximum they might have recovered in an individual action following a long and difficult litigation.
Both the petitioners and objectants have called the Court's attention to numerous decisions in the federal courts which they say support their contentions. In brief, the petitioners contend that in view of the success which they have achieved in a short period of time and the contingent nature of their employment, and as private attorneys general, they are entitled to liberal allowances. See Alpine Pharmacy, Inc. v. Chas. Pfizer & Co., 481 F.2d 1045, 1050 (2d Cir.), cert. denied, 414 U.S. 1092, 94 S.Ct. 722, 38 L.Ed.2d 549 (1973); City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974); Grace v. Ludwig, 484 F.2d 1262, 1267 (2d Cir. 1973), cert. denied, 416 U.S. 905, 94 S.Ct. 1610, 40 L.Ed.2d 110 (1974); Rosenfeld v. Black, 56 F.R.D. 604, 605 (S.D.N.Y.1972); Dolgow v. Anderson, 43 F.R.D. 472, 487 (E.D.N.Y.1968).
The objectants, on the other hand, contend that any award must be made with an eye toward moderation, City of Detroit v. Grinnell Corp., supra at 470; Lindy Bros. Builders, Inc. v. American Radiator & Standards Sanitary Corp., 487 F.2d 161 (3d Cir. 1973), and that the value of an attorney's time, as reflected in his normal billing rate and hours spent in the litigation, should be the "lodestar" of the court's fee determination. Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., supra at 167-68. In addition, the objectants question the propriety of a risk multiplier for every hour worked when much of the work, according to the objectants, was either unsuccessful or relatively ministerial in nature following the approval of the settlement.
In the Court's view, the standard to be applied in this fee determination is the reasonable value of the services rendered by the petitioners and, in determining that reasonable value, the Court must find that the services themselves were reasonable under the circumstances. It is the Court's opinion that the petitioners are entitled to what they would have received from a private client plus a markup to the extent that their services were of a contingent nature. See City of Detroit v. Grinnell Corp., supra; Levin v. Mississippi River Corp., 377 F.Supp. 926 (S.D.N.Y.), aff'd 508 F.2d 836 (2d Cir. 1974); Feder v. Harrington, 58 F.R.D. 171, 177 (S.D.N.Y.1972); see also Mills v. Electric Auto-Lite, 396 U.S. 375, 396-97, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970).
The starting point in considering petitioners' application must be the time spent by the attorneys. City of Detroit v. Grinnell Corp., supra at 470. Here, the petitioners have provided detailed information as to how their time was spent. Approximately 650 hours were spent in the drafting of complaints, motion practice in the New Jersey criminal action and preparation of the class certification motion; 3400 hours in discovery and settlement negotiations; and 2400 hours in claims administration. Petitioners also provide a list of the hours spent by each attorney and the corresponding billing rates. Petitioners submit that a total of 6409.60 hours were spent on this litigation and that the fees which would have been received for this work if the case were non-contingent would equal $619,838.80.
*949 While the Court is aware that a "just and adequate" fee cannot be ascertained merely by multiplying the attorneys' hours by normal billing rates, it is only after such a calculation that other less objective factors can be considered. City of Detroit v. Grinnell Corp., supra at 471. Among these other factors are: (1) the amount recovered, which in this case is substantial; (2) the complexity of the litigation, including any benefit of a prior judgment or decree in a case brought by the Government; (3) the skill and standing of the counsel at the bar; and (4) the "risk of litigation". City of Detroit v. Grinnell Corp., supra at 470; see also TransWorld Airlines, Inc. v. Hughes, 312 F.Supp. 478 (S.D.N.Y.1970), modified on appeal, 449 F.2d 51 (2d Cir. 1971), rev'd on other grounds, 409 U.S. 363, 93 S.Ct. 647, 34 L.Ed.2d 577 (1973); Hanover Shoe, Inc. v. United Shoe Machinery Corp., 245 F.Supp. 258 (M.D.Pa.1965), vacated on other grounds, 377 F.2d 776 (3d Cir. 1967), aff'd in part and rev'd in part, 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968).
In addition, consideration should be given to the fact that petitioners have acted as private attorneys general, see Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130-31, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969); Minnesota Mining & Manufacturing Co. v. New Jersey Wood Finishing Co., 381 U.S. 311, 318, 85 S.Ct. 1473, 14 L.Ed.2d 405 (1965); Rosenfeld v. Black, supra, and that such activity should not be discouraged.
While the petitioners are persuasive in their arguments that the size of the recovery and the amount of time spent in this litigation supports a substantial allowance for attorneys' fees, awards in these cases must be made with an eye toward moderation and the rights of those interested in the fund. Trustee v. Greenough, 105 U.S. 527, 536, 26 L.Ed. 1157 (1881); City of Detroit v. Grinnell Corp., supra at 469.
As previously stated, petitioners are entitled at least to an amount equal to the fees they would have received if this case were taken on a non-contingent basis. According to petitioners' application, a total of 6409.60 hours was spent in this litigation and the fees which petitioners would have received if this were a non-contingent litigation and if they were paid for their services on a time basis (number of hours spent by each attorney multiplied by the "hourly rate" of that attorney) would equal $619,838.80.
An additional fee will be allowed for the period prior to the Court's approval of the settlement agreement on October 22, 1975. According to petitioners' application, approximately 63% of the total time was for services during this period. The value of these services on a time basis is approximately $390,000. An additional $390,000 will be allowed the petitioners in view of the risk factor. See Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 382 F.Supp. 999, 1024 (E.D. Pa.1974); Arenson v. Board of Trade of City of Chicago, 372 F.Supp. 1349, 1359 (N.D.Ill.1974); see also City of Philadelphia v. Chas. Pfizer & Co., 345 F.Supp. 454, 485 (S.D.N.Y.1972).
Accordingly, petitioners are allowed $619,838.80 plus $390,000 for a total allowance of $1,009,838.80 which is rounded out to $1,010,000.
Petitioners also seek reimbursement of disbursements and costs in the amount of $92,407.93 for such items as court fees, air freight and messenger service, travel expenses, business meals, duplicating and xerox costs, toll calls, postage, transcript costs, and paralegal help at cost. Petitioners have attached itemized lists of these disbursements and costs to their application and no objections have been made to the application for reimbursement. Upon review of petitioners' application, the Court will allow reimbursement of disbursements and costs in the amount of $92,407.93.
B. The Cochrane Application
It appears from the Cochrane application that following the institution of the two government actions in New Jersey, Cochrane was approached by Carolina Yarns Processors, Inc. to institute antitrust proceedings *950 against defendants in the District Court of Minnesota and that Cochrane filed a "national class action" in that court in December 1974. The Carolina action was then transferred to the Southern District of New York in February 1975 and consolidated with the Dorey action in April 1975. It appears from the application that the legal services in Minnesota were limited to filing of a complaint, moving for class certification, and consenting to defendants' motion to transfer the Carolina action to the Southern District of New York.
Following the transfer of the Carolina action in February 1975, the application alleges that Cochrane participated in negotiations leading to the settlement of these actions and that he has been active in the administration of the settlement to the extent of assisting in the processing of some 20 claims filed by members of the class, each of which is in excess of $5,000,000. The Cochrane application alleges that a total of 4,128.1 hours was spent in this litigation, as follows:
Senior Counsel 2,088.3 hours
Intermediate Counsel 369.10 hours
Junior Counsel 1,670.75 hours
In considering applications for attorneys' fees, the Second Circuit has held:
"Once the District Court ascertains the number of hours that the attorney and his firm spent on the case, it must attempt to value that time. Valuation obviously requires some fairly definite information as to the way in which that time was spent (discovery, oral argument, negotiation, etc.) and by whom (senior partners, junior partners or associates)." City of Detroit v. Grinnell Corp., supra at 471.
Here, the application does not describe how the time was spent, nor does it list an hourly billing rate for individual attorneys. Rather, the application asserts that a normal hourly rate for senior counsel is $100.00 to $150.00 per hour; for intermediate counsel, $75.00 per hour; and for junior counsel $35.00 per hour. Under these circumstances, the Court is unable to compute the value of the time alleged to have been spent in accordance with the standards set forth in City of Detroit v. Grinnell Corp., supra.
The Court is aware that Cochrane participated in the settlement negotiations and assisted in the administration of the settlement. The Cochrane application alleges that 65% of senior counsels' time and all time spent by intermediate and junior counsel was devoted to the administration of the settlement. Accordingly, an award of $75,000 will be allowed, which appears adequate to cover the time spent on the settlement negotiations and the administration of the settlement.
The Cochrane application also seeks reimbursement of disbursements and costs in the amount of $10,809.79 alleging that these were out-of-pocket expenses necessary for the prosecution of these cases. The Cochrane application fails, however, to itemize the disbursements and costs for evaluation by the Court. See City of Detroit v. Grinnell Corp., supra at 473. Accordingly, Cochrane's application for reimbursement of disbursements and costs will be denied.
Settle Order on Notice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595226/ | 241 Wis.2d 142 (2001)
2001 WI 9
621 N.W.2d 902
Kathleen JENSEN, Bradley Jensen and Erik Jensen (a minor), Plaintiffs-Appellants,
STATE of Wisconsin, DEPARTMENT OF HEALTH AND FAMILY SERVICES, Plaintiff,
v.
WISCONSIN PATIENTS COMPENSATION FUND, David McPherson, M.D., and Lakeland Medical Center, Defendants-Respondents.[]
No. 99-2774.
Supreme Court of Wisconsin.
Oral argument November 29, 2000.
Decided February 13, 2001.
*143 For the plaintiffs-appellants there were briefs by Matthew W. O'Neill, Shannon A. Allen and Friebert, Finerty & St. John, S.C., Milwaukee, and oral argument by Matthew W. O'Neill.
For the defendants-respondents there was a brief by Curtis C. Swanson, Edith F. Merila, Timothy J. Cesar and Axley Brynelson, LLP, Madison, James R. Gutglass, Sharon R. Long and Gutglass, Erickson & Bonville, S.C., Milwaukee, and Paul J. Pytlik and Otjen, Van Ert, Leib & Weir, S.C., Milwaukee, and oral argument by Curtis Swanson and James R. Gutglass.
¶ 1. DIANE S. SYKES, J.
The issue in this case is whether an attorney admitted pro hac vice[1] has the right to notice and an opportunity to be heard before his or her pro hac vice admission can be revoked. The *144 issue arose in this medical malpractice action when the circuit court granted a mistrial based upon "reprehensible" pretrial and trial conduct by the plaintiffs' attorney, who was licensed in Illinois but admitted in Wisconsin for purposes of this case. Five days after the mistrial, without notice or hearing, the circuit court sua sponte issued an order withdrawing the attorney's pro hac vice admission.
¶ 2. The plaintiffs and their attorney obtained leave to appeal the circuit court's nonfinal order, and the court of appeals certified the question of the attorney's right to notice and hearing to this court. Wis. Stat. (Rule) § 809.61(1997-98).[2] We conclude that as a matter of judicial policy, and in accordance with the proper administration of the justice system, notice and an opportunity to respond are necessary prerequisites to the revocation of an attorney's pro hac vice status. Accordingly, we reverse the order of the circuit court rescinding the pro hac vice admission of the plaintiffs' attorney in this case, and remand for further proceedings.
I
¶ 3. Kathleen Jensen, her husband Bradley Jensen, and their minor son Erik Jensen filed this medical malpractice action in Walworth County Circuit Court against Wisconsin Patients Compensation Fund, Dr. David McPherson, and Lakeland Medical Center. They alleged negligence in connection with Erik's delivery that damaged his spinal cord and rendered him a paraplegic. Pursuant to SCR 10.03(4) (1998),[3] the Jensens *145 petitioned the circuit court for pro hac vice admission of Lee Phillip Forman, an attorney from Chicago, Illinois. According to an affidavit submitted by a Wisconsin attorney in support of Forman's admission, Forman had been asked to participate in this case because it was a complicated medical malpractice action and Forman had more than 30 years of experience handling such matters.
¶ 4. The circuit court granted the petition by written order, citing SCR 10.03(4) and specifically stating that permission to appear pro hac vice may be withdrawn "if [Forman] manifests incompetency to represent a client in a Wisconsin court or...unwillingness to abide by the code of professional responsibility and the rules of decorum of the Court."
¶ 5. A jury trial commenced on October 4, 1999, before the Honorable Michael S. Gibbs. On October 6, 1999, during the testimony of plaintiffs' expert, Dr. Richard D. Jacobson, defense counsel objected that the doctor's trial testimony differed from his earlier deposition testimony. The jury was excused, and the court heard argument from counsel and allowed a voir dire of the witness.
¶ 6. Defense counsel noted that at the time of his deposition, Dr. Jacobson had offered only a rather tentative opinion that some event during Erik's birth, perhaps a manipulation to correct the baby's breech position, had possibly caused the spinal cord damage. The doctor had testified that in order to form an opinion to a reasonable medical probability he would need to review all of the medical records and relevant depositions, as well as search the literature, and that he had not done so at the time of his deposition. Defense counsel had asked Forman at the deposition to advise them if Dr. Jacobson was provided with the additional information *146 so that they could conduct a follow-up deposition to determine whether he would be changing his opinion.
¶ 7. Dr. Jacobson admitted during the voir dire that Forman had in fact given him additional materials after the deposition, and that his review of those materials had "solidified" or "firmed up" his opinion. Forman argued that the doctor's trial opinion was basically consistent with his deposition opinion. The circuit court disagreed, however, and found that the trial testimony "was a significant and substantial change in Dr. Jacobson's testimony when compared with his deposition testimony."
¶ 8. Based upon Forman's failure to notify defense counsel of the changed circumstances surrounding Dr. Jacobson's opinion, the circuit court granted the defendants' motion for a mistrial:
This is a very straightforward process and procedure, and I don't know why you can't just do it that way. This sneaking around with this new opinion when you knew it at least a week and a half ago, it is repulsive....
But I'm telling you, this makes me sick for your clients, Mr. Forman, because you've left them hanging out there like this, but that's not my problem. That's your problem.
...
I'm going to grant the mistrial because I think you've made such a mess out of this, Mr. Forman, that this case can't even go forward. Your behavior here is unbelievable. It's reprehensible. And your lack of preparation for this trial and your inability to play within the rules hasit's created every one of these problems.
*147 ¶ 9. Five days later, without notice or an opportunity to be heard, the circuit court sua sponte entered an order rescinding Forman's permission to appear pro hac vice as counsel for the Jensens. The order cited SCR 10.03(4) and stated that Forman "has by his conduct manifested incompetency to represent a client in a Wisconsin court and has not abided by the code of professional responsibility and the rules of decorum of the Court."
¶ 10. Forman filed a motion for reconsideration, reasserting that Dr. Jacobson's trial testimony was consistent with his deposition testimony. He argued that the circuit court's order deprived him of the right to practice his profession and deprived the Jensens of their right to counsel of their choice. He also argued that the order had been entered without notice or an opportunity to respond. The circuit court entered its written findings of fact and order granting the mistrial, but did not specifically address Forman's motion for reconsideration of the revocation of his pro hac vice status.
¶ 11. The court of appeals granted leave to appeal the narrow question of whether there is a right to notice and an opportunity to be heard before a circuit court withdraws an attorney's pro hac vice admission. The court of appeals then certified the question to this court, and we accepted the certification.
II
[1]
¶ 12. Resolution of the certified question begins with the Supreme Court Rule governing admission of attorneys pro hac vice:
*148 A judge in this state may allow a nonresident counsel to appear in his or her court and participate in a particular action or proceeding in association with an active member of the state bar of Wisconsin who appears and participates in the action or proceeding. Permission to the nonresident lawyer may be withdrawn by the judge granting it if the lawyer by his or her conduct manifests incompetency to represent a client in a Wisconsin court or by his or her unwillingness to abide by the rules of professional conduct for attorneys and the rules of decorum of the court.
Supreme Court Rule 10.03(4). The Rule commits the decision to grant or withdraw pro hac vice admission to the discretion of the trial court. Filppula-McArthur v. Halloin, 2001 WI 8, 241 Wis. 2d 110, 622 N.W.2d 436.
¶ 13. Pro hac vice admission has always been considered a privilege rather than a right:
As a matter of comity, the courts of this state have practically always...except in criminal proceedings on behalf of the state...cheerfully conceded the privilege to attorneys of sister states to engage in the conduct of trials in this state. But such has always been recognized as a privilege extended to such outside counsel and not as a right to be claimed on their part.... There can be no question but that many lawyers of prominence have carried on substantial business in more than one state at the same time and without question or criticism. The extent to which such privilege may be extended is a matter for the courts of each state to determine when a question in that regard is presented in any particular situation.
In re Pierce, 189 Wis. 441, 450, 207 N.W. 966 (1926) (citations omitted). The United States Supreme Court *149 has held that an attorney does not have a constitutional right to be admitted pro hac vice. Leis v. Flynt, 439 U.S. 438, 442-43 (1979).
¶ 14. The Jensens and Forman contend, however, that once an attorney has been admitted pro hac vice in a particular case, the attorney acquires a limited property interest that requires the due process protections of notice and an opportunity to be heard before that status may be revoked. This is an issue of first impression in this state.
¶ 15. Some jurisdictions have concluded that attorneys have a limited property interest in pro hac vice admission, entitling them to notice and an opportunity to be heard as a matter of constitutional due process before that status can be revoked.[4] Other jurisdictions have sidestepped the constitutional argument and found that notice and an opportunity to respond are required for policy reasons.[5]
*150 ¶ 16. We conclude that, for reasons of policy and sound judicial administration, attorneys should receive notice and some opportunity to respond before pro hac vice admission is revoked. Accordingly, we do not reach the constitutional question. Labor and Farm Party v. Election Bd., 117 Wis. 2d 351, 354, 344 N.W.2d 177 (1984) (courts generally do not consider constitutional questions when the case is resolvable on other grounds); see also Zander v. County of Eau Claire, 87 Wis. 2d 503, 519, 275 N.W.2d 143 (Ct. App. 1979).
¶ 17. The United States Court of Appeals for the Third Circuit adopted this approach in Johnson v. Trueblood, 629 F.2d 302 (3d Cir. 1980) (per curiam), and we find its treatment of the issue persuasive. In Johnson, the Third Circuit held that some type of notice and an opportunity to respond were necessary when a court sought to revoke an attorney's pro hac vice status. The court reached its decision not on constitutional due process grounds but as a matter of judicial policy. In Johnson, the trial court, sua sponte and without notice, had revoked an attorney's pro hac vice status as a result of his disruptive and unprofessional conduct. Id. at 302. The court of appeals reversed the trial court and said that some form of notice and an opportunity to respond were required, for these reasons:
[S]ome sort of procedural requirement serves a number of salutary purposes. It ensures that the attorney's reputation and livelihood are not unnecessarily damaged, protects the client's interest, and promotes more of an appearance of regularity in the court's processes.
*151 Id. at 303.
¶ 18. The court in Johnson allowed for some flexibility of procedure, recognizing that the decision is discretionary in the trial court and some circumstances may not require formal notice and full hearing. Id. at 303-04. Accordingly, the court left the form of the notice to the discretion of the trial court, specifying only that it identify two things: "the conduct of the attorney that is the subject of the inquiry, and the specific reason this conduct may justify revocation." Id. at 304.
¶ 19. As for the opportunity to respond, the court in Johnson held that a full-scale hearing is not required in every case. Id. at 304. "All that we will mandate is that the attorney be given a meaningful opportunity to respond to identified charges." Id. Again, the court left the nature and scope of the opportunity to respond to the discretion of the trial court. Id.
¶ 20. We agree with the flexible approach of the Third Circuit in Johnson. We therefore conclude that, for reasons of judicial policy, attorneys admitted pro hac vice must be provided some form of notice and an opportunity to respond before pro hac vice status may be withdrawn under SCR Rule 10.03(4). The form of the notice and opportunity to respond is left to the sound discretion of the circuit court, provided, however, that the attorney is notified of the conduct which is alleged to violate SCR 10.03(4) and the specific reason this conduct may justify revocation under the rule.
¶ 21. The defendants contend that Forman was effectively put on notice that his pro hac vice status was in jeopardy when the circuit court ruled on the mistrial motion. They also contend that Forman had ample opportunity to respond during the course of the argument on the motion.
*152 [2]
¶ 22. While it is true that the circuit court explicitly and forcefully placed the blame for the mistrial squarely on Forman, revocation of the attorney's pro hac vice admission was never mentioned as a possible sanction for his conduct. Mistrial, attorneys' fees, and costs were the only remedies under consideration. The circuit court's sua sponte order rescinding Forman's pro hac vice status came five days later, without any form of notice or an opportunity to respond, formal or otherwise. We find it noteworthy that the circuit court acknowledged as much in an amicus curiae brief and suggested that "if this court should decide that notice and an opportunity to be heard are required, the case...should be remanded to the Circuit Court for notice and hearing."
¶ 23. We agree and therefore reverse the circuit court's order revoking Forman's pro hac vice admission and remand the cause to the circuit court for further proceedings consistent with this opinion.
By the Court.The order of the Walworth County Circuit Court is reversed and the cause remanded.
NOTES
[] Motion for reconsideration denied June 19, 2001. Please see per curiam opinion 244 Wis. 2d 398.
[1] Pro hac vice is defined as: "For this turn; for this one particular occasion. For example, an out-of-state lawyer may be admitted to practice in a local jurisdiction for a particular case only." Black's Law Dictionary 1227 (7th ed. 1999).
[2] All subsequent references to the Wisconsin Statutes are to the 1997-98 version unless otherwise indicated.
[3] All subsequent references to the Wisconsin Supreme Court Rules are to the 1998 version.
[4] See Bank of Hawaii v. Kunimoto, 984 P.2d 1198, 1214 (Haw. 1999) (holding that once a nonresident attorney has been granted pro hac vice status in a case by a judge, the nonresident attorney gains a "limited property interest" that is held pursuant to Hawaii Supreme Court Rules and that the deprivation of this property interest previously held under state law must be in accord with requisite constitutional safeguards); see also Kirkland v. National Mortgage Network, Inc., 884 F.2d 1367, 1371-72 (11th Cir. 1989)(holding that it was clear that admission of an attorney pro hac vice constitutes a property interest entitled to due process protection because an attorney admitted pro hac vice enjoys the same basic procedural rights as regular counsel).
[5] See Taberer v. Armstrong World Indus., Inc., 954 F.2d 888 (3d Cir. 1992); United States v. Collins, 920 F.2d 619 (10th Cir. 1990); United States v. Summet, 862 F.2d 784 (9th Cir. 1988); Koller v. Richardson-Merrell, Inc., 737 F.2d 1038 (D.C. Cir. 1984) rev'd on other grounds, 472 U.S. 424 (1985); Johnson v. Trueblood, 692 F.2d 302 (3d Cir. 1980); Hallman v. Sturm Ruger & Co., Inc., 639 P.2d 805 (Wash. Ct. App. 1982). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595236/ | 954 So.2d 703 (2007)
RAMESE'S, INC., d/b/a Cleo's, et al., Appellants,
v.
METROPOLITAN BUREAU OF INVESTIGATION, Appellee.
No. 5D06-1795.
District Court of Appeal of Florida, Fifth District.
April 20, 2007.
Steven G. Mason of Steven G. Mason, P.A., Orlando, for Appellant.
Lawson Lamar, State Attorney, Ninth Judicial Circuit, Willie May and Darlene Simmons, Assistant State Attorneys, Orlando, for Appellee.
EVANDER, J.
On May 27, 2005, Ramese's, Inc., d/b/a Cleo's, represented by Steven G. Mason, P.A. (collectively Appellants) submitted a public records request to the Metropolitan Bureau of Investigation (MBI). Scott Campbell, a lieutenant in the Orange County Sheriff's Office, responded to Appellants' request. Campbell produced some of the requested documents, redacted others, and declined to produce others. Campbell contended the non-produced items were exempt from a public records request. Appellants objected to the redactions and the non-production of certain documents.
Appellants subsequently filed a lawsuit against MBI seeking to obtain the requested documents which had not been produced (or had been redacted). The State Attorney for the Ninth Judicial Circuit of Florida filed a motion and amended motion to quash service of process and dismiss the complaint, alleging MBI was not a suable entity. A copy of the Metropolitan Bureau of Investigation Mutual Cooperation Agreement ("Agreement") was attached to the amended motion.[1] A hearing was ultimately held on the amended motion. The trial court found MBI was not a suable entity and dismissed Appellants' action with prejudice. We affirm.
MBI is a cooperative, multi-agency law enforcement task force in Central Florida, originally consisting of seven member agencies under the Agreement.[2] The Agreement provides that MBI's purpose is "to be a coordinated multi-agency law enforcement unit directed at vice, narcotics, *705 organized crime, racketeering, and other criminal enterprises in the Ninth Judicial Circuit, including Orange County and Osceola County, Florida, to allow for specialization and an ongoing and coordinated approach, as well as common utilization of training and support functions and the pooling of investigative and administrative resources."
This court has previously held that a multi-agency law enforcement task force is only subject to suit if the parties that created the task force intended to create a separate legal entity. Pondella Hall for Hire, Inc. v. Croft, 844 So.2d 696 (Fla. 5th DCA 2003).
Here, the Agreement does not contain any indication that the member agencies intended to create a separate legal entity capable of being sued in its own name. Under the Agreement, each member agency is represented on MBI's governing board. Each member agency assigns law enforcement and administrative personnel to MBI at a staffing level determined by that member agency's representative on the governing board. The respective member agencies "retain full responsibility for the compensation, retirement, insurance, liability and discipline of their own personnel assigned to the MBI."
MBI is funded by contributions of equipment and staffing from the individual budgets of the member agencies and does not have a centralized budget. The member agencies provide in-kind contributions of items such as office space, utilities, gasoline, telephone costs, etc., in such proportion as determined by the governing board. Member agencies may also elect to contribute cash for recurring operational expenses.
These provisions reflect that the member agencies did not intend MBI to be a separate legal entity. Each member agency retained control and responsibility over its own personnel. Furthermore, MBI does not have a centralized budget, but is instead funded by contributions of equipment and staffing from the individual budgets of the member agencies. The trial court properly concluded that MBI was not a legal entity capable of being sued. Id., at 697; see also Brown v. Fifth Judicial Dist. Drug Task Force, 255 F.3d 475 (8th Cir.2001); Hervey v. Estes, 65 F.3d 784 (9th Cir.1995).
Appellants contend that an affirmance of the trial court's decision would unfairly require them to bring an action against all the agency members.[3] We disagree. The Agreement implicitly recognizes the right of each member agency to have access to all documents in the possession of MBI. Because the Agreement fails to designate a particular member agency to be responsible for responding to public records requests, it would appear Appellants could bring its action against any of the member agencies.[4]
AFFIRMED.
TORPY and LAWSON, JJ., concur.
NOTES
[1] The Agreement was dated February 8, 1996. This type of mutual aid agreement is specifically authorized by the Legislature. § 23.1225(1)(a), Fla. Stat.
[2] The member agencies, as set forth in the Mutual Cooperation Agreement, are the State Attorney for the Ninth Judicial Circuit, the Sheriff of Orange County, the Sheriff of Osceola County, the Orlando Police Department, the Winter Park Police Department, the Apopka Police Department, and the Ocoee Police Department.
[3] The agency members would be ascertained by a review of the Mutual Aid Agreement. Section 23.1225(4) requires that a copy of a mutual aid agreement must be filed with the Department of Law Enforcement.
[4] During oral argument, counsel for the State Attorney's Office acknowledged that an action to obtain MBI's public records could be brought against either the State Attorney's Office or the Orange County Sheriff (Lt. Campbell's employer). Section 23.1225(1)(a) requires a mutual aid agreement to designate the agency or entity that shall bear liability arising from acts undertaken under the agreement. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595238/ | 28 So.3d 29 (2009)
B.A.H.
v.
STATE of Alabama.
CR-07-2236.
Court of Criminal Appeals of Alabama.
May 1, 2009.
Rehearing Denied May 29, 2009.
Certiorari Denied August 14, 2009.
Alabama Supreme Court 1081191.
*30 Christopher Gene Childers, Florence, for appellant.
Troy King, atty. gen., and William D. Little, asst. atty. gen., for appellee.
KELLUM, Judge.[1]
The appellant, B.A.H., was adjudicated delinquent after pleading guilty to the underlying charge of unlawful possession of marijuana, a violation of § 13A-12-214, Ala.Code 1975. B.A.H. was ordered to serve two weekends at the Boy's Attention Home. Before entering his guilty plea, B.A.H. reserved the right to appeal the trial court's denial of his motion to suppress certain evidence.
On June 18, 2008, Officer Ira Davis of the Florence Police Department initiated a traffic stop of a sport-utility vehicle ("an SUV") for a violation of the city's noise ordinance. Four people were inside the SUV; B.A.H. was in the front passenger seat. The driver got out of the vehicle and Officer Davis began writing her a citation. Officer Davis approached the SUV to talk with the passengers. B.A.H. asked the officer if he could get out of the car to buy a drink from the gasoline service station where the SUV had been pulled over. Officer Davis testified that B.A.H. "seemed to want to be anywhere else other than where he was." (R. 7.) Officer Davis told B.A.H. that he could exit the vehicle to go inside the store, but that he would be subject to a patdown. Officer Davis testified he was concerned for his safety at this point. B.A.H. told the officer he was not going to get out of the vehicle because he did not want to undergo a patdown. B.A.H.'s answer, along with his subsequent nervous demeanor and fidgeting "sent up a red flag in [Officer Davis's] mind." (R. 10.) Given the circumstances, Officer Davis suspected that B.A.H. might have a weapon on his person, so he asked B.A.H. to get out of the vehicle and lift his shirt so *31 Officer Davis could see if he had a weapon in the waistband of his pants. B.A.H. complied and Officer Davis observed a clear, plastic bag containing marijuana hanging from his front pocket. B.A.H. was arrested and charged with second-degree possession of marijuana.
B.A.H. filed a motion to suppress the marijuana because, he alleged, it was the product of an illegal search. On August 20, 2008, the trial court held a hearing on B.A.H.'s motion to suppress. Officer Davis testified to the aforementioned facts for the State. B.A.H. presented no evidence in opposition. B.A.H. argued that the search by Officer Davis was improper because, he said, the officer did not have reasonable suspicion sufficient to justify the search. Furthermore, B.A.H. argued that Officer Davis exceeded the scope of a Terry[2] stop and frisk by asking B.A.H. to lift his shirt in order to dispel the officer's suspicion that B.A.H. was armed. The trial court denied B.A.H.'s motion upon finding B.A.H. implicitly consented to the search by agreeing to lift his shirt in response to Officer Davis's request. B.A.H. then pleaded guilty after preserving the issues raised in his suppression motion. B.A.H. appealed.
I.
B.A.H. argues that the trial court erroneously denied his motion to suppress because, he says, Officer Davis's search was improper. Specifically, B.A.H. argues that Officer Davis had insufficient reasonable suspicion to conduct a patdown because, based on the nature of the traffic stop, Officer Davis could not have reasonably suspected that he might uncover evidence of a more serious crime. Additionally, B.A.H. argues that Officer Davis did not have a reasonable suspicion that B.A.H. had committed a crime or that he was in the course of committing a crime, nor did he have a reasonable suspicion that B.A.H. was armed and dangerous.
"`This Court reviews de novo a circuit court's decision on a motion to suppress evidence when the facts are not in dispute.' See, State v. Hill, 690 So.2d 1201, 1203 (Ala.1996); State v. Otwell, 733 So.2d 950, 952 (Ala.Crim.App.1999)." State v. Davis, 7 So.3d 468, 469-70 (Ala.Crim.App.2008). Here, the facts are undisputed; Officer Davis was the sole witness to testify at the suppression hearing, and his testimony was undisputed. Thus, the only issue before the Court is whether the trial court correctly applied the law to the facts presented at the suppression hearing, and we afford no presumption in favor of the trial court's ruling.
"`Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), law enforcement officers may conduct investigatory stops of persons or vehicles if they have a "reasonable suspicion that criminal activity has occurred, is occurring, or is about to occur..."' Davis, 7 So.3d at 470, quoting Wilsher v. State, 611 So.2d 1175, 1179-80 (Ala.Crim.App.1992) (internal citations omitted). When an officer stops a suspects pursuant to Terry, the officer "`"`is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.' [Terry,] 392 U.S. at 30, 88 S.Ct. 1868."'" Smith v. State, 884 So.2d 3, 9 (Ala.Crim.App.2003), quoting Riddlesprigger v. State, 803 So.2d 579, 582 (Ala. Crim.App.2001). In State v. Hails, 814 So.2d 980 (Ala.Crim.App.2000), this Court explained the standards by which any Terry search would be judged:
*32 "`Police may conduct a patdown search without a warrant if, under the totality of the circumstances, the officer has an articulable, reasonable suspicion that a person is involved in criminal activity and that he is armed. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The reasonableness of the search is measured objectively. If a reasonably prudent person would believe that his safety, or the safety of others, is endangered, he may conduct a limited search of outer clothing to discover any weapons. Id. at 27, 88 S.Ct. 1868.'
"United States v. Raymond, 152 F.3d 309, 312 (4th Cir.1998). `And in determining whether the officer acted reasonably in such circumstances, due weight must be given ... to the specific reasonable inference which he is entitled to draw from the facts in light of his experience.' Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968)."
814 So.2d at 986.
This Court has recognized that a traffic stop is "`"more analogous" to the brief investigative detention authorized in Terry'" than custody traditionally associated with a felony arrest. Sides v. State, 574 So.2d 856, 858 (Ala.Crim.App.1990), quoting Pittman v. State, 541 So.2d 583, 585 (Ala.Cr.App.1989), quoting in turn Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). In stopping a vehicle for a traffic violation, a police officer has, in Fourth Amendment terms, seized the driver, Cains v. State, 555 So.2d 290, 292 (Ala.Crim.App.1989), quoting Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), as well as any passenger, Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). Furthermore, so long as the police officer has properly seized the occupants of the car, the officer may order the driver, Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), or a passenger, State v. Hails, 814 So.2d 980 (Ala.Crim.App.2000), cert. denied, 814 So.2d 988 (Ala.2001), recognizing Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), out of the car without violating the Fourth Amendment. See, State v. Abner, 889 So.2d 52, 53-54 (Ala.Crim.App.2004) (recognizing the applicability of Mimms and Wilson in Alabama).
When a police officer properly seizes a vehicle for a traffic violation, the police officer may not only order the driver out of the vehicle, but may also pat down the driver for weapons if the officer reasonably believes that the driver is armed and dangerous. Mimms, 434 U.S. at 112, 98 S.Ct. 330. Recently, the United States Supreme Court expanded the Terry traffic stop jurisprudence in Arizona v. Johnson, ___ U.S. ___, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009), holding that, as with a driver suspected of carrying a weapon, a police officer may also order a passenger out of a vehicle and conduct a patdown of a passenger if the officer reasonably believes that the passenger is armed and dangerous. The Supreme Court explained:
"[I]n a traffic-stop setting, the first Terry condition a lawful investigatory stop is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person *33 subjected to the frisk is armed and dangerous."
___ U.S. at ___, 129 S.Ct. at 784 (emphasis added).
In Johnson, police officers pulled over a vehicle after a license-plate check indicated that vehicle's registration had been suspended for an insurance-related violation. As one officer approached the vehicle, she noticed that the passenger in the backseat, Johnson, turned around to watch the officers and stared at her as she approached the vehicle. Johnson had a police scanner in his pocket and was wearing blue clothing, which the officer believed indicated his membership in the Crips, a violent street gang. Johnson informed the officer that he was from an area that the officer knew was home to a Crips gang. The officer suspected that Johnson might have a weapon on him based on his appearance and the answers he provided to her questions. The officer asked Johnson to step out of the car with the purpose of obtaining gang-related intelligence. The officer patted Johnson down after he got out of the car, felt a gun near his waist, and placed Johnson under arrest. ___ U.S. at ___, 129 S.Ct. at 784-85.
The lower courts found that Johnson was lawfully seized but reversed his conviction on the grounds that, before the frisk, the officer had no right to pat down Johnson for weapons because their discussion outside of the car was a "separate, consensual encounter." ___ U.S. at ___, 129 S.Ct. at 785, citing State v. Johnson, 217 Ariz. 58, 170 P.3d 667, 673 (Ariz.Ct. App.2007). The United States Supreme Court disagreed, explaining:
"A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable .... An officer's inquiries into matters unrelated to the justification of the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop. See, Muehler v. Mena, 544 U.S. 93, 100-101 (2005)."
Johnson, ___ U.S. at ___, 129 S.Ct. at 788.
The facts in this case closely mirror the facts in Johnson. Here, Officer Davis stopped the vehicle in which B.A.H. was a passenger for violating a noise ordinance. Before issuing a citation, Officer Davis approached the car to talk to the occupants. He testified that he developed a reasonable suspicion that B.A.H. was potentially armed and dangerous based on B.A.H.'s nervous demeanor, fidgeting in the face of questioning by the officer, and his admission that he didn't want "[Officer Davis] patting [him] down." (R. 7.) Officer Davis was entitled to draw inferences, in light of his experiences, from the facts he observed, and we are to give due weight to these inferences in determining their reasonableness. Hails, 814 So.2d at 986, citing Terry, 392 U.S. at 27, 88 S.Ct. 1868. Under the totality of the circumstances, it was not unreasonable for Officer Davis to conduct a patdown for weapons based on a reasonable suspicion that B.A.H. was armed and dangerous. Accordingly, pursuant to Johnson, Officer Davis's search of B.A.H., which was based upon a reasonable suspicion that B.A.H. was armed, was not unconstitutional.
II.
B.A.H. also argues that Officer Davis exceeded the permissible scope of the Terry stop by asking B.A.H. to raise his shirt. Specifically, B.A.H. argues to this court that Officer Davis was authorized under Terry only to conduct a patdown *34 of B.A.H.'s person and could not ask him to raise his shirt.
"The reasonableness of the search is measured objectively." Terry, 392 U.S. at 27, 88 S.Ct. 1868. We must give due weight to an officer's inferences, which are based upon his experiences. Hails, 814 So.2d at 986, citing Terry, 392 U.S. at 27, 88 S.Ct. 1868. "The reasonableness of such searches and seizures depends upon `a balance between the public interest and the individual's right to personal security.'" State v. Odom, 872 So.2d 887, 890 (Ala.Crim.App.2003), quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).
Officer Davis did not pat B.A.H. down after he asked B.A.H. to get out of the vehicle. Instead, Officer Davis asked B.A.H. to lift his shirt because, in his experience, the waist area is "normally where people put pistols." (R. 8.) When asked by defense counsel at the suppression hearing why he asked B.A.H. to lift his shirt instead of conducting a patdown, Officer Davis replied, "My basis was I'll meet him halfway. He didn't want me to pat him down, that's fine." (R. 12.)
During a Terry stop, the search conducted by a police officer "`"`is limited in scope to a "pat-down" of the suspects' outer clothing and to seizure of hard objects whose size and shape give the officer probable cause to believe they are weapons.'"'" Hails, 814 So.2d at 987, quoting Martin v. State, 695 So.2d 141, 143 (Ala.Crim.App.1996), quoting in turn Smith v. State, 292 Ala. 120, 289 So.2d 816, 818 (Ala.1974). "The police officer may intrude beneath the outer surface of the suspect's clothing only if the police officer feels an object he reasonably suspects may be a weapon." Ex parte James, 797 So.2d 413, 418-19 (Ala.2000), citing Terry, 392 U.S. at 30, 88 S.Ct. 1868.
Several federal courts of appeal have upheld as appropriate under Terry searches analogous to Officer Davis's search of B.A.H. in which no patdown took place. In United States v. Hill, 545 F.2d 1191 (9th Cir.1976), a police officer stopped the appellant on the street to ask if he had seen a person matching the description of a suspect in an armed robbery of a bank that look place in the area just a few minutes earlier. While talking with the appellant, the officer observed a large bulge in the appellant's waistband. The officer became reasonably suspicious that the appellant was carrying a weapon in his waist band, lifted the appellant's shirt, and found rolls of currency wedged into the appellant's waistband.
The United States Court of Appeals for the Ninth Circuit held that the district court properly denied the appellant's motion to suppress because, under the circumstances, the search was not "overly intrusive" and thus impermissible under Terry. 545 F.2d at 1193. The Court explained:
"Terry, supra, confines a self-protective search for weapons to an intrusion reasonably designed to discover instruments of assault. It precludes general exploratory searches. In the instant case the officer's investigation was wholly confined to the area of the bulge in question and was a direct and specific inquiry. As such it did not transcend the permissible bounds established by Terry. ...
"Finally, Terry does not in terms limit a weapons search to a so-called `pat down' search. Any limited intrusion designed to discover guns, knives, clubs or other instruments of assault are permissible. The raising of the shirt in the instant case is well within the boundaries established by Terry."
*35 545 F.2d at 1193. See, e.g., United States v. Baker, 78 F.3d 135 (4th Cir.1996) (citing Hill to support the conclusion that the officer was not limited to a patdown under Terry but could ask the suspect to raise his shirt in order for the police officer to find out if the appellant was armed); United States v. Reyes, 349 F.3d 219 (5th Cir. 2003) ("[T]he raising of suspect's shirt by a law enforcement officer does not violate the boundaries established in Terry," citing Hill and Baker)
Under the circumstances, Officer Davis's request for B.A.H. to lift his shirt in lieu of conducting a patdown complies with the narrow focus and limited scope of Terry. In this situation, Officer Davis was not attempting to conduct a full-blown search nor did he exceed the boundaries of a typical Terry, stop-and-frisk situation; he simply gave B.A.H. another manner by which B.A.H. could demonstrate that he was not carrying a weapon.
B.A.H. points to various cases in which this Court has found that a police officer exceeded the permissible bounds of Terry to support his argument that Officer Davis's request that B.A.H. lift his shirt so that the officer may inspect B.A.H.'s person for weapons was constitutionally impermissible. However, each of these cases is readily distinguishable from the case at hand. In Davis v. State, 901 So.2d 759 (Ala.Crim.App.2004), and Ex parte Tucker, 667 So.2d 1339 (Ala.1995), otherwise valid searches in which officers properly made the appellants remove objects from their pockets a contact-lens case and a 35-mm. film canister, respectively became unreasonable when the officers opened the containers without a warrant or without justification under an exception of a warrantless search. In Martin v. State, 695 So.2d 141 (Ala.Crim.App.1996), the police officer lacked reasonable suspicion that the appellant was armed and dangerous and was thus not justified in asking her to empty her pockets or conduct a Terry patdown. Unlike the police in Davis and Tucker, Officer Davis did not conduct a more invasive and thus improper search based on the feel of a suspicious object on the suspect's person. Unlike the officer in Martin, Officer Davis conducted the Terry stop of his suspect, B.A.H., based on a reasonable suspicion that the suspect was armed and dangerous.
B.A.H. likewise claims that Officer Davis's actions were analogous to the unconstitutional search carried out by an officer in Ford v. State, 680 So.2d 948 (Ala. Crim.App.1995). In Ford, the Court found that the officer was looking for narcotics and not a weapon during a Terry stop. Accordingly, the officer's search was deemed invalid because, "[w]hen [the officer], told the appellant to `take it out,' referring to the contents of his shirt pocket, he went beyond a general protective exploratory search approved by Terry and was blatantly conducting a illegal warrantless search." 680 So.2d at 951 (emphasis added).
None of the facts at hand indicate that Officer Davis was suspicious of drug activity or that B.A.H. had drugs on his person. Officer Davis's testimony indicated that he was only trying to dispel his reasonable suspicions that B.A.H. was in fact carrying a weapon. The record indicates that Officer Davis asked B.A.H. to raise his shirt only because Davis was concerned B.A.H. was armed, because he knew based on his experience that people generally store weapons in the waistband of their pants, and because he was trying to abide by B.A.H.'s wish that Officer Davis not pat him down. Unlike the police officers in Davis, Tucker, Martin, and Ford, Officer Davis did not conduct a blatantly illegal warrantless search, but rather stayed *36 within the constitutional bounds of conducting a general protective exploratory search. Under these facts, we believe that Officer Davis did not exceed the scope and boundaries of the Fourth Amendment set forth by Terry and subsequent Alabama caselaw. Accordingly, we hold that Officer Davis did not carry out an unconstitutional search under Terry when he asked B.A.H. to lift his shirt in order to dispel Officer Davis's reasonable suspicion that B.A.H. was armed.
III.
B.A.H. also argues that the trial court erred in finding that he implicitly consented to Officer Davis's request to search him. Specifically, he argues that implied consent can not be found in his compliance with Officer Davis's request for him to get out of the vehicle and submit to a search by raising his shirt. B.A.H. argues to this Court that his actions were mere submission to police authority and that his consent was not knowingly, intelligently, and freely given.
In Ex parte Tucker, we explained:
"Warrantless searches are per se unreasonable, unless they fall within a recognized exception. Ex parte Hilley, 484 So.2d 485 (Ala.1985). Those exceptions include: objects in plain view, consensual searches, a search incident to a lawful arrest, hot pursuit or emergency situations, probable cause coupled with exigent circumstances, and a Terry `stop and frisk' situation. Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973). Where a search is executed without a warrant, the burden falls upon the State to show that the search falls within an exception. Kinard v. State, 335 So.2d 924 (Ala.1976)."
667 So.2d at 1343.
As stated, Officer Davis properly seized B.A.H. when he stopped the vehicle in which B.A.H. was a passenger for a traffic violation. Once B.A.H. was seized, Officer Davis developed a reasonable suspicious that B.A.H. was armed. Pursuant to the United States Supreme Court's extension of Terry and Mimms in Arizona v. Johnson, Officer Davis properly removed B.A.H. from the vehicle to search him for weapons. Accordingly, we hold that Officer Davis did not need B.A.H.'s consent to search him because the warrantless search was proper under both Terry and Johnson. Thus we need not reach the question whether B.A.H. consented either actually or implicitly to Officer Davis's request to search.
Based on the foregoing, the judgment of the trial court is affirmed.
AFFIRMED.
WISE, P.J., and WELCH and WINDOM, JJ., concur.
NOTES
[1] This case was originally assigned to another judge on the Court of Criminal Appeals; it was reassigned to Judge Kellum on January 20, 2009.
[2] Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595240/ | 954 So.2d 269 (2007)
FIRST THRIFT AND LOAN, L.L.C., Plaintiff-Appellee,
v.
Leonard James GRIFFIN, Jr. and Dawn Savitra Rabon Griffin, Defendant-Appellant.
No. 41,666-CA.
Court of Appeal of Louisiana, Second Circuit.
March 14, 2007.
*270 Thomas W. Rogers, Ruston, for Appellant.
Philip T. Deal, for Appellee.
Before WILLIAMS, GASKINS and SEXTON (Pro Tempore), JJ.
WILLIAMS, Judge.
The defendants, Leonard Griffin, Jr. and his wife, Dawn Griffin, appeal a judgment in favor of the plaintiff, First Thrift and Loan, L.L.C., in the amount of $30,856. The trial court found that plaintiff, which paid laborers in exchange for acts of assignment, was entitled to assert a claim for the price of work performed in the construction of defendants' home. For the following reasons, we reverse and render.
FACTS
On March 1, 1996, Leonard and Dawn Griffin signed a contract with John Bass, d/b/a John L. Bass Construction Company, for the construction of their home in Calhoun, Louisiana. The total price of $131,800 was to be paid in installments, or draws, as the work progressed. The parties did not file notice of the contract in the property records of Ouachita Parish. Bass entered into an informal arrangement with First Thrift and Loan, L.L.C. ("First Thrift"), which advanced money to Bass for construction of the premises. Bass then reimbursed First Thrift upon receipt of the draws from the Griffins.
After paying several draws requested by Bass, the Griffins became dissatisfied with his alleged failure to follow the house plans, his failure to properly supervise the work and failure to pay the laborers. On July 16, 1996, the Griffins paid a draw of $15,750, which was the last payment to Bass. From July 24, 1996 through November 1996, First Thrift paid the laborers directly and obtained assignments from them of any rights they possessed against Bass and the Griffins. In December 1996, Leonard Griffin spoke with Bass, expressed concern about his performance and said that he would make payments to the workers. Bass stopped working at the construction site.
In February 1997, First Thrift filed a "labor lien affidavit" with the Ouachita Parish clerk's office. Subsequently, the plaintiff, First Thrift, filed a petition to enforce the lien against the defendants, Leonard and Dawn Griffin, seeking payment of $30,856. The defendants filed an exception of no cause or no right of action, which was denied. After a trial, the district court issued a written ruling, finding that the statement of claim filed by First *271 Thrift satisfied the statutory requirements and that it was entitled to recover based on the laborers' assignments of rights. The court rendered judgment ordering defendants to pay $30,856 to First Thrift. Defendants appeal the judgment.
DISCUSSION
The defendants contend the trial court erred in allowing First Thrift to assert the claims of laborers based on alleged acts of assignment. Defendants argue that since none of the laborers actually filed a lien against defendants, they did not have any claims to assign to First Thrift.
When an owner contracts for the improvement of an immovable with a contractor, the Louisiana Private Works Act, LSA-R.S. 9:4801 et seq., grants laborers or employees of the contractor or subcontractor a claim against the owner and the contractor to secure payment of the price of work performed at the site of the immovable. LSA-R.S. 9:4802. The claims against the owner shall be secured by a privilege on the immovable upon which the work is performed. LSA-R.S. 9:4802(B). Those persons granted a claim and privilege by Section 4802 for work arising out of a general contract, notice of which has not been filed, shall file a statement of their claims and privileges within 60 days after substantial completion or abandonment of the work. LSA-R.S. 9:4822.
The Private Works Act creates a right against an owner in favor of a laborer, even though the laborer does not have a contractual relationship with the owner, by virtue of the worker filing a lien. However, until the laborer files this claim, he never achieves the status of creditor. Pringle-Associated Mortgage Corp. v. Eanes, 254 La. 705, 226 So.2d 502 (1969). The legislative intent and fundamental aim of the Private Works Act is to protect laborers and subcontractors who engage in construction and repair projects. Hibernia National Bank v. Belleville Historic Development, L.L.C., 01-0657 (La.App. 4th Cir.3/27/02), 815 So.2d 301, writ denied, 02-1177 (La.6/14/02), 818 So.2d 785.
In the present case, the parties do not dispute that the laborers who performed the work never filed a statement of lien. The testimony showed that the laborers were paid for their work. Consequently, as stated in Pringle, supra, since the laborers never filed a claim they cannot be considered creditors of the defendants. Thus, the laborers did not have a valid claim under the statute to assign to First Thrift, which cannot have any greater right than the laborers. Accordingly, we shall reverse the judgment.
In its brief, First Thrift contends that Pringle is not applicable because this case involves written assignments of rights and not subrogation. First Thrift's position is not supported by the applicable law.
In an assignment, the assignee is subrogated to the rights of the assignor against the debtor. LSA-C.C. art. 2642. Subrogation is the substitution of one person to the rights of another. LSA-C.C. art. 1825. Thus, contrary to First Thrift's contention, in obtaining assignments from the laborers it sought subrogation by substituting itself to the rights of another. However, since the laborers in this case did not file liens, they never possessed any rights against the defendants that could be assigned. First Thrift's contention lacks merit.
In reaching the conclusion that First Thrift did not obtain a valid lien through the purported acts of assignment of the laborers, we pretermit a discussion of the defendants' remaining assignments of error.
*272 CONCLUSION
For the foregoing reasons, the trial court's judgment is reversed and judgment is hereby rendered in favor of the defendants, Leonard Griffin, Jr. and Dawn Griffin, dismissing plaintiff's claims. Costs of this appeal are assessed to the appellee, First Thrift and Loan, L.L.C.
REVERSED AND RENDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599337/ | 3 So.3d 175 (2009)
Rodney FIELDER, Appellant,
v.
STATE of Mississippi, Appellee.
No. 2007-CP-01614-COA.
Court of Appeals of Mississippi.
February 24, 2009.
*176 Rodney Fielder (Pro Se), attorney for appellant.
Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
Before LEE, P.J., GRIFFIS and BARNES, JJ.
LEE, P.J., for the Court.
PROCEDURAL HISTORY AND FACTS
¶ 1. On February 11, 2003, in the Scott County Circuit Court, Rodney Fielder pleaded guilty to armed robbery. Fielder was sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections. Fielder filed a motion for post-conviction relief alleging improper indictment, involuntary plea, and ineffective assistance of counsel. The trial court denied Fielder's motion on April 28, 2006.
¶ 2. On December 27, 2006, Fielder filed a motion seeking permission to file an out-of-time appeal. Fielder also asserted that his claim constituted a motion for reconsideration because of newly discovered evidence, namely a transcript of his guilty plea. This motion was subsequently denied by the trial court.
¶ 3. On April 26, 2007, Fielder filed a motion entitled "Motion for Immediate Release from the Department of Corrections." The trial court, treating the motion as one for post-conviction relief, denied Fielder's motion. Fielder now appeals asserting the following assignments of error: (1) the trial court erred in denying his motion for post-conviction relief in light of newly discovered evidence; (2) the trial court erred in finding his guilty plea was voluntary; (3) he received ineffective assistance of counsel; and (4) the trial court failed to discuss the merits of his claims. Finding Fielder's motion to be a successive writ, we affirm.
STANDARD OF REVIEW
¶ 4. A trial court's denial of post-conviction relief will not be reversed absent a finding that the trial court's decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). However, when issues of law are raised, the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).
*177 DISCUSSION
¶ 5. Under Mississippi Code Annotated section 99-39-23(6) (Rev.2007), all successive motions for post-conviction relief are barred if the prisoner has filed a previous post-conviction-relief motion. Fielder's first motion for post-conviction relief was found to be without merit and dismissed by the trial court. Fielder's second motion for post-conviction relief, although not styled as such, was filed on April 26, 2007, and thus was a successive writ. Furthermore, Fielder has failed to point to an exception listed in section 99-39-23(6) to overcome the successive-writ bar. This issue is without merit.
¶ 6. THE JUDGMENT OF THE SCOTT COUNTY CIRCUIT COURT DENYING THE MOTION FOR POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SCOTT COUNTY.
KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599382/ | 467 N.W.2d 1 (1990)
Mark SAULS, Appellee, Cross-Appellant,
v.
STATE of Iowa, Appellant, Cross-Appellee.
No. 89-1318.
Court of Appeals of Iowa.
December 27, 1990.
Thomas J. Miller, Atty. Gen., Gordon E. Allen, Deputy Atty. Gen., Suzie A. Berregaard, Asst. Atty. Gen., for appellant.
Philip B. Mears of Mears, Zimmerman & Mears, Iowa City, for appellee.
*2 Considered by OXBERGER, C.J., and SCHLEGEL and HAYDEN, JJ.
SCHLEGEL, Judge.
Respondent, State of Iowa, appeals a district court ruling granting petitioner Mark Sauls' request for postconviction relief and disallowing assessment of certain alleged costs of a prison disciplinary action. Sauls cross-appeals portions of the same ruling denying his claim that he was entitled to counsel substitute during his disciplinary hearing, and he claims the postconviction court was in error in restricting aspects of a hearing officer's cross-examination. We reverse on the appeal and affirm the dismissal of the cross-appeal.
Prison inmates Sauls and Haviland allegedly threatened to kill a third inmate, Drake. Because of these threats, Drake was placed in protective segregation, where he was unable to perform his prison job. However, because Drake's segregation did not result from any conduct of his own, prison authorities continued to pay Drake his normal prison wage of $2.10 per day. Drake was paid a total of $63 for time when he was unable to work.
As a result of the threat on Drake's life, inmate Sauls was accused of violating several prison rules. The prison disciplinary committee imposed several punishments on Sauls, including a requirement that Sauls repay half the wages paid to Drake for time he could not work. (Haviland was directed to pay the other half of the wages in question.)
Sauls challenged the prison disciplinary action by filing an application for postconviction relief. The district court denied most of the relief sought by Sauls and upheld most aspects of the disciplinary action. However, the district court did strike that part of the punishment which required Sauls to repay half the wages paid to Drake while he could not work. The district court held that the prison disciplinary committee had no authority to impose such a wage assessment as a punishment for a violation of prison rules.
The State has appealed the district court's order. The State challenges only that part of the order which strikes the wage assessment from the punishments to be imposed on Sauls. The State contends that Iowa Code section 246.505 authorized the prison disciplinary committee to impose costs, including a wage assessment like that involved here, as a punishment for a violation of prison rules. Sauls cross-appeals, claiming he was denied due process by the failure of the committee to appoint counsel substitute and that the court improperly restricted cross-examination of a witness at the postconviction hearing.
I. Upon trial of the postconviction proceedings, the district court held that the disciplinary committee was without authority to impose costs as a sanction for disciplinary misconduct. The State appeals that part of the ruling. We find that authority to impose costs is within the authority conferred upon the Department of Corrections. We therefore reverse and reinstate the decision of the disciplinary committee as to the assessment of costs.
In considering legislative enactments we should avoid strained, impractical or absurd results. Ordinarily, the usual and ordinary meaning is to be given the language used, but the manifest intent of the legislature will prevail over the literal import of the words used. Where language is clear and plain there is no room for construction. We should look to the object to be accomplished and the evils and mischiefs sought to be remedied in reaching a reasonable or liberal construction which will best effect its purpose rather than one which will defeat it. Iowa Nat'l Indust. Loan Co. v. Iowa State Dep't of Revenue, 224 N.W.2d 437, 440 (Iowa 1974); Wollenzien v. Board of Education, 297 N.W.2d 215, 217 (Iowa 1980). We examine both the language used and the purpose for which the legislation was enacted. Northern Natural Gas Co. v. Forst, 205 N.W.2d 692, 695 (Iowa 1973).
Authority for the committee's action is contained in Iowa Code section 246.505, specifically section 246.505(1)(a) and (e). Those sections provide:
*3 1. Inmates who disobey the disciplinary rules of the institution to which they are committed shall be punished by the imposition of the penalties prescribed in the disciplinary rules, according to the following guidelines:
a. To ensure that sanctions are imposed only at such times and to such a degree as is necessary to regulate inmate behavior within the limits of the disciplinary rules and to promote a safe and orderly institutional environment.
* * * * * *
e. To define the elements of each offense and the penalties which may be imposed for violations, in order to give fair warning of prohibited conduct.
In accordance with these guidelines, the institution has adopted rules setting out the matters which are violations of those rules, and the sanctions imposed as a result of those violations. Specifically, under rule II(H)(3)(c), provision is made for "Assessed costs (itemized list of costs) i.e. store order." Under this sanction, the committee assessed the costs and debited Sauls' store account for the amount of the costs assessed.
We hold that the sanction of costs is permitted under the provisions of Iowa Code section 246.505. We therefore reverse that part of the district court's holding and reinstate the order of the committee assessing the costs.
II. Sauls cross-appeals, contending that the court was in error in failing to require that counsel substitute be appointed to assist him at the disciplinary hearing. Sauls concedes that he was not entitled to counsel at that hearing. Wolff v. McDonnell, 418 U.S. 539, 570, 94 S.Ct. 2963, 2981-82, 41 L.Ed.2d 935 (1974). That case, however, recognizes that under some circumstances there would be a right to counsel substitute. Id. Primarily, such a right exists when a prisoner is illiterate or is unable to understand the proceedings.
Sauls claims that because the case depended almost entirely on information supplied by confidential informants, it was complex and required someone to be able to examine the confidential information being used and make a determination as to the reliability of that information. We hold that the mere fact that the case involved confidential informants does not render the case so complex that Sauls required counsel substitute. Id. at 569-70, 94 S.Ct. at 2981-82.
III. Finally, Sauls claims the district court improperly restricted cross-examination of witness Larry Brimeyer, the hearing officer who chaired the committee that conducted the disciplinary hearing. The cross-examination related solely to a determination of the reliability of the confidential informants.
In the case of a disciplinary hearing based upon confidential information, the interest of the inmate in a fair hearing requires that some indication of the confidential informant's reliability be apparent. Howard v. State, 439 N.W.2d 193, 195 (Iowa 1989). To satisfy that requirement there must be sufficient information in the record to convince the reviewing authority that (1) the disciplinary committee undertook the reliability inquiry and (2) correctly concluded that the confidential information was credible and reliable. Id. This required the district court to determine that there was such an inquiry and that the confidential information was credible. This the district court did. It refused to allow counsel for the inmate to cross-examine the hearing officer upon that issue. As to him, that inquiry was irrelevant. The decision was for the court to make from the record. What Brimeyer did or did not conclude was not a proper inquiry before the district court.
Considering all of the issues raised upon this appeal, we reverse the trial court's finding that there was no authority to assess the costs of Mr. Drake's wages, and we affirm the district court's determination in all other respects.
Costs are taxed to appellee.
AFFIRMED IN PART; REVERSED IN PART. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599384/ | 788 F.Supp. 1336 (1992)
Marianne TROTTA, Plaintiff,
v.
MOBIL OIL CORPORATION, Defendant.
No. 90 Civ. 5663.
United States District Court, S.D. New York.
April 8, 1992.
*1337 Carway & Flipse, Mineola, N.Y. (Adrienne Flipse, of counsel), for plaintiff.
Dechert Price & Rhoads, Philadelphia, Pa. (Mari Shaw, Michael J. Salmanson, of counsel), for defendant.
OPINION & ORDER
EDELSTEIN, District Judge:
In this action, plaintiff Marianne Trotta ("Ms. Trotta" or "plaintiff") claims that Mobil Oil Corporation ("Mobil" or "the company" or "defendant") subjected her to a hostile work environment because of her sex in violation of Title VII, 42 U.S.C. § 2000e et seq. In support of her claim, plaintiff alleges that Mobil allowed sexually offensive conduct at mandatory business meetings and related social functions. According to plaintiff, these functions included the presence of female strippers and women clad in leather astride motorcycles, as well as the presentation of sexually suggestive gifts. In what plaintiff claims was "the last straw," one of her supervisors projected a slide of her backside on to a movie screen at a company outing. Plaintiff alleges that Mobil's sexually hostile work environment caused her to leave the company.
Mobil rejects plaintiff's contention that it fostered a sexually hostile work environment, and instead argues that plaintiff sued after a corporate reorganization affected her job prospects within the company. Mobil asserts that due to the reorganization, a promotion that plaintiff had wanted in New York would have required relocating to Fairfax, Virginia. When plaintiff refused to relocate, another woman received the promotion. In addition, the reorganization resulted in a transfer to Virginia of plaintiff's role in the budgeting process, which was her favorite part of the job. Noting that plaintiff actively pursued alternate employment opportunities before the slide show incident, defendant alleges that the effects of the corporate reorganization, *1338 and not a supposedly hostile work environment, prompted plaintiff's resignation. Defendant contends that plaintiff collected the farrago of incidents alleged in this lawsuit after the fact, and that these incidents did not adversely affect her employment. Even if the incidents plaintiff complained of occurred as she described them, defendant claims that the incidents were not sufficiently severe or pervasive to constitute a hostile work environment under Title VII.
This Court conducted a bench trial of this action after which both sides submitted proposed findings of fact and conclusions of law. Pursuant to Rule 52 of the Federal Rules of Civil Procedure, the following constitutes this Court's findings of fact and conclusions of law.
FINDINGS OF FACT
I. Plaintiff's Employment History
Ms. Trotta is a female citizen of the United States who resides in Mamaroneck, New York. [Stipulated Fact ("Stip.") No. 1; Trial transcript ("Tr.") at 14]. During her employment at Mobil, which lasted from December 21, 1980 through August, 1988, she held several different positions and received a number of promotions [Stip. No. 2]. From December 22, 1980 to May 1981, Ms. Trotta served as a Marketing Representative in Training at an annual salary of $21,000. [Stip. No. 3; Tr. at 15]. From May 1981 until February 1986, Ms. Trotta served as a Marketing Representative beginning at a grade level 9 and an annual salary of $24,130.54. During this period, she received salary increases each year and her grade level progressed to a level 12. [Stip. Nos. 4 & 5; Tr. 19-20]. From February 1986 to August 1988, Ms. Trotta served as an administrative supervisor in the Westchester/Connecticut Resale Sales District at a grade 13 salary level. [Stip. No. 6]. Ms. Trotta's last pay raise at Mobil was effective July 1, 1988, which gave her a salary of $44,500 per year. [Stip. No. 7].
Ms. Trotta's resignation from Mobil took effect on August 31, 1988. She left Mobil to work at Richter Properties Inc. ("Richter Properties") at a salary of $37,000. [Tr. at 97]. On March 31, 1989, Ms. Trotta left Richter Properties. On April 10, 1989, ten days later, Ms. Trotta started working at MCI Telecommunications Corp. ("MCI") as a Manager of Expense and Compensation at a salary of $45,000. [Stip. Nos. 38 & 39; Tr. at 14, 97]. Ms. Trotta testified at trial that her job at MCI has worked out well, and in April 1990, her salary increased to $48,600. [Tr. at 98, 122].
II. Mobil's Reorganization and Ms. Trotta's Reaction
In February 1988, Mobil announced a reorganization of its Resale Division, where Ms. Trotta was then employed. [Stip. No. 10]. At the time of this announcement, the highest ranking person within the Westchester/Connecticut Resale Sales District was Judy Schultz, who served as the District Sales Manager. [Stip. No. 8]. It became Ms. Schultz's responsibility to explore job opportunities for all employees in the District whose jobs would be affected by the reorganization, and to discuss with each employee his or her options. [Tr. at 215].
Because Ms. Trotta's job was affected by the reorganization, Ms. Schultz met with Ms. Trotta on February 9, 1988, to discuss plaintiff's employment options. Also present at the meeting were Patricia Hepp, the Field Marketing Employee Relations Representative, and Reid Grimes, Ms. Trotta's immediate supervisor. [Stip. No. 11; Tr. at 57, 216, 268]. At the meeting, Ms. Trotta was offered two jobs: (1) a promotion to a grade 14 position in Fairfax, Virginia, or (2) a staff analyst position at her current salary and grade level in the Westchester/Connecticut District. [Stip. No. 12; Tr. at 57, 216, 273; Defendant's Exhibit ("Def.Exh.") 2].
While a final determination about the duties associated with each job had not been made, Ms. Schultz told Ms. Trotta that administrative budgeting, Ms. Trotta's favorite task, would be transferred to Fairfax, Virginia. Other parts of Ms. Trotta's job were to remain in the Westchester/Connecticut District. [Tr. at 216, 224, 234].
*1339 Ms. Trotta was unhappy with the prospect of employment as a grade 13 staff analyst in her district because of uncertainty over what the job would entail. She was not, however, willing to relocate to Fairfax to take a grade 14 job, and she indicated many times that she would not transfer to Fairfax. [Stip. Nos. 9 & 13; Tr. at 58-60]. Ms. Trotta's refusal to relocate limited her ability to obtain a promotion. [Tr. at 201-22].
At the February 9, 1988 meeting, Ms. Trotta inquired whether she could resign her position at Mobil and take a severance package. [Tr. at 108]. Ms. Hepp advised Ms. Trotta that, pursuant to Mobil policy, she would not be entitled to severance pay upon resigning because she had been offered a position at Mobil. [Tr. at 109; Def.Exh. 2, 14].
Ms. Trotta became further aggravated about her employment situation after attending a meeting with Terry McKenna, her supervisor and the District Administrative and Controls Manager, on July 27, 1988. At this meeting, Ms. Trotta learned that Ms. Schultz had offered another female, Cindy Vallorani, a grade 14 position within the district. [Stip. No. 15; Tr. at 74-75]. Then, in meetings on July 27 and 29, 1988, Ms. Trotta told Mr. McKenna of her displeasure over Ms. Vallorani's grade 14 position because she felt that Ms. Vallorani was receiving a promotion to a higher level while performing the same job as Ms. Trotta. [Stip. No. 31]. Mr. McKenna explained to Ms. Trotta that Ms. Vallorani's job was not identical to plaintiff's job because Ms. Vallorani's job entailed a transfer to Mobil's headquarters in Fairfax, Virginia within 18 months to two years. [Stip. No. 32; Tr. at 59, 74]. In that same conversation with Mr. McKenna, Ms. Trotta reiterated her lack of interest in relocating to Fairfax. [Tr. at 110]. Ms. Vallorani did in fact relocate, initially to Fairfax, Virginia and then to Dallas, Texas. [Tr. at 218].
As a result of the reorganization and the substance of discussion at the February 9, 1988 meeting, which left Ms. Trotta unhappy with her job opportunities within Mobil, Ms. Trotta immediately started looking for other employment. [Tr. at 109]. During the Spring of 1988, she actively pursued other employment with the help of several employment agencies. [Stip. No. 14; Tr. at 111]. Ms. Trotta gave the employment agencies a copy of her resume, explained the reorganization and downsizing at Mobil, and requested that they identify job opportunities outside the company. [Tr. at 60]. In a letter dated April 10, 1988, Ms. Trotta wrote to PepsiCo seeking employment. In the letter, Ms. Trotta explained that "Mobil Oil is continuing to consolidate, thus severely limiting advancement opportunities. For this reason I have begun to look elsewhere." [Tr. at 111; Def.Exh. 3]. Ms. Trotta accepted the first job offer she received from another company. [Tr. at 109].
III. The Atlantic City Outing, Scavenger Hunt, and Slide Show
In July, 1988, before Ms. Trotta obtained a job outside Mobil, the Westchester/Connecticut District sponsored an outing in Atlantic City, New Jersey. [Stip. No. 16]. Ms. Trotta described the event as a district function designed to entertain and amuse employees. [Tr. at 62]. Almost all of those attending the outing travelled to Atlantic City in a chartered bus that departed from Greenwich, Connecticut. Ms. Trotta, however, drove to Atlantic City in her own car. [Stip. No. 17].
One event at the outing was a group scavenger hunt. Participants in the scavenger hunt divided into teams, each of which received a camera to take pictures of the event. Ms. Trotta did not object to the scavenger hunt. In fact, she participated in it. [Stip. No. 19; Tr. at 112]. At the end of the scavenger hunt, Jack Whalen, one of Ms. Trotta's scavenger hunt teammates, was returning to a restaurant with other members of his team in order to hand in the team's scavenger hunt items. As other Mobil employees walked down the boardwalk in front of him, he noticed one picture left in the team's camera and took a picture. [Tr. at 236].
The picture shows Ms. Trotta from behind, from her neck down to her feet. In *1340 the picture, Ms. Trotta is seen carrying the scavenger hunt list and a gym bag filled with items collected from the scavenger hunt. Ms. Trotta is fully clothed in the picture, and the only skin showing is the skin of her arms where the sleeves end. The picture also includes part of another co-worker, teammate Dave Driscoll, approximately from his waist down to his feet. [Plaintiff's Exhibit ("Pl.Exh.") 1-B; Tr. at 114-15, 235-37].
Mr. Whalen put the pictures in the team bag with other pictures of the scavenger hunt. He did not know at the time, nor could he have known, that the pictures would be converted into slides. [Tr. at 237]. It was only after the scavenger hunt that Ms. Schultz had the idea to convert pictures taken during the scavenger hunt into slides to be shown at a dinner during the outing. [Stip. No. 20]. After reviewing her own team's pictures, Ms. Schultz thought it would be fun for everyone at the outing to view the pictures. [Tr. at 219]. Ms. Schultz had not seen any photographs of Ms. Trotta, or any photographs taken by other teams, when she suggested to Mr. McKenna that they convert scavenger hunt pictures into slides. [Tr. at 219].
Mr. McKenna and another district employee, Maury Billig, went through the photographs of the scavenger hunt and removed those pictures that did not depict people, such as pictures of a telephone pole and the sky. [Tr. at 250]. They sent the remaining pictures to a camera shop to be converted into slides. Mr. McKenna did not direct the camera shop to alter the pictures in any way, and did not examine the slides when they came back from the camera shop. [Tr. at 251]. Mr. McKenna hoped that the slides would depict all the activities and participants involved in the scavenger hunt so that collectively the slides would capture the flavor and spirit of the event. [Tr. at 261]. In addition, Mr. McKenna and Mr. Billig included pictures of themselves working with hotel staff, cooks, housekeepers, and bellhops. [Tr. at 251].
Although Ms. Trotta learned that a photograph of her had been converted into a slide, she did not ask to see the slide before the slide show, nor did she request that the slide not be shown. [Tr. at 112-13, 251].
The slides were shown as part of the entertainment after dinner on Thursday night, July 21, 1988. Mr. McKenna provided commentary to accompany the slides. [Stip. No. 22]. One of the slides shown was the picture Mr. Whalen had taken of Ms. Trotta. The slide was not an exact duplicate of the picture, but had been cropped significantly on the top and bottom, and slightly on the sides. [Tr. at 239].
There is conflicting testimony about what happened when the slide of Ms. Trotta was shown. Ms. Trotta testified that before Mr. McKenna projected the slide on the screen, he said that it was a slide taken the day of the scavenger hunt, and he thought the group would find it amusing. According to Ms. Trotta, Mr. McKenna added, "[t]his is a rear view of Marianne Trotta." [Tr. at 251]. Mr. McKenna testified that he did not comment on the slide or identify the person in the slide as Ms. Trotta. [Tr. at 252]. Ms. Hepp, who was present at the slide show, testified that Mr. McKenna did not identify Ms. Trotta. [Tr. at 272]. Ms. Hepp stated that she was unable to identify the person in the slide when it was shown and had to ask someone sitting next to her the identity of the person in the slide. [Tr. at 272].
Given the irreconcilable versions of events, this Court must determine whether to credit Ms. Trotta's testimony or Mr. McKenna's and Ms. Hepp's testimony. Ms. Trotta's testimony was sketchy about many events. Rather than testifying candidly about events she observed, Ms. Trotta often made general conclusory statements. Ms. Trotta's testimony about the slide show was uncorroborated. Mr. McKenna and Ms. Hepp were candid witnesses who gave credible testimony. In addition, Mr. McKenna's and Ms. Hepp's testimony about the slide show corroborate each other. I therefore credit Mr. McKenna's and Ms. Hepp's version of events.
The slide of Ms. Trotta was shown for a few seconds. [Tr. at 239]. Ms. Trotta stayed for the entire slide show, during *1341 which she laughed at various slides, including those shown after the one of her. [Tr. at 239-40, 243]. Ms. Trotta did not talk to Mr. McKenna, Ms. Hepp, or Ms. Schultz about the slide the evening it was shown. [Tr. at 115-16]. Ms. Trotta testified that she left Atlantic City that evening because she was too upset to stay. Plaintiff admitted, however, that even before the slide show she planned on leaving Atlantic City that evening. [Tr. at 89-90].
IV. After the Slide Show
On Monday, July 25, 1988, Ms. Trotta complained to Mr. McKenna about the slide presentation. [Stip. No. 24]. Ms. Trotta told Mr. McKenna that she did not appreciate the slide of her and asked that he give her both the slide and picture. [Tr. at 253]. Mr. McKenna told Ms. Trotta that he was sorry, and that he did not mean to embarrass her in any way. Mr. McKenna then gave her both the slide and the picture, and apologized again. [Tr. at 117-18, 252-53].
When Ms. Schultz telephoned the office that day, she was told by Mr. McKenna that Ms. Trotta had asked for and received the slide and the picture of her. [Tr. at 220]. Because at the time Ms. Schultz did not remember the slide of Ms. Trotta, she asked Mr. McKenna to have a picture developed from the negative so that she could see the picture upon returning to the office that week. [Tr. at 220]. Upon her return, she received a detailed account from Mr. McKenna about his meeting with Ms. Trotta. Although Ms. Schultz asked Mr. McKenna for a copy of the picture, Mr. McKenna could not produce one because there was no negative. [Tr. at 221].
Although Ms. Trotta had in the past lodged complaints with Employee Relations, she never registered any objection to the slide show incident. [Tr. at 118]. In explaining her decision not to register a complaint, Ms. Trotta testified that she did not call Employee Relations because an Employee Relation's Representative, Ms. Hepp, was present at the outing. [Tr. at 118]. Ms. Trotta, however, also testified that she could have called other Mobil employees to complain about the incident. [Tr. at 118].
Ms. Trotta also testified about two separate exchanges she had with fellow employees. She testified to having had two phone conversations with two male co-workers after the Atlantic City event. One told her not to worry about the slide show, that he thought she "looked great" and "was very sexy." [Tr. at 77-78]. Ms. Trotta testified that she told the co-worker that she was upset about the slide and did not want to discuss it. [Tr. at 77]. According to Ms. Trotta, another male co-worker told her he thought the photograph was great because "he liked round people, he was round himself." [Tr. at 78]. According to Ms. Trotta, any discussion about the slide died down by August before she received a job offer from Richter Properties and before she submitted her resignation. [Tr. at 119].
V. Ms. Trotta's Resignation
Although Ms. Trotta began looking for a job immediately after the February 9, 1988 meeting with Ms. Schultz, Ms. Trotta did not tender her resignation until she found another job. [Tr. at 93]. This occurred on August 15, 1988, when Ms. Trotta received a job offer from Richter Properties. [Stip. No. 25; Tr. at 93]. This offer was the first one that Ms. Trotta had received since she began looking for another job in February 1988. Four days later, on August 19, 1988, Ms. Trotta submitted her resignation to Ms. Schultz, effective August 31, 1988. [Stip. No. 26; Tr. 79; Pl.Exh. 12].
In her resignation letter, Ms. Trotta first complained about "recent personnel changes within the company in general, and the District in particular." [Stip. No. 27; Pl.Exh. 12]. Ms. Trotta admitted that this complaint referred to Ms. Vallorani. [Tr. at 119-20]. Plaintiff also complained that her position in the district was "grossly undervalued." [Stip. No. 28; Tr. at 81]. This complaint also referred to Ms. Vallorani. [Stip. No. 30]. At trial, Ms. Trotta admitted that she resigned in part because of her displeasure with Ms. Vallorani's promotion. [Tr. at 82].
*1342 In her resignation letter, Ms. Trotta made it clear that she disagreed with the Mobil policy that conditioned certain promotions on a willingness to relocate. Ms. Trotta stated "[i]t apparently suits management to punish employees who do not wish to relocate by giving them ever increasing responsibility without a corresponding increase in group level." [Stip. No. 33; Tr. at 110]. Although in the letter Ms. Trotta did mention her disgust with Mobil business meetings which, Ms. Trotta asserted, were merely excuses to overdrink and misbehave, she did not contend that these meetings prompted her resignation, nor did she claim ever to have been sexually harassed. [Stip. No. 29; Pl.Exh. 12]. Ms. Trotta did not mention the Atlantic City outing or the slide show incident in the resignation letter. [Pl.Exh. 12].
Upon submitting her resignation letter, Ms. Trotta testified that she told Ms. Schultz that the Atlantic City function was an example of the way Mobil used funds so that people could "drink and drink and overdrink and act inappropriately" at meetings. [Tr. at 81]. Before submitting her resignation, Ms. Trotta had never complained to Ms. Schultz about sexual harassment. [Tr. at 221].
VI. The Environment at Mobil
In this action, Ms. Trotta attempted to link isolated incidents of alleged sexual harassment, which allegedly occurred during her seven and one half year tenure at Mobil, to her resignation. Ms. Trotta claimed that these incidents were sufficiently severe and pervasive to create a hostile work environment and alter the conditions of her employment. Ms. Trotta testified to the following eleven incidents, listed here in chronological order: (1) in 1981, women scantily clad in leather astride motorcycles were present at a regional meeting; (2) in 1982, a slide of a woman's silhouette was shown at a business meeting; (3) in 1983, strippers performed at a sales review meeting held in a bar and grill; (4) in 1984, when Ms. Trotta, who had not been feeling well at a meeting, said at a cocktail party afterward that she was not feeling better, a male Mobil employee said that she could go up to his room and he would "make [her] feel better;" (5) in 1985, suggestive gifts were given to a woman and another unidentified person at a going away party; (6) in 1985, at a softball game in Westchester, male employees fed a female employee drinks until she could not stand up; (7) in 1986, two strippers performed at a meeting in Brooklyn; (8) in December 1987, at a Christmas party in Connecticut, a male employee kissed a woman's neck and bit her back; (9) a Mobil employee had taken a picture of a male employee's buttocks as he fell from a canoe; (10) in July 1988, in Atlantic City, a slide of Ms. Trotta's backside was shown at company dinner; and (11) male employees made comments to her about the slide show after the outing. Of these eleven alleged instances, only three were directed at Ms. Trotta herself. The other eight are alleged to have contributed to the hostile work environment at Mobil.
A. Incidents Directed at Ms. Trotta
1. Slides
While Ms. Trotta may have felt embarrassed by the slide show incident, neither taking the picture nor showing the slide constituted sexual harassment or contributed to a sexually hostile work environment. The picture of Ms. Trotta was taken on the way back from the scavenger hunt, and shows her carrying the list of items involved in the hunt and a bag of items collected from the hunt. The picture was intended to capture the spirit of the scavenger hunt and was not intended to embarrass or humiliate Ms. Trotta because she is a woman.
Ms. Trotta attempted to show that the allegedly unflattering photograph of her was not an isolated event. Ms. Trotta testified that she saw another photograph, this one of a male marketing representative, who "lost his pants" when he tipped over a canoe at a company outing during the summer of 1987. Although Ms. Trotta did not attend that outing, she claimed to have seen the photograph some months later after the picture had been made into a slide and presented to a group. Mr. Trotta *1343 testified that the picture depicted a man's "rear end with his buttocks exposed." [Tr. at 54-55]. According to Ms. Trotta, the male employee in the picture was very sensitive about his weight and was upset by the photograph. [Tr. at 55].
Although Ms. Schultz, who was present at the scene, testified that the gentleman did in fact "lose his pants," the only photograph of that male marketing executive tipping over in a canoe did not show his buttocks exposed. [Def.Exh. 9; Tr. at 212-14, 221-22]. The photograph was taken by Sue Hayden, who was responsible for taking pictures at that event. [Tr. at 212, 221-22]. She took the picture at the beginning of a canoe race when all three canoes in the race tipped over.
Ms. Trotta testified that when the photograph of her was taken at the scavenger hunt, she was 5'1" and weighed approximately 163 pounds. [Tr. at 79-80]. Ms. Trotta testified that she now weighs approximately 119 pounds. [Tr. at 80]. While Ms. Trotta and the male employee in the canoe race may have been sensitive about their weight and embarrassed by the slides, the photographs were not taken and the slides were not shown to humiliate them because of their gender. After considering the testimony at trial, I find that the slide of Ms. Trotta was taken and displayed at the company outing in an attempt to capture the spirit of the scavenger hunt and not with the intent to humiliate or embarrass Ms. Trotta either because she is a woman or because of her weight.
Ms. Trotta described the slide show incident as the main instance of sexual harassment that compelled her to leave Mobil. [Tr. at 25]. Even if Ms. Trotta was embarrassed by the slide show incident, it did not constitute an instance of sexual harassment.
2. Comments About the Slide
Ms. Trotta testified to having two phone conversations with two male co-workers after the outing. One told her not to worry about the slide show, that he thought she "looked great" and "was very sexy." [Tr. at 77-78]. Ms. Trotta testified that she told the co-worker that she was upset about the slide and did not want to discuss it. [Tr. at 77]. According to Ms. Trotta, another male co-worker told her he thought the photograph was great because "he liked round people, he was round himself." [Tr. at 78]. Ms. Trotta did not place these conversations in context. According to her testimony, Ms. Trotta initiated at least two conversations about the slide. [Tr. at 77]. Ms. Trotta's testimony about these conversations lacked corroboration and neither of the alleged commentators was called to testify. Given Ms. Trotta's often vague testimony, it is difficult for the Court to credit her testimony on this point.
3. The 1984 Incident
Other than the slide incident and comments that followed, Ms. Trotta testified to only one other incident directed at her. That incident allegedly took place in 1984 four years before Ms. Trotta's resignation and Ms. Trotta remembered it for the first time at trial in response to leading questions by her attorney. At trial, Ms. Trotta testified that in 1984, she attended a sales review meeting in Long Island. After the meeting, at a cocktail party, Ms. Trotta told several Mobil employees that she was not feeling well. [Tr. at 34]. At that point, a male Mobil employee said that if she was not feeling well, she should "go up to his room and he could make [her] feel better." [Tr. at 35].
Despite being asked at her deposition on January 21, 1991 to recall all of the alleged incidents of sexual harassment that resulted in her decision to resign, [Tr. at 99-100, 124], she did not testify at the deposition about the 1984 incident. In fact, Ms. Trotta also testified at her deposition that the first incident of any supposed sexual harassment directed at her was the slide show in July of 1988. [Tr. at 98-99].
This is the most direct and blatant incident of sexual harassment Ms. Trotta described at trial. Accordingly, it is difficult for this Court to believe that Ms. Trotta could not remember it until the day of trial. Given Ms. Trotta's failure to remember this incident until the day of trial, her obvious *1344 interest in bolstering her case, and her generally sketchy testimony, I do not find Ms. Trotta's testimony regarding this incident credible.
B. Indirect Incidents
1. 1981 Regional Meeting
Ms. Trotta testified that present at a 1981 regional meeting with a Western theme were scantily clad women in black leather outfits astride motorcycles on top of tables. [Tr. at 26, 136]. Cherisse Texidor, a co-worker who testified on behalf of Ms. Trotta, testified that there was only one such woman at the event, who was "on [a] motorcycle dressed in leather, reclining back on the seat, legs spread apart." [Tr. at 137]. Tulio Lopez, another witness to the event, testified on behalf of Ms. Trotta that a woman on a motorcycle was present at the meeting, but that the motorcycle was not on a table. [Tr. at 197]. Mr. Lopez did not recall the woman's attire. [Tr. at 197-98].
This Court finds that there was a woman on a motorcycle at the 1981 regional meeting. Nevertheless, given the different version of events recounted by Ms. Trotta and Ms. Texidor, the bias of Ms. Trotta, and the often incredible testimony of Ms. Texidor, this Court is unable to determine exactly what transpired at this meeting. Clearly, if the presence of the woman tended to objectify women, as the testimony of Ms. Trotta and Ms. Texidor suggest, this type of incident could contribute to a hostile working environment. Standing alone, however, it is not sufficiently severe in this case to constitute sexual harassment.
Ms. Trotta testified that she complained to Employee Relations about the motorcycle incident, and that as a result of her complaint, no similar incident occurred. [Tr. at 101-02].
2. Slide of Woman's Silhouette
Ms. Trotta testified that a regional manager projected a slide of a woman's silhouette on a screen during a presentation in 1982 and said, "Gee folks, I'm sorry, I didn't realize that this was in here, but since it is, it is kind of funny." Ms. Trotta testified that she complained to Employee Relations about this incident, that Employee Relations discussed it with the regional manager, and that Employee Relations had taken the action Ms. Trotta wanted taken. [Tr. at 100-01].
3. Strippers
Ms. Trotta testified that in 1983 she observed strippers at a sales review meeting in a bar and grill. [Tr. at 36, 106]. Ms. Trotta also testified that at the end of another meeting, which took place in 1986, she personally observed two strippers, but on cross-examination she admitted not to have been present when the event allegedly occurred. [Tr. at 41-42, 105-06]. The 1986 meeting that Ms. Trotta mentioned may have been the same meeting described by Ms. Texidor in her testimony. [Tr. at 140-41]. Ms. Texidor, however, testified that one stripper, not two, performed at this meeting. [Tr. at 140]. Ms. Texidor testified that Ms. Trotta did not attend the meeting. [Tr. at 141]. Although Ms. Texidor testified that she told Ms. Trotta about the stripper, there is no evidence that Ms. Trotta knew of this incident at the time of her resignation. Ms. Trotta did not recall hearing about other incidents involving strippers. [Tr. at 51].
4. Suggestive Gifts
Ms. Trotta testified that in 1985, during a going-away party for a woman, Diane Russo, people gave Ms. Russo and another unidentified person "very suggestive gifts." [Tr. at 37]. Ms. Trotta did not testify whether Diane Russo or other persons considered the gifts unwelcome or who gave the gifts.
5. Softball Game
At one point during the trial, Ms. Trotta testified that in 1985, during a softball game, a group of area managers "did their best to insist" that a female area manager "be like the men and drink like them." [Tr. at 38]. Ms. Trotta, however, gave inconsistent testimony on this point at trial. Ms. Trotta testified at trial that: (1) the male co-workers "kept feeding [the area manager] *1345 drinks until she was so drunk that she couldn't stand up," [Tr. at 38-39]; (2) she saw people pouring liquor down the area manager's throat, [Tr. at 104]; and (3) when she complained to Tulio Lopez, she told him that the area manager was "force fed liquor." [Tr. at 52]. But in earlier testimony at trial, before her attorney posed leading questions concerning this incident, Ms. Trotta testified that the area manager was not forced to drink. [Tr. at 38]. Further, at her deposition, Ms. Trotta testified as follows:
Q. What do you mean, deliberately tried, I mean, did they pour liquor down her throat or did they buy her drinks?
A. They kept buying her drinks. No they didn't pour liquor down her throat. They just kept, they made an environment for her where she was ... I guess she had difficulty dealing with. She later had too much to drink.
[Tr. at 104]. Ms. Trotta's deposition testimony is more credible than her conflicting trial testimony on this issue.
6. 1987 Christmas Party
Ms. Trotta testified that in December, 1987, at a Christmas party at the Danbury Hilton, an area manager, who was "extremely, extremely drunk," bit a female engineering analyst on the back while trying to kiss her. [Tr. at 40-41]. Ms. Trotta testified that Mr. Whalen was present at this incident [Tr. at 40]. Mr. Whalen testified that although he was present at the meeting, he did not observe the female engineering analyst being bitten. [Tr. at 233]. Ms. Trotta testified that the area manager apologized to the engineering analyst after Ms. Trotta reported the incident to her supervisor. [Tr. at 105].
C. Other Incidents
Ms. Trotta produced two witnesses, Ms. Texidor and Roseanne Favaro, who testified about other incidents at Mobil that allegedly contributed to producing a hostile work environment. Ms. Trotta, however, did not testify to an awareness of these incidents at the time she resigned from Mobil. Therefore, even if true, these incidents did not affect the conditions of Ms. Trotta's employment.
Even where relevant, Ms. Texidor's testimony was for the most part wholly lacking in credibility. She greatly exaggerated the incidents she related to the Court. [Tr. at 163]. Furthermore, Ms. Texidor was evasive even when testifying about such matters as whether she was employed at Mobil, the performance problems she had while at Mobil, and the accuracy of Mobil business forms. [Tr. at 164, 165, 166-69, 170-72].
Ms. Favaro testified to two incidents. First, Ms. Favaro testified that at an annual meeting held at a hotel, young male Mobil employees "trashed a room" when they "brought garbage from a dumpster and they scattered it around the room, a sleeping room, not a meeting room." [Tr. at 181]. There was no testimony that Ms. Trotta knew of this incident. Even if she did, this incident reveals immature and senseless behavior of a non-sexual nature. Second, Ms. Favaro testified that she attended a Mobil Christmas party with Ms. Trotta where a male stripper dressed like Santa Claus and a female stripper dressed like Mrs. Claus performed a striptease. [Tr. at 183-84]. While Ms. Favaro testified that Ms. Trotta was present during the striptease, Ms. Trotta did not testify that she observed or even knew about this incident.
VII. Mobil's Policy Against Sexual Harassment
Mobil has a policy against sexual harassment. Tulio Lopez, Ms. Trotta's supervisor from 1981-1986, testified that he attended seminars offered by Mobil almost every year on sexual harassment [Tr. at 203-04]. Mr. Lopez also recalled receiving a Mobil management guide, effective April 1, 1981, addressing sexual harassment. [Pl. Exh. 3; Tr. at 204].
Among other things, the management guide: (1) sets forth the Equal Employment Opportunity Commission's ("EEOC") regulations defining sexual harassment; (2) charges managers and supervisors with communicating Mobil's policy that "harassment *1346 of any kind will not be tolerated at any level" to employees; (3) establishes a complaint procedure whereby complainants can make a claim either to their supervisors or Employee Relations; (4) sets forth Mobil's policy ensuring that an employee will not suffer retaliation for lodging a harassment charge; and (5) makes clear that appropriate disciplinary action will result, including reprimand, suspension or discharge, against anyone violating the policy. [Pl.Exh. 3].
Mr. Lopez also testified that he received a document outlining how to conduct an EEOC workshop on sexual harassment, the stated objective of which was to have participants: understand the meaning of sexual harassment and its potential liabilities, be aware of some form of implicit as well as explicit occurrences of sexual harassment, know Mobil's policy regarding sexual harassment, and know what actions may be taken in the event a charge of sexual harassment arose. [Pl.Exh. 5].
The policy was also outlined in a statement dated January 14, 1985, from R.G. Weeks, Executive Vice President of the United States Marketing and Refining Division. The statement once again set out the EEOC's definition of sexual harassment and the procedure for reporting such incidents, as well as the penalties for engaging in sexual harassment. [Def. Exh. 12A].
Mr. Whalen, who was a marketing representative in the Westchester/Connecticut sales district in July 1988, also testified about Mobil's policy regarding sexual harassment. Mr. Whalen said he attended a company sponsored presentation on sexual harassment when he was training as a marketing representative. [Tr. at 230]. Mr. Whalen testified that Jim Texada, an employee relations advisor, told the trainees that it was Mobil's policy to provide an environment free of sexual harassment. [Tr. at 230-31].
Mr. Whalen also testified that when he worked as a retail training advisor, his responsibilities included presenting sexual harassment seminars to new management candidates and independent dealer candidates. [Tr. at 231]. In these seminars, Mr. Whalen told the candidates that Mobil did not tolerate sexual harassment. He also told them that if they felt an incident of sexual harassment occurred, they should report it to their supervisor or, if they felt uncomfortable doing so, their supervisor's supervisor, or employee relations. [Tr. at 231]. Mr. Whalen told the management candidates that if they were involved in an incident of sexual harassment they would receive counseling, and, if their behavior continued, would be subject to termination. [Tr. at 232]. Mr. Whalen also testified that he had seen the statement from R.G. Weeks. [Def.Exh. 12A].
Ms. Trotta was aware of Mobil's policy on sexual harassment, and she availed herself of its remedial provisions. When she made complaints to her supervisors or employee relations, they responded and took effective remedial actions. [Tr. at 29, 46, 53, 100-02, 105].
VIII. The Incidents That Occurred and Ms. Trotta's Reason For Leaving Mobil
Ms. Trotta and the witnesses she called on her behalf testified to a number of incidents that allegedly contributed to a hostile work environment. This Court has found that some of these incidents did not occur at all, and that Ms. Trotta did not know of others before her resignation from Mobil. Accordingly, in addressing Ms. Trotta's claim, this Court will consider only the following incidents: (1) in 1981, a woman on a motorcycle was present at a regional sales meeting; (2) in 1982, a regional manager projected a slide of a woman's silhouette on to a screen at a business meeting; (3) in 1983, strippers performed at a meeting held at a bar and grill; (4) in 1985, suggestive gifts were given to a woman at a farewell party; (5) in 1985, at a softball game in Westchester, male employees bought a female employee drinks until she got very drunk; (6) in December 1987, at a Christmas party in Connecticut, a male employee kissed a woman's neck and bit her back; (7) a picture was taken of a male employee falling from a canoe at a company event; and (8) in July 1988, the slide *1347 show incident occurred in Atlantic City and two male employees made comments to Ms. Trotta following the slide presentation. These incidents are wholly inappropriate in the workplace of an employer committed to a policy prohibiting sexual discrimination. The issue, however, is not whether these incidents were inappropriate. Rather, the issues are whether these incidents altered the conditions of Ms. Trotta's employment and whether they were sufficiently severe or pervasive to create a hostile work environment.
While Ms. Trotta found these incidents undesirable and offensive, she has failed to show that they altered the conditions of her employment. Although Ms. Trotta was upset when she left Mobil, her consternation did not stem from the alleged sexually hostile environment. Ms. Trotta was upset that her refusal to relocate limited her opportunities for promotion; she was upset that Ms. Vallorani received a promotion; she was upset over the transfer to Virginia of administrative budgeting, her favorite part of her job; and, she was upset with the uncertainty that accompanied Mobil's reorganization. Although Ms. Trotta contends that the incidents complained of here created an environment so hostile that she was forced to leave Mobil, Ms. Trotta did not resign because of these incidents. She left Mobil because of her dissatisfaction over her opportunities within the company and her position after the company's reorganization. Ms. Trotta would have resigned whether or not the events that allegedly created a sexually hostile work environment occurred.
While these incidents, spanning seven and one-half years, could contribute to a hostile work environment, Ms. Trotta has failed to show that they were sufficiently severe or pervasive to constitute a hostile work environment in this case. Few of the incidents were directed at Ms. Trotta and most were separated in time by approximately a year, and in some instances by two years. In addition, Ms. Trotta testified that her supervisors or Employee Relations addressed her complaints when she raised them.
In sum, these incidents did not alter the conditions of Ms. Trotta's employment or create an abusive working environment. A reasonable person in Ms. Trotta's position would not have felt that there was a sexually hostile environment at Mobil. Ms. Trotta did not feel compelled to resign, nor would a reasonable person in Ms. Trotta's position feel compelled to resign, because of the incidents that occurred during her tenure at Mobil. Neither Ms. Schultz nor Mobil discriminated against Ms. Trotta on the basis of her gender.
IX. Mobil's Offer of Re-employment and Ms. Trotta's Departure
After Ms. Trotta's resignation from Mobil, she received two offers for re-employment. The first came from Ms. Hepp and Rich Martinez, another Employee Relations Representative, who asked Ms. Trotta to reconsider her decision and offered to try and transfer Ms. Trotta to another job within the New York area. [Stip. No. 34]. On August 30, 1988, Mr. Martinez offered Ms. Trotta a transfer to a job in a different location working with different people. [Tr. at 120]. Ms. Trotta rejected this offer. [Tr. at 121].
The second offer for re-employment came after Ms. Trotta wrote letters to several Mobil managers about the circumstances surrounding her resignation. In response, in a letter dated September 15, 1988, T.C. DeLoach, vice-president of Marketing, offered Ms. Trotta the opportunity to return to Mobil in a resale position in the same general geographic area and at the same level. Mr. DeLoach further advised Ms. Trotta to contact Mr. Martinez if she had any interest in accepting the offer. [Stip. No. 35]. Ms. Trotta never contacted Mr. Martinez. [Stip. No. 36].
Upon leaving Mobil, Ms. Trotta was employed by Richter Properties as an Administrative and Budgets Manager at a salary of $37,000. [Stip. No. 37]. In a letter to Mr. Baskin, she wrote that the job provided her with a "good opportunity" to work in the financial area, where she always wanted to be. [Tr. at 121].
*1348 CONCLUSIONS OF LAW
Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). In Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), the Supreme Court held that sexual harassment constitutes sex discrimination in violation of Title VII. Courts have recognized that two forms of sexual harassment violate Title VII's prohibitions: (1) quid pro quo sexual harassment, and (2) sexual harassment based on a "hostile environment." See Kotcher v. Rosa, 957 F.2d 59, 62 (2d Cir.1992); Carrero v. New York City Housing Auth., 890 F.2d 569, 577 (2d Cir.1989). In quid pro quo cases, employers violate Title VII by conditioning employment benefits on yielding to sexual demands. Vinson, 477 U.S. at 64-65, 106 S.Ct. at 2404-05. In "hostile environment" cases, the employer's conduct "`has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.'" Vinson, 477 U.S. at 65, 106 S.Ct. at 2404 (quoting 29 C.F.R. § 1604.11(a)(3) (1985)).
Plaintiff does not allege quid pro quo sexual harassment, and no quid pro quo sexual harassment occurred in this case. Rather, plaintiff has premised her claim on a hostile work environment theory. The Second Circuit has stated that in a hostile work environment action, "[a] complaining employee is required to prove that ... [the] conduct [at issue] was unwelcome, that the conduct was prompted simply because of the employee's gender, and that the conduct was sufficiently pervasive to create an offensive environment antithetical to the priority of merit not sex or some other prohibited criterion in the workplace." Carrero, 890 F.2d at 578; see Kotcher, 957 F.2d 59, 62. Thus, in order to prevail under a hostile work environment theory, an employee must show that: (1) the employee was a member of a protected class; (2) the employee was subjected to unwelcome harassment; (3) the harassment was prompted simply because of the employee's gender; (4) the charged harassment affected a term, condition or privilege of employment; and (5) the existence of respondeat superior liability. See Jones v. Flagship Int'l, 793 F.2d 714, 719-20 (5th Cir.1986), cert. denied, 479 U.S. 1065, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987); Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th Cir.1982); Danna v. New York Telephone Co., 752 F.Supp. 594, 609-610 (S.D.N.Y.1990); Fair v. Guiding Eyes For the Blind, Inc., 742 F.Supp. 151, 155 (S.D.N.Y.1990); Bennett v. New York City Dept. of Corrections, 705 F.Supp. 979, 984 (S.D.N.Y.1989); Koster v. Chase Manhattan Bank, 687 F.Supp. 848, 862 (S.D.N.Y. 1988). Ms. Trotta has failed to show that the conduct at issue affected a term, condition, or privilege of employment. She has also failed to demonstrate the existence of respondeat superior liability.
I. Protected Group
The requirement that the plaintiff belong to a protected group in a sexual harassment case under Title VII is satisfied if there is a stipulation between the parties that the plaintiff is either a man or a woman. See Jones, 793 F.2d at 719-20; Henson, 682 F.2d at 903-05. The parties have stipulated that plaintiff, Marianne Trotta, is a woman, and therefore she is a member of a protected class. [See Stip. No. 1].
II. Unwelcome Sexual Harassment
"The gravamen of any sexual harassment claim is that the alleged sexual advances were `unwelcome.'" Vinson, 477 U.S. at 68, 106 S.Ct. at 2406; see Henson, 682 F.2d at 903; Koster, 687 F.Supp. at 861. For the conduct in question to be deemed harassment, "the conduct must be unwelcome in the sense that the employee regarded the conduct as undesirable or offensive." Henson, 682 F.2d at 903. Ms. Trotta found the conduct complained of in this action undesirable and offensive. Her distaste for this conduct, however, is not dispositive of the issues of whether the *1349 conduct altered the conditions of her employment or was sufficiently severe and pervasive to create a hostile working environment.
III. Harassment Prompted By Gender
Many courts have required that the alleged harassment take the form of sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. See Jones, 793 F.2d at 719-20; Henson, 682 F.2d at 903-05. Some courts, however, have held that the alleged conduct need not be sexual. See Andrews v. City of Philadelphia, 895 F.2d 1469, 1485 (3rd Cir.1990); Hall v. Gus Constr. Co., Inc., 842 F.2d 1010, 1014 (8th Cir.1988). In stating the essential elements of a Title VII sexual harassment claim, the Second Circuit has stated that a "complaining employee is required to prove ... that the conduct was prompted simply because of the employee's gender." Carrero, 890 F.2d at 578; see Fair, 742 F.Supp. at 156. Thus, the conduct underlying a sexual harassment claim need not be sexual in nature as long as the conduct is directed at the employee because of his or her sex. Adopting such a standard recognizes that "intimidation and hostility toward women because they are women can obviously result from conduct other than explicit sexual advances." Hall, 842 F.2d at 1014. Further, such a standard is consistent with Title VII's purpose of affording "employees the right to work in an environment free from discriminatory intimidation, ridicule and insult." Vinson, 477 U.S. at 65, 106 S.Ct. at 2405; see, e.g., Andrews, 895 F.2d at 1485 ("the pervasive use of derogatory and insulting terms relating to women generally and addressed to female employees may serve as evidence of a hostile environment").
Of the incidents that occurred in this case, some of the conduct was sexual in nature, while other conduct was not. The woman on the motorcycle, the slide of a woman's silhouette, the strippers, the suggestive gifts, and a male Mobil employee kissing and biting a female employee were incidents of a sexual nature. In addition, the comments made to Ms. Trotta by two male employees about the slide of her shown at the Atlantic City outing were sexual in nature. The incident at the softball game in 1985, where male employees got a female employee drunk, was not sexual. It was, however, directed at the female employee because of her sex.
The slides of Ms. Trotta returning from the scavenger hunt and of the male employee falling from a canoe were not taken or displayed because of gender. The slides were taken and displayed to capture the spirit and share the events of company outings. While both Ms. Trotta and the male employee may have been embarrassed by the slides, neither of them was singled out because of their gender.
IV. Affected a Term, Condition or Privilege of Employment
To affect a term, condition or privilege of employment, the conduct must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986); Ellison v. Brady, 924 F.2d 872, 876 (9th Cir.1991). "[T]he required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct." Ellison 924 F.2d at 878; see King v. Board of Regents, 898 F.2d 533, 537 (7th Cir.1990) ("Although a single act can be enough ... generally, repeated incidents create a stronger claim of hostile environment, with the strength of the claim depending on the number of incidents and the intensity of each incident"). Therefore, a showing of pervasiveness lessens the required showing of severity, and conversely, a showing of severity lessens the required showing of pervasiveness.
To be deemed "pervasive," the conduct complained of must be "continuous and concerted," and not merely episodic. Carrero, 890 F.2d at 577; see, e.g., Kotcher, 957 F.2d 59, 62 ("The incidents must be repeated and continuous; isolated acts or occasional episodes will not merit relief"); Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, *1350 1189 (2d Cir.1987) ("A hostile working environment is shown when the incidents of harassment occur either in concert or with a regularity that can be reasonably be termed pervasive"). "The offensiveness of the individual actions complained of is also a factor to be considered in determining whether actions are pervasive." Carrero, 890 F.2d at 578. Whether the conduct in question violates Title VII is to be determined from the totality of the circumstances. Vinson, 477 U.S. at 69, 106 S.Ct. at 2406; see Carrero, 890 F.2d at 577; Danna, 752 F.Supp. at 610. The conduct must be viewed from the standard of a reasonable person. Danna, 752 F.Supp. at 609-610; Bennett, 705 F.Supp. at 984.[1]
As well as affecting the reasonable person, the plaintiff must be adversely affected by the allegedly offensive conduct. See King, 898 F.2d at 537 (the court must conclude that the conduct would adversely affect both a reasonable person and the particular plaintiff bringing the action); Andrews, 895 F.2d at 1482 (same). "The subjective factor is crucial because it demonstrates that the alleged conduct injured this particular plaintiff giving her a claim for judicial relief. The objective factor, however, is the more critical for it is here that the finder of fact must actually determine whether the work environment is sexually hostile." Andrews, 895 F.2d at 1483.
Ms. Trotta has failed to show that the conditions of her employment were altered or that she was subjected to a hostile work environment. While Ms. Trotta's employment situation changed at Mobil, this change did not stem from a hostile environment, but from Mobil's corporate reorganization. Ms. Trotta's consternation with Mobil stems from limited opportunities for promotion open to her because of her refusal to relocate, not from the alleged sexually hostile environment. While Ms. Trotta found several incidents that occurred during the seven and one-half years at Mobil offensive, she has failed to show that these incidents altered the conditions of her employment.
Ms. Trotta has also failed to show that the incidents were sufficiently severe or pervasive to create a hostile work environment. Few of the incidents were directed at Ms. Trotta. The incidents spanned a period of seven and one-half years and were often separated by approximately a year. In addition, Ms. Trotta testified that her supervisors or Employee Relations addressed her complaints when she raised them. A reasonable person in Ms. Trotta's position would not have felt that there was a sexually hostile environment at Mobil. It is worth noting that having strippers at company-sponsored social functions and showing slides of a woman's silhouette at a company meeting are wholly inappropriate and contribute to creating a sexually hostile work environment. In this case, however, the allegedly offensive conduct is neither sufficiently severe or pervasive to constitute a sexually hostile work environment for purposes of Title VII.[2]
*1351 V. Respondeat Superior
In determining whether an employer is liable for a sexually hostile work environment, courts "look to agency principles for guidance." Vinson, 477 U.S. 57, 72, 106 S.Ct. 2399, 2408, 91 L.Ed.2d 49 (1986). In explaining these principles, the Second Circuit has stated that a "plaintiff must prove that the employer either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it." Kotcher, 957 F.2d 59, 63 (citing Snell v. Suffolk County, 782 F.2d 1094, 1104 (2d Cir.1986)). "[E]mployers are liable for failing to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known." EEOC v. Hacienda Hotel, 881 F.2d 1504, 1515-16 (9th Cir.1989); see Andrews, 895 F.2d at 1486; Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316 (11th Cir.1989). The EEOC guidelines provide that an employer's remedy should be "immediate and appropriate." 29 C.F.R. § 1604.11(d). Moreover, an employer's remedy must be real, and not a "sham." See Kotcher, 957 F.2d 59, 64.
Mobil provided a forum to address complaints of sexual harassment and it took steps to prevent and remedy incidents of sexual harassment. Mobil promulgated its sexual harassment policy in a management guide effective April 1, 1981. The guide defined sexual harassment, charged managers with the responsibility to communicate Mobil's refusal to tolerate sexual harassment, established complaint procedures, insulated employees from retaliation if they complained of sexual harassment, and vowed to take appropriate disciplinary action in cases of policy violations. In addition, Mobil conducted seminars on sexual harassment for its employees. Ms. Trotta was aware of Mobil's policy on sexual harassment and availed herself of its remedial provisions. When Ms. Trotta made complaints to her supervisors or Employee Relations, they responded and took effective remedial actions.
CONCLUSION
Plaintiff has failed to establish that she was subjected to a sexually hostile work environment or that the terms of her employment were altered in violation of Title VII. Plaintiff's claims are therefore dismissed in their entirety and judgment is to be entered in favor of defendant.
SO ORDERED.
NOTES
[1] Some circuits have chosen to view the conduct from the perspective of a "reasonable victim," which takes account of the plaintiff's gender. See, e.g., Ellison v. Brady, 924 F.2d 872, 878 (9th Cir.1991); Andrews v. City of Philadelphia, 895 F.2d 1469, 1483 (3rd Cir.1990); Yates v. Avco Corp., 819 F.2d 630, 637 (6th Cir.1987). The primary rationale behind this gender-specific standard is that a traditional reasonable person standard cannot account for "the wide divergence between most women's views of appropriate sexual conduct and those of men." Rabidue v. Osceola Refining Co., 805 F.2d 611, 626 (6th Cir.1986) (Keith, C.J., dissenting); see Ellison, 924 F.2d at 879 (the reasonable person standard "tends to be male biased and tends to systematically ignore the experiences of women").
In applying a reasonable person standard, courts can take account of gender-based differences. In a Title VII sexual harassment case involving a man's harassment of a woman, courts must consider that one purpose of Title VII was "to prevent the perpetuation of stereotypes and sense of degradation which serve to close or discourage employment opportunities for women." Andrews, 895 F.2d at 1483. Similarly, courts must neither trivialize the effects of sexual harassment upon a woman nor cling to ingrained notions of what male offenders may consider reasonable behavior. See Ellison, 924 F.2d at 879; Rabidue, 805 F.2d at 626 (Keith, C.J., dissenting).
[2] Ms. Trotta has also failed to demonstrate constructive discharge. In order to establish constructive discharge in violation of Title VII, the trier of fact must find that the "`working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.'" Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir.1983) (quoting Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir.1977)). A reasonable person in Ms. Trotta's position would not have found working conditions so difficult or unpleasant that she would feel compelled to resign. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599397/ | 467 N.W.2d 645 (1991)
M.M.D., Respondent,
v.
B.L.G., Appellant.
No. CX-90-2114.
Court of Appeals of Minnesota.
April 2, 1991.
Review Denied May 23, 1991.
*646 James Patrick Leavitt, III, J. Patrick Leavitt, Jr. P.A., Shakopee, for respondent.
Robert T. Stich, Stich, Angell, Kreidler & Muth, P.A., Minneapolis, for appellant.
Considered and decided by KALITOWSKI, P.J., and SHORT and POPOVICH,[*] JJ.
OPINION
SHORT, Judge.
M.M.D. brought this action against her former boyfriend, B.L.G., alleging he negligently and intentionally infected her with genital herpes. After a court trial, the trial judge found in M.M.D.'s favor. On appeal, B.L.G. argues M.M.D. failed to carry her burden of proof. We disagree and affirm.
FACTS
B.L.G. and M.M.D. met in October, 1985. They began a sexual relationship in January of 1986. Neither had been diagnosed with genital herpes before that time. In addition, M.M.D. had never experienced any symptoms of the disease before beginning her sexual relationship with B.L.G. However, B.L.G. had a history of genital sores and had indicated a concern about herpes to his physician as early as August, 1984. In November of 1985, B.L.G. sought medical attention for a recurring episode of sores on his penis. B.L.G.'s physician noted in his medical record B.L.G. should return to the office for a herpes culture if an "active ulcer" recurred.
On March 16, 1986, M.M.D. experienced severe blisters on her genitals. M.M.D.'s physician took a herpes culture, which confirmed a diagnosis of genital herpes. When M.M.D. telephoned B.L.G. to inform him of the diagnosis, B.L.G. told her he was sorry and he "thought he had something like that" the previous fall, but was not sure. Also, in mid-March, B.L.G. developed blisters on his genitals. The blisters recurred in April, and a herpes culture isolated the herpes simplex II virus.
M.M.D. brought this action against B.L.G. for negligent transmission of genital herpes. B.L.G. counterclaimed, alleging M.M.D. negligently infected him. The case was tried to the court. B.L.G. presented no evidence in support of his counterclaim. The trial court found in favor of M.M.D. and ordered B.L.G. to pay her $38,300.00 in damages.
ISSUE
I. In the absence of medical confirmation of herpes, is there a legal duty to warn sexual partners about the existence of genital sores?
II. Despite a lack of medical certainty, does the evidence sustain the trial court's finding that B.L.G.'s acts caused M.M.D.'s infection?
III. Does the evidence sustain the trial court's award of damages?
ANALYSIS
Minnesota recognizes a cause of action for negligent transmission of genital herpes. See R.A.P. v. B.J.P., 428 N.W.2d 103, 106 (Minn.App.1988), pet. for rev. denied (Minn. Oct. 19, 1988). As in any negligence action, four essential elements must be established by the plaintiff: (a) the existence of a legal duty, (b) a breach of that duty, (c) injury to plaintiff proximately caused by the breach, and (d) damages to the plaintiff. Here, B.L.G. agrees he did not warn M.M.D. of his genital sores. However, B.L.G. argues (1) he had no legal duty to warn M.M.D., (2) M.M.D. failed to prove his acts of sexual intercourse caused her to become infected with the herpes virus, and (3) the damage award is without factual basis. We disagree and affirm.
*647 I.
B.L.G. argues he owed no legal duty to warn M.M.D. about his "body acne" condition because he "did not know" and "had no reason to know" he had herpes. We disagree. Whether a legal duty exists is generally a question of law for the court to resolve. Larson v. Larson, 373 N.W.2d 287, 289 (Minn.1985). In R.A.P., we concluded as a matter of law persons who know they have herpes "have a duty to use reasonable care to avoid infecting others." R.A.P., 428 N.W.2d at 107. However, a legal duty to use reasonable care to avoid infecting others with herpes may arise even where a person does not have medical confirmation that the disease has been contracted.
Knowledge of facts giving rise to a duty may be imputed. See C.A.U. v. R.L., 438 N.W.2d 441, 443 (Minn.App.1989) (citing Rue v. Wendland, 226 Minn. 449, 452-53, 33 N.W.2d 593, 595-96 (1948)). Perception and experience bear on whether a person will be charged with knowledge. Id. A key factor courts consider in determining if a legal duty exists is whether the potential injury was a reasonably foreseeable consequence of the defendant's actions. See id. (quoting Balder v. Haley, 399 N.W.2d 77, 81 (Minn.1987)); R.A.P., 428 N.W.2d at 107.
The transmission of the herpes virus was a reasonably foreseeable consequence of B.L.G.'s acts of sexual intercourse with M.M.D. A reasonable person with recurring sores on the genitals, who also has been told by a physician that a herpes culture may be advisable, should know there is a reasonable possibility that herpes has been contracted. In addition, a reasonable person should know an acne-type condition on the genitals could be communicated to others through sexual contact. Under these circumstances, the person has a duty to avoid sexual contact, or at least to inform potential sex partners about the genital sores and the physician's advice. The trial court correctly concluded B.L.G. had a legal duty to warn M.M.D.
II.
B.L.G. argues the evidence does not sustain the trial court's finding on causation because M.M.D.'s medical expert was unable to determine that M.M.D.'s March 1986 herpes outbreak was due to a recent infection and not due to a dormant virus. We disagree.
It is well-settled that positive testimony by a medical expert is not necessary in every personal injury action to establish a causal connection between the defendant's negligent act and the plaintiff's injury. See Stahlberg v. Moe, 283 Minn. 78, 85, 166 N.W.2d 340, 345 (1969); W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts § 41, at 269 (5th ed. 1984) (hereinafter Prosser). Expert testimony is required to establish causation only where the "question involves obscure and abstruse medical factors such that the ordinary layman cannot reasonably possess well-founded knowledge of the matter and could only indulge in speculation in making a finding." Bernloehr v. Central Livestock Order Buying Co., 296 Minn. 222, 225, 208 N.W.2d 753, 755 (1973); see also, Prosser, supra, § 41, at 269.
As causation of herpes is not beyond the average person's knowledge, expert testimony was not necessary to establish causation in this case. M.M.D.'s medical expert's inability to determine the recency of the infection to a reasonable degree of medical certainty does not deprive the fact finder of its ability to determine causation in this case.
B.L.G. also argues the evidence is insufficient to sustain the trial court's finding that his acts of sexual intercourse with M.M.D. were the cause-in-fact of M.M.D.'s infection with the herpes virus. However, M.M.D. established the causal link by a preponderance of the evidence. See Prosser, supra, §§ 38, 41 (causation must be proved by a preponderance of evidence). Undisputed evidence shows B.L.G. sought medical attention in November of 1985 for recurring ulcerative genital sores. At that time, B.L.G.'s physician told him a herpes culture was advisable if sores recurred. It *648 is also undisputed M.M.D. had never been diagnosed with or experienced symptoms of herpes before the parties began a sexual relationship. Uncontroverted evidence shows both parties had outbreaks of genital herpes ulcerations in mid-March, 1986. M.M.D. was diagnosed with genital herpes on March 16, 1986. M.M.D.'s medical expert testified that symptoms from a recent infection with the herpes virus tend to be much more severe than symptoms from a recurrence, and that painful urination is a "classic symptom" of a recent infection. Both M.M.D. and her expert, who was M.M.D.'s treating physician, testified that M.M.D.'s initial symptoms were severe and that urination was so painful as to require catheterization. M.M.D. testified that when she informed B.L.G. of her diagnosis, he did not seem surprised and told her he was sorry. The evidence also shows that after M.M.D.'s diagnosis, B.L.G. told both M.M.D. and her sister he thought he had something like herpes in the fall of 1985. Finally, undisputed evidence shows that on April 14, 1986, B.L.G. was definitely diagnosed with genital herpes. This evidence, taken as a whole, is sufficient to sustain the trial court's finding that B.L.G.'s acts of sexual intercourse with M.M.D. caused M.M.D. to become infected with the herpes virus.
III.
The trial court found M.M.D. suffered the following damages:
Medical expenses:
past $ 50.00
future 250.00
Pain and suffering
past 4,000.00
future 15,000.00
Mental suffering
past 4,000.00
future 15,000.00
__________
TOTAL $38,300.00
B.L.G. argues the evidence does not support these findings. We disagree.
The evidence demonstrates M.M.D. has suffered recurrences of herpes symptoms approximately six times per year since March of 1986, with each recurrence lasting about two weeks. M.M.D.'s medical expert testified herpes is permanent and infected persons may have as many as 8 to 12 outbreaks per year, although the frequency of outbreaks tends to decrease with age. The evidence also shows M.M.D.'s life expectancy is approximately 53 years. M.M.D. testified she uses a gel, which costs about $10.00 per year, to alleviate the symptoms during outbreaks. This testimony, along with the evidence that herpes is permanent, is sufficient to sustain the court's finding concerning past and future medical expenses.
The record contains considerable evidence of M.M.D.'s physical pain and suffering. M.M.D.'s initial herpes outbreak was so painful and severe she had to be catheterized to urinate. Subsequent outbreaks caused M.M.D. constant physical pain, itching, and sensitivity. Further, M.M.D.'s physical activities are severely limited during outbreaks. This evidence, along with the evidence that herpes is permanent, is sufficient to sustain the court's finding concerning damages for past and future pain and suffering.
In addition, M.M.D. testified she feels outrage and sadness about having herpes. She testified about self-consciousness and a fear that others will find out she has the disease. She expressed feelings of dirtiness, isolation, and humiliation. Further, the disease even has led to emotional detachment from her children. This evidence is sufficient to sustain the court's finding concerning damages for past and future mental suffering.
DECISION
B.L.G. had a reasonable basis to know he had herpes because he had recurring genital sores coupled with a medical evaluation that the sores may have been herpes. Despite a lack of medical certainty regarding causation, the preponderance of the evidence sustains the trial court's decision.
Affirmed.
NOTES
[*] Retired chief justice, acting as judge of the Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10, and Minn.Stat. § 2.724, subd. 3 (1990). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1024615/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-7411
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DOMINGO NOLBERTO PENA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:98-cr-00132-JCC; 1:00-cv-01693)
Submitted: December 20, 2007 Decided: December 28, 2007
Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Domingo Nolberto Pena, Appellant Pro Se. James L. Trump, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Domingo Nolberto Pena seeks to appeal the district
court’s order treating his Fed. R. Civ. P. 60(b)(4) motion as a
successive 28 U.S.C. § 2255 (2000) motion, and dismissing it on
that basis, and a subsequent order denying his motion for
reconsideration. The orders are not appealable unless a circuit
justice or judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2000); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.
2004). 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) (2000). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find that any
assessment of the constitutional claims by the district court is
debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. Miller-El v. Cockrell,
537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484
(2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude that Pena has not
made the requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal.
Additionally, we construe Pena’s notice of appeal and
informal brief as an application to file a second or successive
motion under 28 U.S.C. § 2255. United States v. Winestock, 340
F.3d 200, 208 (4th Cir. 2003). In order to obtain authorization to
- 2 -
file a successive § 2255 motion, a prisoner must assert claims
based on either: (1) a new rule of constitutional law, previously
unavailable, made retroactive by the Supreme Court to cases on
collateral review; or (2) newly discovered evidence, not previously
discoverable by due diligence, that would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have found the
movant guilty of the offense. 28 U.S.C. §§ 2244(b)(2), 2255
(2000). Pena’s claims do not satisfy either of these criteria.
Therefore, we deny authorization to file a successive § 2255
motion.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
DISMISSED
- 3 - | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/202307/ | 454 F.3d 13
UNITED STATES of America, Appellee,v.Lawrence MAHER, Defendant, Appellant.
No. 05-1598.
United States Court of Appeals, First Circuit.
Heard April 5, 2006.
Decided July 6, 2006.
COPYRIGHT MATERIAL OMITTED Chauncey B. Wood, with whom Shea, Larocque & Wood, LLP was on brief, for appellant.
Margaret D. McGaughey, Appellate Chief, District of Maine, with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.
Before TORRUELLA, Circuit Judge, HUG,* Senior Circuit Judge, and LYNCH, Circuit Judge.
LYNCH, Circuit Judge.
1
Lawrence Maher, an erstwhile Massachusetts drug dealer supplying cocaine to southern Maine, was the subject of a police sting operation. While under surveillance on July 22, 2004, Maher wandered drunkenly around a public parking lot in Old Orchard Beach, Maine, calling out the name of a potential drug buyer. He then got in his van, which contained drugs, and fell asleep at the wheel with the key in the ignition and an open beer can beside him.
2
The police, well aware of the opportunity created, naturally investigated. They arrested Maher for the state crime of operating under the influence (OUI) after Maher failed field sobriety tests. Incident to arrest, they searched Maher's person and van and found heroin, cocaine, and drug paraphernalia. Maher's luck was no better at trial. He was found guilty of the federal crime of possession of cocaine with intent to distribute. See 21 U.S.C. § 841(a)(1). On April 6, 2005, he was sentenced to 262 months in prison and six years' supervised release.
3
On appeal Maher makes an easily disposed-of Fourth Amendment claim, which is significant largely because we reject his legal argument that reasonable suspicion of drunk driving cannot exist where the would-be operator is asleep and the vehicle is off. Of more significance is his argument, under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), that the prosecution may not evade strictures on admission of testimonial out-of-court statements by non-testifying declarants on the basis that the statements are offered only for context. While concerned about the prosecution's use of such evidence here, we find no basis to reverse the conviction.
I.
4
We recount the facts. As to those facts relevant to the suppression issue, we rehearse the findings of the magistrate judge, consistent with record support. See United States v. Romain, 393 F.3d 63, 66 (1st Cir.2004).
5
On July 20, 2004, Officer Ernest MacVane, a Windham, Maine, police officer assigned to a task force of the United States Drug Enforcement Administration (DEA), arrested one William Johnson on cocaine charges. Johnson told Officer MacVane that he had bought his cocaine from Maher, who lived in Massachusetts and was a significant trafficker in southern Maine.
6
Johnson agreed to assist in a staged drug transaction with Maher. He was told that his telephone calls with Maher would be monitored and recorded. Johnson called Maher on July 20 and asked if Maher was "coming down here again." Maher replied, "tomorrow I hope, yeah." The following exchange ensued:
7
Maher: [D]o you got any numbers?
8
Johnson: What's that?
9
Maher: One, two, three (unintelligible).
10
Johnson: Four.
11
. . . .
12
Maher: Okay, buddy.
13
After some discussion of whether Johnson might come to Massachusetts instead, Maher told Johnson, "I got you down for four either way." He did not explicitly mention cocaine.
14
On the night of July 21, DEA Agent Kate Barnard called Maher to set up a separate meeting.1 She told Maher she was "Sue," and said she wanted to "hook up" so that she could "get something." Maher, apparently thinking she was an acquaintance,2 agreed to meet her at Radley's Market in Old Orchard Beach. The next morning, Johnson called Maher to discuss meeting. Maher told Johnson he was waiting for a friend at a store (an apparent reference to Radley's Market) and told Johnson to call back.
15
Later that morning, DEA Agent Paul Buchanan saw Maher wandering in the parking lot adjacent to Radley's Market, stumbling and calling the name "Sue."3 Agent Buchanan watched Maher enter the market and emerge minutes later. Maher appeared intoxicated to Agent Buchanan, who said he was still stumbling and disoriented.
16
Maher climbed into the driver's seat of a white minivan. About ten minutes later, Agent Buchanan approached the minivan and saw Maher asleep or unconscious, slumped in the driver's seat. No one else was in the van. The keys were in the ignition, though the engine was not running. This information was relayed to Old Orchard Beach Police Officer Gerald Hamilton.
17
Officer Hamilton drove to Radley's Market and approached the minivan. He spoke to Maher, but Maher did not wake up, so Officer Hamilton reached through the window and shook Maher to rouse him. The officer asked Maher if he was okay, and Maher replied that he was just leaving. Officer Hamilton observed that Maher had droopy eyes and spoke in a mumble.
18
Officer Hamilton could see an open beer can in the minivan's console and a six-pack on the passenger seat. He asked Maher if he had drunk alcohol or used drugs. Maher replied that he had had only about two ounces of beer and that he did not use drugs. Officer Hamilton told Maher he should not have driven. Maher replied that Officer Hamilton was right; he asked the officer to "cut [him] a break" and said he would find his way to a friend's house. Officer Hamilton then ordered Maher out of the van and conducted three field sobriety tests. Maher failed all three and was arrested on suspicion of OUI. See Me.Rev. Stat. Ann. tit. 29-A, § 2411.
19
During a search incident to arrest, Officer Hamilton found in Maher's pocket a large roll of currency, totaling $7,902, and a film canister containing approximately half a gram of what was later determined to be heroin. In the van, police found a black canvas bag which contained three sandwich bags, each of which held a ball of white powdery material slightly smaller than a baseball. The substance was later determined to be 163 grams of cocaine.4 The canvas bag also held a black digital scale. Additionally, it contained a Post-It note which listed several names; to the right of each was a number. The first name was Johnson's. To the right of his name was the number "4."
20
Prior to trial, the defense filed a motion to suppress the evidence seized from Maher's van. The defense argued that even assuming Maher was intoxicated, Officer Hamilton had lacked any reason to think Maher had committed OUI.
21
After a suppression hearing during which Officers MacVane and Hamilton testified, the magistrate judge recommended on October 27, 2004, that the motion to suppress be denied. The magistrate judge noted that under Maine law, an officer may order field sobriety tests on reasonable suspicion of OUI. He also noted that attempted operation counts as operation under the Maine OUI statute. See Me. Rev.Stat. Ann. tit. 29-A, § 2401(6). The magistrate judge catalogued the evidence that Maher was intoxicated before entering the minivan and found that when awakened, Maher both admitted that he had driven and said he was "just leaving." The court concluded: "This was sufficient evidence, together with the rational inference that the defendant had entered the vehicle in order to drive it, to justify . . . the field sobriety tests." The district court adopted this decision and denied the motion to suppress.
22
At trial, the government never called the informant, Johnson, as a witness. It did, however, introduce the drugs seized from the minivan and testimony that the amount of cocaine seized far exceeded the amount one might have for personal use. The parties stipulated that the substance seized from the minivan was cocaine weighing 163.7 grams.
II.
A. The Motion to Suppress
23
Maher first challenges the district court's denial of his motion to suppress the evidence seized in the minivan. "Our review of the ultimate determinations of probable cause and reasonable suspicion on a motion to suppress is de novo." United States v. Scott, 270 F.3d 30, 39 (1st Cir.2001) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). "[S]ubsidiary factual findings are reviewed for clear error, `giv[ing] due weight to inferences drawn from those facts by resident judges and local law enforcement officers.'" United States v. Burhoe, 409 F.3d 5, 9-10 (1st Cir.2005) (second alteration in original) (quoting Ornelas, 517 U.S. at 699, 116 S.Ct. 1657).
24
Maher argues that the totality of the circumstances did not create reasonable suspicion that he had committed, or was about to commit, the state crime of OUI. He argues that the absence of reasonable suspicion breaks the chain of circumstance that permitted the drug seizure: Without reasonable suspicion, Officer Hamilton had no basis to require sobriety tests; without the tests, Officer Hamilton had no probable cause to arrest Maher for OUI; without the arrest, there was no reason to search the van.
25
We reject this argument at its starting point. Assuming arguendo that "reasonable suspicion" is the applicable legal standard,5 it was met on these facts.
26
Reasonable suspicion, a less demanding standard than probable cause, denotes at least a minimal level of objective justification for a stop. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). In evaluating whether reasonable suspicion is present, we "look at the totality of the circumstances . . . to see whether the detaining officer ha[d] a particularized and objective basis for suspecting legal wrongdoing." United States v. Arvizu, 534 .U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (internal quotation marks omitted) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)).
27
In this case, Officer Hamilton knew (because he had been told by other officers) that Maher had just been stumbling disorientedly, a common characteristic of intoxication, around the parking lot of Radley's Market. See United States v. Meade, 110 F.3d 190, 193 (1st Cir.1997) (police may "rely upon each other's knowledge of facts" when forming suspicions of wrongdoing). Officer Hamilton saw Maher slumped over the wheel of his van in a public lot, apparently not conscious, in the middle of the day. The officer saw an open can of beer next to Maher; Maher did not respond to verbal attempts to wake him up. And when Maher did wake up, he had droopy eyes and mumbled his words. Officer Hamilton had a reasonable basis to think Maher was intoxicated.
28
But Maher's mere intoxication is not what led to the search of the car. The search was justified on the basis of reasonable suspicion that the crime of OUI had been committed, which led to the sobriety tests, which led to the arrest. Officer Hamilton knew Maher was the only occupant of the minivan, that he was in the driver's seat, and that the key was in the ignition. He knew Maher's vehicle was parked in a state other than his home state. The inference was entirely rational that Maher had driven while intoxicated and that he would drive again. See United States v. Escobar-de Jesus, 187 F.3d 148, 175-76 (1st Cir.1999) (a factfinder may make inferences in light of "human experience"); see also United States v. McFarland, 445 F.3d 29, 32 (1st Cir.2006). Furthermore, Maher told Officer Hamilton he was "just leaving" and asked the officer to cut him a break (suggesting he knew he had broken the law). Maher also tacitly admitted, by agreeing with Officer Hamilton's statement that he should not have driven, not only that he had driven recently but that he had driven drunk.6
29
Maher's key legal argument is that "courts seem to require that a sleeping defendant be found behind the wheel. . . with a running engine before they will find reasonable suspicion of OUI." We reject any argument that reasonable suspicion of OUI cannot exist when an apparently intoxicated person is found asleep behind the wheel unless the engine is running. Fourth Amendment analysis is always context-specific and rarely employs litmus tests.7 See Brigham City v. Stuart, ___ U.S. ___, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (noting that "the ultimate touchstone of the Fourth Amendment is `reasonableness'" and concluding a warrantless entry was "plainly reasonable under the circumstances").
B. The Confrontation Clause Challenge
30
Maher argues there were twelve instances at his trial in which hearsay was erroneously admitted, and that consequently he is entitled to a new trial. He lumps them together and argues that the admission of the testimony violated his constitutional rights under the Confrontation Clause of the Sixth Amendment, as defined in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). He did not object to the majority of this testimony, and he cannot show plain error. Where he did object, no Confrontation Clause issue is presented.
31
Post-Crawford, the admission of non-testifying informants' out-of-court testimonial statements, through the testimony of police officers, is a recurring issue in the courts of appeals. Crawford holds that a declarant's "testimonial" out-of-court statement is not admissible under the Confrontation Clause unless (1) the declarant testifies, id. at 53-54, 124 S.Ct. 1354, or (2) the defendant had a prior opportunity for cross-examination and the declarant is unavailable, id. at 54, 124 S.Ct. 1354, or (3) the evidence is admitted for purposes other than establishing the truth of the matter asserted, id. at 59 n. 9, 124 S.Ct. 1354. Each of these tests has its own subtleties.
32
Assuming the declarant does not testify and is in fact available, and/or there was no prior opportunity for cross-examination of the declarant, Crawford claims will usually turn on one of two issues. First, was the out-of-court statement testimonial? Second, if so, is it admissible for reasons other than the truth of the matter asserted?
33
There has been a great deal of attention to the first issue, which this court discussed in United States v. Brito, 427 F.3d 53 (1st Cir.2005). In Crawford, the Supreme Court did not precisely define what it meant by "testimonial." It instead listed, for illustrative purposes, three formulations that came within the "core class" of testimonial statements. 541 U.S. at 51-52, 124 S.Ct. 1354. The first includes "ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially." Id. at 52, 124 S.Ct. 1354 (emphasis added). The second includes "extrajudicial statements. . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions." Id. at 51-52, 124 S.Ct. 1354 (internal quotation marks omitted) (omission in original) (citing White v. Illinois, 502 U.S. 346, 365, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992)). The third encompasses "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 52, 124 S.Ct. 1354 (internal quotation marks omitted). This court, applying Crawford, has said a statement is testimonial if a reasonable declarant, similarly situated, would have the capacity to appreciate that the statement is of a sort typically "preserve[d]. . . for . . . potential prosecutorial use." Brito, 427 F.3d at 60-61 (holding that 911 calls may be testimonial in certain circumstances).
34
There has been somewhat less development, post-Crawford, of the second issue, perhaps because this Crawford exception appears simply to rest upon a long-established exception to the hearsay rule for statements not offered for the truth of the matter. Even before Crawford, however, it was recognized in the standard treatises' discussions of the hearsay rule that:
35
One area where abuse may be a particular problem involves statements by arresting or investigating officers regarding the reason for their presence at the scene of a crime. The officers should not be put in the misleading position of appearing to have happened upon the scene and therefore should be entitled to provide some explanation for their presence and conduct. They should not, however, be allowed to relate historical aspects of the case, such as complaints and reports of others containing inadmissible hearsay. Such statements are sometimes erroneously admitted under the argument that the officers are entitled to give the information upon which they acted. The need for this evidence is slight, and the likelihood of misuse great. Instead, a statement that an officer acted "upon information received," or words to that effect, should be sufficient.
36
2 Broun, et al., McCormick on Evidence § 249, at 103 (5th ed.1999) (emphasis added).
37
Maher's Crawford arguments appear to cover two different types of testimony by officers concerning statements by the non-testifying informant-declarant: (1) testimony that the informant said X to the officer, and (2) testimony from which (Maher argues) the jury would necessarily infer that the declarant had said X, but which did not itself quote or paraphrase the declarant's statements. Crawford covers the first category — the admission of out-of-court statements by non-testifying and un-cross-examined declarants through testimony of others. Maher makes no effort to explain why Crawford should be read to extend to the second category, and so we disregard the statements which fall in that category.
38
We address Maher's strongest argument that the testimony violated Crawford. Early in the government's case, the prosecutor asked Officer MacVane how he found out that Maher "may be involved in illegal activity." There was no objection. Officer MacVane replied: "William Johnson." Moments later, the prosecutor and Officer MacVane engaged in the following colloquy:
39
Q: [B]ased on Bill Johnson's response to your questions about who gave him the cocaine, did you do follow-up inquiries regarding whether such a person existed?
40
A: Yes I did.
41
Q: What did you do on those lines?
42
A: I checked the name Lawrence Maher in the State of Maine Department of Motor Vehicle database and also the Massachusetts database and found that he existed in both of them.
43
Again, there was no objection.
44
Obviously concerned about the use the jury might make of this testimony, the trial court admirably and sua sponte instructed: "The statements made by Mr. Johnson, whatever they are, that is for you to decide, are not to be used by you as to the truth of those statements. They are merely to be used as something that he responded to by doing something else." The court then gave the jurors an example of the difference between hearsay and non-hearsay use of a statement.
45
The first Crawford issue to be addressed is whether the informant's statement that Maher was involved in illegal drug dealing activity was testimonial. As best we can tell from the record, it was testimonial. The Supreme Court's first formulation of "testimonial" included custodial examinations. Crawford, 541 U.S. at 52, 124 S.Ct. 1354. The Court said "[s]tatements taken by police officers in the course of interrogations are . . . testimonial under even a narrow standard." Id. The statement at issue here was made while the police were interrogating Johnson after Johnson's arrest for drugs; Johnson agreed to cooperate and he then identified Maher as the source of the drugs. Johnson's statement is also testimonial under Crawford's third example of the "core class" of testimonial statements. The cooperation agreement, indeed, made it more likely the statement would be used prosecutorially.8 In this context, it is clear that an objectively reasonable person in Johnson's shoes would understand that the statement would be used in prosecuting Maher at trial. This is sufficient to render the statement testimonial under the test in Crawford and our test in Brito. See, e.g., Crawford, 541 U.S. at 52, 124 S.Ct. 1354 (including among its "testimonial" formulations "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial"); Brito, 427 F.3d at 60 (stating that a statement qualifies as testimonial if the declarant would reasonably understand that it will be "preserve[d]" for "potential prosecutorial use"); see also Horton v. Allen, 370 F.3d 75, 84 (1st Cir.2004) (finding a declarant's statements non-testimonial where they "were not made as part of a confession resulting from custodial examination" but instead as part of a private conversation with a non-police officer); United States v. Saget, 377 F.3d 223, 228 (2d Cir.2004) (noting that the "core" examples of testimonial statements in Crawford "all involve a declarant's knowing responses to structured questioning in an investigative environment or a courtroom setting where the declarant would reasonably expect that his or her responses might be used in future judicial proceedings").
46
The next question is whether Officer MacVane's testimony about Johnson's testimonial statement was admissible under Crawford for reasons other than the truth of Johnson's assertion that Maher sold him illegal drugs. The government says it was admissible for reasons other than the truth of the matter because it set the context for what the police officers did next. Sometimes the rationale that an out-of-court statement provides context for other admissible evidence will be valid. In United States v. Walter, 434 F.3d 30 (1st Cir.2006), this court held that Crawford was not offended by use of an informant's statements to set context. But the precise nature of that context is important. In Walter, the evidence in question was tape-recordings made during a sting operation during which the informant bought weapons from the defendant. Certain portions of the tapes, with statements by a non-testifying informant, were admitted because the informant's words provided context for admissions made by the defendant, which also were captured on tape. Id. at 33-34.
47
This situation is very different and more directly raises the risks which concerned the Crawford court. The government's articulated justification — that any statement by an informant to police which sets context for the police investigation is not offered for the truth of the statement and thus not within Crawford — is impossibly overbroad. It is overbroad even in classic hearsay terms, as stated in the McCormick treatise. What gives this situation added bite is that the "context" rationale may be used by the prosecution not just to get around hearsay law, but to circumvent Crawford's constitutional rule. As the Seventh Circuit has warned, citing Crawford:
48
Under the prosecution's theory, every time a person says to the police "X committed the crime," the statement (including all corroborating details) would be admissible to show why the police investigated X. That would eviscerate the constitutional right to confront and cross-examine one's accusers.
49
United States v. Silva, 380 F.3d 1018, 1020 (7th Cir.2004); see also Cromer, 389 F.3d at 674. In Silva, a DEA agent testified that he listened to conversations between a non-testifying confidential DEA informant and a purported drug supplier, and that he heard the informant speak of "this individual named Juan [who] indicated that he was going to be making the delivery." 380 F.3d at 1019 (alteration in original). The defendant's name was Juan. The government argued that this and similar testimony was admissible to show "the actions taken by each witness." Id. at 1020. But as the Silva court wrote, "[a]llowing agents to narrate the course of their investigations, and thus spread before juries damning information that is not subject to cross-examination, would go far toward abrogating the defendant's rights under the sixth amendment and the hearsay rule." Id. This sort of testimony also raises risks similar to those raised by use of law enforcement officers to give preliminary overview testimony, a practice we disapproved in United States v. Casas, 356 F.3d 104, 119-20 (1st Cir.2004).
50
Here, Officer MacVane testified that the confidential informant had said Maher was a drug dealer, even though the prosecution easily could have structured its narrative to avoid such testimony. The information was surely relevant, but that is not our question. As McCormick points out, the officer, for example, could merely have said he "acted upon information received, or words to that effect." 2 Broun, supra, § 249, at 103 (internal quotation marks omitted). It appears the testimony was primarily given exactly for the truth of the assertion that Maher was a drug dealer and should not have been admitted given the adequate alternative approach.
51
But Maher did not object to this portion of Officer MacVane's testimony, and he certainly cannot meet the plain error test. The testimony was immediately followed by a sua sponte instruction to the effect that any statements of the confidential informant should not be taken as standing for the truth of the matter asserted (i.e., that Maher was a dealer who supplied Johnson with drugs). Cf. United States v. Jadusingh, 12 F.3d 1162, 1167-68 (1st Cir.1994) (finding no plain error in a prosecutor's purportedly improper reference to inaudible portions of an audio tape in part because "[t]he trial court provided the jury with a limiting instruction directing them to disregard inaudible portions of the tape").
52
The government needed to prove only that Maher possessed, with the intent to distribute, cocaine. See 21 U.S.C. § 841(a). This was proven by what was in his van: cocaine in amounts too large to be explained by personal use; a digital scale; multiple baggies of drugs (a fact consistent with distribution); a slip of paper with the name of the informant who arranged the buy.9 Further, the police saw Maher walking around the assigned meeting place for a second potential drug sale, calling out the name he had been given.
53
The dividing line often will not be clear between what is true background to explain police conduct (and thus an exception to the hearsay rule and thus an exception to Crawford) and what is an attempt to evade Crawford and the normal restrictions on hearsay. But we are on firm ground in warning prosecutors of the risks they face in backdoor attempts to get statements by non-testifying confidential informants before a jury.
54
C. Challenges to Officer MacVane's Post-It Note Testimony
55
Finally, Maher raises several unpreserved challenges to the admissibility of one subsection of Officer MacVane's testimony; we review for plain error.
56
The challenged colloquy occurred while the prosecutor was questioning Officer MacVane about the Post-It note found in Maher's minivan, and specifically about the significance of the number "4" scrawled next to Johnson's name:
57
Q: Based on your participation in numerous narcotics cases that you said you had participated in, what significance did this piece of paper have in general with regard to drug trafficking?
58
A: Based on my training and experience it was significant because I recognize it as drug notes. Drug distributors' way of being organized. In this particular case what it appears to me is a customer list with their orders on it.
59
Q: Based on your training and experience and knowledge in this case what did the "four" pertain to?
60
A: Four ounces of cocaine.
61
Maher's argument repeats the familiar debate about whether police officers, in giving certain descriptions about how drug deals work, are testifying on the basis of particularized knowledge under Fed. R.Evid. 701, or as expert witnesses under Fed.R.Evid. 702.10 See, e.g., United States v. Ayala-Pizarro, 407 F.3d 25, 27-29 (1st Cir.2005). If the testimony is properly Rule 702 material, there are two advantages to the defendant. First, the government must disclose Rule 702 testimony to the defense before trial. See Fed. R.Crim.P. 16(a)(1)(G). Second, the defense may be able to convince the judge that the testimony does not meet the heightened reliability criteria under Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). But there is also a possible disadvantage to the defendant, in that jurors may be told that the officer's testimony has been deemed expert.
62
Rule 701, on the other hand, is meant to admit testimony based on the lay expertise a witness personally acquires through experience, often on the job. We discussed at greater length the difference under the two rules, as applied to police officer testimony, in Ayala-Pizarro. See 407 F.3d at 27-29. We noted in that case that it may be that part of an officer's testimony will be lay opinion and part will be expert opinion. Id. at 28.
63
Here Officer MacVane's testimony, that based on his experience the Post-It notes were likely notes of drug orders and the number "4" referred to a quantity of the drug found in the van, "did not cross the line to become expert testimony." Id.; see also id. at 29 (holding that an officer's testimony that heroin seized at drug points was typically packed in aluminum decks and that the heroin seized in the case was packaged in such decks was Rule 701 testimony). There was no error, much less plain error.
III.
64
The other arguments presented by Maher have been considered and are without merit.
65
The conviction is affirmed.
Notes:
*
Of the Ninth Circuit, sitting by designation
1
At a suppression hearing, Officer MacVane testified that Agent Barnard did so to "try to get Mr. Maher to commit to a location that we could locate him and find him."
2
When the agent told Maher she was "Sue," he asked her if she was "Sue Conley." The agent replied in the affirmative. The name Sue Conley was later found in an address book recovered from Maher's van
3
Agent Buchanan recognized Maher from, inter alia, a previous booking photograph that he had been shown
4
Officer MacVane testified, accurately, that there are approximately 28 grams in an ounce. This means the cocaine seized from the minivan weighed almost six ounces
5
Neither the Supreme Court nor this court has decided what quantum of suspicion is required before a police officer can order a motorist to perform field sobriety tests. The Maine courts, however, have adopted the "reasonable suspicion" standard first articulated inTerry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See State v. Wood, 662 A.2d 919, 920 (Me.1995). Other states' courts have reached the same conclusion, see Rogala v. District of Columbia, 161 F.3d 44, 52 (D.C.Cir.1998) (collecting cases), as has at least one of our sister circuits, see id. ("[T]his Court is persuaded by the reasoning of the courts in those states that have concluded that a field sobriety test is such a minimal intrusion on the driver of the car that only reasonable suspicion is required to conduct such a test."). The parties to this appeal agree that reasonable suspicion is the applicable standard, and so we proceed on that basis for present purposes. See Adorno v. Crowley Towing & Transp. Co., 443 F.3d 122, 126 (1st Cir.2006) (accepting arguendo a legal proposition agreed to by the parties).
6
Maher argues that Officer Hamilton had no reason to believe he had consumed alcohol before driving to the parking lot, and that the presence of the six-pack in fact raises the inference that he had not. Maher also relies on the fact that no officer saw him driving the van. These arguments do not alter our conclusion that the other evidence amply supported the police actionSee State v. Merrill, 552 A.2d 551 (Me.1989) (mem.) (upholding defendant's OUI conviction on circumstantial evidence because such evidence "is no less conclusive than direct evidence in supporting a conviction"). Officer Hamilton had ample reason to believe, especially given Maher's statements upon awakening, that Maher had driven while drunk or was planning to drive away while drunk. See Me.Rev.Stat. Ann. tit. 29-A, § 2401(6) (defining "operating" as "operating or attempting to operate a motor vehicle" (emphasis added)).
7
Maher makes an additional argument in his reply brief that his incriminating statements cannot be used in the reasonable suspicion calculus because, at the moment Officer Hamilton shook him awake, he was "seized." This argument, not raised before the reply brief, is forfeitedSee United States v. Isler, 429 F.3d 19, 30 n. 12 (1st Cir.2005). Even if not forfeited, it would fail. Just because Maher was so soundly asleep (or unconscious) that Officer Hamilton had to shake his arm to wake him up does not mean he was "seized" within the meaning of the Fourth Amendment. While physical touching "might indicate a seizure," United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), it is only one of many possible factors, none dispositive, United States v. Smith, 423 F.3d 25, 30 (1st Cir.2005). Here, there is no indication that Officer Hamilton's physical contact with Maher lasted longer than was necessary to awaken him. Furthermore, none of the other exemplary circumstances listed by the Mendenhall court that might suggest seizure were present. See 446 U.S. at 554, 100 S.Ct. 1870.
8
InUnited States v. Cromer, 389 F.3d 662 (6th Cir.2004), the Sixth Circuit noted with approval one commentator's suggestion that "`[a] statement made knowingly to the authorities that describes criminal activity is almost always testimonial.'" Id. at 675 (quoting Friedman, Confrontation: The Search for Basic Principles, 86 Geo. L.J. 1011, 1042 (1998)). We would not go so far. Our decision in Brito, 427 F.3d 53, implicitly rejected this view in holding that 911 calls are not testimonial merely because the caller knowingly contacts police to provide information about a crime. Where the caller is "under the stress of a startling event" such that she cannot "comprehend the larger [prosecutorial] significance of her words," the call may not be testimonial at all. Id. at 61, 62.
9
Officer MacVane offered uncontroverted testimony that a personal use quantity of cocaine is typically a half-gram to a gram,see United States v. Morales, 834 F.2d 35, 36-37 (2d Cir.1987) (recounting expert testimony that 21 grams of cocaine "was inconsistent with personal use"), and that drug dealers use scales to measure their drugs before sale.
10
Maher also argues that this exchange constituted a Confrontation Clause violation because Officer MacVane's opinion was based not on his expertise, but on Johnson's testimonial statements. For additional reasons to those already stated, we reject this argument. Officer's MacVane's experience provided an independent basis for the evidence, as we explain below | 01-03-2023 | 02-07-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1645254/ | 994 So.2d 26 (2008)
STATE ex rel. Marcel DUGAR
v.
STATE of Louisiana.
No. 2008-KH-1795.
Supreme Court of Louisiana.
October 10, 2008.
This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court's en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.
WEIMER, J., concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1024910/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5268
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MAURICE ELLIOTT COX,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
Chief District Judge. (5:06-cr-00034-FL)
Submitted: October 24, 2007 Decided: January 28, 2008
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Diana Pereira, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Anne M. Hayes, Banumathi
Rangarajan, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Maurice Elliott Cox appeals his 180-month sentence
imposed following his guilty plea to one count of possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 924(g)(1)
(2000). Cox was sentenced pursuant to the Armed Career Criminal
Act, 18 U.S.C. § 924(e) (2000) (“ACCA”). On appeal, Cox contends
his sentence violates the Sixth Amendment. Finding no error, we
affirm.
Cox argues that the sentence imposed by the district
court violated Blakely v. Washington, 542 U.S. 296 (2004), because
he was neither charged with the predicate convictions underpinning
his sentence as an armed career criminal, nor did he admit to them.
Secondly, he argues that the specific findings necessary to trigger
the armed career criminal enhancement, namely whether a defendant’s
predicate offenses were violent felonies or serious drug offenses
and were committed on different occasions, should not be determined
by relying on information in judicial records, but rather should be
determined by a jury. Cox’s first argument is foreclosed by
Shepherd v. United States, 544 U.S. 13, 20 (2005), in which the
Supreme Court held that a district court may rely on the fact of a
prior conviction for sentencing purposes. See also United States
v. Cheek, 415 F.3d 349, 354 (4th Cir. 2005). Cox’s second argument
is foreclosed by United States v. Thompson, 421 F.3d 278, 283 (4th
Cir. 2005), cert. denied, 547 U.S. 2005 (2006), in which this court
- 2 -
found that the nature of a particular offense as a violent felony
and the date of a conviction are inherent in the conviction itself
and conclusive judicial records. Id. at 284 n.4, 286. Further,
because one panel of this court may not overrule another, we
decline Cox’s invitation to overrule Thompson. See United States
v. Ruhe, 191 F.3d 376, 388 (4th Cir. 1999). We therefore find no
error in the district court's classification of Cox as an armed
career criminal.
Accordingly, we affirm Cox’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 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1024879/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4985
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERNIE EMBREE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James P. Jones, Chief District
Judge. (1:01-cr-00002-jpj-AL)
Argued: November 1, 2007 Decided: January 31, 2008
Before GREGORY and DUNCAN, Circuit Judges, and James A. BEATY, Jr.,
Chief United States District Judge for the Middle District of North
Carolina, sitting by designation.
Affirmed by unpublished opinion. Chief District Judge Beaty wrote
the opinion, in which Judge Gregory and Judge Duncan joined.
ARGUED: Fay Frances Spence, Roanoke, Virginia, for Appellant.
Zachary T. Lee, Special Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee. ON
BRIEF: Larry W. Shelton, Federal Public Defender, Roanoke,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
BEATY, Chief District Judge:
Defendant Ernie Embree appeals the district court’s
application of a 2-level sentencing enhancement for possession of
a dangerous weapon in connection with the offense to which he pled
guilty. On January 20, 2002, Embree signed a plea agreement with
the Government in which he agreed to plead guilty to Count Two of
a multiple count indictment, which charged him with conspiracy to
possess with intent to distribute and distribute more than 500
grams of a mixture of methamphetamine in violation of 21 U.S.C. §§
846 and 841(b)(1)(A). Embree was sentenced to 125 months in
prison. The court entered an Amended Final Judgment Order on
September 19, 2006. Embree timely appealed. On appeal, Embree
contends that the Government breached the plea agreement by arguing
for the 2-level enhancement for possession of a dangerous weapon in
connection with the offense at sentencing in contradiction to a
stipulation not to do so contained in the plea agreement. After a
thorough review of Embree’s claims, we affirm the district court’s
decision.
I.
In October 2000, a confidential informant informed Agent Brian
Snedeker of the Drug Enforcement Agency (DEA) that Embree was
involved in the distribution and manufacture of methamphetamine and
marijuana. The informant also told Agent Snedeker that Embree
2
carried handguns and a concealed knife in “like a shoulder harness”
during drug transactions. The investigation revealed that Embree
loaned money to Donna Richardson to finance her trips to California
to purchase methamphetamine. Embree and Richardson would then
distribute the methamphetamine that was purchased to friends and
co-workers. After Embree became upset at a loss of money, he ended
his attempts to obtain methamphetamine in California and began
attempts to manufacture his own methamphetamine.
On June 29, 2001, Embree was arrested by DEA agents at his
residence. At the time of Embree’s arrest, a 6-8 inch knife with
brass knuckles matching the description given earlier by the
informant was found in Embree’s vehicle. Also located within
Embree’s residence were numerous holsters for large caliber
revolvers and automatic handguns.
On January 30, 2002, Embree signed a plea agreement with the
Government in which he pled guilty to Count Two of the indictment
charging him with conspiracy to possess with intent to distribute
and distribute more than 500 grams of a mixture of methamphetamine.
The plea agreement provided in relevant part:
D. REMEDIES FOR BREACH OF PLEA AGREEMENT
I understand that if I breach any provision of this
agreement, at any time, that the United States Attorney’s
office [sic] may, at its election, pursue any or all of
the following remedies: (a) declare this plea agreement
null and void and proceed to trial; (b) refuse to
recommend that I be credited with acceptance of
responsibility . . . (g) refuse to abide by any other
sentencing or other stipulations contained in this
3
agreement; (h) take any other action provided for under
this agreement or by statute, regulation or court rule.
H. ACCEPTANCE OF RESPONSIBILITY
I hereby agree and stipulate that if I do any of the
following, I should not receive credit for acceptance of
responsibility and the United States will be free to make
any recommendations it wishes at sentencing or to declare
a breach of this plea agreement and seek the remedies set
forth in paragraph D: (1) attempt to withdraw my guilty
plea, (2) deny that I have committed any crime that I
have pled guilty to, (3) fail to cooperate with law
enforcement agents, (4) fail to testify truthfully, as to
any matter, if called upon to do so (at my sentencing or
any other court proceedings, . . . (6) make a false
statement . . .
J. STIPULATIONS AND RECOMMENDATIONS
The United States stipulates that at the time of the
execution of this plea agreement it possesses no
information which would prevent me from meeting the
criteria set forth in 18 U.S.C.A. § 3553(f)(1)-(4) and
U.S.S.G. § 5C1.2(1)-(4). In addition the United States
will afford me the opportunity to meet the criteria
contained in 18 U.S.C.A. § 3553(f)(5) and U.S.S.G. §
5C1.2(5). The parties further stipulate that the signing
and submission of this plea agreement meets the criteria
contained in U.S.S.G. § 3E1.1(b)(2).
L. SUBSTANTIAL ASSISTANCE
I understand and agree that I must provide complete and
truthful information to attorneys and law enforcement
officers of the Government and to neither attempt to
protect any person or entity through false information or
omission, nor falsely implicate any person or entity. .
. . I further understand that any violation of the terms
of this section may, at the election of the United States
Attorney’s Office, be treated as a breach of this Plea
Agreement, and the United States Attorney’s office [sic]
may exercise any right it may have under this Plea
Agreement in the event of breach by the defendant,
including but not limited to those remedies set forth in
section D of this Plea Agreement.
4
On March 4, 2002, Embree appeared before the district court,
and entered his plea of guilty to Count Two of the indictment.
Following Embree’s plea hearing, a presentence report (“PSR”) was
prepared by the probation officer. Based on the available
information about the knife, gun holster and alleged firearms, the
probation officer recommended a 2-level enhancement for possession
of dangerous weapons in connection with the offense pursuant to
U.S.S.G. § 2D1.1(b)(1). The PSR also included a 3-level deduction
for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a).
Embree objected to the finding in the PSR regarding possession of
dangerous firearms and a knife in connection with the offense,
arguing that he never carried any guns on his person or in his
vehicle, and that the knife was used in his auto repair business.
The United States objected to Embree receiving credit for
acceptance of responsibility arguing that he failed to fully accept
responsibility for his role in the distribution of methamphetamine.
Embree’s sentencing hearing began on May 20, 2002, and upon
the court’s own motion was continued to May 29. At the May 29
sentencing hearing, the Government argued that Embree should not
receive credit for acceptance of responsibility and presented
evidence that Embree possessed a knife in connection with the
conspiracy to distribute methamphetamine in support of the
probation officer’s recommendation for a 2-level enhancement for
possession of dangerous weapons in connection with the offense. In
5
contending that Embree should not receive the benefit of the 3-
level deduction for acceptance of responsibility, the Government
argued that during the course of providing a factual basis for his
plea, Embree stated under oath that he “personally didn’t sell any
methamphetamine, myself,” and that he failed to accept
responsibility for all of the conduct relevant to the offense. The
Government then called Embree’s co-conspirator, Donna Richardson,
to testify as to Embree’s involvement in the conspiracy.
Richardson testified that Embree financed her trips to California
to purchase methamphetamine and that after taking a portion for
herself, Embree sold the remaining methamphetamine to friends and
co-workers. Embree also testified on his own behalf regarding his
acceptance of responsibility. Embree testified that he had sold
methamphetamine to friends, but that although he had possessed
chemicals with the intent to manufacture methamphetamine, he had
never actually manufactured any methamphetamine. Finally, Embree
testified regarding his involvement in the conspiracy, which
conflicted with testimony given by Richardson.
Regarding the Government’s contention that Embree possessed a
dangerous weapon in connection with the offense, the Government
called Agent Snedeker to testify. Agent Snedeker recounted the
information he received from the informant regarding Embree’s
possession of a knife and firearms which were kept in a gun holster
when Embree distributed methamphetamine. The Government also
6
presented evidence of a knife that was found in Embree’s vehicle
and gun holsters found in Embree’s residence at the time of his
arrest. Embree testified that he used the knife for cutting
fiberglass at his business and denied possessing firearms other
than a .22 caliber pistol that he bought for his wife and that was
kept at his residence.
At the close of evidence, the district court ruled that before
making any determinations regarding Embree’s acceptance of
responsibility or the possession of firearms or a knife in
connection with the offense, the matter should be continued until
Embree had been debriefed by the Government, affording him the
opportunity to fully and truthfully provide information concerning
the offenses with which he was involved.1
At the reconvening of Embree’s sentencing hearing on June 13,
2002, Agent Snedeker was recalled to testify concerning Embree’s
debriefing. Agent Snedeker testified that Embree told him that he
only received “[a] half ounce to two ounces each trip” from Donna
Richardson and that he purchased small amounts of methamphetamine
from other individuals. He also testified that Embree stated that
he had manufactured methamphetamine on one occasion. Finally,
1
Embree’s initial counsel died after Embree signed the plea
agreement, but before he entered his plea of guilty. As a result
of the reassignment of counsel, at the time of his sentencing
hearing on May 29, 2002, Embree had not yet had the opportunity to
be debriefed by the Government.
7
Agent Snedeker testified that Embree admitted selling
methamphetamine to people at work and other associates.
At the conclusion of Agent Snedeker’s testimony, addressing
both the Government and Embree’s objections, the district court
found Embree’s credibility to be “suspect” with regard to the true
purpose of the weapons and the extent of his involvement in the
methamphetamine transactions with Richardson. Specifically, the
district court found that Embree’s admission that he financed
Richardson’s trips to California to buy methamphetamine was
sufficient within the meaning of the acceptance of responsibility
provision of the Sentencing Guidelines to afford him the benefit of
receiving the 3-level deduction. However, the district court also
denied Embree the benefit of application of the safety valve
provision pursuant to U.S.S.G. § 5C1.2, finding that Embree had not
met the requirements of the provision by “truthfully setting forth
his involvement in the same course of conduct as involved with the
offense of conviction.” Specifically, the court noted that while
Embree agreed to financing the trips to California, “that’s
essentially all that he agrees to.” The court found more credible
the evidence that Embree was involved not only in the manufacture
of methamphetamine, but that he also sold methamphetamine “to a
much greater extent than he’s admitted.” Finally, the district
court denied Embree’s objection to the 2-level enhancement for
possession of a dangerous weapon in connection with the offense
8
finding that Embree did in fact possess both firearms and a knife
in connection with the conspiracy to distribute methamphetamine.
Concluding that Embree had a total offense level of 31, criminal
history category of 1, and sentencing guideline range of 120 months
to 135 months of imprisonment, Embree was then sentenced to 125
months in prison.
II.
On appeal, Embree argues that the Government breached the plea
agreement by arguing at sentencing for a 2-level enhancement for
possession of a dangerous weapon in connection with the offense
after stipulating in the plea agreement that it possessed “no
information which would prevent [Embree] from meeting the criteria
set forth in 18 U.S.C.A. § 3553(f)(1)-(4) and U.S.S.G. § 5C1.2(1)-
(4).” The Government contends that Embree failed to raise the
argument that a breach of the plea agreement had occurred at the
time of his sentencing and thus, we should affirm the sentence
imposed by the district court unless we find plain error.2
Additionally, the Government argues that the plea agreement
2
When arguing against the 2-level enhancement at sentencing,
defense counsel argued that the Government stipulated in the plea
agreement that it had no information which would prevent the
application of the safety valve provision. Although trial counsel
failed to use the word “breach,” counsel did make the argument that
the Government’s position at sentencing was inconsistent with its
stipulation in the plea agreement. Therefore, we hold that Embree
has not raised this issue for the first time on appeal.
9
contains no stipulations or agreements relating to the application
of the 2-level enhancement for possession of dangerous weapons and
that, therefore, it is not in breach of the plea agreement by
arguing for such an application at sentencing. Finally, the
Government contends that Embree breached the plea agreement,
thereby relieving it of its obligations under the agreement, by:
(1) making a false statement under oath; (2) failing to accept
responsibility; and (3) providing false information at the
debriefing. We will review each of Embree’s claims in turn.
i.
In calculating Embree’s sentencing guideline range, the
district court applied a 2-level enhancement for possession of a
dangerous weapon in connection with the offense to which he pled
guilty pursuant to U.S.S.G. § 2D1.1(b)(1). Embree argues that the
Government breached its written plea agreement by arguing for the
dangerous weapons enhancement at sentencing. The Government
contends that the plea agreement contains no stipulations or
agreements relating to the application of the dangerous weapons
enhancement under U.S.S.G. § 2D1.1, and that, therefore, it is not
in breach of the agreement by arguing for the enhancement at
sentencing.
Although plea agreements between the Government and a
defendant are unique and call for special due process
10
considerations, the judicial interpretation of a plea agreement is
largely governed by the law of contracts. United States v. Conner,
930 F.2d 1073, 1076 (4th Cir. 1991). If the Government breaches
express or implied terms of the plea agreement, a violation of due
process occurs. Mabry v. Johnson, 467 U.S. 504, 509 (1984).
Because violations of plea agreements on the part of the Government
not only violate a defendant’s constitutional rights, but also
involve the “honor of the Government, public confidence in the fair
administration of justice, and the effective administration of
justice,” a breach of the agreement by the Government constitutes
plain error. United States v. McQueen, 108 F.3d 64, 66 (4th Cir.
1997).
In the present case, the Government stipulated that it
possessed no information that would prevent application of 18
U.S.C. § 3553(f)(1)-(4) and U.S.S.G. § 5C1.2(1)-(4). Title 18 of
United States Code section 3553(f)(1)-(4) and U.S.S.G § 5C1.2(1)-
(4) concern the application of the so-called “safety valve”
provision. The safety valve provision entitles the sentencing
judge to impose a sentence in accordance with the guidelines
without regard to the statutory minimum sentence, if certain
criteria are met. The criteria for application of the safety valve
provision are set out in 18 U.S.C. § 3553(f)(1)-(4) and U.S.S.G. §
5C1.2. One of the criteria included in those statutes, which are
identical, states that: “the defendant did not use violence or
11
credible threats of violence or possess a firearm or other
dangerous weapon (or induce another participant to do so) in
connection with the offense.” 18 U.S.C. § 3553(f)(2) (2002);
U.S.S.G. § 5C1.2(2)(2002). The statute pertaining to the
application of the dangerous weapons enhancement which is at issue
in this appeal is found in U.S.S.G. § 2D1.1(b)(1) and provides, “if
a dangerous weapon (including a firearm) was possessed, increase by
2 levels.” U.S.S.G. § 2D1.1(b)(1) (2002).
We agree that on its face, the plea agreement contains no
language regarding the dangerous weapons enhancement provision
under U.S.S.G. § 2D1.1. However, we do not agree that the
Government should benefit from such a strict interpretation of the
plea agreement. See, United States v. Bowler, 585 F.2d 851, 854
(7th Cir. 1978) (holding that a plea agreement is not the
appropriate context for “rigidly literal” construction.); Palermo
v. Warden, 545 F.2d 286, 295 (2d. Cir. 1976) cert. dismissed, 431
U.S. 911 (1977) (holding that the Government’s invocation of
restrictive contract principles is “disingenuous”). By stipulating
that it had no information that would prevent Embree from meeting
the criteria in U.S.S.G. § 5C1.2(1)-(4), the Government was
stipulating that it had no information that Embree possessed a
firearm or other dangerous weapon in connection with the offense.
In order to apply a 2-level enhancement for possession of a
dangerous weapon in connection with the offense under U.S.S.G. §
12
2D1.1(b)(1) a showing is required that Embree did in fact possess
a weapon in connection with the conspiracy to distribute
methamphetamine. The Government argued at sentencing that this
indeed was the case with respect to Embree.
If the plea agreement at issue is clear and unambiguous, the
agreement should be enforced as written. United States v. Harvey,
791 F.2d 294, 301 (4th Cir. 1986). In the present case, the
Government contends that because the plea agreement makes no
mention of U.S.S.G. § 2D1.1, there could be no ambiguity as to
whether the plea agreement prohibited the Government from arguing
for the enhancement under section 2D1.1 at Embree’s sentencing.
Embree argues that the stipulation regarding U.S.S.G. § 5C1.2 is at
least ambiguous as to whether it prevents the Government from
arguing as it did for the enhancement under section 2D1.1. Because
the challenged stipulation is subject to two interpretations, the
one proffered by the Government and the one advanced by the
Defendant, and because there is no extrinsic evidence in the record
from which the Court could determine the mutual understanding of
the parties, we conclude that the stipulation at issue is
ambiguous.
This result is consistent with United States v. Harvey, where
this Court held that “constitutional and supervisory concerns
require holding the Government to a greater degree of
responsibility than the defendant . . . for imprecisions or
13
ambiguities in plea agreements.” 791 F.2d at 300-01. “This is
particularly appropriate where, as will usually be the case, the
Government has proffered the terms or prepared a written agreement
- for the same reasons that dictate that approach in interpreting
private contracts.” Id. at 301. Thus, where there is no extrinsic
evidence of a mutual understanding of the interpretation urged by
the Government, ambiguities or imprecisions in the plea agreement
will be construed against the Government and in favor of the
defendant. Id. at 301-303. Applying these principles here, we will
resolve the ambiguity as to whether the stipulation as stated in
the plea agreement concerning the safety valve provision prohibited
the Government from arguing for application of the dangerous
weapons enhancement under section 2D1.1, in favor of Embree.
ii.
Turning now to the merits of Embree’s argument that the
Government breached the stipulation in the plea agreement by
arguing for the 2-level enhancement under section 2D1.1, this case
is analogous to United States v. Badaracco, 954 F.2d 928 (3d Cir.
1992). In Badaracco, the Government entered into a plea agreement
with the defendant in which it stipulated that the offense did not
involve more than minimal planning. Id. at 933. However, in
accordance with the presentence report, the district court
increased the defendant’s offense level because the probation
14
department found that the offense involved “more than minimal
planning.” Id. at 939. At the defendant’s sentencing hearing,
the Government changed its position and argued that “there was an
affirmative step taken by Mr. Badaracco indicating that he was
concealing something . . .” Id. The Third Circuit Court of
Appeals concluded that the Government’s argument made contrary to
the plea agreement provided a basis for the district court to
reject the Government’s stipulation and to adopt the recommendation
of the probation department. Id. at 940. The court held that
where the Government stated in court that there was an affirmative
step taken by the defendant indicating that he was concealing
something, and presented direct evidence to that effect, the
Government had indeed breached the plea agreement. Id. at 941.
The court further held that because the Government was aware of the
defendant’s concealment of his interests when he entered into the
plea agreement, “the Government [was] not free to breach its
agreement with a defendant because it decides after the fact that
it has made a bad bargain.” Badaracco, 954 F.2d at 941 (holding
that the Government breached the plea agreement because in part,
the prosecutor knew at the time she entered into the plea agreement
of the defendant’s potential for prosecution in another
jurisdiction, and testimony that she “was hoping that [the
defendant] wouldn’t ask her specifically about the coverage of the
agreement.”).
15
Similarly, in the present case, the Government entered into a
stipulation in a plea agreement and changed its position at
sentencing. In this instance, the Government stipulated that at
the time of the plea agreement, it had no information that Embree
possessed a dangerous weapon in connection with the offense. Like
the prosecutors in Badaracco, the Government did in fact possess
information which contradicted the stipulation they later entered
into under the agreement. The record in this case reveals that in
fact, the Government had knowledge that Embree possessed multiple
firearms in connection with the offense as a result of Agent
Snedeker’s interviews with the confidential informant leading up to
Embree’s arrest and because of the gun holsters recovered from his
residence at the time of his arrest. Further, the Government knew
of Embree’s possession of a knife in connection with the offense
before it entered into the stipulation in the plea agreement
because of the informant’s conversations with Agent Snedeker, to
which he testified, and because the knife was recovered from
Embree’s vehicle at the time of his arrest.
The Government freely entered into the plea agreement with
Embree and expressly agreed to the stipulation that it possessed no
information which would prevent application of the safety valve
provision. In so doing, the Government was agreeing that it
possessed no information that Embree possessed a dangerous weapon
in connection with the offense. Embree relied on the Government’s
16
promise to adhere to this stipulation in deciding to enter a plea
of guilty and thus to forego his constitutional right to a jury
trial. The Government then changed its position at sentencing by
arguing that Embree possessed a weapon in connection with the
offense to which he pled guilty. The Government’s argument for a
2-level enhancement for possession of a dangerous weapon in
connection with the offense “violated the spirit, if not the
letter” of the plea agreement. Badaracco, 954 F.2d 928, 940 (3d
Cir. 1992). The Government’s argument provided the district court
with a basis for not only denying Embree the benefit of application
of the safety valve provision, but also for the application of the
2-level sentencing enhancement. Therefore, we conclude that by
arguing for the 2-level enhancement under U.S.S.G. § 2D1.1(b)(1),
the Government indeed breached its obligations under the Plea
Agreement.
iii.
Notwithstanding the Court’s holding that the Government
breached the plea agreement in the manner previously described, we
now address the Government’s argument that Embree breached the
agreement, thereby excusing any breach on behalf of the Government.
The party asserting the breach must prove by a preponderance of the
evidence that he fulfilled all of his obligations under the
agreement. United States v. Snow, 234 F.3d 187, 189 (4th Cir.
17
2000). Thus, Embree as the party asserting the breach, must also
establish that he has satisfied his own obligations under the plea
agreement in order to prevail. Id. The Government in this regard
contends that Embree breached the plea agreement by: (1) making a
false statement under oath; (2) failing to accept responsibility;
and (3) providing false information at the debriefing.
Although the facts of this case are not in dispute, the
question of whether Embree breached the plea agreement by making a
false statement during his testimony at his plea hearing is an
issue of fact, and therefore, we review the district court’s
findings on this issue for clear error. Snow, 234 F.3d at 189. The
district court acknowledged and freely relied upon the Government’s
argument at sentencing that Embree had testified inconsistently.
The district court, however, did not find that Embree had committed
perjury at his plea hearing because Embree did in fact testify at
sentencing that he sold methamphetamine on occasion. The district
court therefore interpreted Embree’s statement at his plea hearing
as a denial that he was engaged in the widespread or commercial
sale of methamphetamine. As such, the district court further found
that Embree’s statements were not necessarily inconsistent. The
Government has not appealed the district court’s findings in this
regard, and we hold that the district court did not clearly err in
finding that Embree did not make a false statement under oath in
breach of the plea agreement.
18
Second, with regard to the Government’s contention that Embree
committed a breach of the plea agreement by failing to accept
responsibility for the offense to which he pled guilty in violation
of paragraph H of the plea agreement, this is also a question of
fact which we review for clear error. Snow, 234 F.3d at 189. In
overruling the Government’s objection to Embree’s receipt of an
adjustment for acceptance of responsibility, the district court
found that Embree had admitted his involvement within the meaning
of the acceptance of responsibility provision. Specifically, the
district court found that Embree admitted to financing Richardson’s
trips to California to purchase methamphetamine, and that that was
sufficient to allow him to obtain the deduction for acceptance of
responsibility. Again, the Government does not dispute the
district court’s factual findings, and we conclude that the
district court did not clearly err in finding that Embree did not
fail to accept responsibility for conspiracy to distribute
methamphetamine in breach of the plea agreement.
Finally, however, the Government’s contention that Embree
provided false information to officers in his debriefing has merit
and it is consistent with the district court’s findings of fact.
Whether Embree’s false statements constitute a material breach of
the plea agreement is a question of law, which we review de novo.
United States v. Martin, 25 F.3d 211, 217 (4th Cir. 1994)
(“principles of contract interpretation applied to the facts are
19
reviewed de novo.”). One of the requirements of the safety valve
provision is that the defendant “truthfully provide[ ] to the
Government all information and evidence the defendant has
concerning the offense or offenses that were part of the same
course of conduct or of a common scheme or plan. . .” U.S.S.G. §
5C1.1(a)(5). Further, Paragraph L of the plea agreement obligated
Embree to provide complete and truthful information to attorneys
and law enforcement and not to give any false information. In
denying Embree the benefit of the safety valve provision, the
district court found that he did not truthfully set forth his
involvement in the same course of conduct as involved with the
offense. Specifically, the district court found that while Embree
agreed that he financed Richardson’s trips to California, the
evidence sufficiently established that he not only was involved in
the later manufacture of methamphetamine to an extent “much greater
than he’s admitted,” but that he also personally sold
methamphetamine “to a much greater extent than he’s admitted.”
Embree argues, however, that in the plea agreement, he
reserved the right to provide evidence about conduct relevant to
the same course of conduct in support of his request for
application of the safety valve provision. In raising this
argument, Embree contends that any breach on his behalf regarding
the information he provided to law enforcement and at sentencing is
analogous to the defendant’s arguments in United States v. Peglera,
20
33 F.3d 412 (4th Cir. 1994). In Peglera, the defendant appealed
the imposition of his sentence arguing that the Government had
breached a plea agreement in which it agreed to recommend the
lowest end of the sentencing guidelines and a 3-level reduction for
acceptance of responsibility. Id. at 413. At sentencing the
Government argued that it was no longer bound by the terms of the
plea agreement because Peglera testified that he personally
distributed only powder cocaine, and not the cocaine base for which
he pled guilty. Id. at 412-13. In Peglera, we held that while the
Government’s argument had considerable force under some
circumstances, it failed in this instance because the agreement
expressly reserved Peglera’s right to argue that the “Schedule II
narcotic controlled substance for which he should be held
accountable is cocaine hydrochloride [powder cocaine].” Id. at 414.
Further, the Government had acknowledged Peglera’s right to dispute
his responsibility for distributing cocaine base at sentencing.
Id. Therefore, we concluded that Peglera had not breached the plea
agreement so as to excuse the Government’s own breach.
The present case, however, can be distinguished from Peglera
because there was no similar provision in Embree’s plea agreement
which entitled him to give false information regarding the extent
of his involvement in the conspiracy to which he pled guilty. In
fact, this plea agreement required Embree to fully and truthfully
disclose his involvement in the offense. The district court found
21
that Embree failed to provide truthful information regarding the
conspiracy to distribute methamphetamine. By failing to provide
complete and truthful information relating to the offense, Embree
breached his agreement with the Government. See also, United
States v. Lyons, No. 05-4735, 2006 WL 3253195 (4th Cir. Nov. 8,
2006)(holding that where defendant was not initially truthful with
law enforcement concerning information on drug deals and failed to
“cooperate” with the government in accordance with the terms of the
plea agreement, the government did not breach the agreement by
failing to move for the normal 50% 5K1.1 departure and instead
moving for a 25% reduction). Unlike Peglera, Embree can point to
no provision in this agreement that excuses his breach. According
to paragraph D of the plea agreement, upon Embree’s breach of the
agreement, the Government was entitled to refuse to abide by the
stipulations contained in the agreement, including the stipulation
that it had no information that Embree possessed a dangerous weapon
in connection with the offense. Therefore, we hold that Embree’s
breach of the plea agreement based upon his failure to fully and
truthfully disclose his involvement in the conspiracy precludes him
from the relief he has requested in his appeal. Accordingly, we
conclude that the district court did not err in imposing a 2-level
enhancement for possession of a dangerous weapon in connection with
the offense.
22
III.
For all the reasons stated above, the district court’s
application of a 2-level enhancement against Embree under U.S.S.G.
§ 2D1.1(b)(1) is affirmed.
AFFIRMED
23 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595359/ | 954 So.2d 276 (2007)
Kimberly LEE, Plaintiff-Appellant
v.
HERITAGE MANOR OF BOSSIER CITY, Defendant-Appellee.
No. 41,828-WCA.
Court of Appeal of Louisiana, Second Circuit.
March 14, 2007.
*278 Fischer & McMahon, by Mark Kenneth Manno, for Appellant.
Rabalais, Unland & Lorio, by John Joseph Rabalais, Paul Eric Harrison, Covington, Heather W. Blackburn, for Appellee.
Before CARAWAY, DREW and SEXTON (Pro Tempore), JJ.
DREW, J.
In this workers' compensation case, the employee appeals a judgment denying her claims for post-termination Supplemental Earning Benefits ("SEBs"), cervical disc surgery, and additional penalties and attorney fees.
*279 We affirm the judgment in part and reverse the judgment in part.
FACTS
Kimberly Lee was employed as a Certified Nursing Assistant and van driver at Heritage Manor nursing home. Lee injured her cervical spine on April 27, 2004, when she moved a nursing home resident from his bed to a chair.
Following the incident, Lee was treated by her regular physician, Dr. Carter Boyd, on May 3, 2004. Dr. Boyd noted that Lee had injured her neck and was experiencing pain down her spine and numbness in both legs, with the right leg worse. A cervical spine MRI taken on May 11, 2004, revealed degenerative disc disease mostly at C5-6 and C6-7, with C5-6 as the most affected. A lumbar spine MRI was normal.
Dr. Boyd referred Lee to Cornerstone Rehabilitation, where she received a Functional Capacity Evaluation ("FCE") on July 1, 2004, and was evaluated on July 15, 2004. The summary of findings from the FCE was that Lee was unable to do the lifting or carrying as noted in her job description, but was able to perform at a light to medium work level. Lee received therapy at Cornerstone through August 20, 2004. The discharge note from Cornerstone states that Lee only reported intermittent lower back pain every other day while at rest, had no complaints that day of pain in neck or back, and could perform her pre-injury job with minimal to no complaints. All physical therapy goals had been met.
Dr. Boyd's notes from September 8, 2004, reflect that Lee's cervical condition had resolved, but she continued to complain of back pain. Dr. Boyd recommended pain management.
Lee continued to work after the accident. However, Dr. Boyd took Lee off of work near the end of September of 2004. She began receiving indemnity payments the next month.
On October 15, 2004, Lee was examined by Dr. William Whyte on a referral from Dr. Boyd. According to Dr. Whyte's records, Dr. Boyd had requested a non-surgical interventional spine consultation. Lee described pain in the neck that radiated into the left upper extremity, with the pain described as stabbing, burning, and sharp. Dr. Whyte's diagnosis was left C6 radiculopathy, and left C5-6 "herniated nucleopulpsis extending into left neuroforamin [and] partially obstructing foramen." Dr. Whyte wanted to pursue a C5-6 percutaneous disc decompression (nucleoplasty).
On a referral from Dr. Boyd, Lee began treatment with orthopedic surgeon Dr. Pierce Nunley on November 11, 2004. Dr. Nunley prescribed physical therapy, which Lee began at Tri-State Physical Therapy on November 22, 2004. Physical therapy records from December 15, 2004 reflect that there was a decrease in complaints of neck pain.
EMG and nerve conduction studies were performed by Dr. David Adams on December 2, 2004, at the request of Dr. Nunley. There was no evidence of radiculopathy, neuropathy, or myopathy in either lower extremity. None of those conditions or ulnar neuropathy was found in either upper extremity.
After a rehabilitation conference, Dr. Nunely noted on December 29, 2004, that it was reasonable for Lee to be at light-duty work at that time. On January 3, 2005, Dr. Nunley wrote regarding Lee's work status that she was to be restricted to light-duty desk-type work, with no lifting, pulling, or pushing more than 10 pounds either occasionally or on a repetitive basis. Lee was also not to do repetitive *280 tasks and was to be allowed frequent position changes. Dr. Nunley also reviewed the MRIs from May 2004. He thought there was disc herniation at C5-6, and degenerative disc disease at C4-5, C6-7, L3-4, L4-5, and L5-S1. Regarding the lower back, Dr. Nunley thought that conservative management should be continued. Regarding the neck, Dr. Nunley recommended bilateral C6 nerve root blocks and, depending on their effectiveness, an Anterior Cervical Discectomy and Fusion ("ACDF").
On January 12, 2005, Lee's case manager wrote to Dr. Nunley about Lee's modified job description. Her duties were to include, but not be limited to, answering phones, passing out dinner trays and snacks to residents, feeding residents, filling water pitchers, answering call bells, trimming residents' nails, brushing residents' teeth, checking closets for neatness, assisting with chart filing, cleaning wheelchairs, bathing residents, and pushing residents in wheelchairs. No duty required lifting, pulling, or pushing more than 10 pounds. Dr. Nunley approved the job description, except that he wanted no transferring of residents or duties which required supporting a resident's weight.
Lee was involved in a motor vehicle accident on January 26, 2005. She stopped receiving indemnity payments the next day. When Lee was treated at Dr. Nunley's office on February 3, 2005, she reported that the nerve blocks relieved some of the pain, but she was never pain-free. Lee also complained that her pain had increased after the recent motor vehicle accident.
An MRI of Lee's cervical spine was performed on February 3, 2005. The radiologist's impression was a very small central disc protrusion at C5-6 having minimal effect on the thecal sac, and mild to moderate degenerative disc changes at C4-5 without significant narrowing of the nerve root canals. Dr. Nunley believed this MRI showed disc bulge and spondylosis at C4-5, a herniated disc "eccentric to the left" at C5-6, and mild degenerative disc disease at C6-7.
Lee returned to light-duty work on February 10, 2005. On that date, Lee and Heritage Manor's Administrator Joel Marsh signed off on her job restrictions. Her duties were largely identical to those listed in the January 12, 2005, modified job description, except that none of her duties were to include lifting anything weighing more than 10 pounds; lifting, transferring or pushing residents; or bathing, changing, or doing anything that required her to support any part of a resident's weight.
Lee stopped receiving physical therapy at Tri-State on February 14, 2005. The notes from her last physical therapy session state that Lee was tolerating work duties, and that all complaints of pain had increased since her motor vehicle accident.
Lee reported to Dr. Nunley's nurse on February 28, 2005, that the bilateral C6 selective nerve root block took away the majority of her symptoms, but that she still had occasional pain radiating to the right shoulder and primarily down the left shoulder. However, on March 24, 2005, Lee reported to Dr. Nunley's nurse that three C6 selective nerve root blocks had not helped alleviate any of her symptoms and that she wanted surgery. She was having pain equally on both sides. The nurse stated that he was submitting for approval of an ACDF C4-5 and C5-6.
Lee was fired on April 13, 2005. The reasons given for her termination were excessive absenteeism and insubordination. According to her employment records, Lee was absent from work approximately 13 times in 2005, usually to care for her sick child. In the months of February and *281 March of that year, Lee had worked approximately 16 days. Her employment records also reflect that Heritage Manor had instituted corrective actions plans for Lee several times when she returned to work in 2005. The reasons given for the corrective actions included not calling in daily to check with her supervisor, exhibiting lack of respect, insubordination, refusing to follow instructions, raising her voice, slamming a door shut, not doing her job, poorly performing her job, and having a poor attendance record.
On May 2, 2005, Lee was taken off of work by Dr. Nunley's office because of neck and lower back pain. On May 18, 2005, Lee amended her earlier filed claim for compensation to seek SEBs from February 10, 2005, to April 15, 2005, post-termination SEBs with a zero earnings base from April 16, 2005, through May 1, 2005, and temporary total disability benefits beginning on May 2, 2005. Surgery, penalties, and attorney fees were sought in later amendments.
Lee's complaints of pain continued. On June 2, 2005, she told Dr. Nunley's nurse that she still had low back pain, but her neck was worse. On June 30, 2005, Lee reported to Dr. Nunley's nurse that she had worsening symptoms in the base of her neck, radiating down her shoulders and into her hands. Lee also said that her back symptoms had worsened.
Dr. Gordon Mead, an orthopedic surgeon, evaluated Lee on June 20, 2005, for a second medical opinion. Dr. Mead disagreed with Dr. Nunley's recommendation of surgery. Dr. Mead considered Lee to be at maximum medical improvement, and he recommended that she undergo a functional capacity evaluation and be returned to the workforce.
An independent medical examination was sought by Heritage Manor. This examination was conducted by orthopedic surgeon Dr. Karl Bilderback on January 16, 2006. He concluded that in the absence of evidence of cervical or lumbar radiculopathy or cervical or lumbar segmental instability, he would not recommend any type of spine operation on Lee. Dr. Bilderback believed that Lee had reached maximum medical improvement regarding her April 2004 injuries, and that she could return to work in a medium work capacity and would likely advance to unrestricted work. He did not see any evidence of permanent impairment.
The WCJ rendered judgment finding that: (1) Lee was entitled to $188.97 in past-due benefits because Heritage Manor had underpaid benefits of $432.85 from October 15, 2004, through January 27, 2005, but had overpaid benefits of $243.88 from October 1, 2004, to October 15, 2004; (2) Lee is entitled to a penalty of $2,000.00 and attorney fees of $2,000.00 because of Heritage Manor's failure to properly calculate the average weekly wage; (3) Lee is not entitled to the ACDF surgery recommended by Dr. Nunley; (4) although Lee was asked to perform job duties beyond her restriction, she is not entitled to post-termination SEBs because she did not make a prima facie case that she could not earn 90% of her pre-injury wages; (5) Lee waived her claim to pre-termination SEBs; (6) Lee was not entitled to temporary total disability benefits because the off-work slip dated May 2, 2005, did not rise to the level of clear and convincing evidence in light of other medical evidence that Lee was capable of employment; and (7) Lee was not entitled to penalties or attorney fees for Heritage Manor's failure to approve the surgery or to obtain a second medical opinion within 60 days because Lee missed a scheduled second medical opinion examination.
Lee has appealed, arguing that the trial court erred in denying her claim for post-termination *282 SEBs, failing to award penalties and attorney fees on the SEBs issue, ordering an independent medical exam, denying her claim for cervical disc surgery, failing to award penalties and attorney fees for a late second medical opinion examination, and in awarding only $2,000.00 in attorney fees as a result of Heritage Manor's miscalculation of benefits.
DISCUSSION
Supplemental Earnings Benefits
Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Id. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may feel that its own inferences and evaluations are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993).
SEBs are awarded when a work-related injury prevents the employee from earning 90% or more of his pre-injury wages. La. R.S. 23:1221(3)(a). The employee has the initial burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Banks, supra. "Th[is] analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers' compensation law is to be liberally construed in favor of coverage." Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989). See Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161, and Kahlden v. Horseshoe Entertainment, 30,277 (La.App.2d Cir.2/25/98), 709 So.2d 873.
Once the employee's burden is met, the burden shifts to the employer who, in order to defeat the employee's claim for SEBs or establish the employee's earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer's community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i); Daigle, supra. Actual job placement is not required. Banks, supra.
The trial court specifically found that Lee was unable to perform her pre-injury job and that after she returned to work in February of 2005, Lee was asked to perform job duties that were beyond her job restrictions. That was enough for Lee to establish her prima facie case of entitlement to post-termination SEBs, and to shift the burden to Heritage Manor. It is of no moment that Lee was fired from her adjusted position because that position required tasks that exceeded her job restrictions.
Once Lee established her prima facie case of entitlement to SEBs, the burden of proof then shifted to Heritage Manor. The supreme court has set forth a minimum standard that an employer must meet in order to defeat a claim for SEBs by establishing job availability:
*283 [A]n employer may discharge its burden of proving job availability by establishing, at a minimum, the following, by competent evidence:
(1) the existence of a suitable job within claimant's physical capabilities and within claimant's or the employer's community or reasonable geographic region;
(2) the amount of wages that an employee with claimant's experience and training can be expected to earn in that job; and
(3) an actual position available for that particular job at the time that the claimant received notification of the job's existence.
Banks, 96-2840 at pp. 10-11, 696 So.2d at 557.
Heritage Manor failed to meet its burden. Other than the nursing home position offered that ultimately exceeded her job restrictions, Heritage Manor presented no evidence at trial that Lee was physically able to perform a certain job and that the job was offered to her or that the job was available to the Lee in her or Heritage Manor's community or reasonable geographic region. Accordingly, the trial court was clearly wrong in denying Lee's claim for post-termination SEBs. See Wilson v. Grosjean Contractors, Inc., 28,831 (La.App.2d Cir.10/30/96), 682 So.2d 1264, writ denied, 97-0012 (La.2/7/97), 688 So.2d 510, where the claimant was entitled to SEBs when the record contained neither evidence that the claimant could perform his previous job duties nor evidence of any offered or available employment consistent with his capabilities and which paid at least 90% of his pre-injury wages. See also Hinton v. Scott Hydraulics, Inc., 614 So.2d 820 (La.App. 2d Cir.1993), writ denied, 618 So.2d 413 (La.1993).
The method of determining the amount of an award of SEBs is provided in La. R.S. 23:1221(3)(a):
For injury resulting in the employee's inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed by multiplying his "wages" by fifty-two and then dividing the quotient by twelve.
The WCJ determined that Lee's average weekly wage is $329.60, giving her an average monthly wage of $1,428.27. Heritage Manor presented no evidence as to the amount that Lee is able to earn in another position. Nevertheless, there is no evidence that Lee is unable to earn any wages. Therefore, her SEBs shall not be calculated based upon zero earning capacity. Instead, her SEBs are to be based upon the difference between her pre-injury monthly wage of $1,428.27 and the average monthly minimum wage of $892.66 ($5.15 per hour and assuming an average work week of 40 hours) that Lee would be capable of earning. See Wilson, supra, and Hinton, supra. We conclude that Lee is entitled to monthly SEBs of $357.00 beginning from April 13, 2005, her date of termination.
La. R.S. 23:1201(F) provides for the assessment of a penalty and reasonable *284 attorney fees against the employer or insurer for the failure to timely commence or timely continue paying benefits unless the claim is reasonably controverted or if the nonpayment results from conditions over which the employer or insurer had no control. The meaning of "reasonably controverted" in the context of this statute was addressed in Brown v. Texas-LA Cartage Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890:
In general, one can surmise from the plain meaning of the words making up the phrase "reasonably controvert" that in order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits. Thus, to determine whether the claimant's right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.
Awards of penalties and attorney fees in workers' compensation cases are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41; Sharbono v. Steve Lang & Son Loggers, 97-0110 (La.7/1/97), 696 So.2d 1382. Although the Workers' Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed. Williams, supra.
As noted above, other than medical records and providing a modified position to Lee, Heritage Manor failed to come forth with evidence to rebut Lee's claim to SEBs. At the time that Lee became entitled to SEBs, she had yet to be examined by Dr. Mead or Dr. Bilderback, and Heritage Manor was only aware that Lee could work with restrictions. Thus, the claim was not reasonably controverted. We note that Dr. Mead's recommendation was that a FCE be performed and Lee be returned to the workforce. Heritage Manor did not take these steps. Accordingly, we conclude that as a result of Heritage Manor's failure to pay SEBs, an additional penalty of $2,000.00 and additional attorney fees of $2,000.00 is appropriate.
Independent Medical Examination
La. R.S. 23:1123 states, in part, "If any dispute arises as to the condition of the employee, the director, upon application of any party, shall order an examination of the employee to be made by a medical practitioner selected and appointed by the director." Lee argues that the WCJ erred in ordering an Independent Medical Exam ("IME") when the dispute was not about Lee's condition, but whether she needed surgery. Lee additionally contends that because the IME was improper, its conclusions should not have been considered by the WCJ.
Dr. Nunley noted on January 3, 2005, that Lee had a herniated disc with radiculopathy in her neck. As a course of treatment, he recommended C6 selective nerve root blocks, followed by an ACDF if the nerve root blocks were ineffective. According to the March 24, 2005, report from Dr. Nunley's office, three nerve root blocks had not helped alleviate her symptoms. After that date, the ACDF was pursued.
Dr. Gordon Mead, an orthopedic surgeon, examined Lee on June 20, 2005. His conclusion in his report was that Lee *285 lacked objective findings of nerve root impingement, and was at maximum medical improvement. Therefore, Dr. Mead felt that surgery was not indicated. Clearly, there was a dispute between the parties about both Lee's condition and whether she needed additional treatment. The dispute was not solely based upon the surgery, although that was an aspect of the dispute. The trial court did not err in ordering the IME.
Request for Surgery
Lee argues that the WCJ was clearly wrong in denying her request for the ACDF surgery.
Filed into evidence were the report and deposition of Dr. Mead. When Dr. Mead evaluated Lee on June 20, 2005, he was not aware that Lee had been involved in a recent automobile accident, as she did not tell him about it. Dr. Mead agreed with the conclusions of the radiologist that the May 2004 MRI showed degenerative disease at C5-6 with a bulge at the C5 and C6 levels without any nerve root impingement. The lumbar spine looked normal. He also agreed with the radiologist's interpretation of the February 2005 MRI as showing small central disc protrusion at C5-6 with mild degenerative changes at C4-5. No nerve root impingement was noted. Dr. Mead thought for all intents and purposes that the two cervical spine MRIs were identical.
Dr. Mead's impression was that Lee had a pre-existing degenerative cervical disc disease, but did not have a lumbar disc disease. He believed that she most likely strained her neck, and possibly her back, at the time of injury, and that this temporary aggravation of the pre-existing degenerative disease should have taken three to six months to resolve. Because there was no objective finding of nerve root impingement, Dr. Mead did not feel that surgery was necessary to treat Lee's pain, and he did not agree with Dr. Nunley's recommendation of an ACDF. Dr. Mead stated that cervical disc surgery can be successful in relieving symptoms from nerve root impingement, but not in relieving vague pain complaints. Dr. Mead considered Lee to be at maximum medical improvement, and he recommended that she receive a functional capacity evaluation and be returned to the workforce. Dr. Mead did not feel that additional medical treatment was necessary.
Dr. Mead does not perform cervical spine surgeries. He has a general orthopedic surgery practice. The lumbar surgeries he performed in the past were usually lumbar discectomy and lumbar laminectomy.
The IME was conducted by Dr. Karl Bilderback on January 16, 2006. Reviewing the cervical spine MRI from May of 2004, Dr. Bilderback found mild spondylosis at C4-5 with a tiny disc bulge, a slightly larger bulge and very mild exit foramen stenosis at C5-6, and a smaller bulge at C6-7 with no exit foramen stenosis. There was little change on the MRI taken in February of 2005. Dr. Bilderback decided that in the absence of evidence of cervical or lumbar radiculopathy or cervical or lumbar segmental instability, he could not recommend surgery for Lee. Dr. Bilderback also believed that Lee had reached maximum medical improvement for the injuries she received in April of 2004.
The opinion of the IME physician is not conclusive, and the WCJ must evaluate all of the evidence presented in making a decision as to the claimant's condition. McKinney v. Coleman, 36,958 (La.App.2d Cir.3/14/03), 839 So.2d 1240. The record supports the finding that the ACDF is not a reasonable and necessary medical *286 treatment. The WCJ was not clearly wrong in denying Lee's claim for a ACDF.
Because Lee is not entitled to the ACDF, she is not entitled to an award of penalty and attorney fees relating to the timeliness of the second medical opinion.[1] That medical opinion was the basis for the adjuster's denial of the surgery request.
We note the request for surgery was received by the adjuster on April 11, 2005. The second medical opinion examination was scheduled for May 23, 2005, within 60 days of the receipt of the request for surgery, but Lee failed to show for the appointment.
Original Award of Attorney Fees
Lee urges that the original award of $2,000.00 in attorney fees is too low. The WCJ awarded attorney fees and a penalty because of Heritage Manor's improper calculation of indemnity benefits.
A WCJ has great discretion in awarding or denying penalties and attorney fees. Nowlin v. Breck Const. Co., 30,622 (La.App.2d Cir.6/24/98), 715 So.2d 112. We find no abuse of the WCJ's discretion in awarding attorney fees in the amount of $2,000.00 for that particular claim.
CONCLUSION
We amend the judgment to award SEBs in the amount of $357.00 per month commencing on April 13, 2005. We also amend the judgment to assess an additional penalty of $2,000.00, and to award additional attorney fees of $2,000.00. Therefore, Lee is awarded total penalties of $4,000.00 and total attorney fees of $4,000.00. In all other respects, the judgment is affirmed.
At Heritage Manor's costs, the judgment is AFFIRMED IN PART and REVERSED IN PART.
NOTES
[1] La. R.S. 23:1201(E) requires that medical benefits be paid within 60 days after the employer or insurer receives written notice thereof. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596333/ | 399 So.2d 309 (1981)
James D. DAVIS
v.
Virginia COLE.
Civ. 2719.
Court of Civil Appeals of Alabama.
May 20, 1981.
Joe S. Pittman of Pittman, Whittaker & Hooks, Enterprise, for appellant.
Joe C. Cassady of Cassady, Fuller & Marsh, Enterprise, for appellee.
HOLMES, Judge.
This is a divorce case.
The parties to this appeal were divorced in 1974. The decree of divorce via an agreement of the parties contained certain provisions regarding two parcels of land. One parcel of land was a home located in Enterprise, Alabama. The other parcel was located in Tennessee.
Thereafter, in 1979, the ex husband filed suit in Enterprise seeking a sale for division of the Enterprise home.
The ex wife answered with a motion to dismiss. The trial court granted the wife's motion. The trial court determined that the Enterprise home's disposition was provided for by the terms of the divorce decree and could not be modified.
Approximately one week after the dismissal, the trial court allowed the ex husband to amend his lawsuit. The amendment alleged "changed circumstances" and sought modification of the 1974 decree as it pertained to the Enterprise home.
After an ore tenus hearing, the trial court again found the disposition of the Enterprise property, as provided in the 1974 divorce decree, was part of a division of property and therefore not subject to modification.
The ex husband appeals and we affirm.
The ex husband's position is best stated by his able and distinguished counsel who, before the trial judge, said the following:
In the pending suit on modification we would contend that paragraph numbered Three is certainly in the nature of alimony and or child support, since at the time of the divorce there were two children who were not of age who have since then become of age and are both married. So we say that that portion of it that gave her the right to live in the marital home certainly is certainly no more and should be off in view of the change of the status of the parties and the fact that she is remarried and the children are of age, and we would ask the Court to modify the judgment to that extent and upon a modification to grant petitioner's complaint *310 seeking the sale for division of the property for division among the joint owners, but we would make known to the Court that we would like the sale to be as orderly as possible and therefore we would not object and would request the Court to give the parties six months in which to attempt to sell theget the property FHA or VA appraised and sell it in an orderly fashion rather than a forced sale upon the courthouse steps, and that the proceeds be divided between the parties.
The pertinent paragraphs of the divorce decree are as follows:
3. It is agreed that the wife shall have the right to live in the marital home in Enterprise, Alabama and that she shall make the monthly payments on said home as they become due as well as providing maintenance and upkeep on said property.
4. It is agreed that the wife shall receive as alimony the income from property owned by the parties in Tennessee and that she will make the monthly payments on said property including taxes and insurance and that she will provide necessary repairs. In the event the wife remarries, the income from the Tennessee property will be placed in a joint savings account as an educational fund for the minor children to be used for their college education. In order to withdraw from this account it will be necessary [for] both the husband and wife to sign any withdrawal slips. After the education of the minor children, or upon determination of the parties that neither child desires an education on a college level, then the husband shall determine whether the Tennessee property should be sold. In the event the husband determines that the Tennessee property should be sold it is agreed that the net proceeds will be divided equally between the husband and wife, and that out of her share, she will pay to the husband $1000.00 and he at that time will convey the Enterprise, Alabama property to the wife. In the event there is no longer any need for an educational fund for the children and if the husband elects to not sell the Tennessee property, then, in that event, the husband and wife shall each receive one half of the net income of said property.
As our distinguished Presiding Judge Wright stated in Cochran v. Cochran, 49 Ala.App. 178, 269 So.2d 884 (1970), rev'd in part, 289 Ala. 615, 269 So.2d 897 (1972), on remand, 49 Ala.App. 749, 269 So.2d 905 (1972), it is the law in this state that a property settlement agreement incorporated in a divorce decree (such as we have here) is final and not modifiable. See also, Duboise v. Duboise, 275 Ala. 220, 153 So.2d 778 (1963); Sullivan v. Sullivan, 215 Ala. 627, 111 So. 911 (1927).
It is further the law in this state that in order to characterize an agreement between husband and wife entered into pursuant to a dissolution of the marriage, the trial court must look to the intent of the parties. DuValle v. DuValle, Ala.Civ.App., 348 So.2d 1067 (1977).
In this instance, while the original agreement-decree is not a paragon of clarity, nor does it necessarily provide for all possible contingencies, this court cannot say the trial court erred in finding the pertinent provision to be part of a property settlement.
The agreement-decree provides that the husband has the authority to decide that the Tennessee property should be sold. In that event, the proceeds from such sale are to be equally divided. However, upon the sale of the Tennessee property, the ex wife shall pay an additional $1,000 to the ex husband. Upon such payment the ex husband shall convey to the ex wife the Enterprise home.
Additionally, the ex wife testified to the effect that if the Tennessee property was sold she would be willing to pay the ex husband $1,000 and would expect to receive in return a conveyance of his interest in the Enterprise property.
With the agreement and decree before the trial court and the oral testimony presented, the trial court was free to conclude that the disposition of the parcels of *311 land was interdependent upon action by the parties and was the method selected by the parties to dispose of the property.
Summarizing, with the above agreement before the learned trial judge and the oral testimony presented, there is ample evidence to conclude that the agreement provided the means of disposing of the two parcels of land. Hence, a property settlement; hence, not subject to modification. See, Cochran v. Cochran, supra.
The case is due to be affirmed.
AFFIRMED.
WRIGHT, P. J., and BRADLEY, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1550347/ | 33 N.J. 321 (1960)
164 A.2d 601
IN THE MATTER OF NORMAN H. SAMUELS, A MEMBER OF THE BAR OF THE STATE OF NEW JERSEY.
The Supreme Court of New Jersey.
Argued October 3, 1960.
Decided October 24, 1960.
Mr. Abram A. Lebson argued the cause on behalf of the Ethics Committee of Bergen County.
Mr. Norman H. Samuels argued the cause pro se.
PER CURIAM.
The Ethics Committee of Bergen County filed a presentment against respondent as the result of a finding of guilt of unethical and improper conduct. Following argument, the matter was submitted for our consideration.
Respondent has been admitted to the bar since January 1930. A number of years ago he ceased actively practicing law and went into industry. In 1952 or 1953, although continuing his regular business pursuits, he resumed practice from his home on a part time basis.
*322 In July 1956 a gas explosion occurred in the home of Martin S. Silverberg in Fair Lawn, New Jersey, resulting in some property damages. Respondent was retained on a contingent fee basis to handle the claim against the allegedly responsible utility company. Apparently a settlement offer of $100 or $150 had been made to Mr. Silverberg prior to the retainer and the fee arrangement related to any sum recovered in excess of the offer. No specific evidence was furnished as to the amount of the property damage but $500 would have been an acceptable settlement figure. The record reveals some suggestion of a possible injury claim by Mr. Silverberg's wife's mother. The Committee, however, found that no lawyer-client relationship was ever established with respect to such a claim.
Thereafter, respondent wrote one letter to the utility and engaged in a few telephone conversations with its claim representative. When an adjustment was not accomplished, the client was advised that suit would be instituted. But that course was never taken. During the ensuing three years, in spite of numerous conversations with Mr. Silverberg and his wife to the effect that the action would be begun, and later that it had been filed, nothing was ever done. Finally, the client discovered the true situation through a visit to the court clerk and, after some further unsatisfactory conversations and communications with Samuels, this complaint of unethical practice was lodged with the Committee.
At the hearing respondent admitted his delinquency. He had no explanation for his conduct except that he had been neglectful. It seems obvious that his part time law practice was subordinated to his full time business engagement. The matter illustrates the difficulty of attempting to serve two masters when one of them is a profession which imposes heavy fiduciary responsibilities. Fortunately, the statute of limitations has not run on the claim and Mr. Silverberg indicated to the Committee his intention of engaging another attorney. The fact that the cause of action may still be prosecuted is a mitigating circumstance but it *323 does not excuse respondent. His contrite attitude in open court and his avowal that such conduct will never be repeated are accepted by us as sincere. But censure is merited and the record may show that he is hereby reprimanded.
For reprimand Chief Justice WEINTRAUB, and Justices BURLING, JACOBS, FRANCIS, PROCTOR, HALL and SCHETTINO 7.
Opposed None. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596543/ | 530 N.W.2d 465 (1995)
In the Interest of L.B., Minor Child,
M.G.B., Mother, Appellant.
No. 94-772.
Court of Appeals of Iowa.
February 28, 1995.
*466 Donna M. Humpal of M.W. Liebbe Law Office, Davenport, for appellant-mother.
Bonnie J. Campbell, Atty. Gen., Gordon E. Allen, Deputy Atty. Gen., and Kathrine S. Miller-Todd, Asst. Atty. Gen., for appellee-State.
Stephen P. Wing of Dwyer, Wing, Zamora, Taylor & Walters, Davenport, for appellee-father.
Vincent J. Motto of VanderVennet, Motto & Aitken, P.C., Davenport, guardian ad litem, for minor child.
Heard by DONIELSON, C.J., and SACKETT and CADY, JJ.
CADY, Judge.
This appeal arises from a permanency hearing in juvenile court. M.G., the mother, appeals the court order appointing S.B., the father, to be the guardian of their daughter L.B. Upon reviewing the record, we affirm the trial court's order.
L.B. was born September 6, 1990. M.G. and S.B. never married. L.B. lived with M.G. from her birth until her removal on November 25, 1992. S.B. is not listed on the birth certificate. S.B. and L.B., however, have the same last name and M.G. told her mother S.B. was the father. S.B. has also purchased clothing for L.B. and exercised visitation with her. There has never been a paternity or support action with regard to S.B.
In November 1992, a petition was filed alleging L.B. was a Child in Need of Assistance (CINA) pursuant to Iowa Code sections 232.2(6)(b), (6)(c)(2), and (6)(g) (1991). A Temporary Removal Order was entered based on L.B.'s unexplained injuries.
A subsequent investigation by DHS revealed L.B. was living with M.G. and M.B., M.G.'s male friend. The investigation concluded L.B.'s injuries were a result of her caretaker's actions.
On December 17, 1992 a hearing was held on the temporary placement of L.B. The court placed L.B. in the temporary custody of S.B. under the supervision of the DHS. M.G. was granted weekly supervised visitation.
Although M.G. attended most of the visits provided, she terminated each of them early, leaving one session after only ten minutes. *467 During the sessions she interacted minimally with L.B. and L.B. was intensely frightened of M.G.
L.B. was Adjudicated CINA in February 1993 pursuant to the grounds alleged in the petition. A specific finding was made that M.B. had abused L.B. and M.G. had failed to intervene or seek appropriate medical care.
A February 1993 case permanency plan indicated S.B. was willing to accept services and M.G. was scheduled to have weekly supervised visitation. M.G. was encouraged to attend domestic violence counseling, and was provided with therapy and parent skill development services.
Following an April 1993 dispositional hearing, the court found M.G. was unwilling to address the issue of physical abuse in an appropriate way. She vacillated between admitting, denying, and minimizing abuse of herself and L.B. She had not participated in a domestic violence program. The order also stated L.B. was being well cared for by her father, and the case should terminate without further order of the court in December 1993.
M.G. gave birth to her second child on July 6, 1993. The same month she fled to a shelter after M.B. beat her. M.B. came to the shelter to find M.G. and assaulted the family resource secretary. M.G. then returned home to M.B.
In a September 1993 review order, the court continued placement of L.B. with S.B. It found M.G. had refused to accept any services which would provide her with a realistic chance of improving the dangerous and abusive environment in her home. It also found M.G. had ceased contact with service providers and L.B. in July, and there was no information about her present circumstances. Finally, the court noted L.B. was doing well in her father's custody, the case should terminate as previously ordered, and the father should bear the responsibility of obtaining a permanent custody order and an order placing appropriate limitations on visitation.
In November 1993, M.B. was convicted of criminal mischief and assault with injury for attacking the family resource secretary. The next day, M.G. married M.B.
In December 1993, S.B. filed an application with the juvenile court requesting the court to retain jurisdiction over the case and enter a permanency order. The application was granted and a permanency hearing was held in January 1994.
M.G. was pregnant with M.B.'s second child and testified she wanted L.B. to live with her and her husband. There was undisputed testimony S.B. was providing L.B. appropriate care. The court found L.B. would suffer adjudicatory harm if returned to M.G.'s home and reasonable efforts and been made to resolve the harm. See Iowa Code § 232.2(6) (1993). The court appointed S.B. as guardian and custodian of L.B. pursuant to Iowa Code section 232.104(2)(d)(1) (1993) and granted M.G. visitation rights. The court also ordered a review in twelve months.
M.G. appeals. M.G. first contends S.B. did not acknowledge paternity of L.B. within a reasonable time and therefore she was the sole custodian. She next asserts the court erred in finding sufficient services had been offered to correct the situation which led to adjudication. She finally claims there was not convincing evidence that L.B. could not be returned to her home.
I.
Our scope of review is de novo. In re L.K.S., 451 N.W.2d 819, 821 (Iowa 1990). We review the facts and the law and adjudicate the rights of the parties anew on those issues properly preserved and presented to us. In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981). Although we are not bound by the juvenile court's findings of fact, we give them weight, especially when considering the credibility of witnesses. In re D.T., 435 N.W.2d 323, 329 (Iowa 1989). Central to our determination are the best interests of the child. Iowa R.App.P. 14(f)(15). We look to both the child's long range and immediate interests.
II.
M.G. initially claims S.B. failed to assert his paternity within a reasonable time and she, therefore, has the right to sole custody of the child. She bases her assertions on Iowa Code section 600B.40 (1993). *468 This section states in part, "The mother of a child born out of wedlock, whose paternity has not been acknowledged and who has not been adopted, has sole custody of the child unless the court orders otherwise."
M.G. has never previously raised this issue. Moreover, our review of the record indicates S.B. acknowledged paternity of the child. Prior to the CINA proceedings he visited L.B. and provided her with clothing. He also requested M.G. to give him custody of L.B. Since the CINA hearing, S.B. has affirmatively sought her placement with him and has taken complete responsibility for her care. He has submitted himself to the court's jurisdiction, been cooperative with case workers, and participated in parenting classes. We find no merit in M.G.'s argument.
III.
M.G. argues she was offered insufficient services to reunite her with L.B., particularly in light of her cerebral palsy. She claims, following L.B.'s placement with S.B. all the services were directed toward S.B.
The record, however, does not support M.G.'s claims. The December 1992 case permanency plan recommended supervised visitation, parenting classes, anger management assistance, and domestic abuse counseling for M.G. The April dispositional order also notes services should be provided to M.G. in accordance with the case permanency plan. The Family Resources social history/quarterly report indicates M.G. was enrolled in parenting classes until she was dismissed for inadequate attendance. The September 1993 case plan likewise considered M.G.'s need for services.
There is nothing in the record indicating all the services were directed to S.B. or that the court did not consider returning custody to M.G. if she resolved the outstanding issues of domestic abuse and lack of bonding with L.B. Rather, the record reveals the professionals involved in this case repeatedly attempted to help M.G. address these issues. M.G., however, refused their assistance in the area of domestic abuse. We conclude the permanency order was the result of M.G.'s inability or unwillingness to address the issue of domestic violence in her home, not a result of inadequate services.
IV.
M.G. contends the juvenile court erred in finding there was clear and convincing evidence L.B. could not be returned home. After reviewing the record we disagree.
We recognize M.G. made advancements in her parenting skills and interaction with her daughter as result of the parenting classes she attended. She has, however, failed to recognize the abuse perpetrated by her husband M.B. It is essential in meeting a child's needs that parents recognize and acknowledge abuse. In re H.R.K., 433 N.W.2d 46, 50 (Iowa App.1988). Meaningful change cannot occur without this recognition. Id.
The juvenile court was correct in concluding the ongoing presence of M.B. in M.G.'s life and home presents a continuing danger to L.B.'s well-being. M.G. has reported physical abuse by M.B. on several occasions but has continually failed to accept assistance or remove herself from the situation. M.G.'s choice to remain with M.B. prevents her from providing a safe nurturing environment for L.B. We find there is clear and convincing evidence L.B. could not be returned to M.G.'s home and affirm the permanency order.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596624/ | 638 So.2d 1285 (1994)
James R. STRINGER
v.
STATE of Mississippi.
No. 94-DP-00195.
Supreme Court of Mississippi.
June 22, 1994.
Kenneth J. Rose, Durham, NC and James E. Ostgard, Minneapolis, MN, for petitioner.
Michael C. Moore, Atty. Gen., Marvin L. White, Jr., Asst. Atty. Gen., and Charlene R. Pierce, Sp. Asst. Atty. Gen., Jackson, for respondent.
En banc.
HAWKINS, Chief Justice, for the Court:
I.
Again by application under our Post-Conviction Relief Act, a death row prisoner asks that we vacate his death sentence because the jury instruction regarding one of the aggravating factors was that the capital murder was "especially heinous, atrocious or cruel." Steadfastly, the State maintains that this Court should affirm imposition of the death penalty by engaging in the federal constitutional reweighing of the remaining aggravating and mitigating circumstances or by conducting traditional harmless error review. Consistent with our holding on the same issue in Clemons v. State, 593 So.2d 1004 (Miss. 1992), and following cases, we decline the State's invitation, vacate the death sentence and remand to the Hinds County Circuit Court for a new sentencing hearing.
James R. Stringer was convicted of capital murder by the Hinds County Circuit Court jury during the September 1982 term of that court. He planned the robbery and killing of Mr. and Mrs. Ray McWilliams committed on June 21, 1982, in the McWilliams' Jackson, Mississippi, home.
II.
This Court affirmed Stringer's conviction and death sentence in Stringer v. State, 454 So.2d 468 (Miss. 1984), cert. denied, Stringer v. Mississippi, 469 U.S. 1230, 105 S.Ct. 1231, 84 L.Ed.2d 368 (1985); the first petition for post-conviction relief was denied in Stringer v. State, 485 So.2d 274 (Miss. 1986), cert. denied, Stringer v. Mississippi, 479 U.S. 922, *1286 107 S.Ct. 327, 93 L.Ed.2d 300 (1986); federal habeas corpus relief was denied by the district court in Stringer v. Scroggy, 675 F. Supp. 356 (S.D.Miss. 1987).
While Stringer's case was pending on appeal in the United States Court of Appeals for the Fifth Circuit from the denial of habeas corpus relief, he filed a second Application for Leave to File Motion to Vacate Death Sentence with this Court on July 10, 1990. The State responded to this Motion on November 6, 1990.
The Fifth Circuit affirmed the district court's denial of habeas corpus relief. Stringer v. Jackson, 862 F.2d 1108 (5th Cir.1988), reh. denied, 866 F.2d 1417 (5th Cir.1989). On petition for writ of certiorari in the United States Supreme Court, the high court vacated the sentence of death and remanded the case to the Fifth Circuit for further consideration in light of Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). Stringer v. Black, 494 U.S. 1074, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990). On remand the Fifth Circuit again denied relief. Stringer v. Jackson, 909 F.2d 111 (5th Cir.1990). Certiorari was again applied for and granted. The United States Supreme Court again vacated the sentence of death and remanded the case to the Fifth Circuit. Stringer v. Black, 503 U.S. ___, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). On remand the Fifth Circuit instructed the district court that the case should be remanded to the state courts so that a reweighing of aggravating and mitigating circumstances or harmless error analysis could be performed. Stringer v. Black, 979 F.2d 38 (5th Cir.1992).
On remand to the United States District Court for the Southern District of Mississippi the following order was issued on December 29, 1992:
IT IS HEREBY ORDERED that the Court shall issue a writ of habeas corpus as to Petitioner James R. Stringer's death sentence unless the State of Mississippi initiates proceedings to have the state court reweigh any aggravating and mitigating circumstances or conduct a harmless error analysis as set forth in Clemons v. Mississippi, 494 U.S. 738 [110 S.Ct. 1441, 108 L.Ed.2d 725] (1990), and Wiley v. Puckett, 969 F.2d 86 (5th Cir.1992), no later than June 28, 1993.
On June 25, 1993, the State filed a document entitled "Notice of Federal Court Proceedings" with this Court. Thereafter, Stringer filed a motion with the federal district court to issue the writ of habeas corpus arguing that the State had not complied with the Order by initiating proceedings in the state courts, contending that the document filed with this Court was insufficient to comply with the federal court order.
On October 29, 1993, the District Court entered an Opinion and Order holding that the document filed with this Court did comply with its order. Stringer filed a motion to alter or amend again arguing that the document was insufficient and that the District Court should issue the writ and either require a life sentence or a resentencing before a jury. On February 4, 1994, the District Court entered an Opinion and Order again holding that the State's filing was sufficient to comply with its order. However, the court further held that unless Stringer were resentenced by July 1, 1994, that the writ of habeas corpus would be issued and he would be released from State custody.
The State perfected an appeal from the above mentioned District Court's Order on March 4, 1994. On May 30, 1994, the United States Court of Appeals for the Fifth Circuit entered an Order affirming the District Court's February 4, 1994, Order. Stringer v. Lucas, 25 F.3d 1043, No. 94-60158 (5th Cir.1994).[1]
III.
Stringer filed in this Court an Application for Leave to File a Motion to Vacate Death Sentence on July 10, 1990. His principal claim is that the United States Supreme Court decisions in Clemons v. Mississippi, *1287 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990); and Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) are intervening decisions which actually adversely affect the outcome of his sentence. Miss. Code Ann. § 99-39-27(9) (Supp. 1993). In response, the State claims that Stringer's successive application under the Post-Conviction Relief Act is procedurally barred and should be dismissed. We are directed to Stringer's lengthy court action reflected in the procedural history outlined above. Further, the State claims that those decisions announce a "new rule" and, therefore, have no retroactive application. This argument has since been rejected by the United States Supreme Court in Stringer v. Black, 503 U.S. ___, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992), and by this Court in Gilliard v. State, 614 So.2d 370 (Miss. 1992).
[T]he precedents even before Maynard and Clemons yield a well-settled principle: use of a vague or imprecise aggravating factor in the weighing process invalidates the sentence and at the very least requires constitutional harmless-error analysis or reweighing in the state judicial system.
Stringer v. Black, 503 U.S. at ___, 112 S.Ct. at 1143, 117 L.Ed.2d at 383.
This Court in Gilliard held:
This Court now concludes that the Maynard/Clemons cases would, as a matter of state law, be intervening decisions which would except the application of the successive writ bar of the Uniform Post-Conviction Relief Act and Mississippi Supreme Court Rule 22.
Gilliard, 614 So.2d at 375.
IV.
In Clemons v. State, 593 So.2d 1004 (Miss. 1992), the same unconstitutionally vague sentencing instruction "especially heinous, atrocious or cruel" was discussed. In that case, we stated:
[W]e must decide, as a matter of state law, our authority to reweigh aggravating and mitigating circumstances in order to uphold a death sentence which is based in part upon an improperly defined aggravating circumstance.
593 So.2d at 1005.
We concluded:
Because we have no authority as a matter of state law to engage in a reweighing analysis, and because under the facts of this case we eschew harmless error analysis, we hold that it is for the jury, rather than this Court, to decide under the facts of this case and with proper and properly defined aggravating circumstances, weighed against mitigating circumstances, whether Clemons shall be sentenced to death or life imprisonment.
593 So.2d at 1007.
We remanded that case to the Circuit Court to impanel another sentencing jury to consider punishment. We have followed Clemons in the following death penalty cases which involved the same unconstitutionally vague sentencing instruction: Irving v. State, 618 So.2d 58 (Miss. 1992); Gilliard v. State, 614 So.2d 370 (Miss. 1992); Pinkney v. State, 602 So.2d 1177 (Miss. 1992); Jones v. State, 602 So.2d 1170 (Miss. 1992); Shell v. State, 595 So.2d 1323 (Miss. 1992); Wilcher v. State, 635 So.2d 789 (1993); Wiley v. State, 635 So.2d 802 (1993); Woodward v. State, 635 So.2d 805 (1993).
Stringer has met his burden of proof and we grant his application.
V.
We vacate the death sentence and remand to the Circuit Court of Hinds County, Mississippi, for a new sentencing hearing. Stringer's motion for leave to proceed in forma pauperis is granted. The State's motion to expedite is denied as moot.
SENTENCE VACATED AND REMANDED TO THE HINDS COUNTY CIRCUIT COURT FOR A NEW SENTENCING HEARING.
PRATHER, P.J., and SULLIVAN, BANKS and McRAE, JJ., concur.
*1288 DAN M. LEE, P.J., and SMITH, J., dissent with separate written opinions joined by JAMES L. ROBERTS, Jr., J.
PITTMAN, J., not participating.
DAN M. LEE, Presiding Justice, dissenting:
Under Clemons v. Mississippi, 494 U.S. at 751-54, 110 S.Ct. at 1450-51, 108 L.Ed.2d at 741-42, an appellate court in a weighing state can affirm a death sentence "tainted" by a vague aggravating instruction as to the especially heinous, atrocious or cruel circumstances of the homicide so long as the court found that the vague aggravating instruction constituted harmless error beyond a reasonable doubt. Id., 494 U.S. at 753-54, 110 S.Ct. at 1451, 108 L.Ed.2d at 741 (relying on Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710-11 (1967)).
Consistent with my dissenting opinions in Irving v. State, 618 So.2d 58, 63-64, Wilcher v. State, 635 So.2d 789 (Miss. 1993), and Wiley v. State, 635 So.2d 802 (Miss. 1993), I believe this is also a proper case for this Court to find that the vague aggravating instruction concerning especially heinous, atrocious or cruel circumstances of the homicide as defined in Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) was, at the most, harmless error beyond a reasonable doubt. Therefore, I would deny Stringer's Motion to Vacate Death Sentence.
JAMES L. ROBERTS, Jr., J., joins this opinion.
SMITH, Justice, dissenting:
Consistent with my dissents in Wilcher v. State, 635 So.2d 789 (Miss. 1993), Wiley v. State, 635 So.2d 802 (Miss. 1993), and that applicable part in Woodward v. State, 635 So.2d 805 (Miss. 1993) all of which involve the same question as the case at bar, I respectfully dissent here for the same reasons and adopt my dissent in Wilcher, supra.
JAMES L. ROBERTS, Jr., J., joins this opinion.
NOTES
[1] The February 4, 1994, opinion of the United States District Court was first brought to the attention of this Court on May 31, 1994, by a motion filed by the Attorney General styled, "Motion to Expedite Consideration of Petitioner's Application for Leave to File Motion to Vacate Sentence." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595392/ | 954 So.2d 1146 (2005)
JAMES TERRY FRANKLIN
v.
STATE
No. CR-04-1953.
Court of Criminal Appeals of Alabama.
November 18, 2005.
Decision without opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2749761/ | DISMISS; and Opinion Filed October 28, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00840-CV
TIGERES AUTO, INC., Appellant
V.
DALLAS COUNTY ET AL., Appellees
On Appeal from the 101st Judicial District Court
Dallas County, Texas
Trial Court Cause No. TX 11-31958
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Lang-Miers, and Justice Brown
Opinion by Justice Brown
The clerk’s record in this case is overdue. By letter dated September 8, 2014, we
informed appellant that the Dallas County District Clerk had notified the Court that the clerk’s
record had not been filed because appellant had not paid for or made arrangements to pay for the
clerk’s record. We directed appellant to file written verification that it had paid for or made
arrangements to pay for the clerk’s record or that it had been found entitled to proceed without
payment of costs. We cautioned appellant that if it did not file the required documentation
within ten days, we might dismiss the appeal without further notice. To date, the clerk’s record
has not been filed, appellant has not provided the required documentation, nor has it otherwise
corresponded with the Court regarding the status of the clerk’s record.
Accordingly, we dismiss this appeal. See TEX. R. APP. P. 37.3(b).
/Ada Brown/
ADA BROWN
JUSTICE
140840F.P05
–2–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
TIGERES AUTO, INC., Appellant On Appeal from the 101st Judicial District
Court, Dallas County, Texas
No. 05-14-00840-CV V. Trial Court Cause No. TX 11-31958.
Opinion delivered by Justice Brown. Chief
DALLAS COUNTY ET AL., Appellees Justice Wright and Justice Lang-Miers
participating.
In accordance with this Court’s opinion of this date, the appeal is DISMISSED.
It is ORDERED that appellees DALLAS COUNTY, CITY OF GRAND PRAIRIE,
GRAND PRAIRIE INDEPENDENT SCHOOL DISTRICT, DALLAS COUNTY SCHOOL
EQUALIZATION FUND, PARKLAND HOSPITAL DISTRICT, AND DALLAS COUNTY
COMMUNITY COLLEGE DISTRICT recover their costs of this appeal from appellant
TIGERES AUTO, INC.
Judgment entered this 28th day of October, 2014.
–3– | 01-03-2023 | 11-08-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2587439/ | 25 P.3d 426 (2001)
143 Wash.2d 895
Kathleen O'CONNOR, individually, and as guardian ad litem for Dustin O'Connor, a minor, Petitioner,
v.
WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES, an agency of the State of Washington, Respondent.
No. 69177-1.
Supreme Court of Washington, En Banc.
Argued January 17, 2001.
Decided June 21, 2001.
*427 Marler & Clark, Denis Wayne Stearns, Bruce T. Clark, William Marler, Seattle, for Petitioner.
Honorable Christine Gregoire, Attorney General, John Joseph Kirschner, Asst., Seattle, Michael Patrick Lynch, Asst., Olympia, Narda Pierce, Solicitor General, Olympia, for Respondent.
Greg Overstreet, Olympia, Amicus Curiae on Behalf of Building Association of Washington.
Aaron Hugh Caplan, Seattle, Amicus Curiae on Behalf of American Civil Liberties Union.
Davis, Wright & Tremaine, Michael John Killeen, Alison Page Howard, Seattle, Amicus Curiae on Behalf of Allied Daily Newspapers.
Jeanne A. Brown, Olympia, Amicus Curiae on Behalf of Evergreen Freedom Foundation.
Larry Dean Stout, Olympia, Amicus Curiae on Behalf of Washington Association of Realtors.
Daniel Nicholas Fazio, Olympia, Amicus Curiae on Behalf of Washington State Farm Bureau.
*428 Honorable Norm Maleng, King County Prosecutor, Oma Lynn Lamothe, Deputy, Seattle, Amicus Curiae on Behalf of Washington Association of Prosecuting Attorneys.
Bryan Harnetiaux, Debra Leigh Stephens, Spokane, Stephen Kirk Festor, Stephen Kolden Strong, Seattle, Amicus Curiae on Behalf of Washington State Trial Lawyers Association.
SMITH, J.
Petitioner Kathleen O'Connor seeks direct review of orders of the King County Superior Court denying her request for public records under the Public Records Act from Respondent Washington State Department of Social and Health Services and the Attorney General's Office and directing Petitioner to seek records under the Superior Court Civil Rules for discovery. We granted review. We reverse.
QUESTION PRESENTED
The question presented in this case is whether the trial court properly required litigants against the Department of Social and Health Services to obtain public records from the agency only under discovery provisions of the Civil Rules for Superior Court instead of under the Public Records Act, RCW 42.17.250-.348.
STATEMENT OF FACTS
On June 28, 1999 Petitioner Kathleen O'Connor, individually and as guardian ad litem for her son, Dustin O'Connor (Petitioner) filed a summons and complaint in the King County Superior Court against Respondent Department of Social and Health Services (DSHS).[1] The complaint asserts that Dustin O'Connor, then 15 years old, was molested and abused by Kevin Keo, an employee of DSHS, at the Indian Ridge Juvenile Corrections Facility in Snohomish County, Washington during the spring and summer of 1997.[2]
On December 10, 1999 counsel for Petitioner sent a letter addressed to John Kirschner, Assistant Attorney General, requesting under the Public Records Act, RCW 42.17.260, public records of DSHS and "all applicable subsidiary agencies, divisions, or departments within jurisdictions of DSHS...."[3] On December 13, 1999 Mr. Kirschner by letter denied Petitioner's public records request.[4] He stated "[a]s this matter is in litigation, the Superior Court Civil Rules apply, not the Public Records Act."[5] On December 14, 1999 Petitioner's counsel responded to Mr. Kirschner's letter indicating the denial letter should have cited a specific exemption under the statute and given a brief explanation for denying the public records request.[6] On December 21, 1999 Mr. Kirschner replied indicating the request for public records was denied because "the public records act was not intended to be used as a discovery tool for pretrial discovery" as indicated in a case previously cited by Petitioner's counsel.[7] On December 27, 1999 Petitioner's counsel responded to Mr. Kirschner's letter stating that DSHS had not identified a specific exemption authorizing withholding of the public records.[8]
On January 4, 2000 Respondent filed in the King County Superior Court a "Motion For Protective Order" under Civil Rule 26(c).[9] The motion stated in part:
*429 The defendant, Washington State Department of Social and Health Services, moves for a protective order pursuant to CR 26(c) directing the plaintiff and her attorneys to use the Civil Rules for Superior Court and not the public records act (RCW Chapter 42.17) for discovery in this matter, and quashing plaintiff's public records act request dated December 10, 1999.
. . . .
For all of the above reasons, the defendant respectfully asks that this court enter an order quashing plaintiff's public records request relating to plaintiff's lawsuit and order that plaintiff, her attorneys and representatives use the Civil Rules for Superior Court and not the public records act (RCW Chapter 42.17) for discovery in this matter.
DATED This 4th day of January, 2000.
/s/ John Kirschner, WSBA # 5695[10]On January 6, 2000 Petitioner filed "Plaintiff's Opposition To Defendant's Motion For Protective Order And Cross Motion To Compel And For Mandatory Attorney's Fees."[11] On January 12, 2000 Respondent filed a reply.[12] On January 13, 2000 Petitioner filed a reply.[13]
On January 14, 2000, after a hearing on the motions, Judge Donald D. Haley, King County Superior Court, signed an order which read:
THIS MATTER having come on before the undersigned judge on the motion of the defendant Washington State Department of Social and Health Services for a protective order, the defendant being represented by Christine O. Gregoire, Attorney General and John Kirschner, Assistant Attorney General, and the plaintiff being represented by Marler Clark, L.L.P., P.S. and Denis W. Stearns, her attorneys, and the court having reviewed the files and records and the argument of counsel, now, therefore,
IT IS HEREBY ORDERED that the plaintiff's public records act request, dated December 10, 1999, is quashed, and the plaintiff, her attorneys and representatives are ordered not to submit any further public records act requests in this matter and are further ordered to use the Superior Court Civil Rules for discovery in this litigation.
DONE IN OPEN COURT This 14th day of January, 2000.
/s/ Donald D. Haley[14]On January 6, 2000 counsel for Petitioner sent a letter addressed to the Public Information Officer of the Attorney General's Office requesting public records concerning DSHS under the Public Records Act, RCW 42.17.250.[15] The Public Records Information Officer, Ms. Marian Graham, on January 14, 2000 wrote acknowledging the request, indicating she believed she would be able to respond to it within 10 business days.[16] On February 15, 2000 Ms. Graham wrote another letter postponing her response until February 22, 2000.[17] On February 23, 2000 she wrote that she had been made aware of the January 14, 2000 court order directing Petitioner not to submit further public records act requests and ordering Petitioner to use the Superior Court Civil Rules for discovery in this litigation, and that she (Ms. Graham) would thus not provide the records requested on January 6, 2000.[18]
On February 24, 2000 counsel for Petitioner responded to Ms. Graham's letter stating he was not aware the January 14, 2000 Superior Court order applied to their January 6, 2000 Public Records Act request.[19] He then stated "this letter is my formal request that the attorney general review your denial of this request for public records as provided *430 for by RCW 42.17.325."[20] On March 10, 2000 Jeffrey C.C. Lane, Senior Assistant Attorney General, denied the request.[21]
On March 6, 2000 Respondent DSHS filed a "Supplemental Motion To Quash Public Records Act Request For Review Of Denial Of Request And Motion For Contempt" in response to Petitioner's public records request to the Attorney General's Office. The motion provided in part:
The defendant, Washington State Department of Social and Health Services, and the Attorney General's Office ask that this court quash the public records act request made by plaintiff's attorney to the Attorney General's Office by letter dated January 6, 2000, quash the request made by plaintiff's attorney to the Attorney General's Office to review the denial of his public records act request made in his letter of February 24, 2000, and that the court hold the plaintiff and her attorneys in contempt for violating this court's Order Quashing Plaintiff's Public Records Act Request And Directing Plaintiff To Use The Superior Court Civil Rules For Discovery, which was signed in this matter on January 14, 2000
. . . .
The defendant asks that the court quash the plaintiff's public records act request of January 6, 2000 to the Olympia Attorney General's Office, quash the request by the plaintiff's attorney that the Attorney General review the denial of his January 6 public records act request, hold the plaintiff and/or her attorneys in contempt for violating this court's January 14, 2000 order, and order the plaintiff and/or her attorney to pay all costs and attorneys fees incurred by the Attorney General's Office in responding to the plaintiff's attorney's January 6, 2000 public records act request, pay all costs and attorneys fees incurred in bringing this motion, and pay a fine for contempt of court in an amount to be set by the court.
Dated this 3rd day of March, 2000
/s/ John Kirschner, WSBA # 5695[22]On March 13, 2000 Petitioner filed "Plaintiff's Opposition To Supplemental Motion To Quash And Motion For Contempt," arguing that the court's order prohibited her from using the Act to obtain public records from DSHS, but it did not prohibit her from using the Act to obtain public records from other public agencies.[23]
On March 17, 2000, after a hearing on the motions, Judge Haley signed the following order:
THIS MATTER having come on before the undersigned judge on the motion of the defendant Washington State Department of Social and Health Services, and the Attorney General's Office for an order quashing public records act request, and quashing request for review, and for an order of contempt, the defendant being represented by Christine O. Gregoire, Attorney General and John Kirschner, Assistant Attorney General, and the plaintiff being represented by Marler Clark, L.L.P., P.S. and Denis W. Stearns, her attorneys, and the court having reviewed the files and records and the argument of counsel, now, therefore,
IT IS HEREBY ORDERED that the request, dated January 6, 2000 by plaintiff's attorney, Denis W. Sterns to the Public Information Officer of the Office of the Attorney General in Olympia, Washington, is quashed.
IT IS FURTHER ORDERED that the request by plaintiff's attorney, Denis W. Stearns, contained in his February 24, 2000 letter to Senior Assistant Attorney General Linda Dalton that the Attorney General review Ms. Dalton's decision to deny plaintiff's attorney's January 6, 2000 public records act request, is quashed.
Denied without prejudice to review after a decision on plaintiff's Motion For Discretionary Review.
DONE IN OPEN COURT This 17th day of March, 2000.
*431
/s/ Donald D. Haley[24]On February 24, 2000 Petitioner filed a motion for discretionary review with this court.[25] On May 10, 2000 our Commissioner by ruling granted the motion under Rules of Appellate Procedure (RAP) 2.3(b)(2) and 4.2(a)(4).[26]
DISCUSSION
The Public Records Act provides that "`[j]udicial review of all agency actions taken or challenged under RCW 42.17.250 through 42.17.320 shall be de novo.'"[27] "[T]he appellate court stands in the same position as the trial court where the record consists only of affidavits, memoranda of law, and other documentary evidence."[28]
Petitioner makes three assignments of error claiming error by the trial court (1) in entering the order of January 14, 2000 granting Respondent's motion to quash Petitioner's Public Records Act request, enjoining further use of the Act, and directing Petitioner to use only discovery under the Superior Court Civil Rules; (2) in refusing to apply the Public Records Act, chapter 42.17 RCW, and denying sub silentio Petitioner's cross-motion to compel disclosure under the Act and her request for costs, attorney fees and penalties under RCW 42.17.340(4); and (3) in granting Respondent's supplemental motion to quash Petitioner's disclosure request to the Office of the Attorney General and quashing her request for administrative review of denial of that request.[29]
SUPERIOR COURT ORDER (JANUARY 14, 2000)
"The public records portion of the public disclosure act, RCW 42.17.250.-348... requires all state and local agencies to disclose any public record upon request, unless the record falls within certain very specific exemptions."[30] The purpose of the Public Records Act is to preserve "the most central tenets of representative government, namely, the sovereignty of the people and the accountability to the people of public officials and institutions."[31]
Under the Superior Court Civil Rules "the trial court exercises a broad discretion to manage the discovery process in a fashion that will implement the goal of full disclosure of relevant information and at the same time afford the participants protection against harmful side effects."[32] Protection orders under the Civil Rules are "meant to protect the health and integrity of the discovery process, as much as to protect the parties who participate in it."[33]
Petitioner maintains she has access to public records from Respondent DSHS under both Civil Rules of discovery, CR 26, and the Public Records Act because the Public Records Act does not contain a specific prohibition against disclosure of litigation-related public records.[34]
*432 RCW 42.17.310 indicates public records which are exempt under the Public Records Act. RCW 42.17.310(1)(j) provides:
Certain personal and other records exempt. (1) The following are exempt from public inspection and copying:
. . . .
(j) Records which are relevant to a controversy[35] to which an agency is a party but which records would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts.
(Emphasis added.)
Although RCW 42.17.310(1)(j) is awkwardly worded, it is not, however, ambiguous. A plain language interpretation of it is that records relevant to a controversy to which an agency is a party are exempt from public inspection and copying under the Public Records Act if those records would not be available to another party under superior court rules of pretrial discovery. The corollary to this is the records would not be exempt if they are available to another party under superior court rules of pretrial discovery.
In a plurality decision this court in Limstrom v. Ladenburg held "that the pretrial discovery rules referred to in RCW 42.17.310(1)(j) are those set forth in the civil rules for superior court, CR 26."[36]
Civil Rule 26(a) provides methods of discovery and indicates that parties may obtain discovery by "depositions upon oral examination, or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission."[37] Civil Rule 26(b) provides the scope and limits of discovery, indicating in part, "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter of the pending action."[38]
The civil rules apply to all lawsuits of a civil nature.[39] Petitioner filed this civil action. She may seek public records from Respondent DSHS under the pretrial rules of discovery but is not precluded from seeking those records under the Public Records Act.[40]
Petitioner claims that if the Legislature intended to provide an exemption for public records available under discovery it would have provided a specific exemption under the Act. Respondent DSHS asks this court to follow the suggestion in Nast v. Michels that the decision on access to public records rests in the sound discretion of the trial court under common law unless it is specifically governed by the Public Disclosure Act, RCW 42.17.020.[41] In that case this court held the Public Disclosure Act did not provide access to court case files even though the Act did not provide an exemption prohibiting their disclosure.[42] The court reasoned the common law provided access to court case files; the Public Disclosure Act (which includes *433 the Public Records Act) did not specifically include courts or court case files in its definitions; and that to interpret the Act to allow access to court case files would undo developed case law protecting privacy and government interests.[43]Nast does not aid the position argued by Respondent.
CR 1 provides that the Civil Rules for Superior Court "govern the procedure in the superior court in all suits of a civil nature whether cognizable as cases at law or in equity with the exceptions stated in rule 81. They shall be construed to secure the just, speedy, and inexpensive determination of every action."
CR 5(i) provides:
Discovery Material Not to Be Filed; Exceptions. Depositions upon oral examinations, depositions upon written questions, interrogatories and responses thereto, requests for production or inspection and responses thereto, requests for admission and responses thereto, and other discovery requests and responses thereto shall not be filed with the court unless for use in a proceeding or trial or on order of the court.
CR 26 contains general provisions governing discovery and provides, in part:
(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission.
. . . .
CR 34 provides for production of documents for inspection and other purposes.
Depositions and discovery in civil cases are governed by CR 26-37 which, under CR 26(j) incorporates chapter 4.24 RCW relating to access to discovery materials.
The Public Records Act makes no direct reference to access to public records by a litigant, but only indirectly refers to it in RCW 42.17.310(1)(j). That subsection refers to "rules of pretrial discovery ... in the superior court" which this court has determined are the Civil Rules for Superior Court. Those rules relate to "any matter, not privileged, which is relevant to the subject matter involved ...."
Petitioner O'Connor claims this court's statement in Limstrom v. Ladenburg that "the public records act was not intended to be used as a tool for pretrial discovery" did not recognize or create a statutory exemption under the Public Disclosure Act for litigation-related materials.[44] Actually the quotation is from a footnote. The case it cites is also from a footnote. The statement does not purport to be a ruling by this court.[45]
Respondent maintains the Civil Rules are incorporated into the Public Records Act exemptions by reference to "other statute" in RCW 42.17.260(1).[46] Petitioner to the contrary asserts the Civil Rules are not incorporated into the statute because the rules are not statutes as the word is generally construed.[47]
RCW 42.17.260(1) provides:
Each agency, in accordance with the published rules, shall make available for public inspection and copying all public records, unless the record falls within the specific exemptions of subsection (6) of this section, RCW 42.17.310, 42.17.315, or other statute which exempts or prohibits disclosure of specific information or records....[48]
The Civil Rules were adopted under RCW 2.04.190, which acknowledges the power of the Supreme Court to promulgate all rules *434 for court pleading, practice and procedure, the rules superseding any laws in conflict.[49]
We conclude that the Civil Rules are incorporated into the "other statute" provision of RCW 42.17.260(1), but that does not dictate the conclusion urged by Respondent.[50] We nevertheless conclude that public records from a public agency available to litigants against the agency by discovery under the Civil Rules are not exempt from the Public Records Act under RCW 42.17.310(1)(j). The Civil Rules do not conflict with the Public Records Act. The rules provide that records that are not relevant and privileged are exempt from discovery.[51] The trial court nevertheless was in error in concluding that Respondent DSHS may deny the direct public records request by Petitioner and that Petitioner, as a litigant against DSHS, must seek access to the records under the Civil Rules for discovery.
SUPERIOR COURT ORDER (MARCH 17, 2000)
Petitioner O'Connor claims the trial court by its order dated March 17, 2000 erred in granting the supplemental motion of Respondent DSHS to quash her January 6, 2000 public records request to the Attorney General's Office and denial of her request for administrative review of the agency's decision.[52] We conclude that order was in error.
MOTION TO STRIKE
On December 1, 2000 Petitioner filed a motion to strike portions of Respondent's brief based on judicial estoppel. She claims Respondent asserted an inconsistent position in its brief when it requested that Petitioner not seek records under the Public Records Act from the Attorney General's Office and then submitted a public records request to the Snohomish County Prosecuting Attorney seeking public records relating to this litigation. There is no inconsistency in Respondent DSHS' brief and Petitioner has not supported her assertion with facts or authority. Because of our decision in this case, we decline to make a ruling on this issue.
ATTORNEY FEES
Petitioner maintains she is entitled to reasonable attorney fees and costs on appeal[53] and asks this court to determine the amount to which she is entitled.[54] RCW 42.17.340(4) directs the court to award attorney fees and costs to any person who prevails against an agency in an action seeking disclosure of public records.[55] Petitioner is entitled to attorney fees or costs because she has prevailed on the principal issue in this case. We therefore grant her request and direct the Clerk of the Court to determine those attorney fees and costs.
SUMMARY AND CONCLUSIONS
The public records portion of the Public Disclosure Act, RCW 42.17.250-.348, requires all state and local agencies to make available for public inspection and copying "all public records" unless the record falls within certain specific exemptions under the Act. The purpose of the Public Records Act is to preserve the most central tenets of representative government, namely, the sovereignty of the people and the accountability to the people of public officials and institutions.
Specifically exempted from disclosure under RCW 42.17.310(1)(j) are "[r]ecords which are relevant to a controversy to which an agency is a party but which records would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts." Although awkwardly worded, the statutory provision is not ambiguous. *435 A plain language interpretation of it is that records relevant to a controversy to which an agency is a party are exempt from public inspection and copying under the Public Records Act if those records would not be available to another party under superior court rules of pretrial discovery. The corollary to this is the records would not be exempt if they are available to another party under superior court rules of pretrial discovery.
We conclude in this case that the Superior Court Civil Rules are incorporated into the "other statute" provision of RCW 42.17.260(1), but that public records from a public agency available to litigants against the agency by discovery under the Civil Rules are not exempt from the Public Records Act under RCW 42.17.310(1)(j). The Civil Rules do not conflict with the Public Records Act. The rules provide for discovery of any relevant matter which is not privileged. Although the Superior Court Civil Rules do not conflict with the Act, the trial court nevertheless was in error in its order dated January 14, 2000, which concluded that Respondent DSHS may deny the direct public record request of Petitioner and that Petitioner, as a litigant against DSHS, may seek access to the records only under the Civil Rules of discovery. Our conclusion is the same on the trial court's order dated March 17, 2000 which quashed Petitioner's January 6, 2000 public records request to the Attorney General's Office.
Petitioner is entitled to attorney fees and costs under RCW 42.17.340(4) of the Public Records Act because she has prevailed on the principal issue in this case against DSHS.
We reverse the January 14, 2000 order of the King County Superior Court granting Respondent's motion to quash Petitioner's Public Records Act request to the Department of Social and Health Services, enjoining further use of the Act, and ordering Petitioner to use only the Superior Court Civil Rules for discovery. We also reverse the March 17, 2000 order of the Superior Court granting Respondent's motion to quash Petitioner's public records request to the Attorney General's Office. We grant Petitioner's request for attorney fees and costs and direct the Clerk of the Court to determine those fees and costs.
JOHNSON, MADSEN, BRIDGE and OWENS, JJ., concur.
CHAMBERS, J. (concurring)
I concur with the majority in result, but I disagree with the majority's conclusion that the civil rules are incorporated into the "other statute" provision of RCW 42.17.260(1).
"The Washington public disclosure act is a strongly worded mandate for broad disclosure of public records." Hearst Corp. v. Hoppe, 90 Wash.2d 123, 127, 580 P.2d 246 (1978). Democracy must presume full and complete disclosure and "`full access to information concerning the conduct of government on every level must be assured as a fundamental and necessary precondition to the sound governance of a free society.'" Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wash.2d 243, 251, 884 P.2d 592 (1994) (PAWS) (quoting RCW 42.17.010(11)). Indeed, the public record act begins with an admonition to public agencies:
The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created. The public records subdivision of this chapter shall be liberally construed and its exceptions narrowly construed to promote this public policy.
RCW 42.17.251.
In In re Rosier, 105 Wash.2d 606, 717 P.2d 1353 (1986), we interpreted general language in a procedural section of the act concerning personal privacy to create a general privacy exception. Id. at 611-14, 717 P.2d 1353. In response, the Legislature specifically overturned that holding and explicitly restored:
the law relating to the release of public records largely to that which existed prior to the Washington Supreme Court decision in "in re Rosier," ... The intent of this legislation is to make clear that ...
*436 agencies having public records should rely only upon statutory exemptions or prohibitions for refusal to provide public records.
Laws of 1987, ch. 403, § 1, at 1546; PAWS, 125 Wash.2d at 259, 884 P.2d 592.
RCW 42.17.260(1) provides, in relevant part:
Each agency, in accordance with published rules, shall make available for public inspection and copying all public records, unless the record falls within the specific exceptions of subsection (6) of this section, RCW 42.17.310, 42.17.315, or other statutes which exempts or prohibits disclosure of specific information or records.
Since Rosier, this Court has consistently respected the Legislature's admonition and narrowly construed exceptions to the act. PAWS, 125 Wash.2d at 258, 884 P.2d 592.
This Court has interpreted the "other statutes" provision before. In PAWS, 125 Wash.2d at 262, 884 P.2d 592 we said:
The rule applies only to those exemptions explicitly identified in other statutes; its language does not allow a court "to imply exemptions but only allows specific exemptions to stand". Brouillet v. Cowles Pub'g Co., 114 Wash.2d 788, 800, 791 P.2d 526 (1990).
It is clear the Legislature did not intend to incorporate the civil rules into the "other statute" provision of the act. First and most apparent, the civil rules are not "statutes," as a statute is "[a] law passed by a legislative body." Black's Law Dictionary 1420 (7th ed.1999). The court, not the Legislature, adopts the civil rules. Therefore, in most simplistic terms, the civil rules cannot be incorporated into the "other statute" provision of RCW 42.17.260(1).
Second, the civil rules have a purpose entirely different than that of the act. For example, the civil rules pertaining to discovery include several limitations, i.e., "relevancy," which are inconsistent with the act's purpose of "`full access to information concerning the conduct of the government on every level.'" PAWS, 125 Wash.2d at 251, 884 P.2d 592 (quoting RCW 42.17.010(11)). The two bodies simply cannot be reconciled as one.
Third, it does not "make sense to imagine the Legislature believed judges would be better custodians of open-ended exemptions because they lacked the self-interest of agencies." Id. at 259, 884 P.2d 592. As evidenced by the Legislature's response to Rosier, "it does not want judges any more than agencies to be wielding broad and maleable exemptions," which include the incorporation of other bodies of law into the narrowly construed exemptions of the act. Id. at 260, 884 P.2d 592.
To hold that the court discovery rules are incorporated within the "other statute" exemption to the act is (a) inconsistent with the majority's result, (b) contrary to the act's broad purpose of public disclosure, (c) contradictory to the specific language of the public disclosure act, and (d) conflicts with established precedent of this Court. I otherwise agree with the majority's holding and concur in its result.
ALEXANDER, C.J., SANDERS and IRELAND, JJ., concur.
NOTES
[1] Clerk's Papers at 1-15.
[2] Id. at 3-5.
[3] Id. at 34-36.
[4] Id.
[5] Id.
[6] Id.
[7] Id. at 52. See Limstrom v. Ladenburg, 136 Wash.2d 595, 614 n. 9, 963 P.2d 869 (1998).
[8] Id. at 54.
[9] Id. at 28. CR 26(c) provides in part:
Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the county where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,...
[10] Id.
[11] Id. at 57.
[12] Id. at 69.
[13] Id. at 80.
[14] Id. at 111-12.
[15] Id. at 123.
[16] Id. at 126.
[17] Id. at 128.
[18] Id. at 130.
[19] Id. at 133.
[20] Id.
[21] Id. at 164.
[22] Id. at 134.
[23] Id. at 139.
[24] Id. at 219-20.
[25] Mot. for Discretionary Review.
[26] Ruling Granting Direct Discretionary Review (May 10, 2000) at 3.
RAP 2.3(b)(2) provides:
If the superior court has committed probable error and the decision of the superior court substantially alters the status quo or substantially limits the freedom of a party to act;....
RAP 4.2(a)(4) provides:
Public Issues. A case involving a fundamental and urgent issue of broad public import which requires prompt and ultimate determination.
[27] Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wash.2d 243, 252, 884 P.2d 592 (1995) (quoting RCW 42.17.340(3)).
[28] Id. at 252, 884 P.2d 592 (citing Spokane Police Guild v. Liquor Control Bd., 112 Wash.2d 30, 35-36, 769 P.2d 283 (1989)).
[29] Pet'r's Br. at 1.
[30] Progressive Animal Welfare Soc'y, 125 Wash.2d at 250, 884 P.2d 592.
[31] Id. at 251, 884 P.2d 592.
[32] Rhinehart v. Seattle Times Co., 98 Wash.2d 226, 232, 654 P.2d 673 (1982) (pretrial discovery in an action between private parties not involving the Public Records Act).
[33] Id. at 231, 654 P.2d 673.
[34] Pet'r's Br. at 24-25. Petitioners also maintain their claim that a citizen does not forfeit the right to request public records from a public agency when litigation is pending between the agency, and the citizen is consistent with federal cases interpreting the Freedom of Information Act and cases from other states. See Pet'r's Br. at 28-30.
[35] See Dawson v. Daly, 120 Wash.2d 782, 791, 845 P.2d 995 (1993) ("controversy" in RCW 42.17.310(1)(j) encompasses either anticipated litigation or actual past or present litigation).
[36] Limstrom, 136 Wash.2d at 609, 963 P.2d 869. Although the decision related to the attorney work product rule under CR 26(b)(4), it nevertheless is authority for the limited statement cited.
[37] CR 26(a).
[38] CR 26(b)(1).
[39] See CR 1 and 2.
[40] See Limstrom, 136 Wash.2d at 608-09, 963 P.2d 869. "Cases interpreting FOIA [Freedom of Information Act] are relevant when we are interpreting our state act." Dawson, 120 Wash.2d at 791-92, 845 P.2d 995. The United States Supreme Court has consistently rejected construing the FOIA as a supplement to civil discovery. United States v. Weber Aircraft Corp., 465 U.S. 792, 801, 104 S. Ct. 1488, 79 L. Ed. 2d 814 (1984) (citing Baldrige v. Shapiro, 455 U.S. 345, 360 n. 14, 102 S. Ct. 1103, 71 L. Ed. 2d 199 (1982); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n. 10, 95 S. Ct. 1504, 44 L. Ed. 2d 29 (1975); Renegotiation Bd. v. Bannercraft Co., 415 U.S. 1, 24, 94 S. Ct. 1028, 39 L. Ed. 2d 123 (1973)).
[41] Br. of Resp't at 14-15. See Nast v. Michels, 107 Wash.2d 300, 303-04, 730 P.2d 54 (1986).
[42] Id. The Public Disclosure Act refers to chapter 42.17 RCW and the Public Records Act refers to sections 42.17.250-.348 of the Public Disclosure Act. See Progressive Animal Welfare Soc'y, 125 Wash.2d at 250, 884 P.2d 592.
[43] Id. at 307, 884 P.2d 592.
[44] Limstrom, 136 Wash.2d at 614 n. 9, 963 P.2d 869.
[45] Id.
[46] Br. of Resp't at 10-11.
[47] Pet'r's Reply Br. at 6.
[48] The specific exemptions referred to, with the exception of RCW 42.17.310(1)(j), are not relevant to the discussion in this case.
[49] State v. Johnson, 105 Wash.2d 92, 96, 711 P.2d 1017 (1986).
[50] See RCW 2.04.200 providing:
Effect of rules upon statutes. When and as the rules of courts herein authorized shall be promulgated all laws in conflict therewith shall be and become of no further force or effect.
[51] See CR 26(b)(1): "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action...."
[52] Pet'r's Br. at 1.
[53] Id. at 39.
[54] Id.
[55] Amren v. City of Kalama, 131 Wash.2d 25, 34-35, 929 P.2d 389 (1997). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595622/ | 621 N.W.2d 189 (2001)
DIRECTOR OF the IOWA DEPARTMENT OF HUMAN SERVICES and Director of the Iowa Department of Corrections, Plaintiffs,
v.
IOWA DISTRICT COURT FOR JEFFERSON COUNTY, Defendant.
No. 98-0893.
Supreme Court of Iowa.
January 18, 2001.
*190 Thomas J. Miller, Attorney General, and Stephen C. Robinson and Layne Lindebak, Assistant Attorneys General, for plaintiffs.
Thomas M. Walter of Johnson, Hester, Walter & Breckenridge, L.L.P., Ottumwa, for defendant.
Considered en banc.
LAVORATO, Chief Justice.
The Director of the Department of Human Services and the Director of the Department of Corrections filed a petition for writ of certiorari in this court, challenging a district court judgment ordering the State to pay the costs of a criminal defendant's care. This court determined that a writ should issue and entered an order to that effect. Because we conclude the two directors did not file the petition in a timely manner, we annul the writ.
I. Background Facts and Proceedings.
On December 4, 1995, the State filed a trial information charging Carlton Robert Ward with a variety of offenses, including lascivious acts with a child, a class D felony. See Iowa Code § 709.8 (1995). Several months later, Ward's counsel filed a motion to determine Ward's competency. See Iowa Code § 812.3. Following a hearing to determine Ward's competency, the district court entered an order on May 28, 1996. In the order, the district court (1) found that Ward was incompetent, (2) ordered no further proceedings be taken until Ward's competency was restored, and (3) committed Ward to the custody of the Iowa Department of Human Services (DHS) for placement in the Iowa Mental Health Institute (IMHI) at Mount Pleasant, Iowa. See Iowa Code § 812.4.
Following a hearing on February 24, 1997, the district court found that it was not necessary for Ward to be placed at the IMHI and that further reports were needed before the court could determine Ward's competency. The court ordered that Ward "be placed at ResCare Cedar Creek Facility in Fairfield, Iowa, as a special ward, and that said placement shall include supervision and administration of medications...."
The record reflects that Ward pleaded guilty to lascivious acts with a child on July 8, 1997. The record does not reflect any determination that Ward's competency had been restored sufficiently to enable him to enter the plea. See Iowa Code § 812.5. We assume for the purposes of this appeal that the district court made such a determination.
On February 9, 1998, the district court entered a judgment of conviction and sentence. The court ordered that Ward be committed to the custody of the Iowa Department of Corrections (DOC) for a term not to exceed five years. See Iowa Code § 902.9(4). The court suspended the sentence, pending Ward's future good behavior and placed him on probation to the *191 Eighth Judicial District Department of Correctional Services for five years. See Iowa Code § 907.3(3). The court further ordered that, "[a]s a specific term of probation, the defendant shall reside in the Cedar Creek ResCare Facility or a like facility."
The court additionally ordered Ward to apply all of his social security resources, except for a minimal amount for personal expenses, "to his costs at the care center." The court ordered the State to "pay for all amounts not covered by the defendant's social security."
As part of a plea bargain and at the request of the county attorney, the court ordered the State to pay (1) the remaining balance on the IMHI bill at Mount Pleasant, Iowa, in the amount of $20,581.78; (2) the unpaid balance due to Cedar Creek ResCare facility in the amount of $5967.43; and (3) any costs beyond Ward's contribution for any future care.
On May 11, 1998, the district court entered an order in which it found that the State had failed to make the payments for Ward's care at the Cedar Creek ResCare facility as set out in the February 9, 1998 judgment. The court ordered the director of DHS and the director of DOC to appear before the court "to determine why such payments have not been made." The record shows that this order was faxed to the director of the DHS on May 18, 1998. The DOC learned of the order on May 20, 1998.
On May 29 the director of DHS and the director of DOC filed in this court a petition for writ of certiorari and request for stay. They contended the district court exceeded its jurisdiction and/or acted illegally when it ordered the State to pay the costs noted in the February 9, 1998 judgment. Additionally, they asserted the district court lacked personal jurisdiction over them to order their appearance in court pursuant to its May 11, 1998 order. We issued the writ on July 10 and stayed the district court's May 11 order, pending further order of this court.
II. Scope of Review.
An original action in this court proceeds under Iowa Rule of Appellate Procedure 303. So far as applicable the action is by ordinary proceedings. See Iowa R.Civ.P. 307(b). In this original certiorari action, the two directors are the plaintiffs, the district court is the named or nominal defendant, and Ward is the underlying defendant. See Iowa R.App. P. 303.
A writ of certiorari lies where a lower board, tribunal, or court has exceeded its proper jurisdiction or otherwise has acted illegally. Iowa R.Civ.P. 306. Therefore, "we may examine only the jurisdiction of the district court and the legality of its actions." Christensen v. Iowa Dist. Ct., 578 N.W.2d 675, 678 (Iowa 1998). "Illegality exists when the court's findings lack substantial evidentiary support, or when the court has not properly applied the law." Id. Our review of the district court's action is therefore for correction of errors of law. See Iowa R.App. P. 4; French v. Iowa Dist. Ct., 546 N.W.2d 911, 913 (Iowa 1996).
III. Issues.
The issues the plaintiffs raise before us are the ones asserted in the petition for writ of certiorari. Ward, the defendant in the underlying criminal case, has assumed representation of the district court, the nominal defendant. Ward contends that the petition for writ of certiorari is untimely and should therefore be dismissed. He further contends that, even if the petition is timely, the writ should be annulled because the district court has (1) inherent authority under article V of the Iowa Constitution and (2) statutory authority pursuant to Iowa Code chapters 901 and 907 to order the State to pay the contested costs.
For reasons that follow, we think the petition for certiorari was untimely as to the February 9, 1998 judgment but was timely as to the May 11, 1998 order. Therefore, we restrict our discussion to the timeliness issue regarding the February *192 9 order and the propriety of the May 11 order.
IV. Timeliness of the Petition for Writ of Certiorari.
Iowa Rule of Civil Procedure 307(c) provides:
The petition [for writ of certiorari] must be filed within thirty days from the time the tribunal, board or officer exceeded its jurisdiction or otherwise acted illegally. An extension of such time, however, may be allowed by the reviewing court upon a showing that failure to file the petition within the time provided was due to a failure of the tribunal, board or officer to notify the petitioner of the action complained of. Any motion for extension of time shall be filed with the clerk of the court in which the writ of certiorari is sought within 90 days of the action complained of.
Iowa R.Civ.P. 307(c) (emphasis added).
According to the rule, the petition must be filed within thirty days from the time the tribunal exceeded its jurisdiction or otherwise acted illegally. Here, the judgment in question was entered on February 9, 1998. The thirty-day deadline for filing the petition therefore expired on March 11, 1998. The petition was filed on May 29, 1998. Consequently, the petition was untimely.
However, this court may grant an extension of time to file the petition if it is shown that the "failure to file the petition within the time provided was due to a failure of the tribunal ... to notify the petitioner of the action complained of." Iowa R. Civ. P. 307(c). But, a motion asking for such extension must be filed with the clerk of this court "within 90 days of the action complained of." Id.
Here, the plaintiffs point out that they did not receive notice of the February 9 Judgment until May 18 (DHS) or May 20 (DOC). However, the plaintiffs did not file a motion with this court asking for an extension. Nor did they ask this court to treat their petition as a request for an extension. However, even if we construe the petition as additionally embodying a request for an extension, the request would still be untimely because the petition was filed 109 days after the "action complained of." Rule 307(c) is clear that requests for additional time to file a petition for writ of certiorari based on a tribunal's failure to notify the plaintiff of the action complained of must still be filed within ninety days of the action complained of. The petition for writ of certiorari was therefore untimely.
One may argue that strict adherence to the rule under the circumstances here is unfair because the plaintiffs never received notice in time to file for an extension of time. In other words, it seems unfair to punish a plaintiff for failing to file a petition for a writ of certiorari in a timely manner when that failure was through no fault of the plaintiff. On the other hand, while rule 307(c) recognizes that in some cases it might be impossible to file a timely petition, it also recognizes that at some point, regardless of those circumstances, the courts must "draw the line."
We conclude that we have no jurisdiction to consider the petition for writ of certiorari, and for that reason we must dismiss it. See O'Malley v. Gundermann, 618 N.W.2d 286, 291 (Iowa 2000) (holding that an untimely filing of a petition for a writ of certiorari deprives the reviewing court of subject matter jurisdiction, and for that reason the petition must be dismissed). Having reached this conclusion, we do not imply that what the county attorney did here was binding on the plaintiffs or that the February 9 judgment was binding on them. Our conclusion that we have no jurisdiction does not preclude the plaintiffs from contending in any future litigation that, because they were not parties to the action and had no prior notice, they were not bound by the judgment. We express no opinion as to the merits of these issues.
*193 V. The Propriety of the May 11, 1998 Order.
As mentioned, on May 11, 1998, the district court ordered the director of DHS and the director of DOC to appear before it to determine why the State had not made the payments set out in the February 9, 1998 judgment. The plaintiffs challenge the order, contending the court did not have personal jurisdiction over them and the order did not require them to do anything. The plaintiffs' petition for writ of certiorari challenging this action was timely because it was filed within thirty days of the May 11 order.
It is true, as the plaintiffs contend, that they were not parties to the underlying criminal action and the February 9 judgment did not order either one of the plaintiffs to do anything. However, the February 9 judgment did require "the State" to make the payments for Ward's care. We construe the May 11 order as one merely asking for information as to why the State had not made the payments and not one seeking to hold the plaintiffs in contempt of court. The plaintiffs were in the best position to explain why the State did not make the payments. In addition, a hearing as provided for in the May 11 order would have given the plaintiffs an opportunity to explain their position and perhaps convince the court to set aside the February 9 judgment.
We conclude the district court acted legally and within its jurisdiction when it entered the May 11 order. We suggest, however, that judges refrain from ordering department heads to appear before them without offering such officials an opportunity to designate suitable representatives to appear in their stead. See In re D.C.V., 569 N.W.2d 489, 495 (Iowa 1997).
VI. Disposition.
Because the plaintiffs did not file the petition for writ of certiorari in a timely manner, we must annul the writ with regard to the February 9, 1998 judgment. Because we conclude the district court acted legally and within its jurisdiction when it entered the May 11 order, we also annul the writ as to that order.
WRIT ANNULLED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595405/ | 28 So.3d 54 (2010)
T.E.D.
v.
STATE.
No. 2D10-422.
District Court of Appeal of Florida, Second District.
February 5, 2010.
Decision Without Published Opinion Habeas Corpus denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595588/ | 28 So. 3d 1236 (2010)
Michael and Christine DAUZAT
v.
STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
No. 09-793.
Court of Appeal of Louisiana, Third Circuit.
February 3, 2010.
*1237 Jerold Edward Knoll, The Knoll Law Firm, John Taylor Bennett, Bennett Law Office, Marksville, Louisiana, for Plaintiffs/Appellees, Michael and Christine Dauzat.
James D. "Buddy" Caldwell, Attorney General, James E. Calhoun, Assistant Attorney General, Alexandria, Louisiana, for Defendant/Appellant, State of Louisiana through the Department of Transportation and Development.
Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and ELIZABETH A. PICKETT, Judges.
PICKETT, Judge.
The State of Louisiana, through the Department of Transportation and Development (the DOTD), appeals the trial court's grant of partial summary judgment on the issue of liability in favor of Plaintiffs, Michael and Christine Dauzat. For the following reasons, we reverse and remand.
FACTS AND PROCEDURAL HISTORY
On March 11, 2005, after boiling four sacks of crawfish, Christine was severely burned when she fell as she and her adult son were attempting to pour the hot water from the boil into a ditch adjacent to a driveway in front of her property. She was taken to a local hospital and then airlifted to a burn center in Houston, Texas, where she remained hospitalized for twenty-nine days.
Christine and her husband, Michael, filed suit against the DOTD on April 21, 2005, to recover damages for the injuries Christine suffered in the accident and for the loss of consortium suffered by Michael as a result of his wife's injuries. Plaintiffs alleged that the accident occurred on highway property included in the DOTD's right of way. They further alleged that the DOTD was responsible for their damages because of the following nonexclusive acts of negligence: failing to properly maintain its right of way, failing to properly maintain its drainage, failing to provide culverts, and providing inadequate and substandard material. They asserted that the DOTD had committed the aforementioned negligent acts "all the while knowing that its actions or inactions created a dangerous *1238 situation which . . . resulted in [their] damages."
The DOTD responded to Plaintiffs' petition by filing an exception of vagueness, after which Plaintiffs amended to allege sixteen additional acts of negligence on behalf of the DOTD, including failing to properly inspect and maintain the driveway and ditch. Thereafter, the DOTD answered the petitions, admitting that Plaintiffs' driveway was partially located within the DOTD right of way. The DOTD averred that the accident was solely caused through the negligence of Plaintiffs and/or some other third party, in the following non-exclusive acts or omissions: failing to exercise reasonable care in carrying extremely hot and potentially hazardous substances; failing to see what should have been seen; failing to take effective evasive actions; failing to comply with the law by discharging a noxious matter into the ditch on the state highway right of way without the prior written consent of the chief engineer, or his representative, and the secretary of the Department of Health and Hospitals; failing to maintain the driveway in a safe condition; knowingly walking on an unsafe driveway; and failing to supply an appropriate culvert meeting DOTD requirements and allowing the driveway permit to expire. The DOTD requested a jury trial in its answer, and the record contains two notices of trial by jury.
The DOTD filed a motion for summary judgment on June 18, 2008, alleging that Plaintiffs had failed to sustain their burden of proof. More specifically, it alleged that it owed no duty to Christine regarding her driveway because she was not a motorist using the adjacent roadway or a pedestrian using the roadway in a reasonably prudent manner. The DOTD further insisted that it was not required to furnish any culverts for Plaintiffs' driveway. Attached to its motion was deposition testimony of Christine; Huey Lipsey, Jr., a DOTD engineer; and Gerard Lemoine, the DOTD Highway Maintenance Supervisor for Avoyelles Parish; as well as a DOTD "Project Diary" relating to a 1980 project on Highway 1194 in front of Plaintiffs' property. Plaintiffs opposed DOTD's motion, alleging that material issues of fact remained which precluded summary judgment. They attached to their opposition the deposition of James Clary, Sr., an engineer specializing in highway design, safety, maintenance, and signage, whom they had retained as an expert witness. Following a hearing, the trial court denied the DOTD's motion on the basis that genuine issues of fact remained.
In March of 2009, Plaintiffs filed their own motion for summary judgment on the issue of liability. They presented no additional evidence in support of their motion. The DOTD opposed Plaintiffs' motion, submitting the deposition of Kelley Adamson whom it had retained as an expert in the field of civil and structural engineering. It argued that Plaintiffs' motion should be denied because many issues of fact remained, including whether the DOTD owed Plaintiffs a duty to remove the subject driveway, whether Christine acted reasonably in carrying hot water at night over an area of her yard which she knew was dangerous, and the exact circumstances surrounding the accident. Following a hearing, the trial court granted summary judgment in favor of Plaintiffs, finding that they had met their burden of proof on the issue of liability.
The DOTD now appeals, asserting in its sole assignment of error that "[t]he trial court erroneously granted a partial summary judgment where defendant has alleged comparative fault and where deposition[s] were presented showing that plaintiff knew of the danger but carried a *1239 large boiler of hot water into an area prone to cave-ins."
DISCUSSION
Appellate courts review summary judgments de novo, using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So. 2d 730. A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). Summary judgment is favored and shall be construed "to secure the just, speedy, and inexpensive determination of every action. . . ." La.Code Civ.P. art. 966(A)(2).
"DOTD has a duty to maintain the public highways in a condition that is reasonably safe for persons exercising ordinary care and reasonable prudence. La. R.S. 48:21(A)." Brown v. La. Indem. Co., 97-1344, p. 3 (La.3/4/98), 707 So. 2d 1240, 1242. Moreover, in Oster v. Dept. of Transp. and Dev., State of La., 582 So. 2d 1285, 1291 (La.1991), the supreme court stated:
As to the area off the shoulder of the road, but within the right of way, DOTD owes a duty to maintain the land in such a condition that it does not present an unreasonable risk of harm to motorists using the adjacent roadway or to others, such as pedestrians, who are using the area in a reasonably prudent manner.
In Cole v. State ex rel. Dept. of Transp. & Dev., 99-912, p. 5 (La.App. 3 Cir. 12/22/99), 755 So. 2d 315, 321, writ denied, 00-199 (La.4/7/00), 759 So. 2d 766, we stated:
To hold [the] DOTD liable, the plaintiff has the burden of proving that:
1. the defendant had custody of the property which caused plaintiff's damages;
2. the property was defective because of a condition that created an unreasonable risk of harm;
3. the defendant had actual or constructive knowledge of the defect and the risk and failed to take corrective measures within a reasonable time; and,
4. the defect was a cause-in-fact and legal cause of the plaintiff's injuries.
Odom v. State, Dep't of Transp. and Dev., 95-1605 (La.App. 3 Cir. 9/25/96); 688 So. 2d 1082.
This court reversed the trial court's grant of a partial summary judgment on the issue of liability in favor of the plaintiff in Benniefiel v. Zurich American Insurance Co., 08-1416, p. 6 (La.App. 3 Cir. 5/6/09), 10 So. 3d 381, 386, finding that the evidence in the record "clearly create[d] a genuine issue of material fact relative to the issue of comparative fault which must go to the trier of fact and not be disposed of via summary judgment." We further noted that "`it is not a function of the trial court on a motion for summary judgment to determine or even inquire into the merits of issues raised or to weigh conflicting evidence on the existence of material facts.'" Id. at 385 (quoting Bell v. Gold Rush Casino, 04-1123, p. 7 (La.App. 3 Cir. 2/2/05), 893 So. 2d 969, 973-74).
The parties appear to agree on the following facts. The driveway where the accident occurred was in existence when the Dauzats purchased their property in 1979. In August of 2003, Christine contacted Mr. Lemoine about a tree on her father's property that was partially blocking the view of anyone exiting his driveway. *1240 While Mr. Lemoine was out inspecting the tree, Christine, who lived across the street from her father, asked him to have a look at a culvert and driveway in front of her house on Highway 1194. The driveway ramp was badly eroded and culvert appeared to be in very bad shape. Mr. Lemoine explained to Christine that if she were to get a permit from the DOTD and supply a culvert and materials, his crew would dig out the old culvert and install the new one if their workload permitted. He also offered her the option of digging out the old culvert rather than replacing it; Christine turned down the second option because she needed the old driveway to move her boat and tractor.
Thereafter, Christine contacted Mr. Lipsey about getting a driveway permit and he came out to her property with the permit paperwork. A permit was issued on August 21, 2003. It called for a thirty inch by thirty foot long culvert. At first, the permit specified that the Dauzats would supply a corrugated metal pipe culvert. Later, it was amended to reflect that the Dauzats would supply a reinforced concrete pipe culvert. The change was due to the fact that the Dauzats' son would be able to make the concrete culvert at his job and they wanted to give him the business. Christine contacted Mr. Lipsey again on October 15, 2003, to inform him that her son had delivered the concrete culvert and that she was ready to have it installed. When Mr. Lipsey came out to inspect the culvert, he discovered that it was thirty-six inches wide, instead of thirty inches wide as called for in the permit. As a result, he told Christine that the culvert could not be installed because it was too big. The Dauzats chose to let the permit expire rather than getting another culvert or having the old driveway and culvert removed. They stopped using the old driveway for tractors and other vehicles because it needed to be repaired.
On the other hand, the DOTD clearly alleged in its answer, and later in opposition to Plaintiffs' motion for summary judgment, that Christine was guilty of negligence in her decision to transport extremely hot water across her yard at night into an area known to be in an unsafe condition. In addition, numerous issues of material fact remain. For example, Christine stated in her deposition that Mr. Lipsey did not inspect the driveway and ditch when he came out to her property to issue a permit to replace the old culvert. On the other hand, Mr. Lipsey stated that he had inspected the area on his visit to the Dauzat property. Christine and Mr. Lipsey also disagree on what size culvert he told her to get. Christine said that he told her it could be thirty inches or more but not less than that, while he said that he told her that it could not exceed thirty inches. Furthermore, there is an issue as to whether the culvert supplied by the Dauzats was defective, as Mr. Lipsey and Mr. Lemoine testified that it did not appear to be reinforced and the ends of each section were chipped and cracked such that they would not make a complete seal if connected to other sections of culvert. Additionally, there is disagreement amongst the various experts as to whether or not the DOTD guidelines called for the State to bring Highway 1194 up to current standards in conjunction with any or all of the various projects involving that roadway over the years. Moreover, there is conflicting testimony as to whether at any point prior to the accident the ditch in question was blocked such that the DOTD would have been required to rectify the situation to promote the safety of motorists and/or pedestrians traveling on Highway 1194 in front of Plaintiffs' property. Clearly the number of factual issues increased between the date of the trial court's denial of the DOTD's motion for *1241 summary judgment and the subsequent filing of Plaintiffs' motion for summary judgment.
After having reviewed all of the summary judgment evidence before us, we are convinced that genuine issues of material fact remain which cannot be properly disposed of via summary judgment. The trial court erred in granting Plaintiffs' motion for partial summary judgment on the issue of liability. This case must be remanded to the trial court for further proceedings to allow a jury to determine the multiple issues of fact that remain with regard to liability and damages.
DECREE
For the foregoing reasons, the judgment of the trial court is reversed and this matter is remanded for further proceedings. Costs of this appeal are assessed against Plaintiffs, Michael and Christine Dauzat.
REVERSED AND REMANDED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595563/ | 399 So. 2d 295 (1981)
Vicki WAGNER
v.
WINN-DIXIE, a corporation.
79-684.
Supreme Court of Alabama.
May 29, 1981.
James R. Cooper, Jr. of Cooper & Cooper, Montgomery, for appellant.
John B. Givhan of Albrittons & Givhan, Andalusia, for appellee.
TORBERT, Chief Justice.
Vicki Wagner and her husband, Billy Wagner, were shopping in the Winn-Dixie store in Andalusia, Alabama on July 14, 1978. While in the area of the produce and frozen food displays, Mrs. Wagner slipped and fell. All witnesses agreed that immediately after her fall, there were skid marks on the floor and a potato was observed lying near her feet. Witnesses for the plaintiff, however, testified that one end of the potato was "squooshed" and the skid marks were wet with particles of potato on either side, while witnesses for the defendant contended that the skid marks were dry *296 and the potato was intact. Medical evidence was introduced to the effect that, as a result of this fall, Mrs. Wagner injured her lower back. There was also evidence that her careers as a waitress and as a professional country singer and buck dancer were terminated due to her injuries. The jury returned a verdict for the defendant, Winn-Dixie, and the plaintiff appeals.
The plaintiff argues initially that the trial court erred by overruling her objection to the defendant's statement in closing argument that "the only way you can return a verdict in favor of the plaintiff is that you have got to believe that Mr. Grissett [the store manager] or somebody, somebody in his store ... knew that that potato was on the floor." The plaintiff contends this is such a gross misstatement of the law that her objection at the time the statement was made should have been sustained. The law applicable to this point was set out in the case of S. H. Kress & Co. v. Thompson, 267 Ala. 566, 103 So. 2d 171 (1958). There this Court stated:
[T]o prove negligence on the part of the defendant it is necessary to prove that the foreign substance was on the floor a sufficient length of time to impute constructive notice to the defendant, or that he had actual notice, or that he was delinquent in not discovering and removing it.
267 Ala. at 569, 103 So. 2d 171.
Although the statement made by defense counsel in argument was an incomplete statement of the law, reversal cannot be grounded upon this issue. The trial court's oral instructions were a complete and correct statement of the law. Moreover, the trial court appropriately admonished the jury that it was to take the law from the court and not from counsel.
Appellant next contends that the verdict was against the weight and preponderance of the evidence. The main thrust of her argument is that although two witnesses testified Mrs. Wagner slipped on a "squooshed" potato, and two witnesses testified she did not, the jury somehow erred in believing the witnesses for the defendant rather than those for the plaintiff. While a jury verdict may not be predicated on pure speculation or conjecture, Clark v. Smith, 292 Ala. 617, 299 So. 2d 226 (1974); Howell v. Roueche, 263 Ala. 83, 81 So. 2d 297 (1955); Goodwyn v. Union Springs Guano Co., 228 Ala. 173, 153 So. 246 (1934), there is a very strong presumption in this state in favor of upholding jury verdicts on appeal. Trans-South-Rent-A-Car, Inc. v. Wein, 378 So. 2d 725 (Ala.1979); Dixie Electric Co. v. Maggio, 294 Ala. 411, 318 So. 2d 274 (1975); Clift v. Donegan, 237 Ala. 304, 186 So. 476 (1939). That presumption is strengthened where, as here, the trial judge has overruled a motion for a new trial. Louisville & N. R. v. Garrett, 378 So. 2d 668 (Ala.1979); Alabama Power Co. v. Mosley, 294 Ala. 394, 318 So. 2d 260 (1975); T. R. Miller Mill Co. v. Ralls, 280 Ala. 253, 192 So. 2d 706 (1966). Plaintiff has failed to demonstrate that the verdict is clearly and palpably erroneous.
Plaintiff argues finally that the trial court erred in refusing to grant her motion for new trial, such motion being based on her allegation that the jury verdict was against the preponderance of the evidence. Since we have already determined that the evidence is sufficient to support the jury verdict, there is no need to reach this issue. It fails for the same reasons as the plaintiff's argument that the jury verdict was against the preponderance of the evidence.
Since plaintiff has failed to show that reversible error occurred, the decision of the trial court is hereby affirmed.
AFFIRMED.
MADDOX, JONES, SHORES and BEATTY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595414/ | 954 So.2d 790 (2007)
Eugene John TERRY
v.
Wilma Jane TERRY, Born Jones.
No. CA 06-1406.
Court of Appeal of Louisiana, Third Circuit.
March 28, 2007.
*791 Kathleen Kay, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellee, Eugene John Terry.
*792 Anne Elizabeth Watson, Dupre & Watson, L.L.C., Opelousas, LA, for Defendant/Appellant, Wilma Jane Terry, Born Jones.
Court composed of JOHN D. SAUNDERS, GLENN B. GREMILLION, and J. DAVID PAINTER, Judges.
SAUNDERS, Judge.
This is a domestic case where a wife brought an action for final periodic support against her husband. The trial court found that the wife failed to carry her burden of proof that she was free from fault and that the husband's fault is irrelevant in the proceedings.
The wife appealed these findings and we are requested to reverse the trial court's decision that she did not carry her burden of proof, reverse that her husband's fault is irrelevant to the proceedings, and render that she is entitled to final periodic support.
We reverse the trial court's finding that the wife did not carry her burden of proof that she was free from fault. We affirm the trial court's finding that the husband's fault is irrelevant in these proceedings. We remand this case for a determination by the trial court of the wife's need and the husband's ability to pay. Reversed, affirmed and remanded.
FACTS AND PROCEDURAL HISTORY:
Ms. Wilma Terry (hereinafter "Wilma") was married to Mr. Eugene Terry (hereinafter "Eugene") on April 2, 1987, in Jennings, Louisiana. Eugene worked as a serviceman for Entergy for the duration of the marriage. Just after the marriage began, Wilma was in an automobile accident after which she suffered migraine headaches of such a nature and degree that she could not work and relied on Eugene to care for her through administering shots and pain medication daily.
Wilma's medical condition remained the same until October 2000. At that time she went through a sinus surgery that cured her of her condition. Once she no longer suffered from the migraine headaches, Wilma began to work for Southside Development Corporation (hereinafter "Southside"), a nonprofit company co-founded by Eugene.
The parties both testified that they had a wonderful marriage until around November of 2003. At that time, Eugene had begun to suspect that Wilma was having an affair with her coworker, Pastor Carl Fontenot (hereinafter "Pastor Fontenot"). Eugene's suspicions were based upon talk in the community, a lack of intimacy and communication between he and Wilma, and long working hours that Wilma and Pastor Fontenot spent together. These working hours included business trips they took together with other people that worked at Southside.
Eugene expressed his concerns to Wilma and confronted both she and Pastor Fontenot. At a meeting of the three, called by Eugene to discuss his concerns, both denied that any affair was taking place. Wilma offered Eugene the option to accompany her and Pastor Fontenot to any business trips they took, but on all but one occasion, Eugene declined.
Eugene continually claimed that Wilma was having an affair with Pastor Fontenot. On one business trip to New Orleans, where Wilma did not invite Eugene to attend, Wilma lied to Eugene about where she was staying. When testifying regarding this lie, Wilma stated that she had taken the trip alone to get away from Eugene's constant accusations that she was having an affair.
*793 The parties physically separated on June 24, 2004, after Wilma left the family home. Wilma testified that Eugene had threatened to kill her if she did not leave the home. Wilma's testimony was corroborated by various witnesses' testimony that this event took place. Eugene filed a Petition for Divorce on July 24, 2004. A Judgment of Divorce was rendered on March 22, 2005.
On May 17, 2005, Wilma filed a rule for final periodic spousal support. Following trial held on three different days, a judgment denying final periodic spousal support was issued in the case. The trial court found that Wilma did not carry her burden of proof that she was free from fault in the destruction of the marriage. The trial court reached this decision based on a finding that Wilma did not do enough to alleviate Eugene's suspicions that she and Pastor Fontenot were having an affair. In its reasons for ruling, the trial court stated that Wilma could have rearranged her or Pastor Fontenot's work schedule or arranged for them to not travel on business trips together. The trial court also determined that Eugene's fault was irrelevant to the proceedings.
Wilma appealed this judgment alleging three assignment of errors. Wilma alleges that the trial court erred in finding that she did not carry her burden of proof that she was free from fault in the destruction of the marriage, that the trial court erred in failing to determine that Eugene's fault was the sole cause of the breakup of the marriage, and that the trial court should have awarded Wilma final periodic support of $2,500 per month.
We reverse the trial court's finding that Wilma did not carry her burden of proof that she was free from fault in the destruction of the marriage. We affirm the trial court's finding that Eugene's fault is irrelevant in the proceedings. We remand the case to the trial court to determine Wilma's need and Eugene's ability to pay so as to determine what final periodic support, if any, is warranted in this case.
Reversed, affirmed and remanded.
ASSIGNMENTS OF ERROR:
1. Did the trial court err in finding that Wilma was at fault in the break up of the marriage by not taking steps to alleviate Eugene's suspicions that she was having an adulterous affair and thereby denying her claim for final periodic spousal support?
2. Did the trial court err in failing to determine whether the break up of the marriage was due solely to Eugene's actions in accusing Wilma of adultery and threatening to kill her?
3. Did the trial court err in failing to award Wilma final periodic support in the amount of $2,500 per month, retroactive to May 17, 2005, when Wilma filed for final periodic spousal support?
ASSIGNMENT OF ERROR # 1:
Wilma argues that the trial court erred in denying her claim for final periodic spousal support. Wilma contends that this denial was in error because it was based on an erroneous finding that she was at fault in the breakup of the marriage by not taking steps to alleviate Eugene's suspicions that she was having an adulterous affair. We agree.
It is well settled that a trial court's factual findings regarding fault in the area of domestic relations are given great deference on review. If the trial court's findings are reasonable, i.e. not manifestly erroneous or clearly wrong, then they will not be disturbed. Coleman v. Coleman, 541 So.2d 1003 (La.App. 3 Cir.1989).
Louisiana Civil Code Article 111, in pertinent part, states, "[T]he court . . . *794 may award final periodic support to a party free from fault prior to the filing of a proceeding to terminate the marriage.[ . . .]" (emphasis added). The burden of proof regarding freedom from fault is on the party that is seeking support. Fault, in a permanent support context, is synonymous with conduct that would entitled a spouse to a separation of divorce under former La.Civ.Code arts. 138 and 139. Harrington v. Montet, 93-984 (La. App. 3 Cir. 3/2/94), 634 So.2d 1302.
Prior to its repeal, former Article 138 provided the grounds for separation of bed and board. Those grounds included the following: (1) adultery, (2) conviction of a felony if sentenced to death or imprisonment at hard labor, (3) habitual intemperance, excesses, cruel treatment or outrages of one of the spouses toward the other, if these intemperances make living together unsupportable, (4) public defamation, (5) an attempt on the other spouse's life, (6) abandonment, (7) one spouse fleeing from justice when charged with a felony that one can prove the fleeing spouse was indeed guilty of committing, (8) intentional non-support of a spouse of the other spouse that is in destitute or necessitous circumstances, (9) when the spouses have lived separate and apart for six months with no reconciliation, and (10) when the spouses have lived separate and apart for six months and one spouse signs an affidavit indicating that the spouses have irreconcilable differences as to render their living together unsupportable and impossible.
Prior to repeal, former Article 139 provided grounds for immediate divorce. Those grounds included adultery and the other spouse's conviction of a felony for which sentence given was death or imprisonment at hard labor.
Jurisprudence has broadened fault to include other activity that can be construed as fault for the purpose of denying periodic spousal support. For a spouse to be free from fault, that spouse must not have had any misconduct of a serious nature that is an independent, contributory or proximate cause of the failure of the marriage. Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707 (1958).
The trial court found that Wilma failed to carry her burden of proof that she was free from fault in the breakup of her marriage with Eugene. The trial court based this finding on its belief that Eugene had reasonable, growing suspicions regarding Wilma's relationship with Pastor Fontenot. These suspicions led to Eugene's lack of trust of Wilma and the eventual destruction of their marriage.
The trial court found that Wilma could have rearranged the work schedules of Pastor Fontenot and herself. Further, the trial court stated that Wilma could have made other arrangements regarding business trips that she, Pastor Fontenot, and others took. Because the trial court made these findings, it ruled that Wilma could have done more to alleviate Eugene's suspicions. Therefore, the trial court found that she had some fault in the eventual divorce and denied her request for final periodic spousal support. We disagree.
There is no evidence in the record that Wilma had the power to rearrange either her or Pastor Fontenot's work schedule. Further, there is no evidence that Wilma could decide who went on business trips for Southside. The only evidence in the record regarding business trips was testimony from both Wilma and Pastor Fontenot that their attendance on these business trips was mandatory as part of their employment.
There is, however, evidence in the record that Wilma took some steps to attempt to alleviate Eugene's suspicions. All testimony in the record indicates that Wilma *795 vehemently denied ever having an affair with Pastor Fontenot. Also, at the request of Eugene, Pastor Fontenot met with Eugene and Wilma to discuss his suspicions. Both Wilma and Pastor Fontenot denied any affair had ever transpired between them. Further, the testimony of Wilma and Eugene indicated that Wilma had invited Eugene to attend the work related trips and there is at least one occasion where Eugene actually did attend a business trip with Wilma to Puerto Rico.
Moreover, there is no evidence that Eugene ever took steps to alleviate his concerns. If Eugene was concerned about any potential affair, he could have attended those trips that Wilma invited him to attend, but he choose not to do so. Further, Eugene is a man with the financial means to hire a private investigator to ascertain if there was an affair between Pastor Fontenot and Wilma, but again, he chose not to do so.
Eugene argues that there is enough evidence in the record to indicate that Wilma did something to promote Eugene's suspicions and thereby preclude her from recovering final periodic spousal support. This evidence consists of a lie Wilma told Eugene about where she was staying when she took a trip to New Orleans. However, there is no evidence that Pastor Fontenot, nor anyone else, was on this trip with Wilma, nor is there any evidence that Wilma was not alone on this trip. In her testimony, Wilma stated that she lied to Eugene in order to relieve herself of his constant badgering regarding his suspicions.
The trial court did not comment on this situation in its reasons for ruling and focused more on Wilma's lack of rearrangement of schedules and business trips in finding that Wilma was not free from fault. We find that Eugene's argument that this isolated incident is enough to constitute fault is without merit. One lie told to a spouse that is not proven to lead to any faults listed in repealed Articles 138 and 139 and does not rise to a level of misconduct so serious in nature that it is an independent, contributory, or proximate cause of the failure of the marriage is not substantial enough evidence to find that Wilma is at fault in the case at bar.
Further, we find that the trial court's ruling that Wilma could have done more to alleviate Eugene's suspicions based on its findings is not supported by the record. Eugene has not argued, nor is there any evidence that Wilma committed any of the listed activities in repealed Articles 138 and 139. Moreover, there is also no indication that Wilma did any actions that would rise to a level of misconduct so serious in nature that it is an independent, contributory or proximate cause of the failure of the marriage as stated in Kendrick.
Therefore, we reverse the trial court's judgment that Wilma failed to carry her burden of proof. We find that Wilma proved that she was free from fault and find that she is not precluded from receiving final periodic spousal support as a result of any misconduct presented in the record.
ASSIGNMENT OF ERROR # 2:
Wilma contends that the trial court erred in failing to determine whether the break up of the marriage was due solely to Eugene's actions in accusing Wilma of adultery and threatening to kill her. We disagree.
For a spouse to be free from fault, that spouse must not have had any misconduct of a serious nature that is an independent, contributory or proximate cause of the failure of the marriage. Kendrick, 106 So.2d 707. (Emphasis added). When one spouse is seeking permanent periodic support, *796 a determination of whether the other spouse's fault contributed to the destruction of the marriage is irrelevant. Carr v. Carr, 33,167 (La.App. 2 Cir. 4/5/00), 756 So.2d 639.[1]
In the case before us, Eugene has not alleged any fault by Wilma that makes Eugene's fault or lack thereof relevant. Any determination made by the trial court into whether Eugene was solely at fault, or at fault in any fashion would have been unnecessary and superfluous. As such, we find no merit in the assertion that the trial court should have determined whether Eugene was solely at fault for the breakup of the marriage. The trial court's finding that Eugene's fault is irrelevant is affirmed.
ASSIGNMENT OF ERROR # 3:
Wilma argues that the trial court erred in failing to award her final periodic support in the amount of $2,500 per month, retroactive to May 17, 2005, when Wilma filed for final periodic spousal support. We find that the trial court, with further proceedings on remand, would be better suited to make this determination.
Louisiana Civil Code Article 111, in pertinent part, states, "[T]he court . . . may award final periodic support to a party free from fault prior to the filing of a proceeding to terminate the marriage, based on the needs of that party and the ability of the other party to pay. [. . .]" (emphasis added).
Louisiana Code of Civil Procedure Article 2164 states in pertinent part, "[t]he appellate court shall render any judgment which is just, legal and proper upon the record on appeal." An appellate court will generally not adjudicate issues not ruled upon by the trial court, but when the appellate court has all of the facts and testimony and is able to pronounce with certainty on the case, that appellate court should render such judgment on appeal as the trial court should have rendered at trial. Kilbourne v. Hosea, 19 So.2d 279 (La.App. 1 Cir.1944). However, when an appellate court finds that the interests of justice dictate that further evidence is required for the proper adjudication of the case, then the appellate court should remand the case to the trial court. Polizzi v. Thibodeaux, 35 So.2d 660 (La.App.Orleans 1948).
Because the trial court found that Wilma was not free from fault, it did not make any determination as to Wilma's need, or of Eugene's ability to pay support. Because there are no factual findings regarding these issues we either have to make a de novo review of the record or remand the case to the trial court for proceedings not inconsistent with this opinion. We find that there is not enough evidence in the record for us to make an accurate determination of Wilma's need or Eugene's ability to pay.
There is evidence in the record that Wilma could be entitled to a significant settlement once the community property is divided between the couple. Wilma's potential portion of Eugene's savings plan he had through Entergy (valued at $184,256.70 as of September 30, 2005) is a factor in making a determination as to her need and is also a factors as to Eugene's ability to pay. While we know from Wilma's testimony that Eugene began putting money into the savings plan at Entergy mainly when he was married to Wilma, we cannot determine how much, if any, of the *797 money Wilma would be entitled to receive if the plan is indeed community property, another issue we cannot determine from the record.
Further, we cannot determine from the record the status of the family residence. While we know from testimony that Eugene purchased the home prior to marrying Wilma, we do not know if the home was fully paid for prior to the marriage or if the home's equity was increased during the marriage. If it is the latter, Wilma may be entitled to receive half of that equity.
Therefore, we find that the record is incomplete regarding Wilma's need and Eugene's ability to pay and that further evidence is required for the proper adjudication of the case. As such, we remand this case to the trial court for further proceedings not inconsistent with this opinion.
CONCLUSION:
Wilma raised three assignments of error. We reverse the trial court's determination that Wilma was unable to carry her burden that she was free from fault. We affirm the trial court's finding that Eugene's fault is irrelevant in this case. We remand this case to the trial court for a determination of Wilma's need and Eugene's ability to pay. The costs of this appeal are assessed to Eugene.
REVERSED, AFFIRMED, AND REMANDED.
NOTES
[1] There can be an exception to this general statement such as when one spouse is attempting to prove freedom from fault when that spouse is being accused of abandonment as noted in footnote 1 of Gitschlag v. Gitschlag, 593 So.2d 1331, 1335 (La.App. 1 Cir. 1991). Eugene has not argued that Wilma was at fault for abandonment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595422/ | 28 So.3d 140 (2010)
Atim Nkang ITIAT, Personal Representative of the Estate of Mandu Peter Itiat, Appellant,
v.
Raymond FOSKEY, individually, and Raymond Foskey d/b/a Monticello Towing, Appellees.
No. 1D09-2069.
District Court of Appeal of Florida, First District.
February 5, 2010.
Burney Bivens and Edward W. Dawkins of Bivens, Jones & Associates, Orange Park, for Appellant.
E.T. Fernandez, III, Matthew C. Bothwell and John M. Hatfield of Fernandez Trial Lawyers, P.A., Jacksonville, for Appellees.
WEBSTER, J.
Appellant, as the personal representative of her late husband's estate, requests review of an adverse summary final judgment entered in her action seeking damages for the wrongful death of her husband. Because we conclude that the record demonstrates the existence of genuine issues as to material facts, we reverse.
Appellant's husband died as the result of a rear-end collision with a tow truck on Interstate 10 following a rain storm. The trial court entered summary judgment in favor of the appellees based upon its determination that appellant had "failed to provide... evidence sufficient to overcome the presumption of negligence imposed on the rear driver in a rear-end collision." Our standard of review is de novo. E.g., The Fla. Bar v. Cosnow, 797 So.2d 1255, 1258 (Fla.2001); Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).
The law in Florida regarding summary judgments is well settled:
*141 [A] party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought. ... A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law. ...
If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.
Moore v. Morris, 475 So.2d 666, 668 (Fla. 1985) (citations omitted). Succinctly put, "[w]hen acting upon a motion for summary judgment, if the record raises the slightest doubt that material issues could be present, that doubt must be resolved against the movant and the motion for summary judgment must be denied." Jones v. Directors Guild of Am., Inc., 584 So.2d 1057, 1059 (Fla. 1st DCA 1991) (citations omitted).
The summary judgment was based upon the trial court's determination that appellant had "failed to provide ... evidence sufficient to overcome the presumption of negligence imposed on the rear driver in a rear-end collision," citing Clampitt v. D.J. Spencer Sales, 786 So.2d 570 (Fla.2001), and Tozier v. Jarvis, 469 So.2d 884 (Fla. 4th DCA 1985). Those two cases stand for the general proposition that a rebuttable presumption of negligence on the part of the rear driver arises in rear-end collision cases and, accordingly, the burden rests on the rear driver to present evidence that "`fairly and reasonably tends to show' that the presumption of negligence is misplaced." Clampitt, 786 So.2d at 573 (quoting Gulle v. Boggs, 174 So.2d 26, 29 (Fla.1965)). Once such evidence is presented, the presumption dissipates, and the case must go to the jury "to reconcile the conflicts and evaluate the credibility of the witnesses and the weight of the evidence." Gulle, 174 So.2d at 29. See also Alford v. Cool Cargo Carriers, Inc., 936 So.2d 646, 650 (Fla. 5th DCA 2006). "There are three general categories of affirmative explanations that [have been held to] effectively rebut the presumption of negligence: 1) an abrupt and arbitrary stop in a place where it could not reasonably be expected or an unexpected change of lanes ...; 2) a mechanical failure, i.e., sudden brake failure, that causes the rear driver to collide with the lead driver ...; and 3) the lead vehicle is illegally and, therefore, unexpectedly stopped." Id. at 649-50 (citations omitted).
Having carefully reviewed the record, we conclude that, drawing every reasonable inference in favor of appellant, genuine issues exist as to material facts i.e., whether appellee Foskey suddenly changed lanes and reduced his speed and, if so, whether the collision was caused by those actions. Accordingly, we conclude, further, that the trial court incorrectly determined that appellant had "failed to provide... evidence sufficient to overcome the presumption of negligence imposed on the rear driver in a rear-end collision." Therefore, we reverse the summary final judgment, and remand for further proceedings.
REVERSED and REMANDED.
WOLF and THOMAS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595426/ | 12 F.Supp. 169 (1935)
UNITED STATES
v.
CITY OF NEW YORK.
District Court, S. D. New York.
August 5, 1935.
*170 Martin Conboy, U. S. Atty., of New York City (by Walter H. Schulman, Asst. U. S. Atty., of New York City, of counsel), for the United States.
Paul Windels, Corp. Counsel, of New York City (by Matthew J. Troy and Leonard M. Wallstein, Jr., both of New York City, of counsel), for defendant.
GODDARD, District Judge.
This matter comes before the court on a motion made by defendant to set aside a directed verdict in favor of the plaintiff on January 2, 1935, for $18,600, the amount of cash paid out by the police property clerk of the city of New York in disregard of plaintiff's demand and warrant of distraint. This $18,600 in currency was taken from the person of Arthur Flegenheimer, alias "Dutch Schultz," at the time of his arrest by police officers of the city of New York on June 18, 1931. The suit was brought by the government pursuant to section 1268a, title 26 USCA (see 26 USCA § 1610 (a, b), entitled "Liability in case of failure to surrender property on which levy has been made," and section 115, title 26 USCA (see 26 USCA §§ 1560-1567), providing for a lien by the government on property of a taxpayer.
A trial was had, and at the end of it the proof that the money in question was the property of Flegenheimer was such that the court directed a verdict in favor of the plaintiff, but entertained a motion to set aside the verdict on issues of law as to defendant's liability, and counsel were permitted to file briefs.
This $18,600 in currency was found upon the person of Flegenheimer at the time of his arrest on June 18, 1931, by the police officers of the city of New York and turned over to the property clerk of the city of New York for safekeeping in the name of Arthur Flegenheimer, alias "Dutch Schultz."
On the 23d day of June, 1931, the collector of internal revenue duly assessed the sum of $79,236.72 against Flegenheimer for federal income taxes for the year 1930 with interest and penalties. On the same day the collector of internal revenue of the Third District of New York filed with the clerk of the United States District Court, this district, a notice of the tax lien setting forth the name of the taxpayer as Arthur Flegenheimer, alias "Dutch Schultz," and the amount of income tax assessed against him for the year 1930; also on the same day, a deputy collector served on the police department, and more particularly upon the property clerk of the police department of the city of New York, a copy of this notice. On August 18, 1931, a deputy collector served upon the police commissioner of the city of New York, and also upon the property clerk of the city of New York, a written demand for payment over to the collector of the sum of $79,236.72 or any funds of lesser amount belonging to Flegenheimer in the custody of the police department of the city of New York. With such demand there was also served a copy of a warrant of distraint on the property of Flegenheimer. Thereafter, from time to time, oral demands were made by representatives of the collector upon the property clerk for the turning over of the $18,600 taken from Flegenheimer Notwithstanding these notices and demands, the police property clerk, for reasons best known to himself, declined to turn the money over to the collector and handed it back to Flegenheimer.
The defendant, the city of New York, contends that it is not liable for the acts of the property clerk, because:
(1) The doctrine of respondeat superior does not apply to a governmental function performed by a police official;
(2) That the government's remedy is against the property clerk alone;
(3) That no proper demand was made upon the defendant under section 1114, subdivision (e), of the Revenue Act of 1926 (26 USCA § 1268a; see 26 USCA § 1610 (a, b); also because of the failure to serve process upon the mayor, comptroller, or the corporation counsel.
Counsel for the plaintiff urges that the contention that the police commissioner and the property clerk were not acting in the course of their duties as city employees, is a mere fiction of local law, not applicable to the liability imposed by section 1268a (see 26 USCA § 1610 (a, b), and contends that the doctrine of respondeat superior does apply; also, that the defendant had adequate notice of *171 plaintiff's demand under the provisions of section 1268a (see 26 USCA § 1610 (a, b).[1]
The liability imposed by section 1268a (see 26 USCA § 1610 (a, b) is imposed directly on defendant, and it, as a corporate entity, can act only through its agents and servants.
There is no doubt that the police property clerk and that the police commissioner were employees of the city of New York and that the relation of master and servant existed between the city of New York and them. This is apparent from the following facts:
The city of New York is a municipal corporation (Greater New York Charter (Laws 1901, c. 466), § 1). "For all purposes the local administration and government of the people and property within the territory hereby comprised within the City of New York shall be in and be exercised by the corporation aforesaid." Section 4. The chief executive officer of the city of New York is the mayor. The head of the police department is the police commissioner, who is appointed by the mayor. Section 270, as amended by Laws N. Y. 1915, c. 164, and Loc. Laws N. Y. 1931, p. 104. The property of the police department vests in the city of New York. Section 275. The police commissioner has the power to appoint and remove members of the police force, clerks, employees, etc. Section 283. The comptroller of the city of New York pays all salaries and wages to officers and members of the police department. Section 297, as amended by Laws 1917, c. 380, and Laws 1933, Ex. Sess., c. 829, § 3. The police commissioner has the power to employ a "property clerk" to take charge of all property taken from the person of a prisoner, and property so taken shall be described and registered by the property clerk in a book kept for that purpose. Section 331, as amended by Laws 1917, c. 400. When a person has been arrested and brought before a magistrate charged with obtaining feloniously property or money, the magistrate may order the property or money to be returned to the accused if he is satisfied from the evidence that the arrested person is innocent of the offence alleged. Section 332. If the accused person is held for trial or examination, the property or money shall remain in the custody of the property clerk until the discharge or conviction, if any claim is made to the ownership of said property or money by a person other than the accused. Section 333. Property stolen or embezzled not claimed by the owner before the expiration of the six months after acquittal or conviction of the person stealing or embezzling it is to be delivered to the property clerk, who shall retain it for a period of six months, after which, if there is no lawful claimant thereto, it shall be paid into the police pension fund. Section 335, as amended by Laws 1920, c. 734.
Under the General City Law of the State of New York (Consol. Laws, c. 21), art. 2-A, §§ 19 to 24, inclusive, every city of New York State is granted various powers, among which is the power to maintain order and enforce the laws, protect property, and care for the general welfare of the inhabitants of the city and visitors thereto (General City Law, art. 2-A, § 20, subd. 13), the power to determine and regulate the number, mode of selection, powers, duties, and compensation of all employees of the city and the relation of all officers and employees of the city to each other, to *172 the city and to the inhabitants of the city (section 20, subd. 17), and the power to provide and administer funds for pensions and annuities for city officers and employees upon retirement (section 20, subd. 20).
The facts in respect to appointments, duties, removals, etc., of police officers, including the property clerk, are quite similar or analogous to those respecting the firemen in charge of the fire boat in the case of Workman v. City of New York, 179 U. S. 552, page 565, 21 S. Ct. 212, 217, 45 L. Ed. 314,[2] in which the Supreme Court said: "That, upon such a state of things, the relation of master and servant existed between the city of New York and those in charge of the fire-boat is clear. And that under the general maritime law, where the relation of master and servant exists, an owner of an offending vessel committing a maritime tort is responsible, under the rule of respondeat superior, is elementary."
In the Workman Case it was held that, where the relationship of master and servant actually existed, as it did between the city of New York and members of its fire department, the local law, if it conflicted with the general maritime law, must yield to the general maritime law, and that the public nature of the service upon which a vessel is engaged at the time of the commission of a maritime tort affords no immunity from liability in a court of admiralty, where the court has jurisdiction. The court went on to say, 179 U. S. 552, at pages 558, 559, and 574, 21 S. Ct. 212, 214, 45 L. Ed. 314:
"And the principle by which the maritime law would be thus in part practically destroyed would besides apply to other subjects specially confided by the Constitution to the Federal government. Thus, if the local law may control the maritime law, it must also govern in the decision of cases arising under the patent, copyright, and commerce clauses of the Constitution. It would result that a municipal corporation, in the exercise of administrative powers which the state law determines to be governmental, could with impunity violate the patent and copyright laws of the United States or the regulations enacted by Congress under the commerce clause of the Constitution, such as those concerning the enrollment and licensing of vessels. * * *
"And although this opinion is confined to the controlling effect of the admiralty law, we do not intend to intimate the belief that the common law which benignly above all considers the rights of the individual, yet gives its sanction to a principle which denies the duty of courts to protect the rights of the individual in a case where they have jurisdiction to do so."
It is true that in suits brought by private parties the New York courts have held that a policeman in carrying out his official duties is performing a governmental function; that the relationship of principal and agent does not exist and the doctrine of respondeat superior does not apply; and that the city, which employs him, is immune from liability for his acts. Maxmilian v. The Mayor, 62 N. Y. 160, 20 Am. Rep. 468; Augustine v. Town of Brant, 249 N. Y. 198, 163 N. E. 732. But no case has been cited by counsel, nor have I found any case, where this doctrine has been applied except in private actions against a municipality. The legal fiction that the doctrine of respondeat superior does not apply to a governmental function performed by a police official seems to have grown up as a result of a desire to protect municipalities from multifarious tort claims by private litigants.
In Evans v. Berry, 262 N. Y. 61, pages 67, 68, 186 N. E. 203, 205, Chief Judge Pound said:
"At common law cities were not liable for the torts of police officers. Although appointed and paid by the city, such officers were not regarded as municipal agents or servants. When acting in the course of their duty, they were said to be performing a governmental function. The city was immune from liability because the doctrine of respondeat superior was held to be inapplicable. *173 This was a rudimentary survival of the maxim, `The King can do no wrong.' * * *
"As was noted in Augustine v. Town of Brant, supra, page 205 of 249 N. Y., 163 N. E. 732, the modern tendency is against the rule of non-liability of municipalities for the acts of firemen and policemen employed by them. The fiction that they are not acting in the course of their duties as city employees is no longer regarded as a part of the fundamental law."
Chief Judge Pound's opinion contains a strong intimation that, at least, the doctrine of nonliability of municipal corporations in the state of New York will not be extended further. Municipal corporations are liable for the infringement of a patent by its employees and this is a tort. City of Akron v. Bone, 221 F. 944 (C. C. A. 6), and cases there cited. A municipal corporation holding a voluntary charter, as a city or village, is responsible for its mere negligence in the care and management of its streets. In this respect there is a distinction between the liability of such a corporation and that of a quasi corporation, like a county, town, or district. The liability of the former is greater than that of the latter. Barnes v. District of Columbia, 91 U. S. 540, 23 L. Ed. 440.
If the case at bar is regarded as an invasion of the property rights of the government, the doctrine of respondeat superior applies. McQuillin, Municipal Corporations (2d Ed.) vol. 6, § 2793. It is to be noted that under section 115 of 26 USCA (see 26 USCA §§ 1560-1567), a lien had attached to the property in question.
I am not inclined to extend the rule of immunity so far that it conflicts with and renders ineffective the ordinary operation of a federal statute for the collection of taxes. It is hardly open to doubt that the Congress intended, and that 26 USCA § 1268a (see 26 USCA § 1610 (a, b) means, that the usual rule of respondeat superior shall apply. Any reasonable system for the collection of taxes may be provided by the Congress. Wickwire v. Reinecke, 275 U. S. 101, 48 S. Ct. 43, 72 L. Ed. 184. And it rests with the Congress to determine what means shall be adopted to prevent fraud or evasion in the collection of the revenue of the United States. United States v. One Hundred Thirty-Two Packages of Liquors (C. C. A.) 76 F. 364.
In Florida v. Mellon, 273 U. S. 12, page 17, 47 S. Ct. 265, 266, 71 L. Ed. 511, where it was contended that a federal tax statute interfered with the exercise by the state of its powers of taxation, the court, referring to the federal act, said: "The act is a law of the United States, made in pursuance of the Constitution, and therefore the supreme law of the land, the Constitution or laws of the states to the contrary notwithstanding." The principle is further illustrated by the Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.), 223 U. S. 1, 32 S. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44.
That the city of New York is not without power to recognize and satisfy this claim of the government must be conceded, for in Evans v. Berry, 262 N. Y. 61, 186 N. E. 203, it was held that the city of New York might pass a local law enabling the board of estimate and apportionment to make an award to an innocent bystander injured by a police officer with or without fault on his part while engaged in his governmental duty of making an arrest. In view of the city's power to assume such liability of its own volition, it seems unreasonable that a legal fiction should be permitted to defeat the plaintiff's recovery of taxes and to nullify the provisions of section 1268a, 26 USCA (see 26 USCA § 1610 (a, b).
For the foregoing reasons I think the verdict should be sustained.
The defendant claims that section 263 of the Greater New York Charter relative to the service of process has not been complied with. However, that section obviously relates only to the service of process for the commencement of actions and legal proceedings in court against the city of New York.
In so far as the notice required in section 1268a (see 26 USCA § 1610 (a, b) is concerned, the defendant has had adequate notice of plaintiff's demands through the police department. In Dunstan v. City of New York, 91 App. Div. 355, 86 N. Y. S. 562, it was held that written notice to the department of water supply of the city of New York complaining about a defective hydrant was sufficient notice to charge the city *174 with negligence, upon which it was held liable for damages. See, also, Gamewell Fire-Alarm Tel. Co. v. The Mayor, etc. (C. C.) 31 F. 312.
The motion to set aside the verdict is denied.
NOTES
[1] Section 1268a (see 26 USCA § 1610 (a, b). "Liability in case of failure to surrender property on which levy has been made. Any person in possession of property, or rights to property, subject to distraint, upon which a levy has been made, shall, upon demand by the collector or deputy collector making such levy, surrender such property or rights to such collector or deputy, unless such property or right is, at the time of such demand, subject to an attachment or execution under any judicial process. Any person who fails or refuses to so surrender any of such property or rights shall be liable in his own person and estate to the United States in a sum equal to the value of the property or rights not so surrendered, but not exceeding the amount of the taxes (including penalties and interest) for the collection of which such levy has been made, together with costs and interests from the date of such levy. (Feb. 26, 1926, c. 27, § 1114(e), 44 Stat. 116.)"
Section 1262, title 26 USCA (see 26 US CA § 1696) states that unless otherwise specifically provided the term "person" means an individual, a trust or estate, a partnership or a corporation.
[2] In the Workman Case a fire boat owned by the city of New York struck and injured another vessel as the fire boat was entering into a slip in the East River for the purpose of helping to put out a fire in a warehouse on the dock. The District Court, 63 F. 298, held the city liable and awarded damages to the owner of the injured vessel. This was reversed by the Circuit Court of Appeals, 67 F. 347, and the Supreme Court reversed the Circuit Court of Appeals. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595430/ | 954 So.2d 620 (2005)
EX PARTE JASON GARZA AND FARRAH GARZA.
No. 1031933.
Supreme Court of Alabama.
November 10, 2005.
Decision without opinion. Cert. denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595441/ | 954 So.2d 626 (2005)
EX PARTE DANNY RAY HOLDER
No. 1041955.
Supreme Court of Alabama.
November 10, 2005.
Decision without opinion. Cert. denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595442/ | 954 So.2d 1173 (2007)
HOGSHEAD
v.
HOGSHEAD
No. 5D05-3000, 5D06-391.
District Court of Appeal of Florida, Fifth District.
April 25, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595691/ | 621 N.W.2d 219 (2001)
David J. EASTERBROOK, as Independent Personal Representative of the ESTATE OF Ashley Marie EASTERBROOK, Deceased; David J. Easterbrook and Gail Easterbrook, Individually; Penny Mapes, as Temporary Personal Representative of the Estate of Michael D. Jamieson, Deceased; Penny Mapes and Randall Mapes, Individually; John Stindt, as Independent Personal Representative of the Estate of Andrew R. Stindt, Deceased; and Sylvia Stindt and John Stindt, Individually, Plaintiffs-Appellees,
v.
TGI FRIDAY'S, INC., Defendant, Cross-Plaintiff-Appellant, and
Richard Alan Smith, as Personal Representative of the Estate of Lori Ann Smith, Deceased (AIP), jointly and severally, Defendant, Cross-Defendant-Appellee.
No. 117876, COA No. 228462.
Supreme Court of Michigan.
January 26, 2001.
On order of the Court, the motion for immediate consideration is considered, and it is GRANTED. The application for leave to appeal from the September 20, 2000 decision of the Court of Appeals also is considered, and it is DENIED, because we are not persuaded that the questions presented should now be reviewed by this Court.
The motion for stay is DENIED as moot.
MARKMAN, J., dissents and states as follows:
I would grant leave in order to consider whether the trial court erred in denying defendant's motion for summary disposition in this dramshop case where (a) the dramshop act creates a cause of action against restaurant and tavern owners who serve alcohol to "visibly intoxicated persons" who subsequently injure others, (b) the only eyewitness to the instant transaction testified that the perpetrator of the injuries in this case who was served alcohol in defendant's place of business was not "visibly intoxicated," and (c) the sole *220 evidence in support of plaintiff's position that the perpetrator was "visibly intoxicated" comes from expert witnesses who inferred this from her blood alcohol content at the time of her death.
Unlike the former act which made a licensee liable for sales to any "intoxicated person," M.C.L. § 436.22(4); MSA 18.993(4), the current act requires that a person be "visibly intoxicated." MCL 436.1801(3); MSA 18.1175(801)(3). "Visible intoxication" requires evidence that the allegedly intoxicated person behaved in a manner that would lead a reasonable observer to conclude that the person was intoxicated when served another drink. Miller v. Ochampaugh, 191 Mich.App. 48, 59-60, 477 N.W.2d 105 (1991). Almost certainly, the disparity in individual reactions to alcohol explains why evidence of observed behavior is required as a precondition to liability, rather than mere quantitative evidence of intoxication. While toxicologic or pathologic evidence clearly can contribute to the determination of whether a person was, in fact, intoxicated at a given point, it is less clear to me the extent to which such evidence can, by itself, contribute to the determination that a particular person's intoxication should have been recognized by demeanor or behavior. Whether reliance upon expert testimony of this sort effects a transforming of standards under the act, by imposing a burden upon restaurant and tavern owners inconsistent with its language, warrants further consideration by this Court, in my judgment.
TAYLOR, J., joins in the statement of MARKMAN, J. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595544/ | 28 So.3d 217 (2010)
L.M.B., Mother, Petitioner,
v.
DEPARTMENT OF CHILDREN AND FAMILIES and S.M.J., Father of L.A.J., a child, Respondents.
No. 4D09-3088.
District Court of Appeal of Florida, Fourth District.
February 24, 2010.
*218 Tami L. Augen of the Law Offices of Tami L. Augen, P.A., West Palm Beach, for petitioner.
Jeffrey Dana Gillen, West Palm Beach, for Respondent Department of Children and Families.
Philip J. Massa, Regional Counsel, and Patrick J. Reynolds, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for S.M.J. Father of L.A.J.
PER CURIAM.
L.M.B., the mother, petitions for a writ of certiorari seeking to quash the trial court's shelter order which sheltered her three-year-old child in the father's home. See § 39.402, Fla. Stat. (2009). Before entering the order, the trial court conducted a shelter hearing pursuant to section 39.402(8) but refused to permit the mother to present evidence on the issue of whether the child should be removed. § 39.402(2), Fla. Stat. (2009) (requiring that certain criteria be met and that court make a finding regarding "the necessity for removal"). The court expressed its policy of determining probable cause for removal from the "four corners" of the verified shelter petition. The court's refusal to permit the mother to present evidence regarding the necessity for removal was a departure from the essential requirements of law.
Since the filing of this petition, the mother has consented to an adjudication of dependency. Ordering a new shelter hearing would be ineffectual. We withhold issuing the writ, but because the issue is important and capable of repetition yet evading review, we write to express agreement with the holdings of our sister courts. L.M.C. v. Dep't of Children & Families, 935 So.2d 47 (Fla. 5th DCA 2006) (confirming that a parent has a right to be heard and "to present evidence on the issue of probable cause" at a shelter hearing); In re J.P., 875 So.2d 715 (Fla. 2d DCA 2004) (holding that a refusal to permit a parent to be heard at a shelter hearing violated the statutory right to be heard).
The Florida Legislature has provided parents with a statutory right to present evidence at shelter hearings. § 39.402(8)(c)3., Fla. Stat. (2009) (providing that at a shelter hearing, the court shall "[g]ive the parents or legal custodians an opportunity to be heard and to present evidence"). See also § 39.402(5)(b)1., Fla. Stat. (2009) (providing that parents must be given notice that "[t]hey will be given an opportunity to be heard and to present evidence at the shelter hearing").
The department has suggested that the right to present evidence regarding the existence of "probable cause" is not clear because of an alleged conflict within Florida Rule of Juvenile Procedure 8.305(b). Subdivision (b)(3) of this rule provides: "The issue of probable cause shall be determined in a nonadversarial manner, applying the standard of proof necessary for an arrest warrant." Fla. R. Juv. P. 8.305(b)(3). Subdivision (b)(4) provides: "At the hearing, all interested persons present shall have an opportunity to be *219 heard and present evidence on the criteria for placement provided by law." Fla. R. Juv. P. 8.305(b)(4). See J.B. v. Dep't of Children & Families, 936 So.2d 665, 666 (Fla. 5th DCA 2006) (Griffin, J., concurring specially) (noting the inconsequential nature of the apparent inconsistency because whether viewed as the existence of "probable cause" or the "criteria for placement" the underlying issue (the need for temporary removal) is the same).
At a shelter hearing, to continue the child in shelter care, the department "must establish probable cause that reasonable grounds for removal exist and that the provision of appropriate and available services will not eliminate the need for placement." § 39.402(8)(d)1., Fla. Stat. (2009). The hearing, however, is not limited to whether the department has established probable cause. To order placement, the court must determine that "placement in shelter care is necessary based on the criteria of subsections (1) and (2)." § 39.402(8)(h)1., Fla. Stat. (2009). The court must also find that "placement in shelter care is in the best interest of the child." § 39.402(8)(h)2., Fla. Stat. (2009). A parent has a right to be heard and present evidence regarding these and other relevant issues.
If a parent is not permitted to be heard at the hearing, and only the department's evidence will be considered, then the one-sided hearing would be a pointless formality. This is clearly not what the statute or rule contemplates. See J.P., 875 So.2d at 718 ("Had that been the intent of the rule it would provide that shelter of a child could be ordered without a hearing if the written submission established probable cause for shelter of the child.").
As to the perceived conflict within the rule, Rule 8.305(b) was formerly Rule 8.710(b). The rule was renumbered in 1991. See In re Petition of The Fla. Bar to Amend the Fla. Rules of Juvenile Procedure, 589 So.2d 818 (Fla.1991). Former Rule 8.710(b) contained identical "conflicting" language. See Fla. R. Juv. P. 8.710(b) (1989). Thus, the language in the rule is longstanding.
In 1990, the legislature provided a statutory right for parents to present evidence at shelter hearings. Ch. 90-306, § 5, Laws of Fla. (adding the following language to section 39.402(8)(a): "The parents or legal guardians of the child shall be given an opportunity to be heard and to present evidence at the detention hearing."). The statutory right clearly controls over any perceived conflict within the language in the rule.
The statutory right to be heard and to present evidence is buttressed by notions of procedural due process: a parent should have a meaningful opportunity to be heard on the key issue of the "need for removal". See J.P., 875 So.2d at 718 ("Section 39.402 and rule 8.305 afford parents due process in judicial proceedings in matters involving the State's temporary removal of children from the home.").
Trial courts have expressed concern about the time required to conduct evidentiary hearings on shelter petitions. We note, without deciding, in some circumstances, the right to present evidence at the shelter hearing may be satisfied by providing sufficient notice and permitting the parent or guardian an opportunity to present evidence in the form of affidavits. See Fla. R. Juv. P. 8.305(b)(5) ("The court may base its determination on a sworn complaint, testimony, or an affidavit....").
The petition is denied.
DAMOORGIAN, CIKLIN and LEVINE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595560/ | 399 So. 2d 1285 (1981)
GENERAL MOTORS ACCEPTANCE CORPORATION
v.
Allen P. SMITH.
No. 11945.
Court of Appeal of Louisiana, Fourth Circuit.
June 2, 1981.
*1286 Tucker & Schonekas, Arthur S. Mann, III, New Orleans, for plaintiff-appellee.
John L. Dorsey, New Orleans, for defendant-appellant.
Before REDMANN, SCHOTT and KLIEBERT, JJ.
REDMANN, Judge.
Louisiana's statutory "public policy," that "can not, and shall not be waived by a debtor," La.R.S. 13:4107, is that a debt "shall stand fully satisfied and discharged insofar as it constitutes a personal obligation of the debtor," R.S. 13:4106, whenever the creditor sells the debtor's property other than by judicial sale with appraisement.[1]
The question on this appeal is whether that policy, which expressly prohibits a judgment against the debtor for the balance of the debt allegedly remaining after crediting some amount as proceeds of the unappraised sale, also prohibits such a deficiency judgment against the debtor's surety, notwithstanding the surety's contractual stipulation that his liability "shall not be affected ... by the discharge or release of the [principal debtor] ..., by operation of law or otherwise." We answer that it does and we therefore reverse a judgment for the creditor against the surety.
*1287 The statute as originally enacted in 1934 provided for full discharge of the debt by unappraised sale, and later amendments indicate no legislative intent to depart from that scheme except to preserve in rem liability as to other properly included in the pledge or mortgage.[2] The logic of the full discharge is simple: because sales without appraisal often produce an unfair price (often with the creditor as the buyer), that price should not be treated as the equivalent of a price produced by a sale with appraisal, which must bring two-thirds of the appraised value or be readvertised; see Louisiana Nat. Bank v. Heroman, La.App. 1 Cir. 1973, 280 So. 2d 362, writ refused 281 So. 2d 755. The unappraised sale thus having no price providing an acceptable measure for deduction from the debt, the legislature has taken the position that an unappraised sale will be treated as if its proceeds were sufficient to pay off the debt entirely, save, since, the 1952 amendment, the in rem liability of other pledged or mortgaged property.
The public policy of R.S. 13:4106 is so strong and unwaivable that it prevents even a judgment by default for the "deficiency" in the absence of allegation and proof of sale with appraisal, Gumina v. Dupas, La.App. 4 Cir. 1964, 159 So. 2d 377.
That public policy ordinarily discharges persons secondarily liable because the discharge of the person primarily liable releases one in the position of a surety, Simmons v. Clark, La.App. 1 Cir. 1953, 64 So. 2d 520,[3] or an indorser, Southland Inv. Co. v. Motor Sales Co., 1941, 198 La. 1028, 5 So. 2d 324, unless the secondary obligor consented to the sale without appraisement, Southland above; Farmerville Bank v. Scheen, La.App. 2 Cir. 1954, 76 So. 2d 581; Commercial Cr. Eq. Corp. v. Larry Parrott of Gueydan, La.App. 3 Cir. 1968, 212 So. 2d 860, writ refused 214 So. 2d 719 (see also Exchange Nat. Bank v. Spalitta, La.App. 4 Cir. 1974, 295 So. 2d 18, rev'd on other grounds, La.1975, 321 So. 2d 338).
Plaintiff argues in our case, however, that the surety's contractual agreement was that his liability "shall not be affected" by discharge of the debtor and that therefore, as in Louisiana Bank & T. Co., Crowley v. Boutte, La.1975, 309 So. 2d 274, the ordinary rule of law that the discharge of the debtor discharges the sureties, C.C. 2205, does not apply.
Our surety, unlike the sureties in Boutte, is not bound in solido with the debtor,[4] but we will accept plaintiff's argument that *1288 Boutte might imply enforceability of his agreement that his liability is to be unaffected by discharge of the debtor. Yet plaintiff's argument concedes that Boutte, 309 So.2d at 278, n. 7, preserves the surety's personal right to reimbursement from the debtor (apart from simple subrogation to the creditor's now-extinguished right). The consequence would thus be that the principal debtor would be liable to the surety if the creditor obtains a judgment against the surety.
That consequence is inconsistent with R.S. 13:4106 and -7. The debtor cannot himself waive the public policy of § 4106, and a surety cannot be allowed to waive it for the debtor, and the creditor cannot be allowed to defeat that public policy by the simple device of obliging the debtor to provide a surety who can then collect from the debtor. The provision of the surety's contract making his liability unaffected by the discharge of the debtor is inconsistent with the unwaivable public policy of R.S. 13:4106 and is therefore unenforceable. We therefore reverse the judgment appealed from.
Finally we note that C.I.T. Corp. v. Rosenstock, La.App. 4 Cir. 1967, 205 So. 2d 81, involved an agreement similar to ours.[5] The opinion does not say whether or not the judicial sale of the mortgaged property was with appraisement, but it relied on Wilson v. Brian, La.App. 2 Cir. 1955, 81 So. 2d 142, and Simmons, above, in each of which sale was without appraisement. Rosenstock reasoned that the mere sale of mortgaged property by the creditor released the surety under C.C. 3061.[6] C.C. 3061, however, has long been held to discharge a surety only to the extent he or she is injured by the creditor's act; Provan v. Percy, 1856, 11 La.Ann. 179; Pontchartrain Apts. v. Maryland Cas. Co., 1930, 171 La. 67, 129 So. 671. We therefore prefer to rely on R.S. 13:4106 and -7 as the basis of our judgment.
Reversed; suit dismissed at plaintiff's cost.
NOTES
[1] R.S. 13:4106. If a mortgagee or other creditor takes advantage of a waiver of appraisement of his property, movable, immovable, or both, by a debtor, and the proceeds of the judicial sale thereof are insufficient to satisfy the debt for which the property was sold, the debt nevertheless shall stand fully satisfied and discharged insofar as it constitutes a personal obligation of the debtor. The mortgagee or other creditor shall not have a right thereafter to proceed against the debtor or any of his other property for such deficiency, except as provided in the next paragraph.
If a mortgagee or pledge affects two or more properties, movable, immovable, or both, the judicial sale of any property so affected without appraisement shall not prevent the enforcement of the mortgage or pledge in rem against any other property affected thereby.
R.S. 13:4107. R.S. 13:4106 declares a public policy and the provisions thereof can not, and shall not be waived by a debtor, but it shall only apply to mortgages, contracts, debts or other obligations made, or arising on or after August 1, 1934.
[2] At the time of its enactment in 1934 and incorporation into the Revised Statutes of 1950, the statute did not merely create a procedural bar: it decreed the debt "fully satisfied and discharged, and such ... creditor shall not thereafter have the right to proceed against the debtor or any other of his property for such deficiency, in any manner whatsoever." La. Acts 1952 No. 20 amended the statute to qualify "fully satisfied and discharged" by "insofar as said debt constitutes a personal obligation against the debtor or debtors" and also limited the proscription against proceeding for the deficiency by adding a proviso that, notwithstanding a sale without appraisement, the creditor could proceed in rem against other property included in the mortgage or pledge.
The purpose of the 1952 amendment was to allow execution on two or more things pledged or mortgaged to secure a debt, and for that purpose it was appropriate to describe the discharge of the debt as a discharge of the "personal obligation against the debtor." In the light of that purpose of the amendment, however, there is no reason to infer from the cited words an intent to limit the discharge of the debt to the principal debtor alone and to deny discharge to sureties or other persons secondarily liable.
(A later amendment by Acts 1960 No. 32 merely edited the 1952 text into two paragraphs, without changing its substance.)
[3] The persons treated as sureties were in fact the comakers of a collateral mortgage note (secured by mortgage on their own property), and the collateral mortgage note was pledged to secure the principal debtor's note (also secured by mortgage on his own property, which was sold without appraisement).
[4] Query: if he were, would he not be directly discharged as a codebtor? But the agreement does not make him liable in solido; its full text reads:
In consideration of the making of the within contract by the seller therein, the undersigned does hereby guarantee to said seller, or any assignee of said contract, payment of all deferred payments as specified therein and covenants in default of payment of any instalment or performance of any requirement thereof by buyer to pay full amount remaining unpaid upon demand. The liability of the undersigned shall not be affected by any settlement, extensions, variation of terms of the within contract effected with, or by the discharge or release of the obligation of the buyer or any other person interested, by operation of law or otherwise. Notice of acceptance of this guaranty, notices of non-payment and non-performance, notices of amount of indebtedness outstanding at any time, protests, demands, and prosecution of collection, foreclosure and possessory remedies, and the right to remove any legal action from the court originally acquiring jurisdiction, are hereby waived.
[5] The indorser "consent[s] that the holders may, ... without releasing the liability of [the indorser], ... release, by operation of law or otherwise, any rights against ... the maker...." 205 So.2d at 82.
[6] The surety is discharged when by the act of the creditor, the subrogation to his rights, mortgages and privileges can no longer be operated in favor of the surety. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595587/ | 399 So. 2d 813 (1981)
Kenneth BOAGNI, Sr., Plaintiff-Appellee,
v.
STATE of Louisiana, Through DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant-Appellant.
No. 8009.
Court of Appeal of Louisiana, Third Circuit.
May 28, 1981.
*814 Johnie E. Branch, Jr., Baton Rouge, for defendant-appellant.
Boagni & Genovese, James T. Genovese, Opelousas, for plaintiff-appellee.
Before FORET, SWIFT and DOUCET, JJ.
DOUCET, Judge.
The principal issue presented by this appeal is whether a street shown on a recorded plat of a rural subdivision has been statutorily dedicated to public use. Plaintiff, Kenneth Boagni, Sr., sued the State of Louisiana through its Department of Transportation and Development (hereinafter referred to as Department), seeking compensation for the Department's alleged appropriation of a strip of land designated as Louisiana Avenue of Linwood Subdivision East in St. Landry Parish. Following a trial on the merits, the district court rendered judgment in favor of plaintiff, awarding him a total of $8,750.00. From that judgment, the Department appeals. We reverse.
The facts are not disputed. In 1935, plaintiff purchased 363 acres of land in St. Landry Parish from his father, Dr. Charles Boagni. The property, which is located approximately two miles south of the City of Opelousas, is intersected by La.-U.S. Highway 167. In 1976, plaintiff subdivided the land on the east side of the highway, naming the subdivision Linwood Subdivision East.
On November 4, 1976, plaintiff filed a plat of the subdivision in the public records of St. Landry Parish. Prior to that date, he had sold approximately eight lots. Following its recordation, plaintiff sold numerous lots with reference to the plat.
The plat shows several lettered blocks with numbered lots and streets to serve them. All of the streets shown are fifty feet wide, except for Louisiana Avenue, which is thirty feet wide. Louisiana Avenue extends across the front of Block "M" adjacent to the highway right of way line, intersecting with Dr. Charlie Drive and Kenneth Boagni, Sr. Drive.
In April, 1978 the Department took possession of Louisiana Avenue in connection with a project to improve Highway 167 and incorporate it into a proposed north-south interstate highway between Shreveport and Lafayette. The proposed highway, which is to be designated Interstate Highway 49, will be a controlled-access facility with service roads to provide access to neighboring property that would otherwise be landlocked. The plans for the project called for widening and hard-surfacing Louisiana Avenue for use as a service road.
The Department rejected plaintiff's demands for payment for Louisiana Avenue, *815 contending that he had statutorily dedicated it to public use by substantially complying with the provisions of LSA-R.S. 33:5051. Plaintiff brought this suit, denying that he had dedicated Louisiana Avenue to public use and seeking compensation in the total sum of $22,502.50. He alleged in his petition that $15,000.00 of that amount was for the appraised value of Louisiana Avenue, and the remainder was the amount that he had spent for shells, dirt work and ditching in improving it.
The trial judge concluded that plaintiff had not dedicated Louisiana Avenue to public use. However, he found that a servitude of passage had been granted in favor of the public. Accordingly, he awarded plaintiff the reimbursement of his expenses in the sum of $7,500.00, but he declined to award him the full appraised value of the land. Plaintiff's motion for a new trial was granted, and after taking additional evidence, the trial judge awarded him an additional $1,250.00, which he found to be the value of plaintiff's interest in the property after taking into account the servitude with which it was burdened.
On appeal, the Department argues that the trial court erred in (1) failing to find that Louisiana Avenue had been dedicated to public use, (2) awarding plaintiff $1,250.00 for his interest in the land and reimbursement for his expenses in the sum of $7,500.00, and (3) fixing the fee of plaintiff's expert witness in the amount of $800.00 and taxing it as costs.
STATUTORY DEDICATION
As we noted earlier in this opinion, the Department's position is that the filing of the plat of Linwood Subdivision East, pursuant to LSA-R.S. 33:5051, effected a statutory dedication of the streets to public use, vesting full ownership of them in the public. LSA-R.S. 33:5051 states:
"Whenever the owner of any real estate desires to lay off the same into squares or lots with streets or alleys between the squares of lots and with the intention of selling or offering for sale any of the squares or lots, he shall, before selling any square or lot or any portion of same, cause the real estate to be surveyed and platted or subdivided by a licensed surveyor or civil engineer into lots or blocks, or both, each designated by number, and set stakes, which shall be permanent in nature, at all of the corners of every lot and block thereof, properly marked so as to designate the correct number of each lot and block; write the legal description of the land on the plat or map, and cause to be made and filed in the office of the keeper of notarial records of the parish wherein the property is situated and copied into the conveyance record book of such parish, and a duplicate thereof filed with the assessor of the parish a correct map of the real estate so divided, which map shall contain the following:
(1) The section, township, and range in which such real estate or subdivision thereof lies according to government survey.
(2) The number of squares by numerals from 1 up, and the dimensions of each square in feet and inches.
(3) The number of each lot or subdivision of a square and its dimensions in feet and inches.
(4) The name of each street and alley and its length and width in feet and inches.
(5) The name or number of each square or plat dedicated to public use.
(6) A certificate of the parish surveyor or any other licensed surveyor or civil engineer of this state approving said map and stating that the same is in accordance with the provisions of this Section and with the laws and ordinances of the parish in which the property is situated.
(7) A formal dedication made by the owner or owners of the property or their duly authorized agent of all the streets, alleys and public squares or plats shown on the map to public use."
It is well established in the jurisprudence that complete and detailed compliance with the above provisions is not necessary to effect a statutory dedication; substantial *816 compliance will suffice. Garrett v. Pioneer Production Corporation, 390 So. 2d 851 (La. 1980); Parish of Jefferson v. Doody, 247 La. 839, 174 So. 2d 798 (1965).
The Department correctly argues that the plat filed by plaintiff substantially complies with the statute. The trial judge apparently agreed with that conclusion. Nevertheless, he found that a statutory dedication had not been effected, assigning the following written reasons for his finding:
"... I conclude that there was not a fee-vesting dedication of the area in question by the actions of plaintiff. This, because the proposed thoroughfare `Louisiana Avenue' was not in conformance with the substantive regulations of the policy jury regarding the width of roads and because the police jury rejected the attempted dedication of that area. Although the jurisprudence holds that there may be a statutory (and accordingly fee-vesting) dedication without strict compliance with all the requisites of R.S. 33:5051, those requirements deal with the procedure necessary to effect a fee-vesting dedication and not with the effect of a noncompliance with substantive regulations of the applicable local (here, police jury) governing authority. R.S. 33:1236(20) empowers the police jury to regulate laying out of subdivisions and roads thereof. Under that provision, the police jury herein required that streets in any subdivision be at least 50 feet in width. As to Louisiana Avenue, that regulation was not complied with and the police jury rejected the attempted dedication. I see no conflict between my holding of the effect of noncompliance with regulations enacted under the provisions of R.S. 33:1236(20) and R.S. 33:5051 plus the jurisprudence thereunder that only substantial compliance with the later provision is necessary to effect a fee-vesting dedication. The first statute deals with the authority of the police jury to enact substantive regulations and the latter deals with the procedure for complying with such regulations. Indeed, R.S. 33:5051(6) contemplates the necessity of compliance with substantive regulations provided by any local governing authority. To ignore these substantive regulations or to rule that compliance with them is not strictly necessary for a fee-vesting dedication would disempower the police jury of its regulatory power and result in a public thoroughfare being part of neither a local or state road system and consequently without maintenance responsibility or enable a landowner to force any type subdivision or road on a local authority."
With due respect to our learned brother of the trial court, we cannot subscribe to that reasoning. The trial judge's conclusions and the arguments advanced by plaintiff on appeal are apparently based on the erroneous premise that the dedication of newly-formed streets and alleys in subdivisions is optional, and that a subdivider may elect to retain title to such streets and alleys by failing to comply with local ordinances and regulations. That clearly is not the case. As our Supreme Court noted in Pioneer Production Corporation v. Segraves, 340 So. 2d 270 (La.1976), the language of LSA-R.S. 33:5051 indicates that the legislature intended to require the platting and dedication of all newly-formed streets and alleys which were fashioned from land to be subdivided. The use of the word "shall" in the statute renders its provisions mandatory. LSA-R.S. 1:3.
The trial judge correctly noted that the statute anticipates and requires compliance with the laws and ordinances of the parish in which the property is situated. However, he fell into error in assuming that a police jury has the power to enforce its regulations by rejecting a statutory dedication if those regulations are not complied with.
Police juries in this State are subordinate political subdivisions of the State and as such their powers are limited. La.Const. Art. VI § 7(A); Rollins Environmental Services of Louisiana, Inc. v. Iberville Parish Police Jury, 371 So. 2d 1127 (La.1979). As Justice Tate pointed out in his concurring *817 opinion in Rollins, the concept that local governing authorities may exercise delegated authority only as conferred by legislation has been changed by the above cited provision of the 1974 constitution, greatly expanding local authority in certain cases. However, police juries may not under any circumstances exercise their authority in a manner that is inconsistent with the laws of this State. Rollins, supra.
LSA-R.S. 33:5051 clearly provides that newly-formed streets and alleys in land to be subdivided must be dedicated to public use. The statute also requires subdividers to affirmatively show that local laws and ordinances have been complied with. However, we find nothing in the wording of the statute that could be reasonably construed as granting authority to the police jury to reject or render ineffective a dedication if its regulations are not complied with. Nor have we been able to find any instances in the jurisprudence in which such authority has been recognized.
As we stated earlier, it is well settled that substantial compliance with the provisions of LSA-R.S. 33:5051 effects a statutory dedication. Once the dedication has been made, title to the streets and alleys vests in the public without the necessity for a formal acceptance. Arkansas-Louisiana Gas Co. v. Parker Oil Co., 190 La. 957, 183 So. 229 (1938); Police Jury, Parish of Jefferson v. Noble Drilling Corporation, 232 La. 981, 95 So. 2d 627 (1957). Thereafter, a local governing authority has no legal right to disclaim title to them. La.Const. Art. VII § 14; Police Jury, Parish of Jefferson v. Noble Drilling Corporation, supra.
This does not mean that a subdivider may disregard local ordinances and regulations with impunity, however. The failure to include a certificate stating that the plat is in accordance with the laws and ordinances of the parish in which the property is situated would clearly be a violation of LSA-R.S. 33:5051(6), punishable under LSA-R.S. 33:5053. Admittedly, the penalty provided by the latter statute may not be severe enough to seriously discourage such violations. However, that is a problem that addresses itself to the legislature. It cannot properly be resolved by attributing to police juries the power to circumvent the clear mandate of LSA-R.S. 33:5051.
For the foregoing reasons, we find that the trial court erred in finding that Louisiana Avenue had not been dedicated to public use as a result of plaintiff's substantial compliance with LSA-R.S. 33:5051.
THE AWARDS TO PLAINTIFF
In view of our holding that Louisiana Avenue was statutorily dedicated to public use, the trial court's award of $1,250.00 for plaintiff's alleged interest in it was obviously improper and must be set aside. Plaintiff argues that he is nevertheless entitled to reimbursement for his out of pocket expenses, because the State has been unjustly enriched. We find no merit in that argument.
Recovery under the theory of unjust enrichment requires proof of five elements: (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the impoverishment; (4) the absence of justification for the enrichment and impoverishment; and (5) absence of a remedy provided by law. Minyard v. Curtis Products, Inc., 251 La. 624, 205 So. 2d 422 (1967); Abbeville Lumber Co. v. Richard, 350 So. 2d 1292 (La.App.3rd Cir. 1977). We find the evidence presented by plaintiff insufficient to establish all of these necessary elements.
There is considerable doubt about whether the State was enriched as a result of plaintiff's expenditures for shells, dirt work and ditching. Because the street was too narrow, the Department had to plow it up and rework it, utilizing the part of the pre-existing highway right of way to make it the standard width for a service road. Assuming for the sake of argument that the State was enriched to some extent, there is also some question about whether plaintiff was actually impoverished. Expert appraisers testified at the trial that improving subdivision streets by shelling or paving them increases the value of the adjoining property. Presumably then, plaintiff *818 recouped at least part of his out of pocket expenses by selling his lots at a higher price.
Even assuming that an enrichment and an impoverishment can be shown in this case, we note that there is a legal cause which justifies such enrichment. The regulations of the police jury are not contained in the record before us. However, plaintiff testified without objection that under those regulations he was required to make the same kinds of improvements to all of the other streets in the subdivision at his expense. Thus, there was justification for any enrichment and impoverishment that may have occurred.
EXPERT FEE
Since we have determined that plaintiff is not entitled to recovery, we agree with the Department's contention that his expert appraiser's fee should not be taxed as costs. Plaintiff, as "the party cast in judgment", is required to pay the fee. LSA-R.S. 13:3666; Holliday v. Continental Can Co., Inc., 351 So. 2d 181 (La.App.2nd Cir. 1977). Accordingly, we find it unnecessary to discuss the Department's argument that the fee set by the trial judge was excessive.
For the foregoing reasons, the judgment of the trial court is reversed and set aside, and judgment is rendered in favor of defendant, the State of Louisiana, through the Department of Transportation & Development, dismissing plaintiff's suit at his costs. All costs of this appeal are assessed against plaintiff.
REVERSED AND RENDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595600/ | 28 So. 3d 1018 (2010)
In re Emanuel MATTHEWS.
No. 2009-OK-1071.
Supreme Court of Louisiana.
March 12, 2010.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595795/ | 28 So. 3d 131 (2010)
John STACKMAN and Beverly Stackman, Appellants,
v.
Susan POPE, POA for the Owners, etc., Appellee.
No. 5D09-772.
District Court of Appeal of Florida, Fifth District.
February 5, 2010.
*132 Michael Massey, of Massey & Duffy, LLC, Gainesville, for Appellant.
Helen A. Hauser, of Restani, Dittmar & Hauser, P.A., Coral Gables, and Dennis R. Haber, of Dennis R. Haber, P.A., Palmetto Bay, for Appellee.
EVANDER, J.
John and Beverly Stackman appeal from a final summary judgment imposing a prescriptive easement on their property. The uncontroverted evidence in the record was insufficient to establish the required elements of a prescriptive easement on behalf of appellee, Susan Pope, or any of the other homeowners on whose behalf she purported to bring this action. Therefore, we reverse.
Pope filed the action below seeking a judicial determination that homeowners of the Hooperville Subdivision in Marion County had the right to use a boat ramp located on the Stackman property. She alleged that she was "the authorized and appointed representative by Power of Attorney for the property owners covered by the Power of Attorney who are property owners at the Hooperville Subdivision. ..."[1]
Pope subsequently filed a motion for summary judgment, attaching fourteen affidavits of various property owners. The affidavits were all in the same format and included the following language:
AFFIDAVIT OF ______________
4. I own property located at _________________________ which is located in the Hooperville subdivision in Marion County Florida.
5. I have continuously used the boat ramp located on Section 12, Township 13, Range 25, plat Book 009, Hooperville for the past ____ years.
*133 6. I have used the boat ramp described above under the belief that I had the right to use the same.
7. I have never requested the permission of any title holders of the property to use the boat ramp.
* * *
9. I have used the boat ramp described above openly and without reservation from any prior title holders of the property and with the full knowledge of the prior title holders.
As to paragraph 5 of the form affidavit, only three of the fourteen affiants averred that they had used the boat ramp for at least twenty years. None of the affidavits referenced use by predecessors in title, nor did any of the affidavits contain specific factual representations to support the conclusionary claim of "continuously used."
The Stackmans filed several affidavits in opposition to the motion for summary judgment. Without detailing the averments of each counter-affidavit, it is sufficient to state that the property owners' claims of continuous and open use of the boat ramp were disputed by individuals who had resided within view of, or regularly traveled by, the boat ramp. Additionally, in two of the counter-affidavits, the affiants claimed that the boat ramp was unusable for a significant period of time because of the lack of maintenance on the property.
In granting Pope's motion for summary judgment, the trial court determined that a prescriptive easement existed on the Stackmans' property. The trial court's final order failed to identify the property to be benefitted by the easement.
To establish a prescriptive easement, a claimant must prove, by clear and positive proof, 1) actual, continuous, and uninterrupted use by the claimant or any predecessor in title for the prescribed period of twenty years; 2) that the use was related to a certain, limited and defined area of land; 3) that the use has been either with the actual knowledge of the owner, or so open, notorious, and visible that knowledge of the use must be imputed to the owner; and 4) that the use has been adverse to the owner that is, without permission (express or implied) from the owner, under some claim of right, inconsistent with the rights of the owner, and such that, for the entire period, the owner could have sued to prevent further use. See Downing v. Bird, 100 So. 2d 57, 64 (Fla. 1958); Dan v. BSJ Realty, LLC, 953 So. 2d 640, 642 (Fla. 3d DCA 2007); Suwannee River Water Mgmt. Dist. v. Price, 651 So. 2d 749 (Fla. 1st DCA 1995); Crigger v. Florida Power Corp., 436 So. 2d 937, 944-45 (Fla. 5th DCA 1983).
Significantly, a party claiming a private prescriptive easement may only rely upon use of the subject property by himself or his predecessors in title in attempting to show actual and continuous use for the prescribed time period. See Brewer v. Flankey, 660 So. 2d 761 (Fla. 5th DCA 1995); Supal v. Miller, 455 So. 2d 593 (Fla. 5th DCA 1984). In the present case, the evidence in the record was clearly insufficient to meet the twenty-year requirement for the majority of the property owners purportedly represented by Pope. As to the property owners who swore to actual and continuous use for at least twenty years, material disputed issues of fact were created by the counter-affidavits as to the first, third, and fourth elements listed above. Summary judgment is improper where there is a genuine issue of material fact. Holl v. Talcott, 191 So. 2d 40 (Fla.1966).
On remand, the trial court must evaluate each property owner's prescriptive easement claim separately. A party *134 seeking to establish a private prescriptive easement may not "bootstrap" onto the claim of another. Supal, 455 So.2d at 595.
REVERSED and REMANDED.
PALMER and ORFINGER, JJ., concur.
NOTES
[1] At oral argument, Pope's counsel advised that not all property owners in the Hooperville Subdivision had given a power of attorney to Pope. The issue of whether Pope had standing to bring this action on behalf of other property owners was not raised below or on appeal, and, accordingly, we decline to address it. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595800/ | 28 So. 3d 16 (2009)
SOUTH ALABAMA SKILLS TRAINING CONSORTIUM, Central Alabama Skills Training Consortium, and North Alabama Skills Training Consortium
v.
Roberta FORD et al.
2080068.
Court of Civil Appeals of Alabama.
July 24, 2009.
*17 T. Julian Motes, David M. O'Brien, and Jeffrey G. Miller of Sirote & Permutt, P.C., Mobile, for appellants.
William F. Patty of Beers, Anderson, Jackson, Patty & Fawal, P.C., Montgomery; Gregory B. Stein of Stein, Brewster & Pilcher, LLC, Mobile; and Candis A. McGowan of Wiggins, Childs, Quinn & Pantazis, LLC, Birmingham, for appellees.
THOMPSON, Presiding Judge.
This is the second time these parties have been before this court. This court has explained the procedural history and facts of this dispute as follows:
"The North Alabama Skills Training Consortium, the Central Alabama Skills Training Consortium, and the South Alabama Skills Training Consortium (collectively `the Consortia') appeal from the denial of their petition for a writ of certiorari. The evidence and record on appeal reveal the following.
"I. Procedural History
"In June 2005, the employment contracts of nine state employees were not renewed; those employees were: Roberta Ford, Dolores Ibarra, John McGowin, Angela Mullins, Robyn Stinson, Dawn Thorn, Emuel Todd, Annette Rea, and Gloria Watkins. In July 2005, eight of those employeesFord, Ibarra, McGowin, Mullins, Stinson, Thorn, Todd, and Watkins (collectively `the employees')filed direct appeals with the attorney general's office, purportedly pursuant to the Fair Dismissal Act (`FDA'), § 36-26-100 et seq., Ala.Code 1975.1 See § 36-26-115, Ala.Code 1975. The employees alleged that their respective employers had violated the FDA, specifically §§ 36-26-102 through -104, Ala. Code 1975, by terminating their employment without notice and a hearing.2
*18 "Ibarra, Thorn, and Todd identified Bevill State Community College (`Bevill State') as the respondent in their appeals. Bevill State responded, denied any employment relationship with Ibarra, Thorn, and Todd, and asserted that Ibarra, Thorn, and Todd were instead employed by the North Alabama Skills Training Consortium (`NASTC'). Bevill State denied that the NASTC was one of its divisions or departments, and it denied that the FDA governed Ibarra's, Thorn's, and Todd's employment.
"Ford and Watkins identified Southern Union State Community College (`Southern Union') as the respondent in their appeals. Southern Union responded, denied any employment relationship with Ford and Watkins, and asserted that Ford and Watkins were instead employed by the Central Alabama Skills Training Consortium (`CASTC'). Southern Union denied that the CASTC was one of its divisions or departments, and it denied that the FDA governed Ford's and Watkins's employment.
"McGowin, Mullins, and Stinson identified Bishop State Community College (`Bishop State') as the respondent in their appeals. They each purported to appeal individually and on behalf of all similarly situated employees. The South Alabama Skills Training Consortium (`SASTC') responded, stating that it had been incorrectly identified as `Bishop State.' The SASTC asserted that it, and not Bishop State, had employed McGowin, Mullins, and Stinson. The SASTC denied that it was a part of Bishop State, and it denied that the FDA applied to McGowin's, Mullins's, and Stinson's employment.
"The Consortia subsequently filed a joint motion to dismiss the employees' appeals, asserting that the employees were not governed by the FDA and, therefore, that an administrative law judge (`ALJ') lacked jurisdiction to consider the appeals. Each consortium stated that it had been incorrectly identified by the employees. Bevill State, Southern Union, and Bishop State (collectively `the colleges') made no further filings in the action. The eight appeals were assigned to an ALJ and consolidated. The ALJ received briefs and documentary evidence, but he did not hold a hearing.
"On May 24, 2006, the ALJ issued a 43-page report and recommendation in which he found that the Consortia were departments within the colleges, that the employees were employed by the colleges, and that the colleges operated `under the control, authority, and auspices of the Alabama College System.' The ALJ concluded that the FDA applied to the employees and that the employees had been wrongfully denied notice and hearings as to the discontinuation of their employment. The ALJ ordered as follows:
"`2. ... [T]he actions of the two-year colleges are hereby rescinded, and the [employees] are entitled to:
"`a. The rights and privileges of the FDA, including their right to a hearing prior to their termination.
"`b. Proper notice per the FDA.
"`c. Reinstatement and back pay.
"`3. The [colleges] are hereby placed on notice that any further employment action on their part must be in full compliance with the FDA.'
"The ALJ also ordered that `all of the [colleges'] employees who are situated as are the Petitioners in the case sub judice[] are subject to the FDA.'
"On June 23, 2006, the Consortia filed in the Montgomery Circuit Court a petition for a writ of certiorari and a motion to stay enforcement of the ALJ's order. *19 The employees moved to dismiss the petition, arguing, among other things, that because the ALJ's order was final under § 36-26-115, Ala.Code 1975, the Consortia had no right to appeal or petition for certiorari review. The employees also argued that the Consortia lacked standing and were not proper parties under Rule 17, Ala. R. Civ. P. The circuit court granted the motion to stay.
"On December 18, 2006, while the petition for certiorari review was pending before the circuit court, Rea filed a direct appeal with the attorney general's office, citing § 36-26-115 and the ALJ's May 24, 2006, order. Rea's appeal named Bevill State as a respondent. The NASTC responded, alleged that it had been incorrectly identified as Bevill State, and asserted that Rea's appeal was untimely and that the FDA did not apply to Rea. On February 13, 2007, relying almost entirely on the `similarly situated' language of the May 24, 2006, order, the ALJ found that the FDA applied to Rea and stated that `the conclusion/holding rendered in the [May 24, 2006, order] applies, in toto, to the case here at bar.' The NASTC filed in the Montgomery Circuit Court a petition for a writ of certiorari and a motion to stay enforcement of the ALJ's decision. Rea's action was not consolidated with that of the other employees.
"The circuit court held a short hearing, and subsequently it issued an order on May 8, 2007. The circuit court's order denied the petitions for the writ of certiorari and granted the motions to dismiss in Rea's action and in the employees' action. The circuit court also stated:
"`[T]he court agrees with all of the conclusions made by the Administrative Law Judge in his May 24, 2006, order in the underlying administrative proceeding in this case and with his February 13, 2007, order in the underlying administrative proceeding in the Rea case. ... The court therefore affirms and incorporates the entire order from the underlying administrative proceedings issued by the Administrative Law Judge on May 24, 2006.'
"The Consortia filed a notice of appeal to this court on June 7, 2007, in the employees' action and in Rea's action; the circuit court granted a stay of enforcement of the ALJ's order pending resolution of this appeal. The case was subsequently submitted to this court, which heard oral argument on April 17, 2008.
1 Rea did not challenge the termination of her employment until December 18, 2006.
"2 The parties agree that the Alabama Administrative Procedure Act, § 41-22-1 et seq., Ala.Code 1975, does not govern their dispute."
South Alabama Skills Training Consortium v. Ford, 997 So. 2d 309, 312-14 (Ala. Civ.App.2008).[1] In our original consideration of this matter, this court analyzed, among other things, the applicability of the Fair Dismissal Act ("the FDA"), § 36-26-100 et seq., Ala.Code 1975, and the appropriate review available under the FDA, and we concluded that the FDA applied, that the employees were entitled to notice and a hearing pursuant to the FDA, and that the Consortia properly sought review of the decision of the administrative law judge ("ALJ") in the circuit court pursuant to a petition for a writ of certiorari. This *20 court reversed the circuit court's judgment insofar as it affirmed the ALJ's decision in Annette Rea's action and the ALJ's determination that its decision applied to employees similarly situated to the plaintiffs. South Alabama Skills Training Consortium v. Ford, supra. This court summarized our holdings as follows:
"Accordingly, we affirm the circuit court's judgment to the extent it affirmed the ALJ's ruling that the employees were governed by the FDA and, therefore, were entitled to notice and a hearing before being discharged or transferred. We reverse the circuit court's judgment to the extent that it affirmed the ALJ's application of the May 24, 2006, order to individuals who were not parties to the appeals before it. We likewise reverse the circuit court's judgment to the extent that it affirmed the ALJ's decision in Rea's action. We also reverse the circuit court's judgment to the extent that it held that no review via a petition for the common-law writ of certiorari may be had from an ALJ's decision under § 36-26-115. Therefore, we remand this action to the circuit court with instructions that it issue a writ of certiorari and require the ALJ to rescind his May 24, 2006, order to the extent that that order applied to individuals who had not been made parties to the appeals before it and require the ALJ to rescind his February 13, 2007, order in Rea's action and to reconsider her appeal in light of the holdings of this opinion."
South Alabama Skills Training Consortium v. Ford, 997 So.2d at 334-35.
On remand, the employees filed a motion asking the circuit court to enter a judgment in compliance with this court's opinion in South Alabama Skills Training Consortium v. Ford, supra. In their motion on remand, the employees also moved the circuit court to enter an order requiring the Consortia to pay them backpay and benefits. The Consortia opposed the employee's motion on remand, arguing that the circuit court lacked jurisdiction to enter an order awarding the employees backpay and benefits; the Consortia contended that the amount of backpay and benefits to be awarded was a "factual issue" to be determined by the ALJ.
On October 10, 2008, the circuit court entered a judgment ordering the ALJ to modify his May 24, 2006, order to remove the portion of the order stating that the decision applied to all "similarly situated" employees. In addition, the circuit court noted in its judgment on remand that because the Consortia had reinstated Rea, it was no longer necessary to remand her action to the ALJ for further proceedings.[2] In addition to the foregoing, the circuit court stated that this court had affirmed the remaining aspects of its judgment affirming the ALJ's decision. We note that the opinion affirms that part of the circuit court's judgment affirming the decision of the ALJ holding that the FDA applied and, therefore, that the employees were entitled to notice and a hearing. See South Alabama Skills Training Consortium v. Ford, 997 so.2d at 334. The circuit court then proceeded to order in its judgment on remand that the employees receive backpay and benefits.[3]See Perine v. *21 Kennedy, 868 So. 2d 1123 (Ala.Civ.App. 2003) (holding that a teacher whose discharge was upheld was entitled to backpay between the effective date of his discharge and the date the discharge was confirmed pursuant to the FDA); and Allen v. Bessemer State Tech. Coll., 703 So. 2d 383 (Ala. Civ.App.1997) (an employee discharged without the required hearing under the FDA was entitled to reinstatement and backpay).
On appeal, the Consortia contend that the circuit court lacked jurisdiction to enter that part of its October 10, 2008, judgment in which it ordered the Consortia to pay the employees backpay and benefits. The Consortia contend that the amount of backpay and benefits due is disputed and, therefore, that the ALJ, not the circuit court, has jurisdiction to resolve that dispute. We agree that the circuit court lacked jurisdiction to enter that portion of its October 10, 2008, judgment pertaining to backpay and benefits, but not for the reason asserted by the Consortia.
The circuit court originally exercised jurisdiction in this matter pursuant to the Consortia's petition for a writ of certiorari from the ALJ's May 24, 2006, decision. See South Alabama Skills Training Consortium v. Ford, 997 So.2d at 332 (stating that Art. IV, § 142(b), Ala. Const.1901, grants the circuit courts the authority to review decisions of administrative agencies and to issue all appropriate writs in the exercise of their powers); see also Ex parte Alabama Textile Prods. Corp., 242 Ala. 609, 613, 7 So. 2d 303, 305 (1942) ("The law ... confers on circuit courts the authority to exercise general superintendence over all inferior jurisdictions."). A writ of certiorari "can, under appropriate circumstances, be used to review decisions of an administrative agency or board that are judicial or quasi-judicial in nature." G.W. v. Dale County Dep't of Human Res., 939 So. 2d 931, 934-35 (Ala. Civ.App.2006) (citing State v. Albritton, 251 Ala. 422, 37 So. 2d 640 (1948)). However, a circuit court's review of a decision of an ALJ pursuant to a petition for a writ of certiorari is limited. As this court summarized in South Alabama Skills Training Consortium v. Ford:
"The circuit court's standard of review of a petition for a common-law writ of certiorari is well settled. On common-law certiorari review, the circuit court's `scope of review was limited to determining if the [ALJ's] decision to [reinstate the employees] was supported by legal evidence and if the law had been correctly applied to the facts.' Evans v. City of Huntsville, 580 So. 2d 1323, 1325 (Ala.1991). `In addition, the court was responsible for reviewing the record to ensure that the fundamental rights of the parties, including the right to due process, had not been violated.' Id. `Questions of fact or weight or sufficiency of the evidence will not be reviewed on certiorari.' Personnel Bd. of Jefferson County v. Bailey, 475 So. 2d 863, 868 (Ala.Civ.App.1985).
"`"`[A] common-law writ of certiorari extends only to questions touching the jurisdiction of the subordinate tribunal and the legality of its proceedings. The appropriate office of the writ is to correct errors of law apparent on the face of the record. Conclusions of fact cannot be reviewed, unless specially authorized by statute. The trial is not de novo but on the record; and the only matter to be determined is the quashing or the affirmation of the proceedings brought up for review.'"'
"G.W. v. Dale County Dep't of Human Res., 939 So. 2d 931, 934 n. 4 (Ala.Civ. App.2006) (quoting City of Birmingham v. Southern Bell Tel. & Tel. Co., 203 Ala. *22 251, 252, 82 So. 519, 520 (1919), quoting in turn Postal Telegraph-Cable Co. v. Minderhout, 195 Ala. 420, 71 So. 91 (1916))."
997 So.2d at 324. "`The supervisory jurisdiction of the court on certiorari is restricted to an examination into the external validity of the proceeding had in the lower tribunal.'" Personnel Bd. of Jefferson County v. Bailey, 475 So. 2d 863, 868 (Ala. Civ.App.1985) (quoting Alabama Elec. Coop. v. Alabama Power Co., 278 Ala. 123, 126, 176 So. 2d 483, 485 (1965)).
In its original, May 8, 2007, judgment, the circuit court appropriately exercised its jurisdiction on certiorari review by affirming the order of the ALJ. This court later reversed portions of the circuit court's ruling on certiorari review, but, in doing so, we concluded that review in the circuit court pursuant to the petition for the writ of certiorari was appropriate. South Alabama Skills Training Consortium v. Ford, supra.
A trial court must comply with an appellate court's mandate on remand. Ex parte Queen, 959 So. 2d 620 (Ala.2006). In its October 10, 2008, judgment on remand, the circuit court complied with this court's instructions set forth in South Alabama Skills Training Consortium v. Ford, supra, to the extent that it directed the ALJ to remove that portion of his May 24, 2006, decision granting relief to nonparty employees who were "similarly situated" to the employees in this action. Given the parties' resolution of Rea's claim that she was subject to the FDA, the circuit court did not remand that action to the ALJ to reconsider Rea's appeal. It is clear that, in compliance with this court's instructions and in keeping with the nature of its review pursuant to the Consortia's petition for a writ of certiorari, the circuit court had jurisdiction to enter those portions of its October 10, 2008, judgment on remand.
However, in its October 10, 2008, judgment on remand, the circuit court granted the employees additional relief. Specifically, the circuit court ordered that the employees were entitled to an award of backpay and benefits. We agree with the Consortia that the circuit court lacked jurisdiction to enter that part of its October 10, 2008, judgment, but not for the reason advocated by the Consortia.
As already discussed, certain portions of the circuit court's judgment complied with our appellate mandate. However, nothing in this court's opinion in South Alabama Skills Training Consortium v. Ford, supra, required the circuit court to enter a ruling pertaining to backpay and benefits.[4] Further, as explained earlier, the circuit court's consideration of this matter was pursuant to certiorari review. The circuit court could not go beyond that method of review to afford the Consortia relief it had not originally requested in its petition for writ of certiorari.[5] Although they argue *23 the issue now, in their petition for certiorari from the ALJ's May 24, 2006, order, the Consortia did not raise, as an alternative basis for relief, an argument that the employees' rights to backpay and benefits could be offset by any income earned by the employees during the time the review process was pending in the courts. Thus, the Consortia failed to challenge or seek review of that portion of the ALJ's May 24, 2006, order that pertained to the award of backpay and benefits, and, accordingly, the circuit court did not have that issue before it on remand. As a result, that the portion of the ALJ's May 24, 2006, order pertaining to backpay and benefits remains in effect.
The absence of jurisdiction renders that portion of the circuit court's judgment awarding backpay and benefits void, and, because this appeal pertained solely to that portion of the judgment that is void, the appeal must be dismissed.
APPEAL DISMISSED.
PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.
NOTES
[1] In this opinion, we refer to the parties by the same designations we used in South Alabama Skills Training Consortium v. Ford, supra.
[2] Rea had been employed by, and apparently was reinstated by, the NASTC.
[3] We note that, although they were discharged from their original positions with the members of the Consortia, McGowin, Mullins, Stinson, and Watkins were subsequently employed in other jobs for the Consortia at reduced rates of pay; each of those employees seeks to recover only the difference between the reduced rate of pay and the amounts he or she would have received in his or her original employment position.
[4] In fact, nothing pertaining to the ALJ's award of backpay and benefits had been raised before this court in that appeal.
[5] In their briefs submitted to this court, the Consortia contend that they are entitled to a setoff under the FDA against the award of backpay and benefits of any amounts an employee earned until he or she was reinstated pursuant to the opinion in South Alabama Skills Training Consortium v. Ford, supra. The Consortia acknowledge that our appellate courts have interpreted the FDA as allowing an award of the full amount of backpay and benefits. However, the Consortia contend that the issue should be reexamined. As this court has earlier stated: "The question raised by briefs are interesting, and may, when properly presented, be decided by this Court on appeal. At this time the question is not properly presented and not for decision in disposing of this appeal." Tarver v. Household Fin. Corp., 45 Ala.App. 344, 345, 230 So. 2d 534, 535 (Civ. 1970). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595712/ | 399 So.2d 41 (1981)
Robert C. MALT and B. Ann Malt, His Wife, Appellants,
v.
Samuel H. DEESE and Dorothy M. Deese, His Wife, Appellees.
No. 79-906.
District Court of Appeal of Florida, Fourth District.
May 20, 1981.
*42 Robert B. Cook of DeSantis, Cook, Meehan, Cohen, Gaskill & Silverman, P.A., North Palm Beach, for appellants.
James R. Hustad of Hustad & Kurtz, West Palm Beach, for appellees.
GLICKSTEIN, Judge.
This is a timely appeal by Mr. and Mrs. Malt, the lessors/sellers, of property in Manalapan, Florida, from a final judgment of specific performance, together with an award of attorneys' fees in favor of Mr. and Mrs. Deese, the lessees/buyers. We affirm.
Mr. Malt is a homebuilder and real estate broker. The parties met in 1973 when Mr. Deese responded to an advertisement for the sale of a waterfront home in Manalapan owned by the Malts.[1] Upon their meeting, Mr. Deese made known to Mr. Malt his ownership of Letters Patent for a foldable extension ladder and the existence of an Exclusive License Agreement he had given to International Leisure Industries, Inc. for the manufacture and sale of the ladder.[2] Mr. Malt's interest was apparently aroused to the extent that he let the Deeses into possession of the home without requiring any money from them.[3]
On September 20, 1974, the board of directors of International Leisure held a special meting which Mr. Deese attended as a guest. The following motion was passed unanimously:
That the board authorize payment of all arrears in royalties for the ladder to be paid to October 1974 at $200.00 per month. Additionally, a prepayment advance of royalties in the amount of $1,400 paid through May 31, 1975 for eight months, at which time a minimum of $2,000 per month be paid Mr. Deese against accrued ladder royalties.
The record indicates that shortly thereafter Mr. Deese may have received $1,400 from the corporation and turned it over to Mr. Malt as some consideration for the Deeses' occupancy from May, 1973, of the subject property.
Shortly after the September, 1974, board of directors meeting, Mr. Malt and Mr. Deese set about the preparation of a Lease, Contract and Assignment of Royalty Agreement, which was ultimately signed by Mr. and Mrs. Malt and Mr. and Mrs. Deese on December 10, 1974, a portion of which provides:
1) The closing shall be on or before the first day of October, 1979.
2) The purchase price shall be One Hundred Thousand Dollars ($100,000.00) cash, plus an additional cash amount equal to all taxes, hazard insurance and *43 the interest of 8.2 per cent per annum paid on that certain first mortgage in the amount of $100,000 held by Community Federal Savings and Loan Association of Riviera Beach, Florida, encumbering said property. Said amounts shall be computed and prorated from the date Lessees took possession of the premises; to-wit: May 18, 1973, to the above date of closing.
3) It is understood and agreed that the royalties paid to Lessors pursuant to the terms of this agreement shall act as a reduction in said purchase price in the following manner:
(a) The first $100,000 of royalty payments shall be retained by Lessors.
(b) Any additional payments shall first be applied to all taxes, hazard insurance, and interest, as noted in Article 2 above then the remainder, if any, shall apply to the reduction of said $100,000 mortgage held by Community Federal Savings and Loan Association of Riviera Beach, Florida.
4) Provided that, prior to the above date of closing, royalty payments to the Lessors have at least equalled $200,000, Lessor shall convey title to the premises to the Lessees by a general warranty deed subject only to the easements and restrictions common to the neighborhood. In the event, by the date of closing, said royalty payments to the Lessors have not at least equalled the purchase price, including said taxes, insurance and interest, the Lessees, jointly and severally, hereby promise to pay forthwith to the Lessors, a sum of money equal to the full purchase price plus the taxes, insurance and interest referred to above less whatever royalty amounts have been paid to Lessors.
The Assignment of Royalties portion provides, in part:
1) Commencing from the date hereof, the Lessors shall be entitled to 100% of the royalties and any other monies or considerations paid by the licensee or its assigns under the terms of said exclusive license agreement. Said payment shall be for a period of five (5) years from the date of this agreement or until $200,000 has been received.
2) Subsequent to the time that the Lessor receives a total of $200,000 in accordance with the provisions and time requirements of this agreement, the Lessor shall receive 10 percent of all royalties and other considerations paid to the Lessee or its assigns as long as the Lessee or its assigns receive royalty payments for the attached ladder patent.
3) During the time period from November 1, 1974, until date of closing, October, 1, 1979, the Lessee shall pay to the Lessor all of the royalties received by the Lessee under its license agreement, not to exceed that amount as stated in Article 1, above, but not less than $400.00 per month, beginning November 1, 1974, and continuing until time of closing. In the event the Lessee leases the property to a third party during term of this agreement, and the Lessor at that time is not receiving $2,000 per month, all of the lease monies over $400.00 per month, which is guaranteed by the Lessee, shall be paid to the Lessor and applied to reduce the balance owed by Lessee to Lessor at which time the Lessor is receiving a minimum of $2,000 per month, any rentals received by the Lessee on the described property shall be retained by the Lessee.
After December 10, 1974, the Malts received exactly $400 per month from the Deeses. Unknown to the Malts, by June of 1975, International Leisure's board of directors voted at a special meeting to take the corporation into voluntary bankruptcy. The ladder had never been produced because it had never met the standards of the Occupational Safety and Health Administration and the corporation lacked capital. In this time frame, Mr. Malt was exhorting Mr. Deese to do something about the fact that no royalty payments were being received other than $400 per month actually being paid by Mr. Deese. On July 11, 1975, Mr. Malt wrote the corporation demanding on behalf of Mr. Deese and himself, the $2,000 per month royalties described in the minutes of the board's meeting on September 20, 1974.
*44 Mr. Malt decided in 1976 to rescind the agreement with the Deeses. However, instead of refusing any further payments, the Malts continued to accept monthly payments from the Deeses of $400 through November, 1978, when the trial of this case commenced. Mr. Malt's reason for accepting the $400 was that he wanted help in paying the mortgage on the home.
In January, 1977, the Malts instituted an action in the County Court in and for Palm Beach County to evict the Deeses on the bases that their monthly payments were tardy and that the Town or City of Point Manalapan had notified the Malts in November, 1976, that the Deeses were maintaining a nuisance by operating a garage in the home. The court found in favor of the Deeses.
On August 3, 1977, the Malts filed a complaint for cancellation of the December 10, 1974, agreement, alleging failure of consideration in that the agreement was based on the expectation of royalty payments which were not made.
Mr. Deese wrote to Mr. Malt on August 19, 1977, and proposed that he purchase the property by assuming the existing $100,000 mortgage on the home and paying the difference between the then present balance and the $100,000 purchase price. Mr. Deese also offered to "pay all interest, insurance, and taxes incurred since the existing mortgage was placed on the property, less all payments made" to Malt. Mr. Malt rejected the proposal.
On October 14, 1977, Mr. Deese sent a second letter to Mr. Malt, stating that he would like to exercise the purchase option as set forth in the December 10, 1974, agreement. Mr. Malt indicated that he would require $200,000 as the purchase price, plus taxes, interest and insurance. As Mr. Deese was willing to tender only $100,000, plus taxes, interest and insurance, the purchase was not consummated. Thereafter, the Deeses counterclaimed for specific performance.
The Malts amended their complaint to include four counts: (1) cancellation of the subject contract for failure and gross inadequacy of consideration by reason of nonpayment of royalties to plaintiffs; (2) cancellation of the contract for gross inadequacy of consideration due to the worthlessness of the patent assigned to plaintiff; (3) cancellation for Deese's misrepresentation that the patented product was a marketable commodity; and (4) reformation of the contract to reflect a purchase price of $200,000.
In their answer and affirmative defenses to the amended complaint, the Deeses pleaded payment as agreed, performance in good faith, and the Malts' acceptance of payment in ratification of the agreement. At trial the Deeses were permitted to amend their affirmative defenses by the addition of "estoppel by judgment," which referred to the earlier action in the county court.
The trial court denied both parties' motions for directed verdict, and subsequently entered judgment in favor of the Deeses on the complaint and counterclaim. The final judgment ordered the Deeses to pay the Malts the following sum: $100,000 plus an additional amount equal to all taxes, hazard insurance and interest of 8.2% per annum paid on the existing mortgage (said amount prorated from May 18, 1973), less all sums paid as rent (from May 18, 1973, to date of conveyance). On the Malts' motion for rehearing, the trial court ordered the conveyance by them to be free and clear of the existing mortgage. The Deeses' attorney was awarded $9,000 in fees.
The Malts' first point on appeal is that the trial court should have rescinded the December 10, 1974, agreement because of failure of consideration, inadequacy of consideration, and misrepresentation. Assuming each allegation to be true, the Malts, however, must be deemed to have ratified Mr. Deese's actions. The Malts not only continued to accept the $400 monthly payments long after they had every reason to believe there would be no royalties forthcoming from International Leisure, they even instituted an earlier action, using the December 10, 1974, agreement as the basis therefor. In Scocozzo v. General Development *45 Corp., 191 So.2d 572, 579 (Fla. 4th DCA 1966), this court adopted the chancellor's opinion as its own, saying:
"Rescission and cancellation are harsh remedies and therefore not favored by the courts. Courts of equity will not grant the remedy unless it clearly appears that the claimant is entitled thereto and has not by his own conduct waived his right to the relief claimed. Because of this view, slight circumstances, indicating a purpose or intent of the claimant to waive the right will bar relief. See Rood Company v. Board of Public Instruction, (Fla. 1958) 102 So.2d 139-142. One of the most familiar applications of the rule relating to the acceptance of benefits arises in the case of contracts. It has been repeatedly held that a person by the acceptance of benefits may be estopped from questioning the validity and effect of a contract; and, where one has an election to ratify or disaffirm a conveyance, he can either claim under or against it, but he cannot do both, and having adopted one course with knowledge of the facts, he cannot afterwards pursue the other."
See also Gladding Corp. v. Register, 293 So.2d 729 (Fla. 3d DCA 1974), cert. discharged 322 So.2d 911 (Fla. 1975); Tonkovich v. South Florida Citrus Industries, 202 So.2d 579 (Fla. 2d DCA 1967).
Even were we to disregard the existence of waiver, the record supports the trial court's decision upon the issue of rescission. First, we fail to see how there can be a failure of consideration when the parties' agreement expressly provides for a minimum monthly payment of $400, which is exactly the sum received. Second, inadequacy of consideration must generally be considered in connection with other inequitable circumstances in order to justify cancellation of an instrument. Douglas v. Ogle, 80 Fla. 42, 85 So. 243 (1920). Sub judice, the other inequitable circumstances would presumably be Mr. Deese's alleged misrepresentations. In the amended complaint the Malts alleged that Mr. Deese misrepresented the ladder to be marketable. The testimony on this point was as follows:
Q. Did Mr. Deese ever represent to you that the ladder was a marketable item?
A. Yes.
Q. How did he represent that to you?
A. Well, they gave me information that there were companies that had looked at the ladder, that they had been exposed to the ladder, that were interested in buying the ladder and that he had a contract with International Leisure Industries to manufacture and market the ladder and to pay him the royalties, and the company that International Leisure had engaged was in Hialeah to manufacture the ladder.
These representations of marketability described in the testimony are expressions of expectation or opinion, and as such are not actionable alone or in support of a claim of inadequate consideration. Smith v. Hollingsworth, 85 Fla. 431, 96 So. 394 (1923); Glass v. Craig, 83 Fla. 408, 91 So. 332 (1922). Appellants also attempted at trial to establish misrepresentation by showing that Mr. Deese knew the actual adverse financial condition of International Leisure and withheld such information from the Malts. Nonetheless, the Malts acted imprudently in expecting such disclosure from May, 1973, through December 10, 1974, since there was ample time and opportunity for them to make their own inquiries and inspections or to forego any further involvement should the avenues of investigation be blocked. We note that while Mr. Deese has only a ninth grade education, Mr. Malt holds a bachelor's degree in business administration, and attended a year of law school. In measuring the Malts' right to rely on Mr. Deese, the Malts had some obligation to use reasonable diligence for their own protection. Fote v. Reitano, 46 So.2d 891 (Fla. 1950). See also Gladding Corp. v. Register, supra.
The Malts' second point is that the trial court should not have awarded the Deeses specific performance on the latters' counterclaim. They first argue that the parties' *46 agreement is vague and inconsistent as to the purchase price in that paragraph 2 refers to a $100,000 figure while paragraph 4 refers to a $200,000 amount. The Deeses claim on appeal the purchase price to be $100,000 plus the Malts' costs for interest, taxes and insurance, less a credit for the royalties received, while the Malts contend the figure to be $200,000 plus, and minus the foregoing costs and credit, respectively.
Resolution of the ambiguity is a question of fact and we are bound by the findings of the trial court as long as they are supported by the record. The trial court found the interpretation by the Deeses to be correct. Mr. Deese's testimony supports this finding:
Well, originally, [Mr. Malt] ... was only to receive five percent of the royalty with no minimums, but then he determined that in order to enter into this contract, he felt that it was possible that, along the way, that the ladder might not produce all of the income that we thought that it would. So he would like to at least come out to where he would break even on the property, in the event that he didn't make the profit. So we entered into the final agreement on the terms that he had, at that time he felt like he had around $100,000 in the home and this hundred thousand dollar loan got him his money back. And at that time, he wanted to recover his hundred thousand dollars on the home, plus all of his interest, all the interest payments and taxes. In other words, he wanted it so the worst thing that could happen to him was that he would break even. And I agree it sounded reasonable, but he also wanted the chance to make a lot of money, if he was going to take a chance on not making any.
Based on its findings the trial court concluded, and we agree, that the contract, taken as a whole, is intelligible and sufficiently certain to entitle the Deeses to specific performance.[4] See English v. Clark, 289 So.2d 33 (Fla. 1st DCA 1974).
The Malts further argue that the Deeses were not entitled to specific performance because they failed to tender the purchase price. However, it is only necessary that a vendee establish that he has been ready, willing and able to pay the purchase price. Glave v. Brandlein, 196 So.2d 780 (Fla. 4th DCA 1967); Horwitz v. Grovpac, 286 So.2d 576 (Fla. 3d DCA 1973), cert. denied 293 So.2d 365 (Fla. 1974). We believe that Mr. Deese's letter of October 14, 1977, to Mr. Malt considered together with the testimony of the Deeses' sufficiently established the Deeses' willingness and ability to pay the purchase price.
The Malts lastly contend that the Deeses are entitled to attorneys' fees only if they prevail in their counterclaim for specific performance and not in the defense of the complaint for rescission and reformation. By our decision this point becomes moot. Nevertheless, we note that paragraph 7 of the parties' agreement of December 10, 1974, states:
7) Either party failing to comply with the terms of this entire agreement shall pay all expenses, including a reasonable attorney's fee, incurred by the other party because of that failure.
We construe the foregoing paragraph to mean that any action the Deeses were required to take to uphold as well as enforce the agreement entitled them to attorneys' fees.
Based on the foregoing, the trial court's decision is affirmed.
AFFIRMED.
DOWNEY and ANSTEAD, JJ., concur.
NOTES
[1] Mr. Malt's business partner, Jimmy Casto, had an interest in the home until the first half of 1974. Mr. Casto is not a party in this action.
[2] Mr. Deese's license agreement provided for his being paid a royalty equal to five per cent of net sales with a minimum royalty of $200.00 per month.
[3] Mr. Malt testified at trial that Mr. Deese could not afford to buy the home so the parties undertook discussions of Mr. Malt's being paid royalties which Mr. Deese expected to receive from his licensing agreement with International Leisure.
[4] Even without parol evidence we would probably reach the same conclusion based on the second sentence of paragraph 4 of the agreement. It provides that if the royalty payments have not equalled the purchase price, plus taxes, insurance, and interest, then the Deeses shall pay the purchase price, plus taxes, insurance and interest, less the royalty payments which have been paid by the Deeses. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595840/ | 240 Wis.2d 124 (2000)
2000 WI App 268
621 N.W.2d 643
Richard AHRENS, Shirley Ahrens, Robert Albright, Shirley Albright, Barbara Allen, Nicholas Allen, Dolores Allen, June Ann Amell, Arnold Anderson, Loraine Anderson, John Augustyniak, Margaret Augustyniak, Milton Bates, Helen Bates, Robert Bauer, Gail Bauer, David Bear, Karen Bear, Michael Bellettiere, Pat Bellettiere, Otto Benz, Glen Black, Melaine Black, Edward Blanchard, Jane Blanchard, Kathy Blazyk, Nordine Bolstad, Nancy Bolstad, Jim Booker, Diana Booker, Virginia Boswell, Robert Boszko, Kathy Boszko, Donald Brake, Mary Brake, Albert Brueggeman, Mary Ann Brueggeman, Fred Burrow, Rosemary Burrow, Wallace Campbell, Donald Childers, Robert Clark, Ilona Clark, Gary Curry, Sandra Curry, Donald Dahlke, Lyla Dahlke, Emery DeRosier, Luvern DeRosier, M.A. DiMarcantonio, Thomas Draws, Vernon Duessing, Dean Eveland, Donna Eveland, Lewis Farmer, Kathleen Farmer, Louis Finger, Loretta Finger, Robert Fisher, Jean Fisher, Mike Foley, Mary Lou Foley, Charles Foudray, Milly Foudray, Diane Franke, Bill Neff, Wayne Frantz, Janet Frantz, John Fritz, Paul Gauer, Sandy Gauer, Gene Gehrt, Jane Gehrt, Antonino Giardina, Rose Giardina, Frank Giardina, Donald Ginchoff, Patricia Ginchoff, Sandra Goff, Kenneth Gray, Jane Gray, Richard Gross, Jane Gross, Wilbur Groth, Lois Groth, Caroline Gruner, Joe Gruspier, Alice Gruspier, Donna Gurholt, Robert Hanlon, Shirley Hanlon, William Hefka, Gail Hefka, Donald Heidner, Helen Heidner, Jack Hill, Mary K. Hill, Edward Hinchley, Marge Hinchley, Darwin Hoefs, *125 Judy Hoefs, Bill Hoke, Rita Hoke, Philip Howard, Helen Howard, Albert Huber, Arlene Huber, Dean Huffstutler, Jinny Huffstutler, Craig Hughes, Sandra Hughes, Edward Hughes, Marlene Hughes, Terry Hurm, Susan Hurm, Lenard W. Jendal, Edith Jendal, Herman L. Johnson, Mary Kane, Edward Kaszubowski, Steven Kostakos, Francis Kozina, Maryellen Kozina, Walter Kruszynski, Loretta Kruszynski, Joseph Kucher, Ruth Kucher, Elaine LaPlant, William Linde, Timothy Liv, Christine Liv, Mike Lockard, Tina Lockard, Richard Lowe, Dawn Lowe, Ralph Lussier, Theresa Lussier, James Lytle, Rita Lytle, Donald Mason, Barbara Mason, Marshall Matijevich, C. James Mayer, Betty Mayer, James McCarthy, Elizabeth McCarthy, Albert McGraw, Evelyn McGraw, Thomas McGuire, Howard McIntosh, Rosetta McIntosh, William A. Meinzer, Marion Melzer, Joseph Michalowski, Rose Michalowski, Raymond Murphy, Lillian Murphy, Walter Mysliwiec, Marcia Mysliwiec, Clarence Negus, Imelda Negus, Edwin Nelson, Carl Nickel, Jack Niemann, Linda Niemann, Marion Obukowicz, Grace Obukowicz, Patricia Olson, Michael Parsons, Linda Parsons, Thomas Peterson, Diane Peterson, Craig Pearson, JoAnn Pearson, Melvin Peterson, Ruth Peterson, William Pflanz, Jackie Pflanz, Leonard Pflughaupt, Caryl Pflughaupt, Wallace Phillips, Carolyn Phillips, Donald Pierce, Jeanne Pierce, Phillip Piotrowski, Deborah Piotrowski, Leonard Piejda, Mary Piejda, Brian Pluta, Kathryn Pluta, Homer Proctor, Joyce Proctor, Michael Rausch, Richard Renaud, Vincenette Renaud, Wayne Rice, Dolores Rice, John Riley, Annette Riley, Norman Rippberger, Barbara Rippberger, Dale Rogers, Eugene Romanski, Ilene Romanski, James Rother, Hugh Ryan, Carl Schimka, *126 Roman Schmidt, Nancy Schmidt, Clarence Schultz, Joyce Schultz, Warren Schultz, Harriet Schultz, T. George Schumert, Lemke Schurmann, Glenn Shelley, Robert Short, Rosa Short, Gary Shulz, Carol Shulz, Louis D. Simmons, Lillian Simmons, George C. Sims, Jr., Marvin E. Smith, Ronald Solner, Ray Staley, Beverly Staley, Frank Stefaniak, Londine Stefaniak, Milan Sulaver, Corinne Sulaver, Joseph Szamlewski, Barbara Szamlewski, Wesley Tanner, Carmelia Tanner, Ronald Theis, Jean Theis, Martin Tivador, Doris Tivador, Stephen Tobolic, Charles Ulam, Josephine Ulam, David Wallestad, Joyce Wallestad, Lloyd Weber, Thomas Weinmann, Madeline Weinmann, Harry Whitney, Donna Whitney, Robert Wirt, Jr., Robert Wirt, Sr., Marilyn Wirt, Jyles Womack, Lynn Womack, Hubert J. Wright, Mary Wright, Jerome Young, Fay Young and Anthony Zappia, Plaintiffs-Appellants,[]
v.
TOWN OF FULTON, Defendant-Respondent.
Richard AHRENS, Shirley Ahrens, Robert Albright, Shirley Albright, Barbara Allen, Nicholas Allen, Dolores Allen, June Ann Amell, Arnold Anderson, Lorraine Anderson, John Augustyniak, Margaret Augustyniak, Milton Bates, Helen Bates, Robert Bauer, Gail Bauer, David Bear, Karen Bear, Otto Benz, Glen Black, Melaine Black, Kathy Blazyk, Nordine Bolstad, Nancy Bolstad, Jim Booker, Diana Booker, Virginia Boswell, Robert Boszko, Kathy *127 Boszko, Donald Brake, Mary Brake, Albert Brueggeman, Mary Ann Brueggeman, Fred Burrow, Rosemary Burrow, Wallace Campbell, Donald Childers, Robert Clark, Ilona Clark, Gary Curry, Sandra Curry, Donald Dahlke, Lyla Dahlke, Emery DeRosier, Luvern DeRosier, M.A. DiMarcantonio, Thomas Draws, Vernon Duesing, Lewis Farmer, Kathleen Farmer, Louis Finger, Loretta Finger, Robert Fisher, Jean Fisher, Charles Foudray, Milly Foudray, Bill Neff, Diane Franke, Wayne Frantz, Janet Frantz, John Fritz, Paul Gauer, Sandy Gauer, Gene Gehrt, Jane Gehrt, Antonino Giardina, Rose Giardina, Frank Giardina, Donald Ginchoff, Patricia Ginchoff, Sandra Goff, Kenneth Gray, Jane Gray, Richard Gross, Jane Gross, Wilbur Groth, Lois Groth, Joe Gruspier, Alice Gruspier, Donna Gurholt, Robert Hanlon, Shirley Hanlon, William Hefka, Gail Hefka, Donald Heidner, Helen Heidner, Jack Hill, Mary K. Hill, Edward Hinchley, Marge Hinchley, Darwin Hoefs, Judy Hoefs, Bill Hoke, Rita Hoke, Philip Howard, Helen Howard, Albert Huber, Arlene Huber, Dean Huffstutler, Jinny Huffstutler, Edward Hughes, Sandra Hughes, Edward Hughes, Marlene Hughes, Terry Hurm, Susan Hurm, Lenard Jendal, Edith Jendal, Herman L. Johnson, Mary Kane, Edward Kaszubowski, Steven Kostakos, Francis Kozina, Maryellen Kozina, Walter Kruszynski, Loretta Kruszynski, Joseph Kucher, Ruth Kucher, Elaine LaPlant, William Linde, Timothy Liv, Christine Liv, Ralph Lussier, Theresa Lussier, James Lytle, Rita Lytle, Donald Mason, Barbara Mason, Marshall Matjevich, C. James Mayer, Betty Mayer, James McCarthy, Elizabeth McCarthy, Albert McGraw, Evelyn McGraw, Thomas McGuire, William A. Meinzer, Burness Melton, Juanita Melton, Marion Melzer, Joseph *128 Michalowski, Rose Michalowski, Raymond Murphy, Lillian Murphy, Walter Mysliwiec, Marcia Mysliwiec, Clarence Negus, Imelda Negus, Edwin Nelson, Carl Nickel, Jack Niemann, Linda Niemann, Marion Obukowicz, Grace Obukowicz, Willard Parejko, Michael Parsons, Linda Parsons, Thomas Peterson, Diane Peterson, William Pflanz, Jackie Pflanz, Leonard Pflughaupt, Caryl Pflughaupt, Wallace Phillips, Carolyn Phillips, Donald Pierce, Jeanne Pierce, Brian Pluta, Kathryn Pluta, Michael Rausch, Richard Renaud, Vincenette Renaud, Wayne Rice, Dolores Rice, John Riley, Annette Riley, Norman Rippberger, Barbara Rippberger, Dale Rodgers, Eugene Romanski, Ilene Romanski, James Rother, Hugh Ryan, Carl Schimka, Roman Schmidt, Nancy Schmidt, Clarence Schultz, Joyce Schultz, Warren Schultz, Harriet Schultz, George T. Shumert, Glen Shelley, Robert Short, Rosa Short, Gary Shulz, Carol Shulz, Louis D. Simmons, Lillian Simmons, George C. Sims, Jr., Marvin Smith, Ronald Solner, Ray Staley, Beverly Staley, Frank Stefaniak, Londine Stefaniak, Milan Sulaver, Corinne Sulaver, Joseph Szamlewski, Barbara Szamlewski, Wesley Tanner, Carmelia Tanner, Ronald Theis, Jean Theis, Martin Tivador, Doris Tivador, Stephen Tobolic, Charles Ulam, Josephine Ulam, David Wallestad, Joyce Wallestad, Lloyd Weber, Harry Whitney, Donna Whitney, Robert Wirt, Jr., Robert Wirt, Marilyn Wirt, Jyles Womack, Lynn Womack, Hubert J. Wright, Mary Wright, Jerome Young, Fay Young and Anthony Zappia, Plaintiffs-Appellants,[]
v.
TOWN OF FULTON, Defendant-Respondent. *129
Richard AHRENS, Shirley Ahrens, Robert Albright, Shirley Albright, Barbara Allen, Nicholas Allen, Dolores Allen, June Ann Amell, Arnold Anderson, Lorraine Anderson, John Augustyniak, Margaret Augustyniak, Milton Bates, Helen Bates, Robert Bauer, Gail Bauer, David Bear, Karen Bear, Michael Bellettiere, Pat Bellettiere, Otto Benz, Glen Black, Melanie Black, Edward Blanchard, Jane Blanchard, Kathy Blazyk, Nordine Bolstad, Nancy Bolstad, Jim Booker, Diana Booker, Virginia Boswell, Robert Boszko, Kathy Boszko, Donald Brake, Mary Brake, Albert Brueggeman, Mary Ann Brueggeman, Fred Burrow, Rosemary Burrow, Wallace Campbell, Donald Childers, Robert Clark, Ilona Clark, Gary Curry, Sandra Curry, Donald Dahlke, Lyla Dahlke, Emery DeRosier, Luvern DeRosier, M.A. DiMarcantonio, Thomas Draws, Vernon Duesing, Dean Eveland, Donna Eveland, Lewis Farmer, Kathleen Farmer, Louis Finger, Loretta Finger, Robert Fisher, Jean Fisher, Mike Foley, Mary Lou Foley, Charles Foudray, Milly Foudray, Bill Neff, Diane Franke, Wayne Frantz, Janet Frantz, John Fritz, Paul Gauer, Sandy Gauer, Gene Gehrt, Jane Gehrt, Antonio Giardina, Rose Giardina, Frank Giardina, Donald Ginchoff, Patricia Ginchoff, Sandra Goff, Kenneth Gray, Jane Gray, Richard Gross, Jane Gross, Wilbur Groth, Lois Groth, Caroline Gruner, Joe Gruspier, Alice Gruspier, Donna Gurholt, Robert Hanlon, Shirley Hanlon, William Hefka, Gail Hefka, Donald Heidner, Helen Heidner, Jack Hill, Mary K. Hill, Edward Hinchley, Marge Hinchley, Darwin Hoefs, Judy Hoefs, Bill Hoke, Rita Hoke, Phillip Howard, Helen Howard, Albert Huber, Arlene Huber, Dean *130 Huffstutler, Jinny Huffstutler, Craig Hughes, Sandra Hughes, Edward Hughes, Marlene Hughes, Terry Hurm, Susan Hurm, Lenard W. Jendal, Edith Jendal, Herman L. Johnson, Mary Kane, Edward Kaszubowski, Steven Kostakos, Dr. Francis Kozina, Maryellen Kozina, Walter Kruszynski, Loretta Kruszynski, Joseph Kucher, Ruth Kucher, Elaine LaPlant, William Linde, Timothy Liv, Christine Liv, Mike Lockard, Tina Lockard, Richard Lowe, Dawn Lowe, Ralph Lussier, Theresa Lussier, James Lytle, Rita Lytle, Donald Mason, Barbara Mason, Marshall Matijevich, C. James Mayer, Betty Mayer, James McCarthy, Elizabeth McCarthy, Albert McGraw, Evelyn McGraw, Thomas McGuire, Howard McIntosh, Rosetta McIntosh, William A. Meinzer, Burness Melton, Juanita Melton, Marion Melzer, Joseph Michalowski, Rose Michalowski, Raymond Murphy, Lillian Murphy, Walter Mysliwiec, Marcia Mysliwiec, Clarence Negus, Imelda Negus, Edwin Nelson, Carl Nickel, Jack Niemann, Linda Niemann, Marion Obukowicz, Grace Obukowicz, Patricia Olson, Willard Parejko, Michael Parsons, Linda Parsons, Thomas Peterson, Diane Peterson, Craig Pearson, JoAnn Pearson, Melvin Peterson, Ruth Peterson, William Pflanz, Jackie Pflanz, Leonard Pflughaupt, Caryl Pflughaupt, Wallace Phillips, Carolyn Phillips, Donald Pierce, Jeanne Pierce, Phillip Piotrowski, Deborah Piotrowski, Leonard Piejda, Mary Piejda, Brian Pluta, Kathryn Pluta, Homer Proctor, Joyce Proctor, Michael Rausch, Richard Renaud, Vincenette Renaud, Wayne Rice, Dolores Rice, John Riley, Annette Riley, Norman Rippberger, Barbara Rippberger, James Rother, Roman Schmidt, Nancy Schmidt, Clarence Schultz, Joyce Schultz, Warren Schultz, Harriet Schultz, Lemke Schurmann, Glenn Shelley, Marvin E. Smith, *131 Wesley Tanner, Carmelia Tanner, Martin Tivador, Doris Tivador, Stephen Tobolic, Lloyd Weber, Harry Whitney, Donna Whitney, Robert Wirt, Jr., Robert Wirt, Marilyn Wirt, Jyles Womack, Lynn Womack, Hubert J. Wright, Mary Wright, Jerome Young, Fay Young and Anthony Zappia, Plaintiffs-Appellants,[]
v.
TOWN OF FULTON, Defendant-Respondent.
Nos. (97 CV 438J), (96 CV 303J), (98 CV 422), 99-2466.
Court of Appeals of Wisconsin.
Submitted on briefs May 19, 2000.
Decided November 16, 2000.
*135 On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Dianne M. Soffa and Russell W. Devitt of Soffa & Devitt, Whitewater.
On behalf of the defendant-respondent, the cause was submitted on the brief of Meg Vergeront of Stafford Rosenbaum LLP, Madison.
Before Dykman, P.J., Deininger, J., and William Eich, Reserve Judge.
¶ 1. DEININGER, J.
Richard Ahrens, and numerous other owners of mobile homes located on individually owned lots in a Rock County subdivision, appeal a judgment dismissing their action to recover allegedly unlawful property taxes levied by Fulton Township. The trial court granted the Town's summary judgment motion after concluding that, even if the mobile homes in question were improperly classified as real property, they would have been subject to personal property taxes in the same amount as the real property taxes levied by the Town. We conclude that most of the mobile homes at issue were properly classified as real property, and that at least one that was improperly classified did not qualify for exemption from personal property taxes. We thus affirm the judgment dismissing the claims of the owners of these mobile homes. However, because we interpret the requirements of the statutory exemption differently than did the trial court, we reverse the appealed judgment in part and remand for a consideration of *136 whether any of the remaining owners can establish entitlement to the exemption.
BACKGROUND
¶ 2. A "mobile home" is defined by statute as a structure "that ... is, or was as originally constructed, designed to be transported by any motor vehicle upon a public highway and designed, equipped and used primarily for sleeping, eating and living quarters, or is intended to be so used; and includes any additions, attachments, annexes, foundations and appurtenances." WIS. STAT. § 66.058(1)(d) (1997-98).[1] Mobile homes in Wisconsin may be taxed as real property, or as personal property, or they may be exempt from property taxes altogether, depending on such things as their location, physical support and size.
(1) A mobile home, as defined in s. 66.058(1)(d), is an improvement to real property if it is connected to utilities and is set upon a foundation upon land which is owned by the mobile home owner. In this section, a mobile home is "set upon a foundation" if it is off its wheels and is set upon some other support.
(2) A mobile home, as defined in s. 66.058(1)(d), is personal property if the land upon which it is located is not owned by the mobile home owner or if the mobile home is not set upon a foundation or connected to utilities.
WIS. STAT. § 70.043. However, mobile homes "that are no larger than 400 square feet and that are used primarily as temporary living quarters for recreational, *137 camping, travel or seasonal purposes" are exempted from general property taxes. WIS. STAT. § 70.111(19)(b).
¶ 3. The plaintiffs are the owners of "approximately 138 separate lots" in a subdivision known as Wisconsin's Rock River Leisure Estates. They commenced three separate actions challenging the lawfulness of real property taxes the Town had levied on mobile homes situated on their lots for the years 1995, 1996 and 1997. The three actions were consolidated, and the parties stipulated that the facts pertaining to the mobile homes of twenty plaintiffs would be deemed to be representative of all plaintiffs for purposes of the Town's summary judgment motion.
¶ 4. The parties' stipulation provides the following facts regarding these twenty plaintiffs. Each of them has on his or her lot a "basic unit" consisting of a "structure that is, or was as originally constructed, designed to be transported by any motor vehicle upon a public highway and designed, equipped and used primarily for sleeping, eating, and living quarters." The floor area of these "basic units" ranges from 372 to 420 square feet, with all but one of the twenty being 400 square feet or less. Wheels remain on each of the basic units, and with three exceptions, the weight of the units "is at least partially on these wheels." The remaining weight of the units is borne by "stabilizers" placed under them, such as cement or cinder blocks or screw jacks.[2] The owners all reside in their basic units, but only a few do so year-round. Most reside in them for two to seven months of the year.
*138 ¶ 5. Each lot also contains "one or more structures in addition to the basic unit." The "additional structures" include such things as decks attached to the basic units with lug nuts; screened rooms or porches on footings, attached to the basic units by caulking; and free standing sheds. All of the basic units are connected to utilities.
¶ 6. The Town assessed and taxed all of the owners' basic units and additional structures as improvements to real estate in 1995, 1996 and 1997. The owners paid the taxes and filed claims with the Town for the refund of "unlawful" taxes, which were disallowed. See WIS. STAT. § 74.35. This litigation followed, and the Town moved for summary judgment of dismissal. The trial court concluded that a mobile home on an owner's lot could not be taxed as real property unless "the majority of the weight of the mobile home is borne by some support other than its wheels." Nonetheless, because the court also concluded that none of the mobile homes were exempt from personal property taxes, it entered judgment dismissing the owners' claims. The owners appeal the judgment.
ANALYSIS
[1, 2]
¶ 7. We review an order for summary judgment de novo, applying the same standards as the trial court. Voss v. City of Middleton, 162 Wis. 2d 737, 748, 470 N.W.2d 625 (1991). Summary judgment is proper when the pleadings, answers, admissions and affidavits show no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Maynard v. Port Publ'ns, Inc., 98 Wis. 2d 555, 558, 297 N.W.2d 500 (1980). The issues in this appeal largely present questions of statutory interpretation, which we *139 also decide de novo. See Truttschel v. Martin, 208 Wis. 2d 361, 364-65, 560 N.W.2d 315 (Ct. App. 1997).
¶ 8. The owners' principal arguments focus on what they claim to be the trial court's unconstitutional "imposition" of a personal property tax on their mobile homes. They claim the trial court should have ended its decision with its conclusion that "off its wheels and ... set upon some other support," under WIS. STAT. § 70.043(1), means that a mobile home that is connected to utilities and situated on its owner's land may only be taxed as an improvement to real property if "the majority of the weight of the mobile home is borne by some support other than its wheels." And, because the trial court also concluded that the record on summary judgment was insufficient to determine whether most of the representative mobile homes did or did not meet its 50% support test, the owners assert that the court should have denied the Town's motion and set the matter for trial. According to the owners, by going on to analyze whether the mobile homes would have been taxable by the Town as personal property, the trial court usurped the legislative function of taxation and violated the owners' constitutional rights to due process and equal protection of the laws.
¶ 9. The Town responds that the trial court was correct in dismissing the owners' claims, not only for the reason it did, but also because the Town properly assessed the mobile homes in question as improvements to real property under WIS. STAT. § 70.043(1).[3]*140 We first conclude that our de novo review of the appealed summary judgment must begin where the trial court's analysis did with the question of whether the mobile homes in question were "set upon a foundation." If so, they were properly taxed as real property, and we conclude that this was the case for most of the mobile homes for which facts were presented on summary judgment. We further conclude that, the one "representative" mobile home which did not meet the statutory definition for an improvement to real property, was nonetheless not subject to an unlawful tax.
¶ 10. The owners concede that each of their mobile homes is situated on land owned by the mobile home owner, and that each is connected to utilities. Thus, there is no dispute that two of the three requirements under WIS. STAT. § 70.043 for taxing a mobile home as an improvement to real property are met. But, because wheels remain in place on the "basic units," the owners claim that the final requirement for real property taxation is not met the units are not "off [their] wheels and ... set upon some other support." See § 70.043(1). The Town, on the other hand, argues that because all but one of the representative mobile homes are "set upon some other support" in addition to their wheels, each is "off its wheels" and is thus "set upon a foundation" within the meaning of the statute.
[3]
¶ 11. We, like the trial court, conclude that WIS. STAT. § 70.043(1) is ambiguous because its meaning cannot readily be determined from its plain language. The statute's definition of "set upon a foundation," i.e., *141 "off its wheels and ... set upon some other support," is capable of being understood by reasonably well-informed persons in two or more different ways. See State v. Setagord, 211 Wis. 2d 397, 406 ¶ 12, 565 N.W.2d 506 (1997). This language could mean, as the owners maintain, that in order to be deemed an improvement to real property, a mobile home must have its wheels physically removed, or, at a minimum, that the entire weight of the mobile home must rest on something other than its wheels. Or, it could mean, as the Town argues, that a mobile home is "off its wheels and ... set upon some other support" whenever any part of its weight is borne by other than its wheels. Finally, it could also mean, as the trial court concluded, that what is required is that a majority of the weight of the mobile home is borne by some support other than its wheels.
[4]
¶ 12. When the language of a statute is ambiguous, we are to turn to extrinsic aids such as the legislative history, scope, context and purpose of the statute to determine legislative intent. Anderson v. City of Milwaukee, 208 Wis. 2d 18, 25-26 ¶ 12, 559 N.W.2d 563 (1997) (citations omitted). The legislative history of the statute compels us to reject the trial court's "majority of the weight" test. WISCONSIN STAT. § 70.043 was enacted as part of 1983 Wis. Act 342, which originated with the Legislative Council Special Committee on Mobile Home Taxation and Zoning. In its report to the legislature, the Legislative Council noted that under then current law, a mobile home was subject to taxation as real property if the value of "additions, attachments, annexes, foundations and appurtenances" to the mobile home equaled or exceeded 50% of the assessable value of the mobile *142 home. Wisconsin Legislative Council Report No. 20 to the 1983 Legislature, at 3 (May 24, 1983) ("R.L. 83-20"). The report goes on to explain:
The Committee received testimony that the "50%" test under current law has two major defects.
First, it is difficult and time-consuming for assessors to determine the value of a foundation, additions and attachments to the mobile home as a percentage of the value of the mobile home itself. Second, the 50%-of-value test is not an accurate indicator of whether a given mobile home has taken on the character of a real estate improvement and, therefore, should be subject to property taxation as is conventional housing.
Id. The present three-pronged test (connected to utilities, "set upon a foundation," on land owned by the mobile home owner) was thus recommended both because it was deemed to be "a better indicator ... of when a given mobile home has taken on the character of real property" and because a "more easily-administered standard is necessary." See id. at 4, and "Property Taxation of Mobile Homes in Wisconsin," Legislative Council Staff Brief 82-10, at 15 (July 1, 1982).
¶ 13. A test which requires an assessor to determine how much of the weight of a mobile home is supported by its wheels, and how much is supported by other supports on which it partially rests, could hardly be said to be more easily administered than the "50%-of-value" test it replaced. If the former test was deemed "difficult and time-consuming," it is hard to see how a "primary support" or "50%-of-weight" test would not be more so. Moreover, it is not even clear how an assessor would make the determination, resulting, as the Town argues, in a large measure of speculation or arbitrariness. The history of the current statutory language *143 makes clear that the legislature intended to simplify and streamline the personal-versus-real property determination, a goal that would be thwarted if we were to adopt the trial court's interpretation.
¶ 14. By the same token, we reject an interpretation that would require the entire weight of a mobile home be supported by other than its wheels before it may be deemed an improvement to real estate. This would be contrary to the legislative purpose in enacting a real property/personal property distinction in the taxation of mobile homes:
The primary rationale under the property tax system for distinguishing between real and personal property is that personal property is more mobile than real property. It is easier to enforce and collect property taxes which are levied upon real property than taxes which are levied upon personal property. Therefore, assessment procedures, payment due dates and the remedies which are available to collect property taxes differ according to whether the property is classified as real property or as personal property.
R.L. 83-20, at 3-4.[4] To conclude that a mobile home may not be taxed as realty until its last ounce of weight has been removed from its wheels would thwart the legislature's goal of treating mobile homes which have "taken on the character of a real estate improvement" the same as "conventional housing" for property taxation purposes. See id. at 3. To argue that mobile homes such as most of those described in this record, which not only rest upon blocks or jacks, but also have extensive *144 additions and attachments on stationary footings, remain "mobile" in character because the owners have chosen to leave wheels under them, defies the purpose of the legislative distinction and, as the Town argues, provides opportunities for manipulation of the property taxation system.
¶ 15. Having rejected two possible alternatives as unreasonable and contrary to legislative intent, it remains for us to consider whether interpreting WIS. STAT. § 70.043(1) to require a mobile home to be taxed as an improvement to real estate whenever any part of its weight is "off its wheels and ... set upon some other support" is reasonable and consistent with the legislature's intent and purpose. We conclude that it is. First, we note that being "set upon a foundation" is only one of three requirements for subjecting the mobile home to taxation as real property. A mobile home on a rented lot in a mobile home park or campground is excluded, no matter how much or how little it rests on something other than its wheels. By the same token, a mobile home that is temporarily parked on its owner's land is excluded because it would be unlikely to be "connected to utilities" if it were truly in a storage or transient status. And, even if a mobile home is on the owner's land and connected to utilities for temporary use, an owner may preserve a unit's mobile character by simply leaving it on its wheels and no other supports. Once the owner takes steps beyond the connection to utilities to further reduce the home's mobility, e.g., by resting it in whole or in part on blocks or other "stabilizers," it is hard to see why the home should not then be treated, for tax purposes, the same as "conventional housing," as the legislature intended.[5]
*145 [5, 6]
¶ 16. We thus conclude that when a mobile home, situated on land owned by its owner, is connected to utilities and is not completely supported by its wheels, but also rests in part on some "other" means of support," it is "off its wheels" and "set upon some other support," and is therefore "set upon a foundation" within the meaning of WIS. STAT. § 70.043(1). We find this interpretation to be consistent with the legislature's intent and purpose, as evidenced by the history of the statute, and it provides a reasonable and workable standard for assessors and taxpayers alike.
¶ 17. Most of the "representative" mobile homes described in the record were thus properly assessed by the Town as improvements to real property because they rest, in whole or in part, on supports other than their wheels. We next consider the application of the statute to the one mobile home described in the record as having no support for the basic unit other than its wheels, but which was attached by caulking to a substantial screen room and porch, which sits on footings. The Town argues that this mobile home should also be deemed an improvement to real property because the structures attached to the basic unit "are not supported by wheels at all" and thus the "home is not `mobile' in any sense of the word." The Town's position is essentially that, because the statutory definition of a mobile home "includes any additions, attachments, annexes, foundations and appurtenances," WIS. STAT. § 66.058(1)(d), if any of these auxiliary items are present and not on wheels, the mobile home must be *146 deemed an improvement to real property under WIS. STAT. § 70.043(1). We disagree.
[7]
¶ 18. We acknowledge that WIS. STAT. § 70.043 refers to WIS. STAT. § 66.058(1)(d) for a definition of "mobile home." However, when defining what it means for a mobile home to be "set upon a foundation," § 70.043(1) requires the mobile home to be "off its wheels" (emphasis added). It makes no sense to talk about an attached deck or porch being "off its wheels." The plain implication of this language is that the legislature was referring to the "basic unit," which is the only structure that would once have been on wheels. And, although we agree with the Town that a mobile home that is still "on its wheels" but is attached in some way to another, more permanent structure, may be every bit as immobile as one that is "off its wheels," attachment to other structures is not the test the legislature has specified in § 70.043 for making the real-versus-personal property distinction.
¶ 19. What remains, then, is for us to consider whether the owner of this last-described mobile home has established that he or she was subjected to an "unlawful tax." WISCONSIN STAT. § 74.35(2) permits "[a] person aggrieved by the levy and collection of an unlawful tax assessed against his or her property" to "file a claim to recover the unlawful tax against the taxation district which collected the tax," which is the cause of action the owners have alleged. An "unlawful tax" is a "general property tax with respect to which one or more errors specified in s. 74.33(1)(a) to (f) were made." Section 74.35(1). The specified errors are:
(a) A clerical error has been made in the description of the property or in the computation of the tax.
*147 (b) The assessment included real property improvements which did not exist on the date under s. 70.10 for making the assessment.
(c) The property is exempt by law from taxation, except as provided under sub. (2).
(d) The property is not located in the taxation district for which the tax roll was prepared.
(e) A double assessment has been made.
(f) An arithmetic, transpositional or similar error has occurred.
WIS. STAT. § 74.33(1).
¶ 20. The owners alleged in their complaint that the property taxes levied against their mobile homes were unlawful "as provided in WISCONSIN STATUTE § 74.33(1)(a), (b) and (c)." If the Town committed an error in levying and collecting property taxes on a mobile home that rests wholly on its wheels, however, the error was that it intentionally, but erroneously, classified the mobile home as an improvement to real property, rather than as personal property. We fail to see, therefore, how the error could be construed as "clerical" under § 74.33(1)(a). Neither do we believe the alleged error may be characterized as the inclusion of a real property improvement that "did not exist" on the assessment date under (1)(b). The owners do not claim that their mobile homes did not exist on the assessment date, but that they do not constitute "improvements to real property," but were instead personal property under WIS. STAT. § 70.043(2) and exempt from taxation under WIS. STAT. § 70.111(19)(b).
¶ 21. Thus, if any mobile homes were unlawfully taxed, as alleged by the owners, it could only be because they were "exempt by law from taxation" under WIS. STAT. § 74.33(1)(c). To be exempt from taxation, a mobile home, "as defined in s. 66.058," must be *148 "no larger than 400 square feet and ... used primarily as temporary living quarters for recreational, camping, travel or seasonal purposes." WIS. STAT. § 70.111 (19)(b). And, as we have noted, the definition of "mobile home" in WIS. STAT. § 66.058(1)(d) specifically includes within it "any additions, attachments, annexes, foundations and appurtenances" associated with the mobile home. Dictionary definitions for these terms include the following:[6]
Addition "[a] structure that is attached to or connected with another building that predates the structure"; "a wing, room, etc., added to a building."
Attachment "something ... that is affixed or connected to something else"; "something attached [joined; connected; bound]."
Annex "[s]omething that is attached, such as ... an addition to a building"; "a subsidiary building or an addition to a building."
Appurtenance "[s]omething that belongs or is attached to something else"; "something subordinate to another, more important thing; adjunct; accessory."
¶ 22. It seems clear from the foregoing that any rooms, porches, decks and the like, that are attached in any way to the "basic unit" are included within the definition of a mobile home. Thus, the area of any attached structures must be counted when determining the square footage of a "mobile home." The Town, however, would have us go a step further to hold that the floor area of any freestanding structures situated on the same lot as a mobile home must also be included when determining whether a mobile home is exempt *149 from taxation under WIS. STAT. § 70.111(19)(b). For support, it points to the fact that some of the terms employed in the statutory definition of a mobile home are broad enough to include unattached as well as attached structures (e.g., annexes, appurtenances). The Town also claims that the Wisconsin Department of Revenue (DOR) Assessor's Manual supports this view.
¶ 23. We reject the Town's proffered interpretation that would place freestanding sheds, barns and garages within the statutory definition of a "mobile home." Although some of the terms in the statutory definition of a mobile home might, standing alone, be capable of supporting such an interpretation, taken together, we believe the statutory language plainly envisions only structures that are attached or affixed to the "basic unit." Moreover, although we agree with the Town that the DOR's assessment manual may be relied upon as an authoritative aid in interpreting Wisconsin's property taxation statutes,[7] we do not read the manual as advising assessors to include the area of freestanding structures when determining whether a mobile home qualifies for exempt status under WIS. STAT. § 70.111(19)(b). The Town asserts that the manual "instructs assessors to count all structures on a lot in determining the square footage of mobile homes." However, such an instruction is not to be found in the sections of the manual the Town cites.
¶ 24. Rather, the manual recites that WIS. STAT. § 66.058(1)(d) includes within the definition of a mobile home "any additions, attachments, annexes, foundations and appurtenances," and advises that "these items must be included in calculation of the square *150 footage." Assessor's Manual at 15-22 (emphasis added). The manual thus merely quotes the statutory terms but does not endorse the Town's broad interpretation of them. To the contrary, the very next sentence in the manual undermines the Town's assertion that the manual supports its interpretation: "A unit and attachments greater than 400 square feet is not" an exempted mobile home.[8] (Emphasis added.)
[8]
¶ 25. Applying the foregoing to the one representative mobile home that is supported entirely by its wheels, we conclude that the mobile home was not exempt under WIS. STAT. § 70.111(19)(b). The parties stipulated that this mobile home consisted of a basic unit comprising 396 square feet, together with a screen room/porch "which is caulked to the basic unit" and encompasses an additional 489 square feet, rendering *151 the countable area well in excess of 400 square feet. Since this mobile home was not exempt from personal property taxation, we, like the trial court, conclude that the tax levied and collected by the Town was not an "unlawful tax" under WIS. STAT. §§ 74.33(1) and 74.35.
¶ 26. The owners do not dispute that, whether taxed as realty or personally, the valuation of a mobile home would be the same, and hence, so would the tax levied upon it. See State ex rel. Keane v. Board of Review, 99 Wis. 2d 584, 588, 299 N.W.2d 638 (Ct. App. 1980) ("For valuation purposes, it makes no difference whether [property is termed] real or personal property .... Valuation of both real and personal property for property tax purposes is based upon fair market value." (citations omitted)); see also WIS. CONST. art. VIII, § 1 ("The rule of taxation shall be uniform...."). The owners claim, however, that by refusing to permit them to recover property taxes levied on mobile homes that were incorrectly assessed as real property instead of as personal property, the trial court, and now this court, violate their right to due process, usurp a legislative function, and deny them equal protection of the laws. We disagree.
[9, 10]
¶ 27. The owners claim that since the Town notified them only of a levy against their mobile homes as real property, any owners whose homes were in fact personal property and tax exempt, were denied proper notice and the opportunity to be heard. But the record shows just the contrary. The claim that some of the mobile homes should be ruled tax exempt under WIS. STAT. § 70.111(19)(b) has been heard, both here and in the trial court. Our conclusion, and that of the trial court, that the tax on any mobile home that was *152 improperly classified as realty is not "unlawful" unless its owner can establish that it was "exempt by law from taxation," also does not constitute the judicial levying of a tax. We and the trial court are merely performing a proper judicial function the determination of whether an "unlawful tax" has been levied by the Town.
[11]
¶ 28. The owners' claimed violation of equal protection is that that "the court's ruling effectively deprives [them] of an accurate property classification," and it "subjects [them] to potentially incorrect property classifications with very real consequences." But, except for some differences in the timing and methods of collection of personal property taxes, as opposed to real property taxes, the owners point to no harm that has befallen any of them, with the possible exception that some "non-representative" owners may be able to establish both that their homes should have been classified as personal property, and that they meet the requirements under WIS. STAT. § 70.111(19)(b) for exemption. As to the twenty representative owners, and any of the non-representative owners who cannot make these showings, there is no claim that more tax was paid on non-exempt mobile homes because they were deemed real property than if the Town had assessed them as personal property.[9]
¶ 29. We thus reject the owners' constitutional claims.[10] They make some policy arguments as well, *153 however. The owners claim that because the majority of them make their permanent homes outside the Town, and use their mobile homes on a seasonal basis only, they "do not impose the burdens on schools and municipal services that permanent residents do." The implication is that, as seasonal residents, the owners should not be required to pay property taxes to the Town. But, the treatment of these owners is no different than that accorded the owners of vacation homes, cabins and cottages in Wisconsin, who could make a similar argument.
[12]
¶ 30. The owners also point to the importance of the "recreation and tourism industries" to our state, and assert that "the legislature has chosen a specific *154 classification and exemption scheme for recreational mobile home users." We agree, and our holding today interprets and applies the legislature's intended classification and exemption scheme it does not eliminate it. If an owner wishes to avoid having his or her "recreational mobile home" taxed as an improvement to real estate, he or she may simply elect to locate it in a campground instead of on owned land, or not connect it to utilities, or leave it wholly supported by its wheels. And, to preserve eligibility for exemption from personal property taxes, the owner need only ensure that it is not attached to any structures whose area would cause the mobile home to exceed the statutory size limitation of 400 square feet. By doing so, the owner would thus preserve the mobility and smallness of his or her mobile home, and the consequent exemption from property taxes which the legislature intended when it created a tax exemption for "recreational mobile homes."
[13]
¶ 31. Finally, we must address the disposition of the claims of the hundred or more "non-representative" owners. The Town argues that under the parties' stipulation, the non-representative owners were given the opportunity after the trial court's initial decision to come forward and argue their entitlement to exemption from property taxes for their mobile homes, but none did so. This may be so, but we have modified the conclusions reached by the trial court regarding what must be shown to qualify a mobile home as exempt from personal property taxation. In particular, the trial court apparently adopted the Town's view that the floor area of freestanding structures on the owners' lots must be counted against the 400 square-foot limitation under WIS. STAT. § 70.111(19)(b), an interpretation *155 which we have rejected. On remand, therefore, any "non-representative" owner shall be given the opportunity to establish facts qualifying his or her mobile home for assessment as personal property under WIS. STAT. § 70.043(2), and for the exemption under § 70.111(19)(b), as we have interpreted these provisions.
CONCLUSION
¶ 32. For the reasons discussed above, we reverse the appealed judgment in part, and we remand for further proceedings consistent with this opinion with respect to the "non-representative" owners. To recap, the mobile homes of all owners whose "basic units" are not supported entirely by their wheels were properly taxed by the Town as improvements to real estate. If the owner of any "non-representative" mobile home can establish on remand both that (1) his or her basic unit rests wholly on its wheels, thus qualifying it as personal property for purposes of taxation; and (2) the total area of the basic unit, together with that of any structures attached to it in any way, does not exceed 400 square feet (and that it is used "primarily as temporary living quarters for recreational, camping, travel or seasonal purposes," see WIS. STAT. § 70.111(19)(b)); the mobile home is exempt from tax and the Town levied and collected an unlawful tax from that owner.[11]
¶ 33. We affirm the appealed judgment insofar as it dismisses the claims of the "representative" owners, *156 as well as the claims of those "non-representative" owners who cannot make the showings described in the preceding paragraph. Neither party shall be entitled to costs in this appeal. See WIS. STAT. § 809.25(1)(a)5.
By the Court. Judgment affirmed in part; reversed in part and cause remanded with directions.
¶ 34. DYKMAN, P.J. (dissenting).
In a nutshell, the majority has concluded that it does not like giving the legislative exemption for certain mobile homes to everybody who qualifies, and therefore gives it to nobody. While I agree in principle that exemptions from taxation should be limited because they narrow the tax base, I cannot join the majority opinion because I conclude that its opinion is a legislative rather than a judicial act. I will explain this conclusion.
¶ 35. In its budget bill for 1984, the legislature defined a "mobile home" for property tax purposes. See 1983 Wis. Act 342. Because Wisconsin distinguishes between real estate and personal property in some tax contexts, the new definition explained when a mobile home was personal property and when it was real estate. Wisconsin levies taxes on most real estate and on some personal property. Mobile homes have some characteristics of each. In many contexts, the difference is not relevant, but because the legislature has exempted from taxation some mobile homes that are personal property, the distinction is often important. WISCONSIN STAT. § 70.043 (1997-98)[1] defines when a mobile home is personal property and when it is real estate:
*157 (1) A mobile home, as defined in s. 66.058(1)(d), is an improvement to real property if it is connected to utilities and is set upon a foundation upon land which is owned by the mobile home owner. In this section, a mobile home is "set upon a foundation" if it is off its wheels and is set upon some other support.
(2) A mobile home, as defined in s. 66.058(1)(d), is personal property if the land upon which it is located is not owned by the mobile home owner or if the mobile home is not set upon a foundation or connected to utilities.
¶ 36. In 1991, the legislature decided to exempt small qualifying mobile homes from personal property taxation. See 1991 Wis. Act 269, § 490m. But the exemption is not available if the mobile home is realty. The exemption statute, WIS. STAT. § 70.111(19)(b), exempts: "Mobile homes, as defined in s. 66.058, that are no larger than 400 square feet and that are used primarily as temporary living quarters for recreational, camping, travel or seasonal purposes."
¶ 37. When it enacted WIS. STAT. § 70.111(19)(b), the legislature was aware of WIS. STAT. § 70.043(1) and of WIS. STAT. § 348.10(5)(c), which requires that a mobile home must have at least thirty-five pounds of tongue weight.[2] Both statutes were in existence when the legislature enacted the present version of *158 § 70.111(19)(b). Thus, the legislature knew that a mobile home could not legally have all of its weight rest on its wheels. Moreover, an exempt mobile home which carried all of its weight on its wheels would be ridiculous it would behave like a forty-foot-long teeter-totter. The majority's rationalization that "an owner may preserve a unit's mobile character by simply leaving it on its wheels and no other supports" may be true, but an owner who does so is in for hair-raising experiences when getting up in the night to visit the bathroom. I find it doubtful that the legislature intended this.
¶ 38. What the majority has concluded is that no mobile home located on its owner's real estate can be exempted from taxation unless the owner disconnects the mobile home from its utilities. The majority reaches this conclusion because it requires one hundred percent of the mobile home's weight to be carried on its wheels before the exemption applies. But no such mobile home exists. Under WIS. STAT. § 348.10(5)(c), all mobile homes must have at least thirty-five pounds of their weight rest on something other than their wheels, and it is that thirty-five pounds that the majority uses to disqualify all 400-square-foot or less, landowner-occupied, utility-connected mobile homes from personal property tax-exempt status.
¶ 39. The legislature must have intended to exempt some mobile homes from personal property taxes when it enacted WIS. STAT. § 70.111(19)(b). The legislature was aware of WIS. STAT. § 70.043(1) and the significance of the distinction between mobile homes that are personal property and mobile homes that are real estate. Had the legislature wanted to tax small utility-connected mobile homes located on their owners' real estate, it could easily have done so in *159 § 70.111(19). But it did not. The only rational explanation of the exemption is that it applies to all small qualifying mobile homes located on their owners' real estate.
¶ 40. There is nothing in WIS. STAT. § 70.111(19)(b) suggesting an exemption carefully crafted so as to apply to no one who owned the property upon which his or her utility-connected mobile home would be placed. That concept just cannot be gleaned from the words of § 70.111(19)(b). On its face, § 70.111(19)(b) applies to mobile homes placed upon their owners' real estate. It defies common sense to conclude that the legislature had a secret wish to deny exemption to all mobile homes if they were connected to utilities and located on their owners' land. But that is what the majority opinion accomplishes.
¶ 41. The legislature is also presumed to use words of the English language in their normal and ordinary sense. See WIS. STAT. § 990.01(1); State v. Ehlenfeldt, 94 Wis. 2d 347, 356, 288 N.W.2d 786 (1980). "Off its wheels" is not a difficult or ambiguous concept. Anyone who has changed a car tire or watched a tire being changed is fully aware of the significance between the tire touching or not touching the ground. If the tire remains touching the ground, it cannot be changed. If there is a space between the tire and the ground, the vehicle is off that wheel. If all four tires do not touch the ground, the vehicle is off its wheels. If they touch, it is on its wheels. To interpret the phrase "off its wheels" as the majority has done to mean "on its wheels" just does not make sense. Under this definition, every mobile home or trailer traveling on our highways is doing so "off its wheels."
¶ 42. "Off its wheels" is a concept easily determined by assessors. All they have to do is bend down *160 and look. If there is space between a mobile home's tires and the ground, it is "off its wheels." If there is not, then it is not "off its wheels." Interpreting the statute as written will cause no hardship for assessors.
¶ 43. The majority explains its decision by noting:
To argue that mobile homes such as most of those described in this record, which not only rest upon blocks or jacks, but also have extensive additions and attachments on stationary footings, remain "mobile" in character because the owners have chosen to leave wheels under them, defies the purpose of the legislative distinction and, as the Town argues, provides opportunities for manipulation of the property taxation system.
¶ 44. I agree that exemptions from taxation can alter people's behavior; that is true of all exemptions. People who want an exemption will tailor their actions to fit the exemption. Many people seek tax advice on how to take advantage of the income tax code's provisions. This is not illegal, immoral, or unethical. The majority views a qualifying mobile home as a "manipulation of the property taxation system." That it may be, but the legislature has made the policy decision that the mobile homes which distress the majority are still mobile homes, and still exempt from personal property taxation. WISCONSIN STAT. § 66.058(1)(d) describes a mobile home as the vehicle itself "and includes any additions, attachments, annexes, foundations and appurtenances." I see no reason for a court to adopt a rationalization that tax exemptions are not available to those who actively seek them, because that constitutes "manipulation."
*161 ¶ 45. I would read the words of the statutes involved for what they say. Their language is neither complicated nor technical. If that language results in an exemption from taxation, so be it. If the legislature feels that a different policy regarding small mobile home taxation is appropriate, it can easily adopt that new policy. I probably agree with the majority's view that an exemption for small, landowner-occupied, utility-connected mobile homes is inappropriate public policy. But I am unwilling to judicially repeal the statute granting the exemption, even in part. Therefore, I respectfully dissent.
NOTES
[] Petition to review granted.
[1] All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.
[2] The weight of three units "is completely off the units' wheels," and they are completely supported by "stabilizers." One unit, however, has no stabilizers under the basic unit, but it is caulked to a 489 square-foot screen room and porch, which sits on footings.
[3] The owners assert in their reply brief that we cannot entertain the Town's argument that the trial court incorrectly interpreted WIS. STAT. § 70.043(1) because the Town did not cross-appeal that portion of the court's decision. A respondent, however, may raise an issue without filing a cross-appeal when all that is sought is the raising of an error that, if corrected, would sustain the judgment. Auric v. Continental Cas. Co., 111 Wis. 2d 507, 516, 331 N.W.2d 325 (1983). In other words, a respondent is always free to argue that the trial court "was right, although for the wrong reason." Id. (citation omitted).
[4] For example, real estate taxes are generally payable in two installments and become a lien on the real estate if not paid. Personal property taxes are due in a lump sum and are the personal obligation of the property owner.
[5] See R.L. 83-20, at 4 ("The Committee believed that, under these circumstances [connection to utilities, set upon a foundation, on land owned by the mobile home owner] the mobile home is sufficiently permanent that it should be taxed as is conventional housing.").
[6] The first definition for each term is from BLACK'S LAW DICTIONARY (7th ed. 1999); the second is from THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE (2nd ed. 1987).
[7] See, e.g., TDS Realestate Inv. Corp. v. City of Madison, 151 Wis. 2d 530, 540-41, 445 N.W.2d 53 (Ct. App. 1989).
[8] Further indication that the Department of Revenue does not view freestanding structures as properly includible when ascertaining the taxable status of a mobile home under WIS. STAT. § 70.111(19)(b) is found in the following excerpt from a DOR publication entitled "A Property Tax Guide for Mobile Home Owners":
How should an assessor measure my mobile home to determine if it qualifies for exemption?
The assessor should calculate the gross square footage rounded to the nearest square foot using the outside length and width of the mobile home. The assessor should also include the area of any additions and attachments to the mobile home. Only clearly attached additions and attachments to the recreational mobile home are included in the calculation of gross square footage. Examples of additions and attachments would include attached decks, screen porches, and pop-out rooms. Assessors should not include free standing structures in the mobile home area calculation. Assessors should assess garages, sheds, and other free standing structures as real estate if the mobile home owners own the land or as personal property if they do not own the land.
[9] The Town points out that only "unlawful" taxes that are found to be "excessive" may be recovered. WIS. STAT. § 74.39 ("If ... the court determines that the amount of taxes paid by the plaintiff is not excessive, judgment shall be entered for the defendant.").
[10] The owners also rely on Marina Fontana v. Village of Fontana-on-Geneva Lake, 111 Wis. 2d 215, 330 N.W.2d 211 (1983) for the proposition that a taxing body may not offset the underpayment of tax on one piece of property against taxes overpaid on another, which they claim is the result of our and the trial court's rulings. The holding in Fontana is of no assistance to the owners, however. There, the village attempted to avoid a recovery by a taxpayer of illegal property taxes levied on the taxpayer's real estate by claiming that it had underpaid taxes legitimately due on certain personal property located on the same premises. The supreme court interpreted similarly worded predecessors to the statutes before us now and concluded that such an offset was improper. Here, however, the dispute is over only one object of taxation the owners' mobile homes. The holding in Fontana does not preclude the Town from arguing in defense of the taxes it levied on the mobile homes that they would have been subject to an equal amount of tax if the mobile homes had been classified as personal rather than real property. See id. at 223-24; see also Fifield v. Marinette County, 62 Wis. 532, 541, 22 N.W. 705 (1885) (A taxpayer who challenges a tax as unlawful must allege an equitable offer to pay taxes justly chargeable "to the property ... on account of which he seeks relief.").
[11] The owner is, of course, still liable for real estate taxes properly levied on the lot and all freestanding structures which may be situated on it, but a refund is due for the taxes levied on the exempt mobile home itself, including its attached structures.
[1] All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.
[2] WISCONSIN STAT. § 348.10(5)(c) provides:
(5) The load imposed upon trailers or semitrailers shall be distributed in a manner that will prevent side sway under all conditions of operation:
....
(c) The load carried by any trailer, semitrailer or mobile home shall be so positioned that a weight of not less than 35 pounds is imposed at the center of the point of attachment to the towing vehicle when parked on a level surface. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596141/ | 399 So.2d 1098 (1981)
Toby HYMAN, Appellant,
v.
STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF PARI-MUTUEL WAGERING, Appellee.
No. 80-1969.
District Court of Appeal of Florida, Third District.
June 23, 1981.
*1099 Levine & Green and Bruce David Green, Fort Lauderdale, Wolfson, Appel & Brown, Miami, for appellant.
Mary Jo M. Gallay and David Maloney, Tallahassee, for appellee.
Before SCHWARTZ and NESBITT, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
SCHWARTZ, Judge.
The appellant Hyman is the owner of a horse named Classy State which won the seventh race at Calder Race Course on October 28, 1978. Almost a year later, on October 23, 1979, he received an ex parte order of the Division of Pari-Mutuel Wagering which for the first time informed him of its allegation that Classy State had run under the influence of a drug. On this basis, the division, pursuant to its then-existing Rule 7E-1.06(13), Florida Administrative Code, the so-called "purse redistribution rule," sought to require Hyman to return the winner's purse of $5,400 to Calder. Hyman requested a hearing, which was conducted by and before the director of the division on April 23, 1980. 170 days later, on October 10, 1980, he rendered a final order finding that the horse had indeed been drugged and ordering the refund of the purse. Hyman appeals.
It is undisputed that the 170 day post-hearing delay before the rendition of the final order, which is neither explained nor even sought to be excused, was in clear violation of the terms of Section 120.59(1)(a), Florida Statutes (1979), which provides:
120.59 ORDERS.
(1) The final order in a proceeding which affects substantial interests shall be in writing or stated in the record and include findings of fact and conclusions of law separately stated, and it shall be rendered within 90 days:
(a) After the hearing is concluded, if conducted by the agency.[1] [emphasis supplied]
Because we hold that a violation of this mandatory requirement per se renders unenforceable an agency order in a proceeding in which the agency is the protagonist, the order below is reversed.
There is no question either of the purpose or the meaning of the statute in question. It was obviously designed to keep within reasonable bounds the delay in the adjudication of rights and privileges which has infected legal proceedings in general, and, as a matter of common and often-commented-upon notoriety, administrative ones in particular. See 1 K. Davis, Administrative Law Treatise § 8.08 (1958). And, in the most mandatory expression available, Section 120.59(1) unequivocally states that the time limits it contains "shall" be observed. See Tascano v. State, 393 So.2d 540 (Fla. 1980). Notwithstanding the clarity which thus surrounds the statute, sharply *1100 differing views have been expressed as to the consequences of an agency violation of its terms. In Financial Marketing Group, Inc. v. State, Department of Banking and Finance, Division of Securities, 352 So.2d 524 (Fla.3d DCA 1977), this court indicated, in language which is admittedly dicta but which is also unmistakable in tone, that it strongly inclined to the view that an unexcused and unwaived violation of Section 120.59(1) would in and of itself result in reversal. At 352 So.2d 525, it was said:
As to the first alleged error, we agree that the language of the statute is mandatory and the respondent should have rendered its final order within 90 days after the recommended order was submitted by the hearings examiner. The statute does not provide a penalty for violation of this section, and the petitioners urge that the penalty should be that the licenses, as required by the petitioners, should issue. We certainly agree that the State agencies should follow mandates of the Legislature. We further observe that the regulatory agencies should not frustrate a citizen's attempt to secure a license to pursue a vocation or profession by inaction. In there were no other basis to reverse the agency's action under review, we might adopt the penalty suggested by the petitioners and require the issuance of the licenses because of the failure of the respondent to follow the mandatory provisions of Section 120.59, Florida Statutes.
Subsequently, however, the first district took quite another tack in G & B of Jacksonville, Inc. v. State, Department of Business Regulation, Division of Beverage, 362 So.2d 951 (Fla. 1st DCA 1978), appeal dismissed, 372 So.2d 468 (Fla. 1979). While paying lip service to the mandatory nature of the statute, G & B held that a departure from Section 120.59(a) would not cause reversal unless the delay resulted in an impairment of "either the fairness of the proceedings or the correctness of the action" as provided by Section 120.68(8), Fla. Stat. (1979).[2] While we think it clear that no such showing has been made in this case,[3] we cannot agree with this approach to the issue before us. In the first place, the violation of the express statutory command was, in our view, far more than the "error in procedure or a failure to follow prescribed procedure" referred to in Section 120.68(8). The interest in the timely disposition of actions which is expressed in Section 120.59(1), and is reflected in various other legal contexts, see, e.g., Fla.R.Jud. Admin. 2.050(f), Fla.R.Crim.P. 3.191, is certainly of sufficient independent significance to justify enforcement by the courts even if the fairness of the proceedings[4] or the correctness of the result is not otherwise implicated. More important, the G & B rule *1101 does not effect, in any meaningful way, the clearly expressed legislative intent to eliminate the mischief created by delay beyond the statutory period.[5] See Fla.Jur. Statutes §§ 77, 106 (1974). Unless Section 120.59(1) is enforced according to its terms in a prophylactic manner and with some adverse consequence to the agency which inexcusably ignores it, its command will become a meaningless hortatory homily which may be ignored with impunity, as it was in this very case. In this connection, we reject the statement in G & B at 362 So.2d 955 that
[i]t hardly seems appropriate to interpret the rule differently depending upon whether the parties are an agency and a private citizen or whether conflicting interests of multiple private parties are involved. For example, what would be the consequences of a violation of the 90-day rule were the Public Employees Relations Commission to enter an untimely order in a dispute between an employer and a labor union?[6]
It seems clear that this distinction is a significant, indeed, a decisive one. While it would be unjust to visit an agency's derelictions upon contending private parties who appear before it in its quasi-judicial capacity,[7] it is entirely appropriate to apply the statute, as it were, against the agency when, as here (and in G & B) it acts also as a quasi-executive in the enforcement of the regulatory laws within its jurisdiction. In such a case we know of no better way in fact, of no other way to serve the legislative intent than to put the agency at the certain risk of losing its own case if it fails to comply.
The two agency-vs.-private parties cases which have been decided since G & B are in accordance with the per se rule we foreshadowed in Financial Marketing and expressly apply here. The first district in City of Panama City v. PERC, 364 So.2d 109 (Fla. 1st DCA 1978), and the second district in Pinellas County v. PERC, 379 So.2d 985 (Fla. 2d DCA 1980) each reversed agency action solely because of a violation of Section 120.59(1), even though both opinions show and Judge Smith's dissent in City of Panama City specifically points out that there was no prejudice or other adverse effect which resulted from the delay. While we may dispute the precise mode of reasoning employed by these decisions, see note 5, supra, they lend clear support for our present holding.
In sum, we consider that the issue is controlled not, as G & B suggests, by Section 120.68(8), but by Section 120.68(9).[8] In the light of our conclusion that the decision under review erroneously interprets Section 120.59(1) to permit the efficaciousness of an untimely decision and that a "correct interpretation [of the statute] compels" the granting of this relief, we are authorized by Section 120.68(9)(a) to set aside the order below with directions to dismiss the proceedings. We do.[9]
Reversed.
NOTES
[1] The entire subsection provides:
120.59 Orders.
(1) The final order in a proceeding which affects substantial interests shall be in writing or stated in the record and include findings of fact and conclusions of law separately stated, and it shall be rendered within 90 days:
(a) After the hearing is concluded if conducted by the agency,
(b) After a recommended order is submitted to the agency and mailed to all parties, if the hearing is conducted by a hearing officer, or
(c) After the agency has received the written and oral material it has authorized to be submitted, if there has been no hearing. The 90-day period may be waived or extended with the consent of all parties.
[2] The court shall remand the case for further agency action if it finds that either the fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure. Failure of any agency to comply with s. 120.53 shall be presumed to be a material error in procedure."
[3] Hyman was surely not prejudiced by the delay; indeed, by being able to retain the proceeds and earn interest on them for a longer period, he was aided by it.
[4] City of Panama City v. PERC, 364 So.2d 109 (Fla. 1st DCA 1978) and Pinellas County v. PERC, 379 So.2d 985 (Fla. 2d DCA 1980), discussed infra, applied Section 120.68(8) to reverse untimely agency action violative of Section 120.59(1), apparently on the theory that the delay necessarily adversely affected the "fairness" of the proceedings. See, e.g., City of Panama City v. PERC, supra, at 364 So.2d 113. While we realize that the end result of this reasoning is the same as ours, we do not think that it can correctly be said that delay invariably reflects upon "fairness." We regard that term as referring to the evenhandedness and lack of bias or prejudice with which all proceedings must be and must be seen to be conducted. The fact is, however, that interminably delayed action may be entirely fair, and that instant action may be completely the opposite. The reasons for expeditiously concluding and for fairly conducting proceedings are both of vital importance, but they are different reasons. We prefer to base our decision on the separate, statutorily-required demand that administrative justice not be delayed, rather than upon the roundabout and intellectually unsatisfactory method of assuming that such delay ipso facto results in unfairness.
[5] We observe that if the legislature intended the G & B result, it would have simply required decisions "within a reasonable time" after hearing. The G & B decision effectively reads out of the statute the specific 90-day provision which was chosen instead.
[6] In City of Panama City v. PERC, 363 So.2d 135 (Fla. 1st DCA 1978), the court answered its own question by concluding correctly, as we view it, see note 6, infra that reversal was not required if the delay did not impair the fairness or correctness of PERC's disposition of the case between the two disputing parties.
[7] As was true in City of Panama City v. PERC, supra, note 6, and the rate case of Lomelo v. Mavo, 204 So.2d 550 (Fla. 1st DCA 1967), cited in G & B.
[8] If the court finds that the agency has erroneously interpreted a provision of law and that a correct interpretation compels a particular action, it shall:
(a) Set aside or modify the agency action, or
(b) Remand the case to the agency for further action under a correct interpretation of the provision of law."
[9] This conclusion makes it unnecessary to consider the other grounds advanced for reversal, including the very substantial one that, at the time in question, the "purse redistribution rule" was invalid as providing for the imposition of a penalty by an administrative agency without a then-existing statutory authorization, contrary to Article I, Section 18, Florida Constitution (1968). Compare the later-enacted Section 550.241(3)(a), Fla. Stat. (1980 Supp.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596468/ | 399 So. 2d 1048 (1981)
In re ESTATE OF Stanton GRIFFIS, Deceased.
No. 79-2435.
District Court of Appeal of Florida, Fourth District.
June 10, 1981.
Larry Klein, West Palm Beach, I. Ronald Horowitz, New York City, and Cromwell & Remsen, Riviera Beach, for appellant-executor.
Chester Bedell and Peter D. Webster of Bedell, Bedell, Dittmar & Zehmer, P.A., Jacksonville, and Coe & Broberg, Palm Beach, for appellee, Elizabeth K. Griffis (widow).
GLICKSTEIN, Judge.
The executor appeals an order of the trial court awarding attorneys' fees from the estate to the decedent's widow in the sum of $125,000. We affirm.
This is the third consideration of the subject estate by this court. The same attorneys representing the widow here represented her in the two previous appeals. See In re Estate of Griffis, 330 So. 2d 797 (Fla. 4th DCA 1976), cert. denied sub nom. Griffis v. Griffis, 342 So. 2d 1101 (Fla. 1977);[1] and In re Estate of Griffis, 366 So. 2d 80 (Fla.4th DCA 1978).[2] These attorneys achieved for her by our 1976 decision the bequest from the decedent in his first codicil of $500,000. In doing so the attorneys effected a reversal of the trial court which had held the widow was entitled to nothing. The basic facts are in the 1976 published opinion and do not require repetition.
In the 1978 decision this court reversed the trial court's order disallowing attorneys' fees from the estate on behalf of the widow *1049 and remanded with directions to the trial court to set those attorneys' fees. This appeal followed the subsequent order which set the fees.
We initiate the discussion by holding that the amount of attorneys' fees set by the trial court is a matter of discretion and the exercise thereof will not be disturbed absent a clear showing of abuse. In re Estate of Ryecheck, 323 So. 2d 51 (Fla.3d DCA 1975). See Division of Administration v. Denmark, 354 So. 2d 100 (Fla.4th DCA 1978); Price v. Price, 389 So. 2d 666, 669 (Fla.3d DCA 1980); Pfohl v. Pfohl, 345 So. 2d 371, 379 (Fla.3d DCA 1977); Division of Administration v. Condominium International, 317 So. 2d 811 (Fla.3d DCA 1975); and Canal Authority v. Ocala Manufacturing Ice and Packing Co., 253 So. 2d 495, 496 (Fla. 1st DCA 1971), cert. denied, 259 So. 2d 715 (Fla. 1972). In determining whether there has been an abuse of discretion we are bound to follow the standard pronounced by the supreme court in Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980):
In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the "reasonableness" test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.
Sub judice the trial court expressly based its decision upon the factors in Disciplinary Rule 2-106(B) of the Code of Professional Responsibility, which provides:
A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for similar legal services.
(4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the client.
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contingent.
The trial court found that the subject matter involved protracted trial and appellate litigation; that the widow's attorneys had spent in excess of 750 hours on the case, of which more than 600 hours were attributable to attorneys each having more than twenty-five years of legal experience; that the legal issues involved were both novel and difficult, requiring considerable skill; that there was expert testimony from two attorneys, each of whom had practiced more than forty years, that $125,000 would be a customary fee in Palm Beach County for the services performed by the widow's attorneys; that a substantial sum of money had been involved in the litigation; that an especially good result had been achieved; and that the experience, reputation and ability of the widow's attorneys were excellent.
Appellant points out that the widow's fee arrangement with her attorneys was on an hourly basis with the understanding that if the attorneys were successful in obtaining the $500,000 bequest, they would be paid 25% or $125,000, less a credit for the hourly charges. If the hourly charges exceeded $125,000, they would be paid the hourly charges. Appellant relies on two cases *1050 from the Second District Court of Appeal; namely, Universal Underwriters Ins. Co. v. Gorgei Enterprises, Inc., 345 So. 2d 412 (Fla.2d DCA 1977), and Kaufman and Broad Home Systems, Inc. v. Sebring Airport Authority, 366 So. 2d 1230 (Fla.2d DCA 1979). In both cases, our sister court reduced the trial court's awards which had been based upon the attorneys' contingent fee arrangements. We believe neither case to be applicable here. In the Universal opinion the appellate court expressly recited that the criteria of DR 2-106(B) would not support the award, which is not what the trial court found in the instant matter nor what we perceive. In the Kaufman case, a rent collection matter, the court found that a fee that averaged out to $340.00 per hour was excessive; here the award averages out to $167.00 per hour.[3]
Appellant also relies upon In re Estate of Maxcy, 240 So. 2d 93 (Fla.2d DCA 1970), cert. denied, 244 So. 2d 435 (Fla. 1971), for the proposition that the widow should not have a plurality of attorneys to be paid by the estate if an executor is not so entitled. Here, the reasonable fee was based upon the value of the legal services provided as measured by the factors in DR 2-106(B), not on the number of attorneys representing the widow. The trial court did not award one fee to the Bedell firm and another fee to the Broberg firm. It awarded a single, reasonable fee for the services provided by all of the widow's attorneys.
We find appellant's further argument does not merit discussion. Therefore, we affirm.
AFFIRMED.
DOWNEY and MOORE, JJ., concur.
NOTES
[1] Hereinafter referred to as the 1976 decision.
[2] Hereinafter referred to as the 1978 decision.
[3] We note that we affirmed an award for fees that broke down to $340 per hour in an eminent domain proceeding, when such award complied with Section 73.092, Florida Statutes. This statute establishes guidelines, which are similar to Disciplinary Rule 2-106(B), for assessment of attorney's fees in eminent domain proceedings. Division of Administration v. Denmark, 354 So. 2d 100 (Fla.4th DCA 1978). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596475/ | 399 So. 2d 779 (1981)
Dorothy Webster SILAS, Plaintiff-Appellee,
v.
Albert SILAS, Jr., Defendant-Appellant.
No. 8229.
Court of Appeal of Louisiana, Third Circuit.
May 27, 1981.
*780 Eugene Cicardo, Alexandria, for defendant-appellant.
Edward Larvadain, Jr., Alexandria, for plaintiff-appellee.
Before GUIDRY, FORET and CUTRER, JJ.
CUTRER, Judge.
Dorothy Webster Silas brought suit against Albert Silas, Jr., seeking a divorce on the grounds of adultery and, alternatively, a separation from bed and board on the ground of abandonment. The defendant answered and filed a reconventional demand, seeking divorce on the grounds of living separate and apart for one year.
The trial court, without reasons, granted a judgment of divorce in favor of the defendant. Plaintiff was granted custody of their six year old child. The judgment awarded plaintiff $250.00 per month alimony pendente lite and permanent alimony in the same amount. The court also awarded plaintiff $350.00 per month as child support retroactive to the filing of the petition.
The defendant appeals raising the following issues:
(1) Whether the plaintiff was entitled to permanent alimony under the requirements of Civil Code art. 160; and
(2) If plaintiff met these requirements, whether the awards of alimony and child support are excessive.
*781 Civil Code art. 160 governs alimony after divorce and reads as follows:
"When a spouse has not been at fault and has not sufficient means of support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse. In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse's earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.
"In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances...."
Alimony after divorce is awarded to a spouse only if that spouse proves that he or she has insufficient means of support. Expenses which should be considered in determining the needs of the claimant spouse are primarily those of food, clothing and shelter. Also, included are other necessary items such as reasonable transportation expenses, utilities and household expenses. Volker v. Volker, 398 So. 2d 134 (La.App. 3rd Cir. 1981); Moss v. Moss, 379 So. 2d 1206 (La.App. 3rd Cir. 1980); Bernhardt v. Bernhardt, 283 So. 2d 226 (La.1973).
The plaintiff is employed by the Rapides Parish School Board at a gross salary of $12,000.00 per year.
The record establishes that the plaintiff is a well-educated, self-sufficient person. She has no unusual or major financial obligations. In the months prior to trial she has even consistently maintained a $50.00 per month savings plan. We find that the plaintiff has sufficient means to provide herself with the basic necessities of life. The trial court erroneously awarded the plaintiff $250.00 per month permanent alimony and the judgment must be reversed in this regard.
We now turn to the award of $350.00 for child support. The defendant argues that since both parents are obligated to support a child of the marriage, that equal financial contributions must be made. He then reasons that $700.00 a month is well above the amount needed to support a six year old child.
The defendant's position is without merit. Child support should be granted in proportion to the needs of the child and the circumstances of the parent who is to pay. Ducote v. Ducote, 339 So. 2d 835 (La. 1976). The defendant earned over $23,000.00 the year before trial and testified that he expected to earn approximately $25,000.00 in 1980. Considering all the circumstances, we find that the defendant is in a much better position to meet the bulk of the child's financial needs than is the plaintiff.
The trial court is vested with wide discretion in determining child support. Such a determination will not be disturbed by an appellate court unless a review of the record indicates that the trial judge abused that discretion. Strickland v. Strickland, 377 So. 2d 537 (La.App. 3rd Cir. 1979); Dupre v. May, 365 So. 2d 1173 (La.App. 3rd Cir. 1978); Gravel v. Gravel, 331 So. 2d 580 (La.App. 3rd Cir. 1976).
Given the relative financial position of the two parties, considering their earnings and necessary expenses, we do not think that the trial court's award of $350.00 per month for child support is an abuse of discretion.
For the above and foregoing reasons, the judgment of the trial court, condemning *782 defendant to pay permanent alimony to plaintiff, is reversed. The trial court judgment is affirmed in all other respects. Costs of this appeal are to be paid one-half by the plaintiff-appellee and one-half by the defendant-appellant.
REVERSED IN PART; AFFIRMED IN PART. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596473/ | 399 So. 2d 802 (1981)
Daniel COMEAUX, Plaintiff-Appellee,
v.
DAIRYLAND INSURANCE COMPANY et al., Defendants-Appellants.
No. 8257.
Court of Appeal of Louisiana, Third Circuit.
May 27, 1981.
*803 McHale, Bufkin & Dees, Louis D. Bufkin, Stockwell, Sievert, Viccellio, Clements & Shaddock, Robert W. Clements, Lake Charles, for third party plaintiff-defendant-appellant.
Plauche, Smith, Hebert & Nieset, Frank M. Walker, Jr., Lake Charles, for defendant-appellee.
Rogers & St. Romain, Jack J. Rogers, Lake Charles, for plaintiff-appellee.
Before SWIFT, STOKER and DOUCET, JJ.
SWIFT, Judge.
On September 12, 1978, at approximately 6:30 a. m. James Patrick LaFleur was driving his 1964 Ford automobile in a westerly direction in the left lane on Interstate Highway 10 in Lake Charles, Louisiana. Daniel Comeaux was a guest passenger in the LaFleur automobile. Following LaFleur was a Chevrolet pickup truck owned and driven by Antoine Alton Charles. Behind the Charles truck was a 1975 Chevrolet automobile driven by James H. Howard, Jr. A misty rain was falling at the time and the traffic was heavy.
As this caravan of vehicles approached the bridge crossing the Calcasieu River the first vehicle slowed and stopped because LaFleur saw flashing red lights on the top of the bridge and the traffic ahead of him was stopping.
LaFleur and Comeaux testified that the automobile in which they were stopped was hit from behind twice. The first impact was when Charles' pickup truck struck the stopped vehicle. The second resulted when Charles' truck was pushed into LaFleur's vehicle presumably after being hit by Howard's vehicle.
Charles testified his truck was struck in the rear as he was coming to a stop and that he rearended the LaFleur vehicle only after Howard's vehicle hit him. He maintained there was only one impact between the first and second vehicles.
*804 Howard admitted that when he hit Charles' truck he did not know if Charles had already been involved in a collision. Nor did he know whether the pickup struck the other car after it was hit by him.
Mr. Comeaux filed this suit for personal injuries and damages against James H. Howard and his insurer, Dairyland Insurance Company (Dairyland).
Dairyland and Howard answered, asserting that Howard was confronted with a sudden emergency and the accidents were caused solely by the negligence of Charles in running into the rear of the LaFleur vehicle. The defendants also filed a third party demand against Charles seeking indemnity or contribution for any award made to Comeaux against them.
Charles filed a reconventional demand against Dairyland and Howard for his personal injuries and damages, asserting the sole cause of the accident was the negligence of Howard. Dairyland and Howard pled contributory negligence on the part of Charles.
Before the trial Dairyland and Howard reached a compromise settlement with Comeaux for his claims and the suit was dismissed as to the defendants. However, all three parties reserved their rights against Charles.
Following a trial on the merits the court dismissed the third party demand of Dairyland and Howard and also the reconventional demand of Charles. In oral reasons for judgment the trial judge, obviously believing the testimony of LaFleur and Comeaux was more credible than that of Charles, found that Charles' truck struck LaFleur's automobile twice. He concluded that Howard was negligent in following Charles' truck too closely and that Charles was negligent in that he was not as attentive as he should have been. Howard's and Dairyland's claim for contribution from Charles for Comeaux's injuries was denied, because he felt they failed to prove that "the $3000.00 they paid to Mr. Comeaux was as a result of Mr. Charles bumping Mr. LaFleur...." However, on a motion for a new trial the judgment was amended to award Dairyland $1500.00 against State Farm Automobile Insurance Company (State Farm), Charles's insurer, as contribution of one-half the amount paid to Comeaux in the settlement. The fee of Charles' expert medical witness was fixed at $100.00.
Mr. Charles has appealed the trial court's decision alleging two specifications of error. State Farm has taken no action in regard to Dairyland's judgment against it, so the issues involved therein are not before this court.
Appellant's first specification is that the trial judge erred in denying Charles his demand against Howard and Dairyland without making a finding that Charles had committed any act of negligence which proximately caused Howard to rearend his truck. His contention, as we understand it, is that they failed to prove that Charles created a sudden emergency to overcome the presumption that Howard negligently caused Charles' injuries by colliding with the rear of his truck.
We affirm the trial judge's factual determination that Charles' truck struck LaFleur's vehicle twice and not just once. There is ample testimony in the record to support this conclusion and certainly we cannot say it was clearly wrong. Canter v. Koehring, 283 So. 2d 716 (La.1973); Arceneaux v. Domingue, 365 So. 2d 1330 (La.1978).
An examination of the jurisprudence of this state reveals several cases with strikingly similar factual circumstances. In Coates v. Marcello, 235 So. 2d 162 (La.App. 4 Cir.1970), the plaintiff was the second of three drivers involved in a series of rear-end collisions. The lead vehicle stopped because of a hazard in the road and the plaintiff vehicle struck the rear of this first vehicle. A third vehicle, driven by defendant, struck plaintiff's vehicle and caused plaintiff's vehicle again to strike the first vehicle. The two collisions occurred within seconds. The court held the plaintiff was negligent in following the preceding vehicle too closely and that this caused him to execute a sudden and unexpected stop which directly contributed to the second *805 collision. Such contributory negligence being causally connected to the second collision, it barred plaintiff's recovery from the third driver.
Flowers v. St. Paul Companies, 336 So. 2d 1018 (La.App. 2 Cir.1976), also concerned a three-vehicle collision. The second vehicle collided with the rear of the first vehicle and the third vehicle collided with second, sending the second back into the first. The court found the driver of the second vehicle was negligent and that her negligence was the sole cause of both collisions. It concluded that the driver of the third vehicle was free of negligence, because he was proceeding reasonably and without timely warning was confronted with a sudden emergency.
In Bush v. Aetna Casualty and Surety Company, 340 So. 2d 408 (La.App. 2 Cir. 1976), the first car stopped at a red light, a second car collided with the first, and a third car collided with the second, pushing it into the first vehicle. The court found the second driver's contributory negligence barred his recovery against the third driver. Only a "second or two" separated the first and second collisions in that case. The court stated:
"Even assuming negligence of the third vehicle, plaintiff's contributory negligence bars his demands against the liability insurer of the third vehicle."
Each case, of course, must be decided according to its own particular facts and circumstances. However, in similar three-vehicular rear-end accidents generally it has been held that the driver of the second car is guilty of negligence that is at least a contributing cause of being struck by the third car when the second driver has stopped suddenly and unexpectedly because of the collision with the first car that was caused by the second driver's negligence in following too closely, not keeping a proper lookout or not having his vehicle under proper control.
Appellant in this case argues that Howard had ample opportunity to avoid colliding with the rear end of the Charles vehicle. Thus, the pivotal question is whether Howard, the driver of the third vehicle, had sufficient time to react to the collision in front of him so that the negligence of the second driver, Charles, which clearly caused the first collision, no longer constituted a cause-in-fact of the second collision.
LaFleur testified that the two impacts occurred "Pretty fast ... Just a few seconds." To demonstrate to the court the length of time which elapsed between the two impacts to his car, LaFleur hit the palms of his hands in rapid succession.
Comeaux testified that the pickup truck hit them and then it struck the LaFleur car again after being hit by the third vehicle. He said the amount of time which passed between the two impacts could not have been more than "thirty seconds" or "a minute at the most." However, the trial judge asked Mr. Comeaux to tell him when he thought thirty seconds had elapsed from the moment the judge tapped his pen on his desk. When Comeaux indicated he thought thirty seconds had elapsed, the trial judge stated that only fifteen seconds had passed. Thus, it seems the trial judge did not place much significance on Mr. Comeaux's ability to estimate time accurately.
Howard testified that he saw the pickup truck's brake lights go on and make "a sudden stop" ahead, so he applied his own brakes. However, as the road was wet, Howard was unable to stop and slid into Charles' pickup truck. He agreed that all of this occurred "in an instant."
We believe, as the trial judge apparently did, that only a few seconds elapsed from the first collision between the LaFleur and Charles vehicles and the second collision between the Charles and Howard vehicles. And we agree with him that Charles' negligence in not keeping a proper lookout, which caused him to hit the LaFleur vehicle and come to a sudden and unexpected stop, was a cause-in-fact of the second collision. Therefore, Mr. Charles is not entitled to a recovery from Howard and Dairyland because of contributory negligence, even if Howard was also negligent. We are not called upon to decide the latter.
*806 The appellant's second specification is that the trial judge erred in not fixing the expert witness fee for plaintiff's orthopedic surgeon in the amount of $225.00 which is the amount the doctor charged appellant for his appearance in court.
R.S. 13:3666 provides that the fee of an expert witness is "to be fixed by the court, with reference to the value of time employed and the degree of learning or skill required." The statute vests in the trial judge discretion in fixing such fees and his judgment in this respect will not be disturbed on appeal unless there has been an abuse of that discretion. William T. Burton Industries, Inc. v. Busby, 348 So. 2d 1328 (La.App. 3 Cir.1977). Further, the agreement between an expert and the party for whom he testifies is not the sole criterion to fix the amount to be taxed as court costs for his services. State, Department of Highways v. Kornman, 336 So. 2d 220 (La. App. 1 Cir.1976). While there does exist a large disparity between the doctor's charge and the fee set for him by the court, we are not prepared to say that there has been an abuse of the trial judge's discretion in this instance.
For the foregoing reasons, the judgment of the district court is affirmed at appellant's costs.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304594/ | FELTS, J.
This action was brought by plaintiffs below Gipson and wife to recover damages for the death of their 17 year old daughter, Bobby Evelyn Gipson, who was struck and killed by defendant Byrd’s automobile as she alighted from a bus and started across the highway to her home. There was a verdict and judgment for plaintiffs for $10,000.
Defendant appealed in error and insists that a verdict should have been directed for him; that there was no evidence of any negligence on his part; that the undisputed evidence showed that as he was passing the bus the deceased stepped from behind it directly in front of his car and thereby caused the accident; and that, as a matter of law, she was guilty of such contributory negligence as barred this suit.
The declaration charged defendant generally with negligence at common law and with negligence under the statute, Williams’ Code, 1942 Replacement Vol. 3, secs. 2681, 2682 — overtaking and passing the bus while deceased was walking in front of it, and driving recklessly *257and “in willful or wanton disregard of tlie rights and safety of others.”
The evidence tended to prove these facts. The accident happened on the highway (Tenn. 2, U. S. 41) between Pelham and Monteagle. The deceased and a Mrs. ‘Cox, coming home from work, were on the bus traveling in a southerly direction. The bus stopped on its right, or the west, side of the highway across from Mrs. Cox’s home and a side road leading east to the home of deceased. The driver opened the right front door and these two passengers alighted, the deceased ahead. She started in front of the bus across the highway to this side road. By the time she cleared the bus and took “one step” she was struck and killed by defendant’s car overtaking and passing the bus.
It was about 8:00 P. M., after dark. All the bus' lights were on, the highway here was straight, and defendant admitted he saw the bus several hundred yards ahead and knew it was a bus stopped and standing on the highway. He said he saw no person about it but he slowed down his car to 40 or 45 miles per hour, blew his horn three times, and as he was passing the bus this girl suddenly stepped from behind the front of it directly in front of his ear and so close ahead of it that he could do nothing to avert the accident.
While the bus was stopped, discharging these passengers, it was standing on its right half of the paved part of the highway with its left side two or three feet from the white-painted center line. Defendant passed on the left driving 45 miles per hour or faster, passing within two or three feet of the side of the bus. The front part of his right front fender struck the girl before she *258reached the center line. After striking her the car carried her more than 100 feet, hurled her body six feet in the air and off to one side, and went on about 30 feet farther before being brought to a stop.
While defendant claimed he had slowed down to 40 or 45 miles per hour as he passed the bus, other evidence indicated he was driving much faster than that. At that rate, the car could have been stopped in a space of 45 or 50 feet, according to a witness for plaintiffs. The great force with which it struck the girl, and the fact that after striking her it ran about 130 feet before it could be stopped, were themselves circumstantial evidence that it was being driven at a reckless and dangerous speed. Cf. Phillips & Buttorff Mfg. Co. v. McAlexander, 15 Tenn. App. 618, 636-637.
Apart from the statute, defendant was under a common law duty to use due care in passing this bus. A motorist, passing a bus or streetcar while it is stopped to receive or discharge passengers, is bound to anticipate that some of them may place themselves in his path, and he must keep a lookout, have his machine under control, and do all other things required by due care to avoid injuring them. Union Transfer Co. v. Pinch, 16 Tenn. App. 293, 64 S. W. (2d) 222; Tiffany v. Shipley, 25 Tenn. App. 539, 161 S. W. (2d) 373; Ross v. West, 202 Miss. 3, 30 So. (2d) 310; Manor v. Gagnon, 92 N. H. 435, 32 A. (2d) 688; Annotations, 47 A. L. R. 1233, 123 A. L. R. 791; 5 Am. Jur. 621; 60 C. J. S., Motor Vehicles, sec. 392, pages 960-961.
When defendant approached this bus standing on the highway discharging passengers, he was bound as a reasonably prudent person to recognize the risk and danger that some of them might appear from the front *259or rear of the bus in front of Ms car; and it was Ms duty to keep a lookout, 'approach with his car under control, and generally to exercise due care, under all the circumstances, to avoid injury to any of them.
The evidence clearly warranted a finding by the jury that defendant not only breached this duty and was guilty of common law negligence, but also violated the statute and was guilty of the offense of reckless driving and of negligence under the statute, Williams’ Code, 1942 Replacement Vol. 3, secs. 2681, 2682, which provides :
“Any person who drives a vehicle upon a highway recklessly, or at a speed, or in a manner so as to endanger, or be likely to endanger life, limb or property of any person, shall be guilty of reckless driving. (1931, ch. 82, sec. 1; 1937, ch. 245, sec. 1.)
* * a? =* #
“(c) Reckless driving within the meaning of this section (2682) shall be deemed to include the following offenses, which are expressively prohibited:
# # # * *
“Sixth: Exceeding a reasonable speed under the circumstances and traffic conditions obtaining at the time.
“Seventh: Passing other vehicles going in the same direction while crossing an intersection, or while the pedestrians passing or about to pass, in front of either of such vehicles.”
We think there was abundant evidence to lead the jury to the conclusion that defendant was guilty of driving recklessly and in wanton or willful disregard of the rights and safety of others, as charged in the declaration. Driving his car at' dangerous speed dangerously close to the side of the bus, as deceased was passing *260in'front of it, he struck her but a step from it, killing her and carrying her body over 100 feet before disengaging and hurling it to one side.
This conduct in the circumstances evinced “such entire want of care as would raise presumption of conscious indifference to consequences,” and constituted gross and wanton negligence. Consolidated Coach Co., Inc., v. McCord, 171 Tenn. 253, 258, 102 S. W. (2d) 53, 55; Inter-City Trucking Co. v. Daniels, 181 Tenn. 126, 129, 178 S. W. (2d) 756; Hamilton et al. v. Moyers, 24 Tenn. App. 86, 90, 140 S. W. (2d) 799.
Defendant’s negligence being gross and wanton, the defense of contributory negligence was not open to him. Consolidated Coach Co., Inc., v. McCord, supra. But assuming this defense was available, we think the question was one of fact for the jury, not one of law for the court, and the trial judge properly submitted it to the jury.
In the absence of a statute or municipal ordinance governing the matter, a pedestrian has equal rights with a motorist in the use of the highway and he may cross the highway at any point, being bound to use ordinary care for his own safety, i. e., such care as a reasonably prudent person would use under the same or similar circumstances. Leach v. Asman, 130 Tenn. 510, 172 S. W. 303; Studer v. Plumlee, 130 Tenn. 517, 172 S. W. 305; Emert v. Wilkerson, 7 Tenn. App. 269, 272-273; Elmore v. Thompson, 14 Tenn. App. 78, 97.
This accident happened in a rural area- — not in “a.business or residence district” in any city or town. So Code section 2687(c), regulating the right of way between pedestrians and vehicles in such a district, did not apply. But the rights of the parties in this regard *261were controlled by the common law rule above referred to.
In sncb a case ordinary or reasonable care is the measure of a pedestrian’s duty. There is no exactor rule. The rule that one mnst stop, look, and listen before crossing a railroad does not apply to one crossing a public highway. Referring to his duty, the Court, in Studer v. Plumlee, supra, said:
“ ‘He is not required, as a matter of law, to look both ways and listen, but only to exercise such reasonable care as the case requires, for he has the right to assume that a driver will also exercise due care and approach the crossing with his vehicle under control.’ (Citing cases.)
“Where the measure of care is ordinary or reasonable care, and the degree of that care thus varies with the circumstances, the question of contributory negligence is one for the jury. (Citing cases.) ”
To the same effect, see also: Emert v. Wilkerson, supra; Duling v. Burnett, 22 Tenn. App. 522, 533, 124 S. W. (2d) 294; Hunter v. Stacey, 24 Tenn. App. 158, 141 S. W. (2d) 921; Tri-State Transit Co. of La., Inc., v. Duffey, 27 Tenn. App. 731, 742-744, 173 S. W. (2d) 706; Western Union Tele. Co. v. Dickson, 27 Tenn. App. 752, 760-763, 173 S. W. (2d) 714.
As the deceased got off the bus and walked around the front of it to cross over to the side road, the bus cut off her view to the rear or north — toward the approaching car, and the glare of the bus headlight may well have kept her from seeing the car’s lights, and the noise of the bus motor running may have kept her from hearing the car’s horn. Also she may have been giving her attention to looking to the south for traffic, thinking *262there would be time and opportunity to look to the north when she cleared the bus. She had the right to assume that if any' traffic was coming from that direction it would approach under control and pass at a safe distance from the bus.
All of these possibilities enter into the issue. Reasonable minds well might differ about them. They make it impossible to deal with the question as one of law for the court. It was for the jury to weigh all these matters and to say whether the deceased’s conduct conformed to the standard of ordinary or reasonable care' — whether upon all the circumstances she was guilty of proximate contributory negligence. Cf. Leach v. Asman, supra; Studer v. Plumlee, supra; Tri- State Transit Co. of La., Inc., v. Duffey, supra; Smith v. Sloan, 189 Tenn. 368, 374-375, 225 S. W. (2d) 539, 541, 227 S. W. (2d) 2.
The argument for defendant is that “it was her (deceased’s) duty to see if any vehicles were approaching,” and that in not seeing his car and yielding the right of way she was guilty of contributory negligence as a matter of law. A number of cases from other states are cited as authority for this contention.
Most of them are oases in which a statute required the pedestrian to yield the right of way to the motorist, and some of them do seem to apply to a pedestrian crossing a public highway practically the same rule as that applied to' a traveler crossing a railroad track — the rule of absolute duty to look and listen.
As pointed out above, however, the courts of this state have refused to adopt such a rule, but hold that one about to cross a public highway “is not required, as a matter of law, to look both ways and listen, but only to exercise such reasonable care as the case requires,” *263and whether he has nsed snch care is a question for the jury. Studer v. Plumlee, supra; Tri-State Transit Co. of La., Inc., v. Duffey, supra, 27 Tenn. App. 742-744, 173 S. W. (2d) 711, and other cases.above cited.
Defendant in his brief refers to the case of Stafford v. Consolidated Bus Lines, Inc., 179 Tenn. 185, 164 S. W. (2d) 15. That case, however, did not involve any question of contributory negligence of the plaintiff (a small child), or any question of negligence of the motorist, he not being sued. The bus company was exonerated on the ground that the child’s act, rather than the company’s negligence, was the proximate cause of the accident.
Defendant relies on our case of Harbor et al. v. Wallace, 31 Tenn. App. 1, 211 S. W. (2d) 172. It does not support the rule for which he contends. In line with prior cases, it recognizes that one crossing a public highway is bound only to use ordinary care and that the question whether he has used such care is always one for the jury except where the facts are undisputed and are such that all reasonable minds must reach the same conclusion from them.
That was such a case on its facts. The plaintiff alighted from a bus, it moved on, she ran across to the • other side of the highway and ran into the side of a car that had met and passed the bus. The motorist, seeing her coming, pulled off the pavement onto the shoulder and stopped the car within five feet after the girl ran into it. This Court said that reasonable minds could not differ on the proposition that she failed to use ordinary care and that her own act was the cause of the accident.
That case is clearly no precedent for this case. There the motorist was in nowise negligent. Here the motorist’s *264negligence was gross and wanton. There the girl ran all the way across and ran into a car on the far shoulder, and she could have seen the car all of the time while she was doing that. Here the girl’s view of the oncoming car was obstructed till the very instant it killed her; or so the jury might have found. And reasonable minds well might differ on the issue of contributory negligence here, while they could not there.
Defendant bases much of his argument for a directed verdict upon the testimony of two of his own witnesses, the bus driver and Mrs. Cos. The driver said he saw the car’s lights in his mirror and he hollered through his windshield flap to deceased not to cross, that a car was coming. Mrs. Cox said she grabbed deceased by the sleeve, told her not to cross, a car was coming.
On cross examination, however, the driver admitted that his headlight was burning, his motor running, and deceased may have not heard him. Mrs. Cox also admitted that the deceased did not hear her or know she was trying to stop her. So it was within the jury’s province to reject the direct testimony of these witnesses, as the verdict shows they did. Certainly such testimony cannot be taken to be true as a matter of law for the purpose of a directed verdict for defendant.
His assignments of error raise some other matters. We have carefully considered all of them and find no merit in any of them. All of the assignments of error are overruled and the judgment of the circuit court is affirmed. A judgment will be entered here for plaintiffs against defendant for the amount of the judgment below with interest. The costs of the appeal in error are adjudged against defendant, W. L. Byrd, and the sureties on his appeal bond.
Howell and Hickerson, JJ., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1595657/ | 28 So. 3d 59 (2010)
WILLIAMS
v.
STATE.
No. 5D09-4349.
District Court of Appeal of Florida, Fifth District.
February 16, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595664/ | 399 So. 2d 1168 (1981)
STATE of Louisiana
v.
Franklin Edward DAVIS
No. 80-KA-2489.
Supreme Court of Louisiana.
May 18, 1981.
On Joint Motion for Rehearing/Clarification June 16, 1981.
*1169 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Sturgeon, Dist. Atty., Glenn B. Gremillion, Asst. Dist. Atty., for plaintiff-appellee.
Jerry B. Daye, Ferriday, for defendant-appellant.
JASPER E. JONES, Justice Ad Hoc.[*]
Defendant, Franklin Edward Davis, was charged by Grand Jury indictment on August 17, 1978, with the crime of second degree murder of Norah Wright, a/k/a as Norah Rice, in violation of LSA-R.S. 14:30.1. On March 8, 1979 defendant was convicted by a jury of twelve. On March 20, 1979 defendant was sentenced to life imprisonment without benefit of parole, probation or suspension of sentence for forty years.
The state adduced the following facts at trial:
In the early morning hours of July 30, 1978 defendant entered Rice's Grocery and Bar in Clayton, Louisiana. Shortly after his arrival defendant became involved in a heated argument with Norah Rice, owner of the establishment. The brief confrontation was witnessed by most of the ten or twelve customers who were in the establishment. Defendant left the establishment immediately after the argument and some of the customers heard him say he would be back. As defendant left the area outside the bar one witness heard him say that he would return with his "shit". (This witness said this word was a local expression for gun.). About twenty minutes after the defendant left, the customers heard a gunshot and saw Norah Rice slumped over bleeding from the head. He died later that day from a bullet wound to the brain. There was one witness who testified he saw defendant in the area not far from where the shot was fired about two or three minutes before he heard the gunshot. This witness stated that defendant did not have a gun. Defendant testified he went home immediately upon leaving the bar and went to bed. He denied he returned to the bar and shot the victim. The police were called and upon their arrival at the scene interviewed the witnesses and learned of the earlier altercation between the victim and the defendant. The officers determined that the shot which struck the victim had been fired from outside the building through a window.
The officers proceeded to defendant's house which was a short distance from the bar and arrested defendant. Defendant was asleep upon a couch in one room of his two-room house at the time of his arrest.
*1170 Zane Ellis who lived in the house with defendant was asleep on another couch in the same room with defendant at the time the arrest was made. Simultaneous with the arrest the officers seized a .22 rifle which was lying on a bed in the room adjoining the one in which defendant was sleeping. The rifle belonged to Zane Ellis.
Defendant, on appeal, relies on five of his nine assignments of error for reversal of his conviction and sentence. He abandoned four of his five assignments of error in brief. Because we find an error complained of in Exception # 9 requires reversal, we pretermit consideration of the other errors complained of.
On November 1, 1978 defendant filed a "Motion For Bill of Particulars" wherein he "moved to require the State of Louisiana" to disclose to him a description of "all documentation or other exhibits" which it was to use in evidence "for his examination and use."
The answer to the Motion for Bill of Particulars dated November 22, 1978 stated that the state had a diagram of the scene of the crime, a .22 rifle, alleged to be the murder weapon, and clip, a .22 caliber bullet removed from the head of the victim, a statement taken from the defendant, and his rap sheet.
During the trial of defendant on March 7, 1979 the state called Bob Bruce as its last witness before resting its case in chief. This witness was the fingerprint expert for Concordia Parish Sheriff's Department. He testified that sometime during the day of the early morning shooting he examined the .22 rifle which was seized in defendant's home for the purpose of determining if there were any fingerprints on it. He stated there were no prints found on any part of the rifle except on the removable bullet clip. He photographed a palm print found on the clip. The expert obtained a palm print from defendant's hand which he also photographed. He compared the print found on the clip with the print taken from defendant's hand and concluded defendant had placed the print on the bullet clip. The expert testified the palm print had been on the clip no longer than 24 hours. The defendant objected to the fingerprint exhibits and testimony relating to them for the reason the state failed to disclose these exhibits which had been in the possession of the state since July 30, 1978, in its answer to the Bill of Particulars filed November 22, 1978.
The trial court stated the evidence was not prejudicial to defendant and overruled the objection.
The following provisions of our criminal procedure discovery statute authorized the defendant to obtain from the state the fingerprint exhibits:
LSA-C.Cr.P. art. 718"Subject to the limitation of Article 723, on motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect, copy, examine, test scientifically, photograph, or otherwise reproduce books, papers, documents, photographs, tangible objects, buildings, places, or copies of portions thereof, which are within the possession, custody, or control of the state, and which:
(1) are favorable to the defendant and which are material and relevant to the issue of guilt or punishment, or
(2) are intended for use by the state as evidence at the trial, or
(3) were obtained from or belong to the defendant.
The court may determine whether evidence is subject to the provisions of Paragraph (1) hereof by in camera inspection."
LSA-C.Cr.P. art. 719"Upon motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph, or otherwise reproduce any results or reports, or copies thereof, of physical or mental examination, and of scientific tests or experiments, made in connection with or material to the particular case, that are in the possession, custody, control, or knowledge of the district attorney and intended for use at trial. Exculpatory evidence shall be produced under this article even though it is not intended for use at trial."
*1171 We construe defendant's Motion for a Bill of Particulars as a motion for discovery contemplated by the cited Articles as it requests the identification of the exhibits which are in possession of the state intended to be used by the state as evidence and requests that these exhibits be furnished to him for his examination and use.
The state failed to comply with the disclosure requirements of the cited discovery provisions because it failed to disclose to defendant that it had fingerprint exhibits which it intended to use as evidence at trial and failed to make these exhibits available for his examination and reproduction.
The quoted criminal discovery provisions were enacted by the legislature in 1977. In State v. Pool, 361 So. 2d 1202 (La.1978), this court construed the state's failure to comply with the discovery provisions contained in the 1977 legislation as analogous to the state's giving inaccurate or misleading answers in response to a motion for a bill of particulars.
If a defendant is misled by an answer to a bill of particulars relative to the state's possession of an oral inculpatory statement[1] and is lulled into a misapprehension of the strength of the state's case and suffers prejudices when the statements are subsequently introduced at trial, basic unfairness results which constitutes reversible error. State v. Boothe, 310 So. 2d 826 (La.1975); State v. Jenkins, 340 So. 2d 157 (La.1976); State v. Sharp, 338 So. 2d 654 (La.1976); State v. Hatter, 350 So. 2d 149 (La.1977); State v. Pool, supra.
In Pool, supra, the court found that the state's failure to disclose fingerprint tests which were later proved at trial was not reversible error because the defendant suffered no prejudice. Pool was convicted of receiving a stolen automobile and his fingerprints taken from the car were not disclosed by the state. Defendant was arrested driving the stolen car by three officers. The eyewitness testimony of these officers conclusively placed defendant in the stolen car, and the evidence that defendant's fingerprints were found in the car added nothing to the state's case.
Here the state failed to comply with the disclosure requirements of the quoted discovery provisions and if defendant has been prejudiced by the state's failure to disclose he is entitled to a reversal. State v. Meshell, 392 So. 2d 433 (La.1980).
The state's case against defendant is based entirely upon circumstantial evidence. Defendant denies he shot the victim. He denied in a statement taken on the day of the shooting which was admitted into evidence that he had ever handled or shot the gun which was seized at the time of the arrest. The state established that the bullet which was removed from the victim's head was fired from a .22 rifle that was constructed in the same manner as the seized gun, and that this rifle was a relatively uncommon gun. Joe Summerville, a state's witness, testified that the gun was fired in target practice at the home of defendant and Zane Ellis on the afternoon before the killing, by Zane Ellis, to whom the gun belonged, and three of his friends. Defendant was not present when the gun was fired. Summerville testified at the conclusion of the target practice Zane Ellis laid the gun upon the bed in his house. This bed where Ellis put the gun may have been the same bed from which it was taken at the time it was seized. Summerville was at Norah Rice's establishment the morning of the killing and left the place between the time that defendant left and the shooting occurred.
The non-disclosed fingerprint evidence which tended to establish that defendant had handled the clip of the alleged murder weapon within 24 hours of the lifting of the print from the clip, was an important link in the state's circumstantial evidence case *1172 against the defendant. No other prints were found on the gun and the inference which the jury may well have found from this evidence is that defendant left the print on the clip when he put the cartridge into it with which he shot the victim. This fingerprint evidence was the only evidence that directly linked Zane Ellis's rifle to the defendant who at trial reiterated his earlier statement to the sheriff's deputy that he had never fired the gun and admitted only having picked up the gun at a time remote from the date of the murder for the purpose of placing it on a gun rack.
Defendant contends that had the state disclosed the fingerprint exhibits to him he would have secured his own fingerprint expert to examine and evaluate the prints.
In the case of Barnard v. Henderson, 514 F.2d 744 (1975), a decision of this court[2] affirming a trial ruling which denied a defendant's request to have an alleged murder weapon examined by an expert of his selection was reversed. The case involved a murder case based upon circumstantial evidence where the state had produced expert testimony that the murder bullet had been fired from a pistol traced to defendant's possession. Defendant desired to have his expert examine the gun and the bullet. The court there recognized that if defendant had been given the opportunity to secure his own expert "he may have been able to shake the identification testimony (i. e., identifying the bullet with the gun) of the state's experts." This court quoted with approval retired Associate Justice Barham's dissent in Barnard, supra:
".. the only means by which the defendant can defend against expert testimony by the State is to offer expert testimony of his own." Id. at 746.
The court stated:
"Fundamental fairness is violated when a criminal defendant on trial for his liberty is denied the opportunity to have an expert of his choosing, bound by appropriate safeguards imposed by the Court, examine a piece of critical evidence whose nature is subject to varying expert opinion." Id. at 746.
If defendant here had secured a fingerprint expert he may have acquired evidence with which he could have refuted or weakened the state's damaging fingerprint evidence. At the very least such an expert could have advised defendant that the fingerprint evidence was conclusive proof that defendant had handled the gun within 24 hours of the killing.
In the case of State v. Meshell, supra, this court held that the state's failure to disclose its possession of the defendant's rap sheet in response to defendant's discovery motion in compliance with the provisions of LSA-C.Cr.P. art. 717, was reversible error because defendant was prejudiced by the nondisclosure. The state did not furnish defendant with a copy of his rap sheet until the state rested its case. The court stated defendant was denied the right to prepare his defense based upon an expectation that the state would produce the rap sheet at trial. The court further found the non-disclosure denied defendant an opportunity to evaluate his prosecution in light of possession of the rap sheet by the state.
"If the state had furnished defense counsel with a copy of defendant's rap sheet prior to trial, counsel might have attempted to negotiate a plea bargain by pleading his client guilty." Id. at 435.
Defendant here was denied the opportunity to examine the expert's fingerprint evidence which is authorized by LSA-C.Cr.P. arts. 718 and 719 because the existence of the evidence was never disclosed to him. Defendant did not have an opportunity to prepare a defense to the state's fingerprint evidence. Even if defendant had not secured the expert which he now says he would have secured if he had known of the fingerprint exhibits, had the disclosure been properly made he could have evaluated the strength of the state's case in light of the damaging fingerprint evidence and perhaps entered into a plea bargain which *1173 could have resulted in a sentence substantially less severe than the one he received as result of his conviction of second degree murder.
We conclude that defendant was prejudiced by the state's violation of the discovery statute. Accordingly, the defendant's conviction and sentence are reversed and set aside and the case is remanded to the district court for further proceedings in accordance with law.
NOTES
[*] Judges Pike Hall, Jr., Charles A. Marvin, and Jasper E. Jones of the Court of Appeal, Second Circuit participated in this decision as Associate Justices Ad Hoc, joined by Justices Pascal F. Calogero, Jr., James L. Dennis, Fred A. Blanche, and Harry T. Lemmon.
[1] LSA-C.Cr.P. art. 716(B)"...
Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the existence, but not the contents, of any oral confession or statement of any nature, made by the defendant, which the district attorney intends to offer in evidence at the trial, with the information as to when, where and to whom such oral confession or statement was made."
[2] St. v. Barnard, 287 So. 2d 770 (La. 1973). This case was decided prior the 1977 legislation providing our present broad criminal discovery rules. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595676/ | 28 So. 3d 304 (2009)
Tina Sudkamp PENN
v.
Todd Michael PENN, Sr.
No. 09-CA-213.
Court of Appeal of Louisiana, Fifth Circuit.
October 27, 2009.
*306 Maria M. Chaisson, Attorney at Law, Destrehan, LA, for Plaintiff/Appellant.
Julia P. McLellan, Attorney at Law, New Orleans, LA, for Defendant/Appellee.
Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and JUDE G. GRAVOIS.
JUDE G. GRAVOIS, Judge.
In this child custody and support matter, Tina Sudkamp Penn appeals a trial court judgment that awarded her shared (50/50) custody of the parties' minor children with her ex-husband, Todd Penn. On appeal, Mrs. Penn argues that the trial court's award of shared (50/50) custody was erroneous in various respects, including the trial court's reliance on an incorrect legal presumption. In consequence, she asks this court for a de novo review of the record, and an award of joint legal custody with her as domiciliary parent.
Mr. Penn counters that the award of shared (50/50) custody was supported by the record and should be affirmed. He also answered the appeal, arguing that the trial court erred in failing to order the production of the parties' income and financial data, and therefore the trial court's calculations of child support amounts were in error. He asks for recalculation of the child support amounts, or in the alternative, a remand to the trial court for introduction of additional evidence and re-determination of the child support award.
For the reasons that follow, we reverse the trial court's judgment of December 10, 2008.
Procedural Background
The briefs and the record show that after approximately seventeen years of marriage, Mrs. Penn filed a Petition for Divorce against Mr. Penn on September 12, 2007. A Consent Judgment was rendered on December 20, 2007 (read and signed on February 13, 2008), that, among other things, awarded shared (50/50) custody on an interim basis to the parties, pending a trial on custody. Another judgment, rendered on February 14, 2008, awarded interim child support to Mrs. Penn in the amount of $617.00 per month, in addition to deciding other specific spousal and child support issues.
On October 1, 2008, Mrs. Penn filed a Motion and Order to set the custody and support matters for trial for a final judgment. Following a hearing on November 21, 2008, wherein the trial court took the matters under advisement, the trial court rendered a judgment on December 10, 2008 that the parties now appeal. Pertinently, that judgment ordered Mr. Penn to pay Mrs. Penn child support in the amount of $1,067.78 per month.[1] Regarding custody, the trial court found that it was in the best interests of the children that the parties have shared (50/50) custody, and gave reasons for that decision.
On appeal, Mrs. Penn argues:
1) The lower court committed manifest error by failing to award legal custody as mandated by Louisiana Civil Code Article 132 and Louisiana R.S. 9:335.
2) The lower court committed manifest error by refusing to interview the minor children in chambers outside the presence of their parents and by allowing the father to personally cross-examine one of the minor children.
*307 3) The lower court committed manifest error by awarding shared 50/50 physical custody based primarily on two incorrect assumptions as follows:
a) That the law says 50/50 physical custody is favored; and
b) The parties must have felt 50/50 physical custody was in the best interest of the children because they agreed to it on an interim basis pending the trial; and
4) The lower court committed manifest error by finding that shared 50/50 physical custody was in the children's best interest.
Analysis
First of all, Mrs. Penn argues that she is entitled to a de novo review of this record, citing Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So. 2d 731, asserting that the trial court used the incorrect legal standard in deciding custody. This is not the case, however. The trial court's reasons for judgment clearly show that he used the "best interest of the child" standard found in LSA-C.C. art. 131 to determine physical custody, which legal standard is currently the prevailing law.[2] Accordingly, Mrs. Penn is not entitled to de novo review of the record on the issue of child custody.
Next, we address Mrs. Penn's argument that the trial court erred by refusing to interview the minor children in chambers outside the presence of their parents and by allowing the father to personally cross-examine one of the minor children, citing Watermeier v. Watermeier, 462 So. 2d 1272 (La.App. 5 Cir.1985), writ denied, 464 So. 2d 301 (La. 1985). We find no merit to this assignment of error.
The record shows that Mrs. Penn called the children as witnesses in her case. At the time of trial, they were 14, 12, and 11 years old. Her counsel requested that the court interview the children in chambers without either the parents or attorneys present, arguing that such a procedure was customarily done. The court expressed concern about talking to a child without either the parents or the parents' attorneys being present, and denied Mrs. Penn's request to interview the children in chambers. Mrs. Penn's objection was noted for the record.
In Watermeier, this court determined that a proper procedure for the handling of a child's testimony in this type of case was for the court to interview the child in chambers, with the parents' attorneys present (but neither parent), with a court reporter present to make a record. The court would first interview the child to establish his competency to testify, and if it so found, would further interview the child in the presence of the parties' attorneys (but without their participation) on the record regarding the custody issues. The court made it clear that this procedure was not mandated, however, if the parties could agree to another procedure.
It is not totally clear from the transcript, but it appears that what counsel for Mrs. Penn claimed was the "customary" procedure was for the court to conduct an interview with the minor children in chambers without either the parents, the attorneys, or a court reporter present, which procedure was specifically disapproved by Watermeier. Watermeier does not address whether a parent may cross-examine *308 his own child on the witness stand.[3]
In this case, Mrs. Penn objected to the children testifying in open court. She did not raise the issue of the children's competency to testify, which was a significant issue in Watermeier. The children's ages were 14, 12, and 11, which is significantly older that the child witness in Watermeier. Mrs. Penn was clearly concerned with the children's ability to express their preferences in her favor rather than their competency to testify.
In Fuge v. Uiterwyk, 94-1815 (La.App. 4 Cir. 3/29/95), 653 So. 2d 707, the court discussed the applicability of Watermeier with older child witnesses. The court found that the children, who were in high school and whose competency was not at issue, were not of such tender age as to require protection from the mere presence of their parents. Accordingly, Watermeier does not require that in all custody cases, a child be examined in chambers outside of the parents' presence. We find that on this basis, the trial court did not err in allowing the children to testify in open court.
The basis for Mrs. Penn's argument on appeal is that her children's testimony was not as "strong" as it might have been in chambers without either parent present. Be that as it may, the children's preferences are only one factor of many that the court considers when determining the best interests of the children. All three children testified that they would like to live primarily with their mother, but wanted also to see their father regularly. The trial court, however, in its written reasons for judgment, appears to have mischaracterized their testimonies, stating: "The children did state that they would prefer more time with Mrs. Penn." Their testimonies were clear that they would prefer to live primarily with her.
In every child custody determination, the primary consideration is the best interest of the child. La. C.C. art. 131. Thereafter, the court should award custody in accordance with the parents' agreement, but if they cannot agree, or if the agreement is not in the child's best interests, the court shall award custody to the parents jointly. LSA-C.C. art. 132. LSA-R.S. 9:335(A)(2)(b) states that if feasible and in the best interest of the child, physical custody of the children should be shared equally.
The court is to consider all relevant factors in determining the best interest of the child (LSA-C.C. art. 134) but is not bound to make a mechanical evaluation of each. Rather, a custody dispute must be decided in light of its peculiar set of facts and the relationships involved in order to reach a decision that is in the best interest of the child. Stroud v. Stroud, 43,003 (La.App. 2 Cir. 12/14/07), 973 So. 2d 865. These factors have been construed to be nonexclusive, and the trial court has the discretion to determine the relative amount of weight to be given each factor. Mire v. Mire, 98-1614, pp. 3-4 (La.App. 4 Cir. 3/24/99), 734 So. 2d 751, 753.
The trial court's custody determination is entitled to great weight and will not be disturbed by an appellate court absent a clear showing of abuse of discretion. McKenzie v. Cuccia, 04-0112, p. 3-4 (La.App. 4 Cir. 6/23/04), 879 So. 2d 335, 338 (citing Thompson v. Thompson, 532 So. 2d 101 (La.1988)).
*309 When, as here, the parties previously consented to a custodial arrangement, the party seeking modification must prove both that there has been a material change in circumstances since the original custody decree, and that the proposed modification is in the best interest of the child. Stroud, supra.[4]
Mrs. Penn presented evidence that Mr. Penn's work schedule did not permit him to exercise true shared (50/50) custody, and that in fact he had exercised custody only 29.5% of the time from the consent judgment through trial. She noted that the children testified that they preferred to live primarily with her. She also expressed concern that while the children were with their father during the summer, on several occasions she felt that they were not supervised. She did not like that the fourteen-year-old daughter had to walk a mile home from school to her father's house on occasion. She complained that Mr. Penn would not buy the children things and that they came to her during his weeks to buy them things. She testified that he did not share responsibility for their extracurricular activities and doctor visits. She also noted several occasions when the children wanted to remain with her or called her from their father's home asking that she come get them.
The parties' testimony showed that Mr. Penn did exercise shared (50/50) custody in the first three months after the consent judgment, but did not do so thereafter. Mr. Penn testified that since the Consent Judgment was entered, his work schedule at the Waterford III nuclear plant was affected by two unusual events: a fuel outage, which occurs every eighteen months, and Hurricane Gustav. Mr. Penn stated that he could have evacuated for Gustav, but agreed to work overtime on lockdown at the plant because Mrs. Penn said she could evacuate with the children.
Mr. Penn explained that he worked voluntary overtime in an effort to pay his bills, which included child support. Mr. Penn acknowledged, however, that he worked a significant amount of overtime during the entirety of the parties' marriage. Mr. Penn explained that he could have gotten help taking care of the children during these work events from his two sisters-in-law and a neighbor, but that Mrs. Penn wanted to care for the children during these times and that he agreed. He felt that he should not have this held against him, nor the fact that he got help occasionally from others, when Mrs. Penn also received help with child care from her parents on a regular basis.[5] Mr. Penn testified that his work schedule sometimes required that he use the before and after care at the children's schools, and that while his daughter did occasionally walk home, other times he was able to have her picked up.
Mrs. Penn presented the testimony of her parents, her brother, and a friend, who all testified that while the parties were married, Mrs. Penn was the primary caretaker of the children, while Mr. Penn was the provider. They agreed he was a hard worker and a good provider, and that both were good parents.
Considering the factors in C.C. art. 134, we find that the record supports the finding that most of them are in balance *310 and that both parents have demonstrated their fitness and desire to be involved with their children. We find that the trial court erred, however, in finding that shared (50/50) custody was feasible and in the children's best interests. The evidence shows that Mr. Penn is not able to exercise shared (50/50) custody of the children on a regular basis because of his work schedule. Though he characterized the fuel outage and the hurricane as unusual events, the record shows that Mr. Penn worked a significant amount of overtime during the marriage and continued to do so after the divorce. The trial court failed to consider that prior to the divorce, Mrs. Penn was the children's primary caregiver, in part precisely because of Mr. Penn's work schedule. Though Mr. Penn did exercise shared (50/50) custody for three months after the Consent Judgment, this is inconsistent with his practice of working significant overtime during the entirety of the parties' marriage and then again after the first three months following the Consent Judgment. The trial judge further erred when it stated it saw no reason why Mrs. Penn's family could not help Mr. Penn with the children when they were with Mr. Penn. The trial court did not require such an arrangement, nor could it, but this observation implicitly recognizes that because of his work schedule, shared (50/50) custody is not feasible. Additionally, it is not fair or reasonable to place Mrs. Penn's parents in the position of facilitating a custody arrangement to which their daughter objects.
Next, Mrs. Penn argues that the trial court failed to address the issue of legal custody, as opposed to physical custody. Mrs. Penn argues that the court's failure to designate which parent is the domiciliary parent, and also its failure to allocate the parents' legal authority and responsibility, as per LSA-R.S. 9:335, has prejudiced her in various ways.
Our reversal of the custody determination, in naming Mrs. Penn as the domiciliary parent, makes this assignment of error partially moot. The trial court nonetheless erred by not rendering a joint custody implementation order. Courts have noted that LSA-R.S. 9:335 requires the trial court to render a joint custody implementation order, except for good cause shown, allocating the legal authority and responsibility of the parents and the time periods during which each parent shall have physical custody of the child. Duvalle v. Duvalle, 27,271 (La.App. 2 Cir. 8/23/95), 660 So. 2d 152. Accordingly, on remand, the trial court is hereby ordered to render a joint custody implementation order, including such things as reasonable visitation privileges for Mr. Penn.
Mr. Penn's Answer to the Appeal
Mr. Penn answered the appeal, contending that the trial court erred in its calculation of his child support obligation. Specifically, he argues that the trial court erred in failing to use the statutorily required financial data, and additionally erred in failing to articulate sufficient reasons for its calculations.
We must reverse the trial court's judgment regarding child support. Given that we are hereby designating Mrs. Penn as the domiciliary parent, the child support obligation must be re-determined on that basis. Further, LSA-R.S. 9:315.2(A) is clear in its mandate of essential documentation. That statute in pertinent part provides:
Each party shall provide to the court a verified income statement showing gross income and adjusted gross income, together with documentation of current and past earnings. ... Suitable documentation of current earnings shall include but not be limited to pay stubs, *311 employer statements, or receipts and expenses if self-employed. The documentation shall include a copy of the party's most recent federal tax return. A copy of the statement and documentation shall be provided to the other party.
As this court stated in Inzinna v. Acosta, 623 So. 2d 1357 (La.App. 5 Cir.1993):
Without the appropriate and required documentation this matter cannot be decided in accordance with law. The matter must be remanded for the collection of the required documentation and evidence and the proper calculation of child support in accordance with R.S. 9:315 et seq. See Mannina v. Mannina, 588 So. 2d 176 (La.App. 5 Cir.1991); Phillips v. Phillips, 595 So. 2d 732 (La.App. 5 Cir.1992). Without a verified income statement from Mrs. Inzinna, copies of the most recent tax returns of both parties, and other evidence necessary pursuant to LSA-R.S. 9:315.2 the trial court could not properly apply the guidelines of LSA-R.S. 9:315 et seq. and neither can this court.
It appears that the parties' 2007 federal tax returns were completed, as Mrs. Penn argued that Mr. Penn claimed all three children on his 2007 tax return and she was therefore unable to claim any child on hers. The parties do not explain, however, their failure to produce their most recent federal tax returns. Further, the documentation that is present in the record, particularly regarding Mr. Penn's income, is confusing.[6] Accordingly, the child support judgment is reversed and the matter remanded for compliance with LSA-R.S. 9:315.2(A) and a hearing.
Conclusion
The trial court's judgment of December 10, 2008 is hereby reversed. We hereby grant the parties joint custody of the children with Mrs. Penn being designated as domiciliary parent. Because of this change in custody, the trial court's award of child support is also hereby reversed. This matter is hereby remanded to the trial court for a hearing to re-determine child support and for formulation and rendering of a joint custody implementation order.
REVERSED AND REMANDED.
NOTES
[1] It also ordered that Mr. Penn was solely responsible for the children's medical insurance costs and private school tuition and registration, and ordered that the parties would share the children's uncovered medical expenses and school-related expenses, 84% to Mr. Penn and 16% to Mrs. Penn.
[2] In Evans v. Lungrin, the trial court determined custody relying on Civil Code articles that had been repealed and reenacted well before the custody proceeding. The old articles used by the court contained different presumptions and burdens of proof that were found to have interdicted the fact-finding process.
[3] On appeal, Mrs. Penn argues that the court erred in allowing Mr. Penn, who represented himself at the hearing, to cross-examine his daughter. We note, however, that Mrs. Penn did not object to the cross examination at the hearing. Therefore, this assignment of error is not preserved for appeal.
[4] This is a lesser burden of proof than a party seeking modification of a considered permanent decree. See Bergeron v. Bergeron, 492 So. 2d 1193 (La. 1986).
[5] Mrs. Penn's parents testified at the hearing that they helped Mrs. Penn occasionally, picking up the children from school from time to time, watching them when she needed it, and that the children ate meals with them several nights a week.
[6] The record contains the following exhibits: Mrs. Penn's employer's statement of income, which includes a pay stub from November 14, 2008; costs of some of the children's extracurricular activities; child support worksheets A and B prepared by counsel for Mrs. Penn; Mrs. Penn's affidavit of income and expenses; Mr. Penn's income summary, which includes several W-2s; Mr. Penn's income record from Entergy from January 8, 2008 through November 8, 2008; Mr. Penn's most recent paycheck (dated November 8, 2008); Mr. Penn's paycheck for 80 hours; Mr. Penn's monthly expense sheet; Mr. Penn's 2007 W-2; and a letter from Entergy confirming Mr. Penn's base pay. Mr. Penn notes that while he submitted W-2s from 2001-2007, he did not submit any tax returns. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595731/ | 621 N.W.2d 361 (2001)
2001 ND 7
In the Matter of the Application for DISCIPLINARY ACTION AGAINST Bruce R. HOWE, a Member of the Bar of the State of North Dakota.
Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner,
v.
Bruce R. Howe, Respondent.
No. 20000211.
Supreme Court of North Dakota.
January 30, 2001.
*362 Paul W. Jacobson, Disciplinary Counsel, Bismarck, ND, for petitioner.
Gary H. Lee, Olson Burns Lee, Minot, ND, for respondent.
PER CURIAM.
[¶ 1] Disciplinary counsel filed a petition for discipline against Bruce R. Howe. Howe contested the allegations of misconduct and was granted a hearing before a hearing panel. Howe did not tender a conditional admission under N.D.R. Lawyer Discipl. 4.2 until after the hearing panel issued its report and recommendation that Howe's license to practice law be suspended for 30 days and disciplinary counsel had filed an objection. Disciplinary counsel has objected to the hearing panel's recommendation that Howe's license to practice law be suspended for 30 days. Asserting this Court has "authority to extend an opportunity to accept discipline by consent as envisioned by Rule 4.2, N.D.R. Lawyer Discipl., even after an objection to the panel recommendation is filed," Howe has tendered "a conditional admission in *363 exchange for the stated form of discipline, 30 days suspension." Howe withdraws the conditional admission if we reject it, and, alternatively, has raised a number of objections to the hearing panel's report. We reject the tendered conditional admission, and we suspend Howe from the practice of law for six months.
I
[¶ 2] Howe became licensed to practice law in North Dakota in 1958. In 1992, Howe began estate planning for George Schreiber and his sister, Loretta Schreiber. In 1992, Howe prepared and George executed a will and a trust agreement. The will essentially transferred all estate assets to the trust. The trust agreement provided that prior charitable pledges were to be honored quickly, provided additional charitable gifts, and provided that upon George's death, his nieces, Dolores Adams, Caroline Renner, and Rose Renner, were each to receive $200,000. George named Loretta the primary beneficiary on a number of annuities. George's nieces were contingent beneficiaries on the following annuities:
a. $79,742.17 Pioneer Mutual Life-Policy # 662510
b. $437,277.53 North American Security Life-Policy # XXXXXXXXX
c. $522,960.23 COVA (formerly Xerox Life)-Policy # 74709-1
The trust was not funded before George Schreiber died on October 8, 1995. After George's death, Howe attempted "to fund the trust via post-mortem estate planning," which ultimately led to the institution of disciplinary proceedings against him in 1999.
[¶ 3] After a hearing on April 5 and 6, 2000, the hearing panel found:
15. In order to fund, post mortem, the George Schreiber trust, Howe drafted, and had Loretta execute, a series of "disclaimer and renunciations" for all annuities, "possibly" assuming that Loretta was the sole beneficiary, with no contingent beneficiaries....
....
18.... As testified by Howe's own expert witness, Garry Pearson, Howe had an obligation to inform the nieces of all policies of which they were contingent beneficiaries. Howe directly violated that obligation, and his conduct from March 20, 1996 forward, leads the Hearing Panel to conclude, by clear and convincing evidence, that Howe made statements and representations to third persons (the nieces), of fact and law, that he knew to be false. Not only by what was said, but also what Howe failed to say. Furthermore, the Hearing Panel finds by clear and convincing evidence, that Howe's continued course of conduct constitutes conduct involving dishonesty, fraud, deceit, or misrepresentation.
19.... In a draft dated April 16, 1996, Pioneer Mutual mistakenly paid policy # 662510 to George's estate. Howe never advised Pioneer Mutual of their error. He never advised the nieces of his actions or their beneficiary status to Pioneer policy # 662510, in spite of his legal responsibility and obligation to do so.
....
21. On June 24, 1996, Howe met with Caroline and Rose Renner. The purpose of the meeting was to have Caroline and Rose sign disclaimers to the COVA annuity. All three nieces testified at the hearing. The Hearing Panel finds their testimony to be consistent and credible.... Howe did not advise the nieces of their contingent beneficiary status under the Pioneer policy. As an incentive to have the nieces sign the disclaimers, Howe told the nieces that if they did not disclaim, the proceeds they received from the COVA annuity would be deducted from their specific bequest under the trust. They testified that Howe told them they would get more if they disclaimed than they would if they didn't.... The nieces testified that *364 Howe told them that each would be responsible for $9,700.00 in estate administration fees. Howe did not deny making this statement. He claims it was a mistake. Each of the statements by Howe was false. The hearing panel concludes that at the time Howe made the statements, he knew that the statements were false. The Hearing Panel finds by clear and convincing evidence, that Howe engaged in conduct involving dishonesty, fraud, deceit and misrepresentation.
....
23. Eventually, claims were made against George's estate on behalf of the nieces. Those claims were settled. The nieces received their fair share, and did not sustain any loss as a result of Howe's conduct. It would appear that the only losers of the failure to timely fund the trust were the charitable organizations.
24. As stated earlier, the Hearing panel finds, from clear and convincing evidence, that Howe violated Rule 8.4(d), N.D.R. Prof. Conduct by violating N.D.C.C. § 27-14-02(7), which provides that it is ground for discipline for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. The Hearing Panel also finds that Howe violated Rule 4.1 N.D.R. Prof. Conduct, which provides that in the course of representing a client a lawyer shall not make a statement to a third person of fact or law that a lawyer knows to be false. Howe's statements to the nieces were false. Howe knew those statements to be false. The statements were made to induce the nieces to disclaim and accomplish what Howe most likely should have done years earlier: timely fund the trust.
....
29. In considering a recommendation of the Hearing Panel for Howe's violations of the Rules of Professional Conduct, we find no evidence that Howe has a prior history or record of violations of the Rules of Professional Conduct. This appears to be his first violation. Howe is, otherwise, a well-respected member of the bar. Nevertheless, his prohibited actions were serious, calculated, and could have resulted in significant loss to the contingent beneficiaries. Howe's conduct is of the type that reflects dishonor on the legal profession and the public's expectation of honesty and candor. The Hearing Body therefore recommends that the license of Bruce R. Howe be suspended for a period of thirty (30) days. The Hearing Body further recommends that Howe be ordered to pay disciplinary counsel's costs, disbursements, and attorney's fees.
II
[¶ 4] We recently addressed review of disciplinary proceedings in In re Disciplinary Action Against Robb, 2000 ND 146, ¶ 8, 615 N.W.2d 125:
We review disciplinary proceedings against attorneys de novo on the record. Disciplinary Board v. Boughey, 1999 ND 205, ¶ 8, 602 N.W.2d 268. Disciplinary Counsel must prove each violation by clear and convincing evidence. Disciplinary Action Against Dvorak, 2000 ND 98, ¶ 8, 611 N.W.2d 147. Although we give due weight to the findings, conclusions, and recommendations of the Disciplinary Board, we are not merely a rubber stamp, and we decide each proceeding upon its own facts. Boughey, at ¶ 8.
"When the hearing panel has heard the witnesses and observed their demeanor, we accord special deference to its findings on matters of conflicting evidence." Disciplinary Bd. v. McDonald, 2000 ND 87, ¶ 13, 609 N.W.2d 418. "We consider each disciplinary case upon its own facts to decide what discipline is warranted." In re Disciplinary Action Against Dvorak, 2000 ND 98, ¶ 8, 611 N.W.2d 147, cert. denied, ___ U.S. ___, 121 S. Ct. 483, ___ L.Ed.2d ___.
*365 III
[¶ 5] Disciplinary counsel objected to the hearing panel's recommendation of a 30-day suspension. Howe tendered a conditional admission in exchange for the recommended 30-day suspension, and, alternatively, raised a number of objections to the hearing panel's report.
A
[¶ 6] Howe contends expert testimony should have been required to establish a violation of the Code of Professional Conduct. We agree with the hearing panel's resolution of this contention:
In this case the standard of care is set forth in the rules themselves. There is no issue as to what the standard of care is. There is no dispute as to the interpretation of the standard of care, nor is the standard that of what a reasonably competent attorney might do under the same or similar circumstances.
[¶ 7] Under N.D.R. Lawyer Discipl. 3.5(B), the North Dakota Rules of Evidence apply in disciplinary proceedings "insofar as appropriate." Rule 702, N.D.R.E, provides an expert witness may testify if "specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." Here, Howe was alleged to have knowingly made false statements and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. Expert testimony would not have assisted the hearing panel in determining if Howe made statements he knew to be false or if he engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. We conclude expert testimony was unnecessary in this case.
B
[¶ 8] Howe contends the hearing panel's finding he had all annuity information before George Schreiber's death is not supported by clear and convincing evidence. The hearing panel found in part:
Howe testified that the COVA policy was never found. Regardless, in a letter from COVA dated May 22, 1995, Howe was advised that the nieces were contingent beneficiaries. On October 8, 1995 George Schreiber passed away, his trust unfunded.
Howe contends, and disciplinary counsel agrees, the COVA letter was dated May 22, 1996. Howe asserts "it is important that this be corrected because ... there is an impression that Howe had significant knowledge regarding the COVA policy long before George Schreiber's death." However, the significance of the COVA letter of May 22, 1996, is the fact that it advised Howe that Schreiber's nieces were contingent beneficiaries before Howe met with two of them and made false statements to them on June 24, 1996.
C
[¶ 9] Howe contends he did not discuss the Pioneer Mutual Policy with the nieces, and, "therefore made no statements to them which could be construed to be misleading, deceiving, or deceitful." We agree with the hearing panel's finding Howe made statements to the nieces he knew to be false, and we agree that Howe's conduct in failing to inform the nieces they were contingent beneficiaries involved dishonesty, fraud, deceit, or misrepresentation.
[¶ 10] The hearing panel found:
On June 24, 1996, Howe met with Caroline and Rose Renner. The purpose of the meeting was to have Caroline and Rose sign disclaimers to the COVA annuity. All three nieces testified at the hearing. The Hearing Panel finds their testimony to be consistent and credible.... Howe did not advise the nieces of their contingent beneficiary status under the Pioneer policy.... Howe told the nieces that if they did not disclaim, the proceeds they received from the COVA annuity would be deducted from their specific bequest under the trust. They testified that Howe told them they *366 would get more if they disclaimed than they would if they didn't.... The nieces testified that Howe told them that each would be responsible for $9,700.00 in estate administration fees. .... Each of the statements by Howe was false. The hearing panel concludes that at the time Howe made the statements, he knew that the statements were false. The Hearing Panel finds by clear and convincing evidence, that Howe engaged in conduct involving dishonesty, fraud, deceit and misrepresentation.
The nieces' testimony, if believed, established that Howe made the statements. The hearing panel specifically found the nieces' testimony was credible, the statements were false, and Howe did not inform the nieces of their contingent beneficiary status under the Pioneer policy. Howe's knowledge the statements were false when he made them is a permissible inference to be drawn from the evidence. The hearing panel heard the witnesses and observed their demeanor. Giving due weight to the hearing panel's findings, we conclude clear and convincing evidence supports the finding that Howe engaged in conduct involving dishonesty, fraud, deceit and misrepresentation.
D
[¶ 11] Howe contends his conduct was not motivated with selfish or personal reasoning, and "[i]n fact, Howe's motivations in this case were to attempt, as best he could, to carry out what he believed the intentions of George Schreiber were." We consider these matters, as well as Howe's absence of a prior disciplinary record, and his previously good reputation, to be mitigating factors under N.D. Stds. Imposing Lawyer Sanctions 9.3.
E
[¶ 12] Howe contends disciplinary counsel's view that the length of the hearing panel's recommended suspension of thirty days is not long enough "should be considered irrelevant" and "Disciplinary Counsel should not supplant his judgment for that of the Panel." While the length of a suspension is a decision for this Court to make, we welcome disciplinary counsel's views in making that determination.
[¶ 13] Howe contends a reprimand is a sufficient sanction, and he should not be suspended from the practice of law. He argues:
He attempted to act in a fashion which he believed would best carry out the intentions of his client, that is, George Schreiber.
In the final analysis, Howe was unable to effectuate what he believed George Schreiber's wishes to be. The nieces received everything they were entitled to receive. The charities received everything they were entitled to receive according to the documents as they existed at the time of George Schreiber's death. Thus, although Howe's attempts to have the nieces disclaim the COVA policy ultimately generated litigation, in the final analysis no one was necessarily harmed. Given this, a 30 day suspension for this conduct is severe. It is in fact, not warranted.
[¶ 14] We do not agree a reprimand is appropriate in this case. Standard 5.1, N.D. Stds. Imposing Lawyer Sanctions, provides, in part:
5.1 Failure to Maintain Personal Integrity. Absent aggravating or mitigating circumstances upon application of the factors set out in Standard 3.0, the following sanctions are generally appropriate in cases involving commission of an act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, or in cases with conduct involving dishonesty, fraud, deceit, or misrepresentation:
5.11 Disbarment is generally appropriate when:
(a) a lawyer engages in serious conduct a necessary element of which includes intentional interference with *367 the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice.
5.12 Suspension is generally appropriate when a lawyer knowingly engages in conduct which does not contain the elements listed in Standard 5.11 but that seriously adversely reflects on the lawyer's fitness to practice.
5.13 Reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer's fitness to practice.
[¶ 15] Generally, a lawyer's "conduct involving dishonesty, fraud, deceit, or misrepresentation," N.D. Stds. Imposing Lawyer Sanctions 5.1, "seriously adversely reflects on the lawyer's fitness to practice," id., 5.12, and "tends to bring reproach upon the legal profession," N.D.C.C. § 27-14-02(7). Conduct like Howe's generally results in suspension. See, e.g., Disciplinary Bd. v. McDonald, 2000 ND 87, 609 N.W.2d 418; Disciplinary Bd. v. Schultz, 1997 ND 117, 564 N.W.2d 307; Disciplinary Bd. v. Lamont, 1997 ND 63, 561 N.W.2d 650; Disciplinary Bd. v. Ellis, 504 N.W.2d 559 (N.D.1993); Disciplinary Bd. v. Kaiser, 484 N.W.2d 102 (N.D.1992). But see, Disciplinary Bd. v. Bailey, 527 N.W.2d 274 (N.D.1995) (disbarment for repeated violations and previous disciplinary history); Disciplinary Bd. v. Kinsey, 524 N.W.2d 89 (N.D.1994) (resignation allowed); Disciplinary Bd. v. Bailey, 472 N.W.2d 472 (N.D.1991) (public reprimand). Howe's conduct undercut the public's confidence in lawyers. Upon considering Howe's absence of a prior disciplinary record and the absence of a selfish motive for his conduct as mitigating factors, we conclude a six-month suspension is appropriate.
F
[¶ 16] On May 10, 2000, disciplinary counsel executed an affidavit of costs and expenses in the amount of $10,566.65, of which $6,157.50 was for 82.1 hours of attorney time at $75 per hour. In its July 2000 order, the hearing panel recommended "Howe be ordered to pay disciplinary counsel's costs, disbursements, and attorney's fees." Howe contends a disciplined attorney should not "have to pay for needless work conducted by Disciplinary Counsel. This is occurring in this case, and Counsel's time should be cut."
[¶ 17] "Unless otherwise ordered by this Court or the Disciplinary Board, our disciplinary rules require assessment of costs and expenses against a disciplined attorney." Disciplinary Bd. v. Boughey, 1999 ND 205, ¶ 13, 602 N.W.2d 268. "Costs and expenses assessed under N.D.R. Lawyer Discipl. 1.3(D) ordinarily include reasonable attorney fees for disciplinary counsel." Id. We have reviewed disciplinary counsel's affidavit in light of Howe's arguments, and, while not all of disciplinary counsel's efforts led to findings of violations, we find the costs, expenses, and fees sought in this case are reasonable.
IV
[¶ 18] We order Howe suspended from the practice of law for six months, commencing March 1, 2001, and we order him to pay $10,566.65 for the costs and expenses of the disciplinary proceedings.
[¶ 19] WILLIAM A. NEUMANN, DALE V. SANDSTROM, CAROL RONNING KAPSNER, JJ., concur.
*368 MARING, Justice, concurring in part and dissenting in part.
[¶ 20] I agree with the majority that there is clear and convincing evidence Howe engaged in conduct involving dishonesty, fraud, deceit, and misrepresentation. I also agree a reprimand is not appropriate in this case and that a suspension is the appropriate sanction. I, however, do not agree a six-month suspension is appropriate.
[¶ 21] In Disciplinary Board. v. Schultz, 1997 ND 117, 564 N.W.2d 307, 308, Charles Schultz admitted he violated Rule 5.5, N.D.R. Prof. Conduct, by practicing without a license and Rule 1.2(A)(3), N.D.R. Lawyer Discipl. (dishonest conduct) by holding himself out to his employer as a licensed attorney in the state of North Dakota. We suspended Schultz for 90 days. Id.
[¶ 22] In Disciplinary Board. v. Lamont, 1997 ND 63, ¶¶ 1, 16, 561 N.W.2d 650, Lamont was suspended for 60 days for violating Rule 3.3, N.D.R. Prof. Conduct (candor to the tribunal); Rule 1.2(A)(3), N.D.R. Lawyer Discipl. (dishonesty, fraud, deceit, or misrepresentation); and N.D.C.C. § 27-13-01(1) (respect for the court). We considered as mitigating circumstances that Lamont's testimony did not benefit him personally, that he had a good reputation, and that he had an unblemished disciplinary record. Id. at ¶ 20.
[¶ 23] In this case there are significant mitigating circumstances. Howe graduated from law school in 1958 and has had a clear disciplinary record for forty years. He is well respected in his community. In addition, Howe was not motivated by self gain, but rather attempted to carry out George Schreiber's testamentary intent as he saw it. Finally, his conduct did not result in any adverse consequences to these third persons.
[¶ 24] I conclude these mitigating circumstances justify the imposition of a three-month suspension.
[¶ 25] GERALD W. VANDE WALLE, C.J., concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595642/ | 28 So. 3d 706 (2010)
Marshall E. BELAGER-PRICE, Brenda C. Belager-Price, Brian E. Price, Retha A. Price, Richard Tucker, Carolyn Tucker, Aaron D. Puckett, Jr., Leslie Puckett and Mary Anne Narron, Appellants
v.
Richard LINGLE and Naomi T. Lingle, Appellees.
No. 2008-CA-02102-COA.
Court of Appeals of Mississippi.
February 23, 2010.
*708 Steven Craig Panter, Ronald Earl Stutzman, Jr., attorneys for appellants.
Ronald Henry Pierce, attorney for appellees.
Before KING, C.J., ISHEE and ROBERTS, JJ.
ROBERTS, J., for the Court:
¶ 1. Marshall E. Belager-Price, Brenda C. Belager-Price, Brian E. Price, Retha A. Price, Richard Tucker, Carolyn Tucker, Aaron D. Puckett, Jr., Leslie Puckett, and Mary Anne Narron (Narron)[1] (collectively "the Homeowners") instituted this action in the Chancery Court of Madison County, Mississippi, which denied their petition to enforce the protective covenants of Kristen Hills Subdivision (Kristen Hills) in Madison County against Richard M. Lingle (Richard) and Naomi T. Lingle (collectively "the Lingles").[2] The Homeowners also sought a permanent injunction against the Lingles' construction and use of a horse barn on the Lingles' lot in the Kristen Hills. The Homeowners alleged that the Lingles were in breach of the restrictive covenants of the neighborhood by constructing the large horse barn without first constructing the single-family residence. The Lingles filed a counterclaim asserting that the Homeowners were interfering with their right to quiet enjoyment of their property, and in response to the Homeowners' suit, the Lingles argued that they intended to build a single-family residence on the property when their economic situation allowed them to move forward with the construction. The Lingles stated that due to the current economic situation, they had incurred some credit and financing difficulties, and they have had difficulty selling their two homes. After a trial on the merits, the chancellor, Special Judge Thomas Zebert, found that the covenant restricting the use of the lot for a single-family *709 residence with appurtenances thereto was ambiguous.[3] Therefore, the chancellor found that the protective covenants did not preclude the Lingles from construction and use of the horse barn. The chancellor also found that the Lingles intended to construct a single-family residence on the land at some future, but unknown, date. The Homeowners appeal and raise four issues. However, this case can be resolved by addressing whether: (1) the chancellor erred in finding that the protective covenant was ambiguous, or (2) the chancellor erred as a matter of law in ruling that the Lingles' intent to use the property for a single-family residence at some unknown date in the future could justify the Lingles' non-conforming use in the interim period of time. We find that the protective covenant is not ambiguous relating to the requirement that the lot be used for residential purposes. However, we find the chancellor correctly ruled that the covenant does not require a house to be built before an appurtenance. Accordingly, the chancellor did not err in finding that the Lingles were not in breach of the covenant because they exhibited an intent to build a single-family residence in the future. Therefore, we affirm.
FACTS
¶ 2. On June 14, 2007, the Lingles purchased a lot in Kristen Hills, which encompassed approximately 9.26 acres. The Lingles' warranty deed states in relevant part:
The subject property can only be used to build and construct only one single[-]family residence and appurtenances thereto (the term "single[-]family residence as used herein shall be construed to exclude among other things, hospitals, duplex houses, apartment houses, churches and schools and to exclude commercial and professional use, except a personal office in the home).
There is no dispute that the Lingles were aware of the protective covenants. Richard is an attorney, and his office prepared the warranty deed related to his property in Kristen Hills.
¶ 3. After purchasing the property, the Lingles began to construct a large horse barn and stone entranceway, and they enlarged the house pad where a house is to be built.[4] The Lingles also placed a trailer on the property. Concerned over the presence of the trailer, disgruntled homeowners of Kristen Hills contacted Narron, one of the developers of Kristen Hills, and Narron contacted the Lingles in August 2007. Narron testified that Richard was quite rude over the telephone, and he told her that he had no intention of building a home on the property. She testified that Richard told her that he had built homes before, and it was a lot of trouble. She went on to state that he said that the barn would not prohibit someone from building a house on the property in the future. Narron further testified that Richard told her that he would not move the trailer. Nevertheless, at some point after Richard's discussion with Narron, the Lingles removed the trailer from their property, and they continued with the construction of the horse barn.
¶ 4. After the controversy arose between Narron, Lingles, and the Homeowners, the Lingles sent a letter, dated October 23, 2007, to the Homeowners, with the exception *710 of Narron, attempting to explain their intentions. Among other things, the letter stated that the Lingles "intend[ed] to build a house on the property at some point in the future. However, due to the slump in the real estate market, [they] [could not] predict a date upon which the house [would] be built." The letter went on to state that the Lingles owned a house in Rankin County and one in Ridgeland, neither of which the Lingles expected to be a "quick sale." The Lingles stated that "[i]n the meantime, it [was their] intention and desire to erect [their] horse barn on the property and move a couple of horses to the property as soon as possible." The letter also stated that the barn the Lingles intended to build was thirty-eight feet by forty-eight feet, would cost approximately $100,000, and it would not be readily visible from Gluckstadt Road. The record reflects that the Homeowners do not take issue with the appearance of the barn.
¶ 5. Although the letter from the Lingles to the Homeowners did not discuss the death of the Lingles' seventeen-year-old son, testimony established that the Lingles had suffered the tragic and unexpected death of their son in January 2007. The Lingles had returned home to find their son dead in the home's kitchen. As a result of that tragedy, the Lingles had moved out of their home in Rankin County, lived in an extended-stay hotel for a couple of months, and then purchased a residence in Ridgeland, Mississippi. These events transpired within six months of the time the Lingles purchased the lot in Kristen Hills. At the time of the chancellor's opinion, the Lingles' home in Rankin County had been on the market since 2007, and its price had been reduced by $75,000 in an effort to expedite its sale.
¶ 6. The Homeowners agree there is no problem with the Lingles having a horse barn on the Lingles' property as long as there is a primary residence for which the barn may be an appurtenance to. Further, the Homeowners argue that the language of the protective covenants is not ambiguous. In other words, the Homeowners assert that the covenant instructs that a home must be built first or at least simultaneously with other structures in order to be in compliance. The chancellor agreed that this was one interpretation of the covenant, but he determined that it was a narrow interpretation, and that another reasonable interpretation was that the barn, or similar structure, could be appurtenant to the land. Stated specifically, the chancellor found "that reasonable minds [could] reach different conclusions to the meaning of the restriction at issue...." Therefore, he construed the restrictions in favor of the Lingles. Furthermore, the chancellor found the protective covenant to be ambiguous in that it did not state the order that such structures must be built.
DISCUSSION
I. WHETHER THE CHANCELLOR ERRED IN FINDING THE PROTECTIVE COVENANT WAS AMBIGUOUS.
¶ 7. "Questions concerning the construction of contracts are questions of law that are committed to the court rather than questions of fact committed to the fact-finder. The standard of review for questions of law is de novo." Parkerson v. Smith, 817 So. 2d 529, 532 (¶ 7) (Miss.2002) (internal citations and quotations omitted). If a contract is determined to be ambiguous, it is reviewed on appeal under a substantial evidence/manifest error standard. Royer Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So. 2d 748, 752 (¶ 8) (Miss.2003) (citation omitted).
*711 ¶ 8. This Court utilizes a three-tiered approach to contract construction, and the legal purpose and intent should first be sought in an objective reading of the words employed in the contract to the exclusion of parol or extrinsic evidence. One South, Inc. v. Hollowell, 963 So. 2d 1156, 1162 (¶ 10) (Miss.2007) (citation omitted). "First, the `four[-]corners' test is applied, wherein the reviewing court looks to the language that the parties used in expressing their agreement." Id. (citation omitted).
¶ 9. Under this approach, the entire contract is examined as a whole, and particular words and phrases do not necessarily control. Pursue Energy Corp. v. Perkins, 558 So. 2d 349, 352 (Miss.1990) (quoting Mounger v. Pittman, 235 Miss. 85, 88, 108 So. 2d 565, 567 (1959)). Furthermore, the four-corners doctrine calls for construction through application of correct language usage and English definitions, and the instrument should be construed in a manner which makes sense to an intelligent layman familiar only with the basics of the English language. Id. Only if the contract is unclear or ambiguous can the court go outside the "four corners" of the contract to determine the parties' intent. One South, Inc., 963 So.2d at 1162 (¶ 10) (citation omitted).
¶ 10. Second, if the parties' intent is not determined from the "four-corners" approach, then the court should apply the discretionary canons of contract construction. Id. Any ambiguities in the contract must be construed against the party who drafted it. Wade v. Selby, 722 So. 2d 698, 701 (¶ 9) (Miss.1998) (citation omitted). Third, if a clear meaning still cannot be determined after applying the discretionary canons of contract construction, then the court can consider extrinsic or parol evidence. One South, Inc., 963 So.2d at 1162-63 (¶ 10) (citation omitted). Utilizing this framework, we discuss the chancellor's ruling.
Can a barn or outbuilding be an "appurtenance" in the absence of a residence or other primary building?
¶ 11. The Homeowners rely upon the case of Gast v. Ederer, 600 So. 2d 204, 207 (Miss.1992) to support their argument that the Lingles' barn cannot be an appurtenance in compliance with the protective covenants in the absence of a single-family residence. In response, the chancellor and the Lingles state that Gast is inapplicable. The protective covenants at issue in Gast prohibited any type of outbuilding other than a single-family residence or a garage. Id. at 205. The covenant at issue in Gast read as follows:
LAND USE AND BUILDING TYPE: No lot shall be used except for residential purposes. No building shall be erected, altered, placed or permitted to remain on any lot other than one detached single[-]family dwelling not to exceed two stories in height and a private garage for not more than two cars.
Id. at 207. The supreme court affirmed the chancellor's decision to require Frederic Gast to remove the boathouse from his property because the covenant specifically stated that there was to be nothing but a family dwelling and a garage for no more than two cars. Id. at 207-08. Although the specific facts, which required Gast to remove the boathouse, were somewhat different than the case at hand, Gast still offers guidance.
¶ 12. First, we consider the relevant language of the protective covenant at issue in the instant case. It states: "The subject property can only be used to build and construct only one single[-]family residence and appurtenances thereto...." As mentioned, the chancellor determined that the Homeowners' interpretation that an outbuilding, such as a barn, must be "appurtenant *712 to" a residence was one interpretation, but it could also be that the barn or other outbuilding was "appurtenant to" the land. Gast offered an argument quite similar to the chancellor's interpretation of the covenant. Gast argued that "he did not violate the `land[-]use and building[-]type' covenant because he erected the boathouse as a reasonable and incidental use of the neighborhood lot." Id. at 207 (emphasis added). The supreme court stated that Gast "missed the mark, [and]... such additional use must be incidental to some residential purpose." Id. (emphasis added). The supreme court went on to rely on Sutherland v. Bock, 688 P.2d 157, 158 (Wyo.1984), wherein the Wyoming Supreme Court upheld an injunction finding that "a separate `outbuilding' could not exist on the property absent a single-family residence." Gast, 600 So.2d at 204. The supreme court quoted the Wyoming Supreme Court as follows:
Clearly, the protective and restrictive covenants contemplate that a residence is to be the principal building on the premises. The residence could exist without an outbuilding, but an outbuilding cannot legally be constructed independent of a residence. Stated another way, a residence cannot be incidental [or appurtenant] to an outbuilding.
Id. Just as in Gast, we find that a layman familiar only with the basics of the English language would understand the covenant to restrict the use of the Lingles' lot to a single-family residence and appurtenances to that residence.
¶ 13. The word "thereto" is defined as: "To that, this, or it" or "In addition to that; furthermore." The American Heritage College Dictionary 1407 (3rd ed. 1997). Given this definition, it is clear that the average person would construe the covenant at issue as follows: "The subject property can only be used to build and construct only one single[-]family residence and appurtenances [to that residence]."
¶ 14. A.A. Home Improvement Co. v. Hide-A-Way Lake Club, Inc., 393 So. 2d 1333 (Miss.1981) is also analogous to the instant case. In A.A. Home Improvement, the property owner was using the lot for the purpose of creating a thoroughfare from one neighborhood to the next without building a residence. Id. at 1335. The supreme court stated that: "There is no ambiguity in the expression `[n]o lot shall be used for other than residential purposes.'" Id. at 1336. Therefore, the supreme court found the property owner to be in violation of the covenant because "[i]t [wa]s obvious that the use of [the][l]ot ... on which there [wa]s no residence as a connecting roadway to an adjoining subdivision [wa]s not in any sense a residential use or a use incidental thereto." Id. at 1337 (emphasis added).
¶ 15. Likewise, the language that the "subject property can only be used to build and construct only one single[-]family residence and appurtenances thereto ...." clearly notified the Lingles, or any other purchaser of property in Kristen Hills, that the lot is to be used for residential purposes, not merely for some other purpose. In order for the Lingles to be in compliance with the covenants, any structures must be related to a residence. Any other reading of the covenant implies that a purchaser can utilize the lots for temporary recreational or storage purposes or any other purpose short of some type of commercial activity. Such a reading would be a strained interpretation of the residential-subdivision covenant.
¶ 16. Are we to assume that the average layperson familiar with the English language would understand the covenant at issue to endorse the use of the property merely for a tennis court? How about a *713 swimming pool? In essence, the reading that the Lingles propose supports the idea that the lot could be used to accommodate their own personal club, equestrian center, or storage facility without ever having to use it as a residence. We do not find this interpretation to reflect the intent clearly portrayed in the covenant.
¶ 17. The chancellor also found that the covenant was ambiguous in that it did not specify an order which the residence and barn should be built, and that the Lingles intended to build a home in the future. Although we do not find that the covenant is ambiguous in its requirement to build a residence, it does not state that the home must be built before a barn, fence, pool, etc. Therefore, the timing of the construction of structures is the only ambiguity. With this in mind, we consider the second issue.
II. WHETHER THE CHANCELLOR ERRED AS A MATTER OF LAW IN RULING THAT THE LINGLES' INTENT TO USE THE PROPERTY FOR A SINGLE-FAMILY RESIDENCE AT SOME UNKNOWN DATE IN THE FUTURE COULD JUSTIFY THE LINGLES' NON-CONFORMING USE IN THE INTERIM.
¶ 18. It is well settled that the findings of a chancellor or a circuit court judge, sitting without a jury, will not be reversed on appeal where they are supported by substantial, credible, and reasonable evidence. Phillips v. Miss. Dep't of Pub. Safety, 978 So. 2d 656, 660 (¶ 13) (Miss.2008) (citation omitted). Despite conflicting testimony between Richard and Narron, the chancellor determined that the Lingles had demonstrated the intent to build a home, and "if Petitioner Narron had desired to prohibit the construction of a horse barn before the completion of a residence, this could have easily been accomplished by drafting a clear prohibition in the restrictive covenants." The chancellor was correct. Any ambiguities in the contract must be construed against the party who drafted it. Wade, 722 So.2d at 701 (¶ 9) (citation omitted). The chancellor also considered the following evidence to support his decision not to enjoin the Lingles from building their horse barn because he found that they had the intent to eventually build a home.
¶ 19. Following a pretrial conference held on October 8, 2008, the chancellor, accompanied by the Lingles and the attorneys for the parties, went to the Lingles' property to view it and the surrounding area. The chancellor found, among other things, that the Lingles had expanded the "house pad" on which a house would, or could, be located. The "house pad" had been originally created by the former property owner. Additionally, the Lingles had built a very upscale stone entrance to the property, and the chancellor stated that "[i]t [was] difficult to believe that such an expensive stone entrance would be built for just a barn."
¶ 20. The chancellor also noted, that the horse barn the Lingles were constructing was very large and expensive. Further, the chancellor discussed the fact that the Lingles have other property which they claim a deduction each year as farm property, yet they have not done so with this property because Richard testified that he intended to use it for residential purposes. The chancellor also considered the letter the Lingles sent to the Homeowners, which stated that they did intend to build a home in the future. Finally, the chancellor considered the legitimate economic concerns that Richard testified about namely not being able to sell his two existing homes and credit and lending issues.
¶ 21. Furthermore, we note that the time between the Lingles' purchasing the *714 property and the lawsuit is relatively short. The Lingles purchased the property on June 14, 2007, and the Homeowners filed their petition to enforce the covenant on April 29, 2008, less than eleven months later. In other words, the Homeowners pursued this suit without affording the Lingles a reasonable opportunity to build a home. The record reflects that the chancellor had substantial, credible, and reasonable evidence before him in which he could determine that the Lingles' intentions were to build a home on the property.
¶ 22. The record reflects that it was objectively reasonable for the chancellor to find that the Lingles intended to build a home when their financial situation improved. In these precarious financial times, the chancellor did not err in declining to impose a time limit in which the Lingles must complete their home and any other improvements they may add to the property, nor did he err in denying an injunction to prohibit them from using the property for their horses. As noted in the chancellor's ruling, other property owners of the subdivision have barns and/or detached outbuildings similar to the barn the Lingles are constructing. Also, the record reflects that other property owners have horses on their property. The chancellor also stated that Narron, one of the developers of Kristen Hills, testified that developers "intended for homeowners to have horses and barns." We see no error in the chancellor's ruling to deny the injunction to prevent the Lingles from using the lot for their horses until they build their home.
¶ 23. This brings us to the timing aspect imbedded within the restrictive covenant at issue. It has been acknowledged by the supreme court and this Court numerous times: "We affirm where an agency or lower court reaches the right result for the wrong reason." Falco Lime, Inc. v. Mayor and Aldermen of City of Vicksburg, 836 So. 2d 711, 725 (¶ 62) (Miss.2002) (citation omitted). Although we do not find the covenant ambiguous in that it requires a property owner to use the property for residential purposes, we find that the chancellor did not commit manifest error in ruling that the barn may be built and used prior to the construction of a residence or home. However, we emphasize that we do not find that the covenant at issue allows a property owner to utilize the property indefinitely without constructing a residence.
¶ 24. It is to be remembered that when "construing restrictive covenants, the question is primarily one of intention, and the fundamental rule is that the intention of the parties as shown by the agreement governs, being determined by a fair interpretation of the entire text of the covenant." A.A. Home Imp. Co., 393 So.2d at 1336. Additionally, when ambiguity is found in a restrictive covenant the general rule is that it is shall "be construed most strongly against the party seeking to enforce the restriction." COR Devs., LLC v. College Hill Heights Homeowners LLC, 973 So. 2d 273, 286 (¶ 15) (Miss.Ct.App.2008) (citing City of Gulfport v. Wilson, 603 So. 2d 295, 299 (Miss.1992)). We find that a fair interpretation of the agreement between the parties indicate that the lots of Kristen Hills are to be for people to reside there, not just visit. However, because the covenant is ambiguous as to when the physical residence must be built in temporal relation to any appurtenances built thereto, we hold that the residence must be built within an objectively reasonable time period after commencing construction of any appurtenances on the subject property in order to satisfy the requirements of the covenant. Therefore, we do not hold that the chancellor's ruling *715 prohibits the Homeowners of Kristen Hills, present or future, from legally revisiting this issue based upon the interpretation of the chancellor and this Court of the restrictive covenant at issue. That is to say, should an inordinate, and objectively unreasonable, amount of time lapse with no effort by the Lingles to move forward with the construction and completion of a home, the Homeowners may bring this issue to the attention of the courts once again. The facts, and therefore the issue, would be different from the case sub judice.
¶ 25. For the foregoing reasons, we find that the record supports the chancellor's determination that the Lingles intend to comply with the covenants. Accordingly, we affirm the chancellor's ruling but hold that the restrictive covenant at issue is not ambiguous as to the requirement to build a residential home, but it is ambiguous as to the timing of the construction of that home in relation to the construction of any appurtenances to it.
¶ 26. THE JUDGMENT OF THE CHANCERY COURT OF MADISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
KING, C.J., LEE AND MYERS, P.JJ., ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. IRVING, GRIFFIS AND BARNES, JJ., NOT PARTICIPATING.
NOTES
[1] Mary Anne Narron is not a resident of Kristen Hills, but she was a general partner of Cherry Hill Plantation, Limited Partnership, which is the developer of Kristen Hills, and she joined the Homeowners' suit in that capacity. Both Narron and Richard Lingle are attorneys.
[2] Naomi Lingle was present at trial, but she did not testify. The record reflects that communications between the parties were primarily between Richard and Narron individually or between Richard and various resident homeowners.
[3] After the first two chancellors assigned to the case entered Orders of Recusal, the Mississippi Supreme Court appointed the Honorable Thomas Zebert as a Special Judge to preside over the case.
[4] Although the record does not explicitly explain what the parties meant by "house pad," it appears that it is part of the initial preparation for a home's foundation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595685/ | 12 F. Supp. 1002 (1935)
In re PREBLE CORPORATION.
District Court, D. Maine, S. D.
December 17, 1935.
*1003 John D. Clifford, Jr., of Portland, Me., Peter Isaacson, of Lewiston, Me., Joseph B. Jacobs, of Boston, Mass., and R. O. Brewster, of Portland, Me., for debtor corporation.
W. B. Nulty, of Portland, Me., and Carroll Perkins, of Waterville, Me., for Bondholders' Committee, Creditors.
PETERS, District Judge.
In this proceeding by a debtor corporation to effect a reorganization under 77B of the Bankruptcy Act, as amended, 11 U. S.C.A. § 207, it appears that the property involved is a parcel of land near the business center of Portland improved by the erection of office and other buildings for business purposes thereon.
This real estate is covered by three mortgages securing bonds and notes. According to the petition, these consist of a first mortgage securing $1,205,500 of bonds now outstanding, a second mortgage securing $46,000 of notes, and a third, or so-called general mortgage, for $354,000 in form of bonds. Other debts, taxes, and overdue interest bring the total indebtedness to approximately $1,900,000.
The only assets, other than this improved real estate, were stated in the petition to be $7,000 in cash and some receivables and accrued items amounting to less than $50,000. It appears that the corporation also has a claim being litigated against a closed bank amounting to some $600,000, but which, if found due in full, will yield less than one-half that sum on account of the fact that the bank would pay less than 50 per cent. of its obligations if this claim should be allowed.
Insolvency of the corporation is admitted. I find that the value of the real estate covered by the mortgages is substantially less than the amount of the outstanding first mortgage bonds.
Plans for reorganization have been submitted both by the debtor and by a committee representing the first mortgage bondholders, and amendments have been proposed; but the result has been nil, as each party rejects the plan of the other.
The last amendment proposed by the debtor involves a radical departure from the theory of previous plans, in that it eliminates the necessity of consent by any of the first mortgage bondholders, on the stated ground that the value of their interest as a class is to be paid in full.
Motions filed by the debtor allege the impossibility of obtaining from the first mortgage bondholders the necessary consent to the debtor's plan, and propose to amend it "by striking out all of the provisions of said plan relating to first mortgage bondholders and inserting in lieu thereof, in accordance with section 77B of the Bankruptcy Act, as amended (b) (5) (c), (e) (1) (c), 11 U.S.C.A. § 207 (b) (5) (c), (e) (1) (c), provisions for the appraisal of the value of the security held by said first mortgage bondholders, and upon such determination by the Court and the deposit of such securities as the Court may order and a discharge of the first mortgage, for the payment to said first mortgage bondholders of the value of their securities."
The proposed amended plan contains the provision that "The value of the securities held by said bondholders shall be appraised and the value determined by the Court. Upon the final determination of the value of the securities of such creditors, classified as Class One, the debtor will, within such time as may be fixed by the Court, deposit with the Trustees a sum equal to the value of the interest of the class of such creditors, classified as Class One, as determined by the Court. Upon making such required deposit with the said Trustees, the Trustees will deliver to said debtor a discharge of said first mortgage which now secures said first mortgage bonds."
The final motion of the debtor recites that its proposed amended plan has been accepted by creditors holding two-thirds in amount of the claims of each class affected by the plan, "other than those for whom adequate protection for the realization by them of the value of their interest have *1004 been made, and similar acceptances filed by or on behalf of stockholders of the debtor holding a majority of the stock of each class," and moves "that an order be entered confirming said plan and that the value of the interests of the First Mortgage Bondholders, classified as Class One, be appraised by this Court that the debtor corporation may pay to them, under orders of Court, the value of their interests."
The language used is rather vague, but it is plain that the debtor asks and its proposed plan calls for an appraisal of the value of the property mortgaged to secure the first mortgage bonds, and, upon payment of that amount, an order of court directing the discharge of the mortgage.
I find that the proposed plan of the debtor, as amended, was seasonably assented to by the necessary percentages of all classes in interest, except the first class, or first mortgage bondholders.
The matter came on for hearing on the motion of the debtor that its plan, with the proposed amendment, be confirmed and that an appraisal be ordered with a view of having the mortgage discharged upon payment of the appraised value.
At the same time I heard the motion of the bondholders' committee, that, upon a finding of insolvency, an order be entered either to liquidate the estate or dismiss the proceedings.
1. The plan of the debtor to obviate the necessity of consent by the first mortgage bondholders by having their security appraised and an order entered to discharge the mortgage, in my opinion is not authorized and cannot properly be approved.
The paragraph of section 77B relied upon by the debtor specifies that "(b) A plan of reorganization * * * (5) shall provide in respect of each class of creditors of which less than two thirds in amount shall accept such plan * * * adequate protection for the realization by them of the value of their interests, claims, or liens," either by handling the property subject to the liens, or by a sale free of liens at a fair upset price and the transfer of the liens to the proceeds, "or (c) by appraisal and payment either in cash of the value either of such interests, claims, or liens, or, at the objecting creditors' election, of the securities allotted to such interests, claims, or liens under the plan, if any shall be so allotted." (11 U.S.C.A. § 207 (b) (5) (c).
It is not clear that the language of the provisions relied upon was intended to be applicable to a situation where a whole class of mortgage bondholders, whose security is less in value than the debt, refuses to accept a plan. In any event, a right to arbitrarily appraise a whole class of creditors out of the picture is not expressly granted. If that had been the intention of Congress it could have been easily stated. The right of appraisal and payment must be considered in connection with the other language of the sub-section, and from this one gets the clear impression that a paramount thought throughout is that objecting creditors must receive an undoubted equivalent for their liens and be fully protected in their rights.
Judge L. Hand, for the Circuit Court of Appeals in the Second Circuit, in the Murel Case (In re Murel), 75 F.(2d) 941, 942, in considering part of this subsection in connection with the words "adequate protection", says:
"It merely gives power generally to the judge `equitably and fairly' to `provide such protection,' that is, `adequate protection,' when the other methods are not chosen. * * * It is plain that `adequate protection' must be completely compensatory. * * * A creditor * * * wishes to get his money or at least the property. We see no reason to suppose that the statute was intended to deprive him of that in the interest of junior holders, unless by a substitute of the most indubitable equivalence."
I cannot think that in the case of a mortgage on real estate worth less than the debt the mortgagee will be "adequately protected" in his rights by a plan which binds him to the result of an arbitrary appraisal and forces him to discharge his mortgage on receipt of a sum which one or more appraisers or a judge might think the property worth. Certainly he would not be sure of receiving the "indubitable equivalence" of his lien to which he is entitled.
2. A plan may not be confirmed if it is not fair and equitable, or if it discriminates in favor of one class of creditors or stockholders or is not feasible.
In such a case as this, to take the property from the mortgagee upon an appraisal is an attempt to use a supposed or possible value, over and above the appraisal, for the benefit of other creditors and stockholders. If there is any such surplus value, it belongs to the first mortgagee, up to the *1005 amount of his debt. If there is none, there is nothing to build on, and there would seem to be no object in having an appraisal, in the absence of a disclosure of a method of raising the money, unless junior interests are prepared to advance the money on a chance of increased value in the future, and there is no information before the court to that effect.
A plan cannot be called either fair or feasible which discloses no method or probability of being carried out unless, perchance, the appraisers make a mistake in valuation.
3. I also regard established constitutional limitations as decisive against the debtor's interpretation of the subsection of the statute in question.
Under their contract, the first mortgagees here are entitled either to their money or to the property. The obligation of this contract cannot be directly impaired by legislation, although its enforcement may be delayed and remedies affected. Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island & P. Ry. Co., 294 U.S. 648, at page 680, 55 S. Ct. 595, 79 L. Ed. 1110; Louisville Bank v. Radford, 295 U.S. 555, 55 S. Ct. 854, 858, 79 L. Ed. 1593, 97 A.L.R. 1106.
Mr. Justice Brandeis, in the case last mentioned, says:
"No instance has been found, except under the Frazier-Lemke Act [held unconstitutional] * * * of either a statute or decision compelling a mortgagee to relinquish the property to the mortgagor free of the lien unless the debt was paid in full. This right of the mortgagee to insist upon full payment before giving up his security has been deemed of the essence of a mortgage. His position in this respect was not changed when foreclosure by public sale superseded strict foreclosure or when the Legislatures of many states created a right of redemption at the sale price. To protect his right to full payment or the mortgaged property, the mortgagee was allowed to bid at the judicial sale on foreclosure." (Italics are mine.)
It is apparent that what the debtor asks the court to do here, and what it claims the statute authorizes the court to do, is equivalent to ordering a sale of the mortgaged property without giving the mortgagee a chance to bid and thus protect his right of full payment. For that reason the usual sale free of liens, when ordered, in no way impairs the substantive right of a mortgagee because he has an opportunity to bid; but even a sale free of liens will never be ordered if it appears that the amount of encumbrance exceeds the value of the property.
Again quoting from the opinion in the Radford Case:
"Bankruptcy acts had, either expressly, or by implication * * * authorized the court to direct, in the interest of other creditors, that all liens upon property forming a part of the bankrupt's estate be marshaled; that the property be sold free of encumbrances; and that the rights of all lienholders be transferred to the proceeds of the sale a power which had long been exercised by federal courts sitting in equity when ordering sales by receivers or on foreclosure.' * * * But there had been no suggestion that such a sale could be made to the prejudice of the lienor, in the interest of either the debtor or of other creditors. By the settled practice, a sale free of liens will not be ordered by the bankruptcy court if it appears that the amount of the encumbrance exceeds the value of the property. And the sale is always made so as to obtain for the property the highest possible price. No court appears ever to have authorized a sale at a price less than that which the lien creditor offered to pay for the property in cash. Thus, a sale free of liens in no way impairs any substantive right of the mortgagor; and such a sale is not analogous to the sale to the bankrupt provided for by paragraph 7 of the Frazier-Lemke Act, 11 U.S.C.A. § 203 (s) (7)."
The substantive right under the contract, which would be directly impaired by the interpretation asked for by the debtor, is the right to protect his security at a sale.
An attempt to take the property from the mortgagee upon an arbitrary appraisal with no provision whereby the mortgagee may protect himself by a bid, where the property is worth less than the debt, is certainly an unauthorized exercise of legislative power, according to the most recent pronouncements of the Supreme Court.
4. As I do not consider that I should approve the plan, the next question is the disposition of the motion of the Committee of Bondholders that the petition be dismissed or liquidation be ordered.
Insolvency is apparent and admitted. To dismiss the petition, in all probability, would *1006 result in bringing the case back to the court on a bankruptcy petition. Consequently, an order will be entered for the liquidation of the estate. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595716/ | 399 So. 2d 1067 (1981)
STATE of Florida, Petitioner,
v.
Thomas Wayne COX, Respondent.
No. 80-2118.
District Court of Appeal of Florida, Second District.
June 17, 1981.
Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for petitioner.
Jerry Hill, Public Defender, and W.C. McLain, Asst. Public Defender, Bartow, for respondent.
HOBSON, Acting Chief Judge.
The State petitions for a writ of certiorari to quash a judgment and sentence. The State contends that the trial court erred in accepting respondent/defendant's plea to a lesser included offense over the objection of the state attorney. We agree and reverse.
Respondent Cox was charged with robbery. Before the trial judge he changed his previously entered not guilty plea to a plea of guilty to strong-arm robbery with the condition of receiving not more than three years imprisonment. This plea was accepted and adjudication was withheld pending a PSI report.
Subsequently, respondent appeared again before the court and requested a withdrawal of his guilty plea, which was granted. Respondent then asked to enter a plea of guilty to petit theft. The state attorney duly voiced her objections to a plea to the lesser offense. The court, however, concluded that it could not in good conscience sentence Cox on the robbery charge, as his *1068 codefendant had been convicted of petit theft by a jury. The court then allowed Cox to plead guilty to the offense of petit theft.
We believe that Florida Rule of Criminal Procedure 3.170(g) is a recognition of the prosecutor's role when a defendant pleads guilty to any lesser offense than that charged in the information. Rule 3.170(g) reads as such:
(g) Plea of Guilty to Lesser Included Offense or Lesser Degree. The defendant, with the consent of the court and of the prosecuting attorney, may plead guilty to any lesser offense than that charged which is included in the offense charged in the indictment or information or to any lesser degree of the offense charged. (emphasis ours)
In the instant case the prosecuting attorney specifically objected to the defendant pleading guilty to any lesser offense.
Although we have been unable to find any Florida cases dealing with this issue, in United States v. Gray, 438 F.2d 1160 (9th Cir.1971), the court held that under the Federal Rules of Criminal Procedure, from which the Florida rules are derived, the district court had no authority without the consent of the government to accept pleas of guilty to lesser offenses.
Therefore, we hold that the trial judge had no authority over the objection of the state attorney to accept from respondent a plea of guilty to the lesser offense. In doing so, we note the opinion of our sister court in State v. Laury, 397 So. 2d 960 (Fla. 5th DCA 1981), which disapproves of a trial court accepting a plea by a defendant to second degree murder but later, over the state's objection, adjudicating the defendant guilty of manslaughter. We disagree however with the holding in Laury that the adjudication of guilt on the lesser manslaughter charge, even though erroneous, disposed of the charges of the higher degree of the offense so as to invalidate on a double jeopardy theory any further proceedings on the higher degree of the offense as originally pled to by the defendant. Since the trial court acted improperly and exceeded its jurisdiction and authority, jeopardy does not attach. Vinson v. State, 345 So. 2d 711 (Fla. 1977).
The judgment and sentence of the trial judge is quashed and the petition for writ of certiorari is granted.
GRIMES and CAMPBELL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595702/ | 399 So. 2d 701 (1981)
William L. COWELL
v.
DAIRYLAND INSURANCE COMPANY.
No. 14164.
Court of Appeal of Louisiana, First Circuit.
May 26, 1981.
*702 Curtis M. Baham, Jr., Hammond, for plaintiff.
Dennis J. Phayer, New Orleans, for defendant Dairyland Ins. Co.
Autley B. Newton, Hammond, for defendants Leon G. Dunkin and Lawuna Dunkin.
Before COVINGTON, CHIASSON and LEAR, JJ.
CHIASSON, Judge.
This matter is on suspensive appeal to us from the confirmation of a default judgment taken by plaintiff, William L. Cowell, against the defendant, Dairyland Insurance Company.
It arose from a suit for damages against Dairyland, the uninsured motorist carrier of the plaintiff; against the driver-tortfeasor, Leon G. Dunkin; against Lawuna Dunkin, the owner of the vehicle Dunkin was driving at the time; and against the owner's liability insurer, named as ABC Insurance Company. The basis of the damage suit was that the negligent operation of the Dunkin vehicle by the driver caused personal injuries to Mr. Cowell. The suit also demanded penalties and attorney's fees against the uninsured motorist carrier. The record shows that Dairyland Insurance Company was served through the Secretary of State on June 9, 1980. The owner and driver were served on that same date. The minutes of the court show that a preliminary default was entered on June 25, 1980.[1] On July 9, 1980, the plaintiff confirmed the default. The record does not reflect that Dairyland filed an answer prior to judgment.[2] An answer was filed by the individual defendants on August 13, 1980.
The record reflects that the evidence offered on the confirmation was the testimony of the plaintiff, William L. Cowell; of a passenger in the Cowell car, Guy Palermo; and of Mrs. Frances Cowell, the plaintiff's wife. Cowell testified to the negligence of the driver of the Dunkin vehicle[3] in running a stop sign at an intersection in the downtown area of Hammond, Louisiana. In connection with the plaintiff's testimony, a copy of the police report and photographs of the plaintiff's car involved in the accident were offered. The plaintiff also testified to his injuries, medical treatment by Dr. Gideon (filing in evidence the bill of Dr. Charles H. Gideon, D. C. for the treatment), and his loss of wages. The plaintiff also offered his insurance policy declaration with Dairyland,[4] and responded affirmatively to questions from his attorney that the uninsured motorist coverage was $5,000 per accident and that the medical pay was $500. Mr. Palermo testified to being in the Cowell car at the time of the accident and that the accident occurred when the other vehicle ran a stop sign. Mrs. Cowell testified only to the back injury of her husband and a reference to his not being able to do any work.
After the testimony, counsel for plaintiff offered a letter from him dated December 27, 1979, addressed to Dairyland; a letter to Sentry Claim Service (at the same address as Dairyland) dated February 27, 1980 (enclosing medical report and bill for medical services); a letter to Sentry from plaintiff's counsel dated March 10, 1980 (enclosing verification of loss of wages); and a handwritten *703 memo from one Wayne Minor of Dairyland, dated April 14, 1980, requesting a loss verification on their particular form. The plaintiff also offered his attorney's response dated April 17, 1980 and a handwritten letter from Wayne Minor on a Dairyland memo form dated March 4, 1980. (Minor is not otherwise identified.) The plaintiff also offered the petition, with special reference to the claim for penalties and attorney's fees; the sheriff's return showing service; and the entry of the preliminary default.
Based on the foregoing evidence the trial court rendered judgment in favor of the plaintiff and against Dairyland in the amount of $5,000, legal interest, 12% penalties, $2,000 attorney's fees and costs. The defendant has appealed this judgment. We reverse and remand.
In order to confirm a judgment by default, the plaintiff must prove the essential elements of the claim by competent evidence with legal certainty, as fully as though each allegation was specifically denied by the defendant. Holland v. Aetna Life & Casualty Insurance Co., 385 So. 2d 316 (La.App. 1 Cir. 1980); Bonfouca Investment Corporation v. Eubanks, 347 So. 2d 1277 (La.App. 1 Cir. 1977); see also LSA-C.C.P. art. 1702.
We find the proof herein to be deficient. Competent evidence of plaintiff's claim under an insurance policy is the insurance contract itself. However, the policy was not introduced into evidence. Only a part of the policy, called Policy Declarations, was offered. This does not satisfy this evidentiary requisite. See Holland v. Aetna Life & Casualty Insurance Co., supra. Moreover, the plaintiff offered no proof that the owner and/or driver of the offending vehicle were uninsured, and there is no affidavit in the record which would establish a prima facie case strictly under the provisions of LSA-R.S. 22:1406 D(6), which affidavit would remove the burden of proof from the plaintiff and place that burden on the defendant insurer. Loupe v. Tillman, 367 So. 2d 1289 (La.App. 4 Cir. 1979). We find no competent evidence in the record to prove that the defendant-driver-owner is an uninsured or underinsured motorist. See Beck v. Allstate Insurance Company, 359 So. 2d 1327 (La.App. 4 Cir. 1978), writ denied, 362 So. 2d 791 (La.1978).
For the foregoing reasons, the judgment of the trial court is reversed, the judgment vacated and the case is remanded to the trial court for further proceedings. Appellee is to bear the costs of this appeal.
REVERSED AND REMANDED.
NOTES
[1] The minutes do not reflect against what defendants the preliminary default was taken; although the attorney representing the plaintiff, in his prefatory remarks at the trial on July 9, 1980, said that the default was "being taken against Dairyland Insurance Company only."
[2] Dairyland Insurance Company filed an answer, third party demand and request for trial by jury on August 15, 1980 (more than a month after the confirmation judgment.)
[3] Cowell and his attorney refer to driver as Lawana [Lawuna] Dunkin (although petition and accident report state that Leon Dunkin was the driver.)
[4] The policy or a copy thereof was not introduced in evidence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595719/ | 399 So. 2d 1346 (1981)
Cary M. COWAN and Donald L. Fader
v.
STATE of Mississippi.
No. 52524.
Supreme Court of Mississippi.
May 27, 1981.
Rehearing Denied July 8, 1981.
*1347 Donald J. Steighner, Colom & Mitchell, Columbus, for appellants.
Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before ROBERTSON, P.J., and SUGG and HAWKINS, JJ.
ROBERTSON, Presiding Justice, for the Court:
Paul Carey, Cary Cowan and Don Fader were jointly indicted in the Circuit Court of Lowndes County for manslaughter in the killing of Partee DePriest, "a human being, by culpable negligence, without authority of law by the negligent operation of an automobile." After a full trial, the jury returned verdicts of guilty as charged against Cary Cowan and Don Fader and a verdict of "not guilty" for Paul Carey. Cowan and Fader were each sentenced to 8 years confinement with the Mississippi Department of Corrections.
On September 29, 1979, around 6:15 p.m., Don DePriest, his wife, Pattie, and their 11-year-old son, Partee, were traveling in a westerly direction on Bluecutt Road. DePriest was driving, his wife Pattie was sitting on the front seat on the passenger side, and Partee was on the back seat. DePriest stopped at the intersection of Bluecutt Road and Highway 45. He waited about three minutes for traffic to clear, looked right and left and, seeing no traffic, proceeded into the intersection and began to make a left turn on Highway 45. DePriest noticed out of the corner of his eye "a wall of cars" coming north on highway 45 "at an exceptionally high rate of speed." His Honda automobile was first struck by the car driven by Cowan around the windshield post on the left side. The car driven by Fader apparently hit the DePriest car a glancing blow as Fader attempted to go around the DePriest car on the left. The right front and rear fenders of Fader's car were damaged. Fader kept going and never stopped. Carey, who apparently was racing the other two earlier but whose car did not hit the DePriest car, stopped and called an ambulance and the sheriff. When Fader was arrested the next day, his car had been repainted a different color.
Partee DePriest was badly injured; he had a massive skull fracture. He was transported by ambulance to the intensive care unit at Golden Triangle Medical Center where he remained for three days. During this period Dr. Wilson operated, removing a bone and elevating a depression on the left side of Partee's skull. Partee's brain stem began to swell and this affected his respiration. He went into respiratory arrest and had to be placed on a respirator. On October 3, Partee was transported to Ochsner Foundation Hospital in New Orleans. He never regained consciousness. Dr. Richard A. Coulon, Jr., a pediatric neurosurgeon, who treated Partee, on October 22, 1979, advised the family that Partee's "brain had ceased to function as an organ and it was our opinion that it had ceased to function and this was irreversible." Dr. Coulon advised the family that Partee was legally dead and that he would recommend taking him off of the respirator. The family agreed. Partee's heart stopped within 20 minutes after the respirator was removed. Dr. Coulon testified that if Partee had been kept on the respirator his heart probably would have kept pumping for between "fifteen to thirty days at the most, perhaps even less than that."
Appellants have assigned as error:
*1348 I. It was error for the trial court to permit a conviction of manslaughter where the attending physician in Louisiana disregards the Louisiana statute defining death and removes the ventilation from the injured patient causing the child's spontaneously functioning heart to cease beating which results in his death.
II. It is error in Mississippi for a trial court to permit an undefined medically disputed term "brain death" to be equated with death of a person with no Mississippi statute of facts of the case on which to base the determination as to what criteria are to be used in equating brain death or death of the person if any, and who and under what circumstances such a determination can or cannot be made.
III. The trial court erred in excluding the testimony of witness Hubert Chandler as to the timing of vehicles traveling through the intersection of the fatal collision.
IV. The trial court erred in granting the instructions of the state, over the objections of the defendants, which defined culpable negligence without any statement that the wilful and wanton conduct must have been the proximate cause of the collision resulting in the death of the deceased.
V. The trial court erred in overruling appellants' demurrer to the indictment on the ground that an indictment which does not contain such a description of the offense, as to notify the accused of the nature and cause of the accusation against him, is fatally defective. An indictment which charges a defendant with unlawfully, wilfully and feloniously killing a human being by culpable operation of an automobile is ambiguous, vague and uncertain and is, therefore, fatally defective for failure to inform the defendant of the nature and cause of the accusation against him.
VI. An indictment which charges an offense in the words of a statute which generally defines an offense, is insufficient where it alleges the offense in the language of the statute, but does not state the specific acts on which the charge is based, and is not sufficiently definite to be of any value as a bar to further prosecution.
I. and II.
Dr. Coulon's testimony was undisputed and uncontradicted that he followed Louisiana law in declaring Partee DePriest dead before the respirator was removed. He also testified that Ochsner Foundation Hospital used a combination of all three medically approved methods of determining whether a person is legally dead. Louisiana law provides in part:
"In the event that artificial means of support preclude a determination that these functions have ceased, a person will be considered dead if in the announced opinion of a physician, duly licensed in the state of Louisiana based upon ordinary standards of approved medical practice, the person has experienced an irreversible total cessation of brain function."
Mississippi did not have such a statute when appellants were tried on May 21 and 22, 1980, but on March 24, 1981, the following act became law:
AN ACT TO ADOPT THE UNIFORM DETERMINATION OF DEATH ACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act may be cited as the Uniform Determination of Death Act.
SECTION 2. An individual who has sustained either (a) irreversible cessation of circulatory and respiratory functions or (b) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards.
SECTION 3. This act shall take effect and be in force from and after its passage.
In Thompson v. State, 220 Miss. 200, 70 So. 2d 341 (1954), which involved a conflict of medical opinion as to whether the decedent's death was caused by a stab wound and subsequent hemorrhage therefrom or other causes, this Court held that it was within the province of the jury to determine the cause of death. The evidence was *1349 positive and undisputed that the cause of Partee's death was the massive head injury sustained in the automobile accident. The jury was amply justified from the evidence in finding that Partee's death was proximately caused by the culpable negligence of Cowan and Fader in racing through an intersection at speeds variously estimated by eyewitnesses from 70 to 100 miles per hour.
This Court said, in Schroer v. State, 250 Miss. 84, 160 So. 2d 681 (1964):
"The unlawful act or omission of accused need not be the sole cause of death. The test of responsibility is whether the act of accused contributed to the death, and, if it did, he is not relieved of responsibility by the fact that other causes also contributed. Moreover, responsibility also attaches where the injury materially accelerates the death, although the death is proximately occasioned by a preexisting cause." 250 Miss. at 91, 160 So.2d at 684.
In State v. Johnson, 60 Ohio App. 2d 45, 395 N.E.2d 368 (1977), a somewhat similar case, the Ohio Appeals Court said in pertinent part:
"As elaborated hereafter, the evidence was overwhelming that the blows Baum received from appellant were the cause of his death. What Dr. Walus did was to cease administering extraordinary measures to preserve life. His act could not conceivably be deemed the sole proximate cause of Baum's death. It would have to have been such for the court to find it an independent intervening cause as a matter of law.
... .
"Both witnesses who testified as medical experts for the state agreed on the cause of death. Dr. Walus stated that Baum died from `massive head trauma.' Dr. Robert Ritterhoff, the deputy coroner of Hamilton County and the individual who performed the autopsy on Baum, testified that the cause of death was `skull fracture * * * caused by external force.' At the time of the autopsy, which was conducted less than three hours after Baum's death, Dr. Ritterhoff `* * * saw a dead brain that had been dead for some days.' His conclusion, brought out on cross-examination, was that the discontinuance of supplemental oxygen to Baum was not a cause of death. Dr. Ritterhoff's unequivocal and uncontradicted testimony was sufficient to establish the necessary causal connection between appellant's criminal act and Baum's death... .
"... One who has inflicted an injury upon another is criminally responsible for his death, despite the fact that different or more skillful medical treatment might have saved his life, or that death was immediately caused by a surgical operation rendered necessary by the condition of the injury. .. .
"The weight and sufficiency of expert and opinion testimony is a matter for the jury. In homicide cases involving the effect of expert medical testimony as to the cause of death, the general principle is that the injury need not be proved to be the direct or sole cause of death, as long as it started a chain of causation which resulted in or substantially contributed to the death.
"To sum up, we conclude that no act of Dr. Walus either in operating or in stopping the supplemental oxygen supply was, as a matter of law, an independent intervening cause so as to require the granting of appellant's motion to acquit. We further conclude that there was ample evidence of probative value to support the jury's conclusion that the acts of appellant were the proximate cause of Baum's death. .. ."
60 Ohio App. 2d 45, 395 N.E.2d at 373-74.
The evidence establishing causal connection between appellants' acts of culpable negligence and Partee DePriest's death was overwhelming, and the jury was justified in so finding.
There is no merit in the first and second assignments of error.
III.
Although the appellants failed to cite a single authority in support of their *1350 third assignment of error, that the trial court erred in excluding the testimony of Hubert Chandler as to the timing of the vehicles traveling through the intersection at the time of the fatal collision, and although under Ramseur v. State, 368 So. 2d 842 (Miss. 1979), this Court is under no duty to consider this assignment of error, we have, nevertheless, given it some thought.
Chandler was not an eyewitness. He was later employed by the appellants to investigate the accident. He was allowed to testify as to distances and a diagram and chart prepared by him was admitted into evidence. He was not allowed to give his opinion or conclusion as to how long it would take to make a left turn from a dead stop and thus clear the intersection.
In Gandy v. State, 355 So. 2d 1096 (Miss. 1978), this Court held that an investigator may only testify to the position of the vehicles, marks on the highway, position of debris, glass and dirt where he saw them. It is for the jury to determine from the physical facts the point of impact and how the collision occurred. The officer is prohibited from expressing his opinion as to the position of the vehicle at the time of the collision, nor is he permitted to express an opinion as to the point of impact. See also Gandy v. State, 373 So. 2d 1042 (Miss. 1979). Lynch v. Suthoff, 220 So. 2d 593 (Miss. 1969), a civil case, involved testimony by a police officer as to the point of impact and the drawing and outlining on a map of the automobile showing its assumed direction. This Court found this testimony to be inadmissible. In Jones v. Welford, 215 So. 2d 240 (Miss. 1968), this Court stated:
"Considering these points chronologically, we discuss first the assignment with reference to the officer's testimony as to `point of impact.' The investigating officer cannot, of course, assume the duty of the jury and decide the issue as to how an accident occurred; nor can he give his opinion as to where a collision took place, based upon his observation as to the accident, nor give his opinion from what others told him. Standard Oil Co. v. Crane, 199 Miss. 69, 23 So. 2d 297 (1945); Schumpert v. Watson, 241 Miss. 199, 129 So. 2d 627 (1961)."
215 So.2d at 242.
From the foregoing authorities, it is clear that Chandler could not express an opinion as to the point of impact or how the accident occurred. Such testimony would have invaded the province of the jury and usurped its function.
The trial court was correct in excluding the opinion testimony of Hubert Chandler as to how the accident could not have happened based on his analysis of other witnesses' testimony.
IV.
Although appellants shoot with a scatterbarrel gun under this assignment of error and do not draw a bead on any particular instruction, the gist of their argument seems to be that nowhere in the instructions was there a statement that the culpable negligence of the appellants, if any, must be the proximate cause of the fatal collision.
If this be the appellants' criticism of the instructions, the answer is that instructions S-1 (as to Fader), and S-3 (as to Cowan), and appellants' own instructions (D-10 as to Cowan) and (D-29 as to Fader), inform the jury in very clear and positive terms that the evidence must show beyond a reasonable doubt that the fatal collision was the direct result of the culpable negligence of the defendants before a verdict of guilty could be returned against them, and that their culpable negligence must have been the proximate cause of the death of Partee DePriest.
This Court has repeatedly held that instructions must be read and considered as a whole and that when the jury is properly instructed considering all the instructions there is no error. Hutchinson v. State, 391 So. 2d 637 (Miss. 1980).
The instructions, when read together, correctly stated the applicable law and this assignment of error is without merit.
V. and VI.
The joint indictment charged that Paul Carey, Cary Cowan and Don Fader
*1351 "did unlawfully, wilfully & feloniously, kill and slay one WILLIAM HUNTER PARTEE DePRIEST, a human being, by culpable negligence, without authority of law by the negligent operation of an automobile, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi, in violation of Section 97-3-29, Mississippi Code, 1972, As Amended."
The appellants were arraigned on November 26, 1979, whereupon they entered their pleas of "not guilty". On December 4, 1979, appellants demurred to the indictment. On the same date, the state moved to amend the indictment by substituting § 97-3-47 for § 97-3-29. The state's motion was granted and on December 14, 1979, the appellants' demurrer to the indictment was overruled.
In Dendy v. State, 224 Miss. 208, 79 So. 2d 827 (1955), there was a similar indictment for manslaughter by culpable negligence. In Dendy, this Court said:
"[W]e think that the reference to the code section in the indictment was surplusage and unnecessary to the charge of the crime for which appellant was tried. .. . Here the offense was `certainly and substantially described.' Code, § 2454 [§ 99-7-37 MCA (1972)] provides, `it shall be sufficient, in an indictment for manslaughter, to charge that the defendant did feloniously kill and slay the deceased, concluding in all cases as required by the Constitution.' Manifestly there was a clerical mistake in the citation appearing in the indictment prior to its amendment. These statutes were intended to apply to a situation of this type. Appellant had ample and sufficient notice of the offense with which he was charged... ." 224 Miss. at 213, 79 So.2d at 829.
Other late cases in which we have declared the citation of a statute in an indictment as surplusage are Moore v. State, 264 So. 2d 414 (Miss. 1972); Alston v. State, 258 So. 2d 436 (Miss. 1972); and Westmoreland v. State, 246 So. 2d 487 (Miss. 1971).
There is no merit in assignments of error V. and VI.
For the reasons stated, the conviction and sentence of Cary Cowan and the conviction and sentence of Don Fader are affirmed.
AFFIRMED.
PATTERSON, C.J., SMITH, P.J., and SUGG, WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2859749/ | BENSON
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00061-CV
Texas Department of Human Services, Texas Department of Protective
and Regulatory Services, Janice Caldwell, Burton Raiford,
Glenn Williams, and Janie Medina, Appellants
v.
Ned Benson, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. 92-04888, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING
This appeal asks us to determine whether the Texas Family Code assures confidentiality
to those who report suspected child abuse, notwithstanding the right of the accused to review all
records of the investigation. We must also decide whether the Texas Tort Claims Act waives a
state agency's immunity for damages when a complainant is injured because his identity is
disclosed in writing to the suspects under investigation. Finally we address the state's immunity
for attorney's fees under the Texas Declaratory Judgment Act.
BACKGROUND
In April 1990 Reverend Ned Benson contacted the Texas Department of Human Services (1)
(the "Department") to report allegations that two members of his congregation were physically
and emotionally abusing their five-year-old twin boys. (2) Benson made the report only after
requesting and receiving assurances that his identity would not be disclosed to the family. In
September 1990 the Department released to the accused information that identified Benson as the
complainant. After learning of Benson's role in reporting the allegations of abuse against them,
the parents filed a one million dollar libel suit against the church and Benson. Several weeks
later, Benson was asked to resign. The libel suit was later dismissed, but it took more than a year
to resolve the ecclesiastical charges.
In April 1992 Benson filed this lawsuit against the Department, seeking damages under the
Tort Claims Act and declaratory relief requiring the Department to guard the confidentiality of
persons who report child abuse. See Tex. Civ. Prac. & Rem. Code Ann. §§ 37.004, 101.021
(West 1986). Benson alleged that the Department's negligence caused his termination and
damaged his reputation; he claimed additional damages for medical expenses to combat depression
and for legal expenses to him and the church. Although the Department notes that many
complaints against Benson contributed to his termination--lack of pastoral care, financial
misfeasance, and declining membership rolls--in August 1993 a jury found that the Department's
negligence was a proximate cause of injury to Benson and awarded damages of $611,000. The
trial court reduced this award to $250,000, the maximum recovery allowed under the Tort Claims
Act. See id. § 101.023. The trial court also rendered a declaratory judgment holding that the
Department violated confidentiality provisions of the Texas Family Code when it revealed
Benson's identity; it ordered the Department not to divulge such information in the future without
a court order.
The Department appeals, bringing twenty-four points of error. We will affirm the
declaratory judgment but reverse the damages award, compelled by recent supreme court authority
to hold that Benson has not stated a cause of action under the Tort Claims Act. Benson brings a
cross-point complaining of the trial court's failure to award attorney's fees for the declaratory
relief granted. Because the supreme court has ruled that the Declaratory Judgment Act waives
governmental immunity for attorney's fees, we will remand this issue for the trial court's
consideration.
TORT CLAIMS
To clarify our discussion of the issues, we begin by reviewing the details of Rev. Benson's
experience with the Department. Benson had received confidential communications from
members of his congregation that the father and stepmother were mistreating the children but were
accusing the mother of the abuse. (3) Unable to persuade these other individuals to report their
suspicions, Benson called the Department himself in April 1990. Before making his report,
Benson asked Elaine Jones, a Department caseworker, if his call would be confidential: "Now
I mean specifically, you're telling me that there is no way that the people that I call in to talk
about or anyone in their family will ever find out that I called or anything that I say in the course
of this phone call." Jones assured him that his call was confidential and then entered notes of their
hour-long conversation in the Department's file.
The suspects of the investigation requested a copy of the Department's file. In September
1990, just minutes before the stepmother was to pick up the file, Jones advised members of the
Department's legal office that she had promised confidentiality to Benson. Attorneys in that office
determined that they had no legal basis for withholding Benson's identity, so the file was released
without redacting his name.
Under the doctrine of governmental immunity, the state and its agencies are not liable for
the negligence of employees unless the state consents to be sued through a constitutional or
statutory provision for liability. Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976).
To waive governmental immunity, the legislature must use clear and unambiguous language.
Duhart v. State, 610 S.W.2d 740, 742 (Tex. 1980). In 1969 the legislature enacted the Texas
Tort Claims Act to waive governmental immunity in limited circumstances. See Tex. Civ. Prac.
& Rem. Code Ann. Ch. 101 (West 1986 & Supp. 1995). Section 101.021 of the Act provides that
the state may be sued and held liable for:
(1) property damage, personal injury, and death proximately caused by the
wrongful act or omission or the negligence of an employee acting within the
scope of his employment if:
(A) the property damage, personal injury, or death arise from the operation
or use of motor-driven equipment; and
(B) the employee would be personally liable to the claimant according
to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible
personal property if the governmental unit would, were it a private person,
be liable to the claimant according to Texas law.
Id. § 101.021 (emphasis added). The jury was instructed that it could find the Department
negligent only if it found that the negligence involved the condition or use of tangible personal
property. On appeal, the Department argues that it is immune from liability because the alleged
negligent acts did not involve the use of tangible personal property. Benson counters that the
written report is tangible personal property and that it was the unedited "condition" of this written
report that caused him harm.
Much judicial ink has been penned in attempts to discern when the negligence of a
governmental unit sufficiently involves tangible personal property to waive governmental
immunity. See, e.g., Texas Dep't of Mental Health and Mental Retardation v. Petty, 848 S.W.2d
680 (Tex. 1992); Robinson v. Central Tex. MHMR Center, 780 S.W.2d 169 (Tex. 1989); Salcedo
v. El Paso Hosp. Dist., 659 S.W.2d 30 (Tex. 1983); Eakle v. Texas Dep't of Human Servs., 815
S.W.2d 869 (Tex. App.--Austin 1991, writ denied); Wilkins v. State, 716 S.W.2d 96 (Tex.
App.--Waco 1986, writ ref' n.r.e.); Christilles v. Southwest Tex. State Univ., 639 S.W.2d 38 (Tex.
App.--Austin 1982, writ ref'd n.r.e.). We need not sort through that historical line of cases
because a recent pronouncement of the supreme court governs Benson's cause of action. In
University of Texas Medical Branch at Galveston v. York, 871 S.W.2d 175, 179 (Tex. 1994), the
court held that while paper can be touched, information recorded on paper is not tangible personal
property. In that medical malpractice cause of action, the court ruled that failure to record
information and failure to rely on information recorded in a medical file does not constitute a use
of tangible personal property that waives governmental immunity:
While the paper on which doctors and nurses may record information about a
patient's condition is tangible in that paper can be seen and touched, information
itself is an abstract concept, lacking corporeal, physical or palpable qualities.
Information thus, is intangible; the fact that information is recorded in writing does
not render the information tangible property.
Id. at 178-79 (emphasis added). Benson urges us to limit York to its medical malpractice context.
He insists that he was harmed by the unedited "condition" of the notes, which were released
without redacting his name. Any attempt to distinguish Benson's case from York on this basis
ignores a key similarity: The information contained in the notes harmed Benson, not a physical
condition of the written report itself. As the dissent in York observes and protests, "[I]t is not
the tangible physical file that counts, but the mental informational content, which [the court]
concludes is not 'tangible.'" Id. at 180.
Rev. Benson has been poorly treated by Department employees who negligently promised
confidentiality and then ignored those promises in disclosing his identity to suspects under
investigation. The jury decided that he should be compensated for injuries caused by the
Department's negligence. The state, however, is liable only if its governmental immunity has
been waived. York holds that "the Legislature has not, by clear and unambiguous language,
eliminated governmental immunity for injuries resulting from the misuse of information, even if
that information is recorded in writing." Id. at 179. However unfairly Benson was treated, his
cause of action in tort involves the misuse of information recorded in writing, and we reluctantly
hold that it is precluded by York. We sustain the Department's points of error regarding the Tort
Claims Act.
DECLARATORY JUDGMENT
In response to Rev. Benson's request for declaratory relief, the trial court found that the
Department violated the confidentiality provisions of the Family Code when it divulged Benson's
name to the family suspected of abuse. The court declared that neither the Open Records Act nor
any other section of the Family Code authorizes or requires the Department to identify an
individual who on his own initiative makes a report of child abuse under chapter 34:
The Court further DECLARES that § 34.08 of the Texas Family Code requires
that any person who on his own initiative makes a report made compulsory by
chapter 34 of the Texas Family Code to TDHS, or its successor agency TDPRS,
is entitled to have his report, name and/or identifying characteristics withheld from
disclosure to the parents, the child, their authorized representative, and/or the
general public, except as otherwise ordered by a court of competent jurisdiction.
Any rule or internal policy of TDHS and/or TDPRS requiring contrary action is
declared invalid.
The trial court declined to award attorney's fees, based on the asserted defense of governmental
immunity. See Texas Dep't of Human Servs. v. Methodist Retirement Servs., 763 S.W.2d 613,
614-15 (Tex. App.--Austin 1989, no writ).
On appeal, the Department asserts that the trial court erred in granting this declaratory
relief because the Department did not violate section 34.08 of the Family Code. (4) Benson brings
a cross-point complaining of the trial court's refusal to award attorney's fees.
We begin by setting forth sections 34.08 and 34.051 of the Family Code in order to read
the two sections together:
34.08 Confidentiality
(a) Except as provided in Subsections (b) and (c) of this section, the reports,
records, and working papers used or developed in an investigation made under this
chapter are confidential and may be disclosed only for purposes consistent with the
purposes of this code under regulations adopted by the investigating agency.
34.051 Information Relating to Investigation Procedure
As soon as possible after initiating an investigation under this subchapter of a
parent or other person having legal custody of a child, the Texas Department of
Human Services shall provide to the person a brief and easily understood summary
of:
(1) the department's procedures for conducting an investigation of alleged
child abuse or neglect, including:
(A) a description of the circumstances under which the department
would seek to remove the child from the home through the judicial
system; and
(B) an explanation that the law requires the department to refer all
reports of alleged child abuse or neglect to a law enforcement
agency for a separate determination of whether a criminal
violation occurred;
(2) the person's right to file a complaint with the department or to
request a review of the findings made by the department in the
investigation;
(3) the person's right to review all records of the investigation unless
the review would jeopardize an ongoing criminal investigation;
(4) the person's right to seek legal counsel;
(5) references to the statutory and regulatory provisions governing
child abuse and neglect and how the person may obtain copies of
those provisions; and
(6) the process the person may use to acquire access to the child if the
child is removed from the home.
Tex. Fam. Code Ann. §§ 34.08, .051 (West Supp. 1995) (emphasis added).
Essentially the Department argues that it is unable to guarantee confidentiality to those
who report child abuse because it is compelled to allow persons suspected of abuse to review all
records of the investigation "unless the review would jeopardize an ongoing criminal
investigation." The Department believes that this mandate for disclosure trumps the
confidentiality afforded in section 34.08.
Specifically, the Department groups those who discuss allegations of abuse into two
categories: (1) complainants, who initially report abuse and are generally afforded confidentiality,
and (2) collateral sources, those individuals contacted by the Department to substantiate
allegations of abuse, whose information is generally not confidential. Additionally, the
Department has adopted an unwritten policy that only the first person who reports abuse can be
a complainant. In this instance, because Benson was not the first to report these allegations of
abuse, he was classified as a collateral source whose identity could not be kept confidential. It
is undisputed that Benson initiated the report and that the Department never advised him that his
report would not be kept confidential. The Department callously asserts that under its "one
complainant" policy, the caseworker's promise of confidentiality could be ignored because it was
not authorized.
The Department also relies on its even more enigmatic policy of never granting
confidentiality to "professionals" who report child abuse. (5) It is this policy that most disturbs the
chorus of professionals who raise their voices as amicus curiae in support of the declaratory relief
granted below. (6) They argue that denying confidentiality to professionals discourages the reporting
of abuse by those most likely to observe the mistreatment of children: teachers, counselors,
physicians and clergy. The Presbyterian Church raises the additional concern that exposing clergy
to retaliation for following their civil duties poses a profound threat to religious freedom.
The Department's interpretation of the Family Code's provisions governing confidentiality
and disclosure is entitled to deference unless it contradicts the plain meaning of the statute. See,
e.g., Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993). Here, the
Department's refusal to protect the confidentiality of professionals and collateral sources who are
not the first to report abuse contravenes the mandate of Family Code section 34.08 that reports
be held confidential and "be disclosed only for purposes consistent with the purpose of this code
under regulations adopted by the investigating agency." Tex. Fam. Code Ann. § 34.08(a)
(emphasis added). The two policies regarding professional and collateral complainants were never
adopted as regulations. Indeed, the policies even contradict other agency regulations: (1) 40
Texas Administrative Code § 700.103 provides that a child protective services client may review
all information in the client's case record except the identity of the complainant; and (2) 40 Texas
Administrative Code § 700.107 directs staff to protect the identity of persons who have made
reports of abuse by deleting their names, references to their relationship to the child and family,
and locating information about them before releasing Department reports to individuals named
in Family Code section 34.08. 40 Tex. Admin. Code §§ 700.103, .107 (1994). More generally,
40 Texas Administrative Code § 700.102 specifies that information about a child protective
services client is confidential and may not be released except as authorized by state or federal
regulation, court direction, attorney general's opinion, or the Texas Department of Protective and
Regulatory Services' rules concerning disclosure of information.
Furthermore, the Department's interpretation of its duty to disclose the identity of
professional and collateral complainants ignores the confidentiality statutorily guaranteed to those
who report child abuse and neglect. The Family Code directs the Department to promulgate and
distribute a confidential form to be used in reporting child abuse: "The form shall include a
statement that the child abuse reports are confidential and that information contained in the
reports, including the name of the person making the report, may be used only for the purposes
consistent with the investigation of child abuse." Tex. Fam. Code Ann. § 34.011 (West Supp.
1995). The duty to report child abuse is sweeping and makes no exceptions for clergy,
physicians, mental health professionals or teachers: "A person having cause to believe that a
child's physical or mental health or welfare has been or may be adversely affected by abuse or
neglect by any person shall report [the suspected abuse]." Id. § 34.01 (emphasis added). Failure
to report suspected abuse is a Class B misdemeanor. Id. § 34.07. Indeed, teachers, nurses,
doctors, day-care employees and other professionals who learn of suspected abuse must make a
report within forty-eight hours. Id. § 34.02(d). "Anonymous reports, while not encouraged, will
be received and acted on." Id. The Code affords immunity from civil or criminal liability to
those who report abuse in good faith. Id. § 34.03.
We hold that the trial court properly declared that confidentiality is central to the Family
Code provisions governing the reporting of child abuse. Those provisions reflect a legislative
determination that granting immunity and confidentiality to complainants will encourage the
reporting of child abuse. The trial court's declaratory relief promotes this legislative goal. The
Department must protect all individuals who report child abuse, without distinction between
professionals and nonprofessionals and without limitation to who calls first. Rev. Benson's
experience reveals how retaliation may devastate the life of a concerned citizen who fulfills his
statutory duty to report suspected child abuse, absent the protection of confidentiality. This
particular case also illustrates the serious infringement of religious liberty that may flow from
disclosing the identity of clergy who are required to report child abuse. (7) Furthermore, the trial
court's judgment effectively harmonizes the two sections of the Family Code by granting the
accused a right to review all records so long as the confidentiality of the complainant is preserved;
those who legitimately require information about a complainant may obtain it through a court
order. The legislative goal of encouraging the reporting of child abuse is better reflected in the
trial court's balancing of the rights of the accused and the rights of those required to report abuse
than in the Department's policy of disclosing the identity of all professional and collateral
complainants. We overrule the Department's points of error regarding the trial court's declaratory
relief.
ATTORNEY'S FEES
The trial court relied on this court's holding in Texas Department of Human Services v.
Methodist Retirement Services, 763 S.W.2d 613 (Tex. App--Austin 1989, no writ), to hold that
the Department was immune from liability for attorney's fees under the Declaratory Judgment
Act. See also Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (authorizing the award of reasonable
and necessary attorney's fees). In Texas Education Agency v. Leeper, 37 Tex. Sup. Ct. J. 968,
977 (June 15, 1994) (motion for rehearing pending), the supreme court overruled this decision:
"We conclude that by authorizing declaratory judgment actions to construe the legislative
enactments of governmental entities and authorizing awards of attorney fees, the DJA necessarily
waives governmental immunity for such awards." We therefore reverse this aspect of the
judgment and remand this portion of the cause for the trial court to reconsider the request for
attorney's fees in light of this new authority.
CONCLUSION
Relying on York, we conclude that the negligence found by the jury did not involve the
use or condition of tangible personal property sufficient to waive the Department's immunity for
Rev. Benson's tort claims. We therefore reverse the award of damages and render judgment that
Benson take nothing. Based on the recent authority of Leeper, we reverse the trial court's ruling
that the Department is immune from liability for attorney's fees and remand the issue of attorney's
fees under the Declaratory Judgment Act for the trial court's consideration. The remainder of the
judgment is affirmed.
Bea Ann Smith, Justice
Before Chief Justice Carroll, Justices Powers and B. A. Smith
Reversed and Rendered in Part; Reversed and Remanded in Part; and Affirmed in Part
Filed: February 8, 1995
Publish
1. Effective September 1, 1992, the duties of the Texas Department of Human Services
were transferred to a newly created agency, the Texas Department of Protective and
Regulatory Services. Tex. Rev. Civ. Stat. Ann. art. 4413(503) (West Supp. 1995). The new
agency was added as a party, and the declaratory relief granted runs against it by and through
its Commissioner in her official capacity.
2. The children's biological father and their stepmother were accused of child abuse. The
stepmother and her family were prominent members of Benson's congregation. The boys'
biological mother was not a member of the congregation and was not named in the allegations
of abuse.
3. There appeared reason for concern: the young boys suffered severe post-divorce
emotional trauma after their father's remarriage, and one was admitted to a psychiatric
hospital.
4. The Department also asserts for the first time in a post-submission letter brief that the
trial court did not have jurisdiction to render a declaratory judgment. The Department appears
to argue that Benson appended his request for declaratory judgment to his tort claim merely as
an "avenue to attorney's fees." See Weaver v. AIDS Servs. of Austin, 835 S.W.2d 798, 803
(Tex. App.--Austin 1992, writ denied). As in Weaver, we disagree with that characterization
in this case: Benson had an interest in and his petition sought prospective relief from the
Department's disclosure of his name in connection with this case or others with which he
would become involved. As we discuss in detail below, Benson's position as a clergyman
makes him likely to learn of child abuse, which he is obligated by law to report. "[W]hen a
question presented is one of public interest and of recurrent character, jurisdiction is not lost
because a threatened act has become an accomplished fact." Woodruff v. City of Laredo, 686
S.W.2d 692, 694 (Tex. App.--San Antonio 1985, writ ref'd n.r.e.).
5. Janie Medina, a legal assistant for the Department, testified that she did not know under
what authority the Department had decided to release the names of professionals who reported
abuse. She testified that as a "courtesy" the name of a professional might be deleted, but said
there were no guidelines governing when to disclose or protect a professional's identity.
Later, J.B. Reynolds, Associate Commissioner for Legal Services of the Department, told the
court that the Department developed this policy in response to various opinions and letter
advisories from the Attorney General construing the Open Records Act.
6. Amicus briefs were received from the Presbyterian Church (U.S.A.), Texas Organization
of Rural and Community Hospitals, Texas Classroom Teachers Association, Texas Counseling
Association, Association of Texas Professional Educators, Texas Medical Association and
Texas Osteopathic Medical Association.
7. Because Rev. Benson does not challenge the right of the state to compel his cooperation,
we do not address the right of the state to compel ministers or other professionals to report
child abuse discovered through confidential communications. The only privileged
communications recognized by the Family Code provisions governing child abuse are
confidential communications between attorney and client. Tex. Fam. Code Ann. § 34.04
(West 1986). | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1595777/ | 28 So. 3d 1026 (2010)
STATE of Louisiana
v.
Jarvis ANGELLE.
No. 2009-KD-2827.
Supreme Court of Louisiana.
March 12, 2010.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595767/ | 399 So. 2d 708 (1981)
Lee HILL
v.
Leroy SMITH.
No. 14175.
Court of Appeal of Louisiana, First Circuit.
May 26, 1981.
*709 Robert E. Tillery, Douglas L. Nicholson, Baton Rouge, for plaintiff-appellee Lee Hill.
*710 Joseph A. Gladney, Jose R. Cortina, Howard M. Romaine, Baton Rouge, for defendant-appellant Leroy Smith.
Before LOTTINGER, EDWARDS and PONDER, JJ.
PONDER, Judge.
Defendant appealed from a judgment in favor of plaintiff for damages for malicious prosecution.
The issues are: proof of requisites for a suit for malicious prosecution, and violation of constitutional right of access to the courts.
We affirm.
Plaintiff accidentally "sideswiped" defendant's parked car causing minimal damage. Following a discussion, the parties appeared to agree on damages. The investigating officer advised defendant that if he were not paid, he could file charges against plaintiff for simple criminal damage. Thereafter, when plaintiff refused to pay, defendant filed the charges. Plaintiff posted bond. When he appeared for arraignment he was advised that the charges had been dropped. He sued defendant for malicious prosecution; the court awarded $300.00 damages.
An action for malicious prosecution lies where there is a concurrence of the following:
(1) The commencement or continuance of an original criminal or civil judicial proceeding.
(2) Its legal causation by the present defendant against plaintiff who was defendant in the original proceeding.
(3) Its bona fide termination in favor of the present plaintiff.
(4) The absence of probable cause for such proceeding.
(5) The presence of malice therein.
(6) Damage conforming to legal standards resulting to plaintiff.
Robinson v. Goudchaux's, 307 So. 2d 287 (La. 1975); Eusant v. Unity Industrial Life Ins. and Sick Benefit Ass'n of New Orleans, 195 La. 347, 196 So. 554 (1940).
Defendant claims plaintiff has failed to prove these elements; he especially contends that because no certified copies of criminal court records were introduced at trial, there is no legal evidence to prove the commencement of the criminal prosecution, its legal causation by plaintiff and its termination in favor of plaintiff. He argues plaintiff's hearsay testimony is not the "best evidence."
We find plaintiff's uncontradicted hearsay testimony, admitted without objection, sufficient to prove the commencement, causation and termination of the prosecution. Coleman v. Victor, 326 So. 2d 344 (La. 1976). Defendant himself testified he filed charges against plaintiff. He cannot now complain the court considered the evidence. LSA-C.C. Art. 2291.
Defendant claims he acted without probable cause and without malice. Citing Bristow v. Messer, 336 So. 2d 44, (2d Cir.1976) and Sandoz v. Veazie, 106 La. 202, 30 So. 767 (La.1901), he claims his good faith reliance on the investigating officer's advice negated any want of probable cause or malice.
Defendant's claim is without merit. Simple criminal damage to property requires the intentional damaging of another's property. LSA-R.S. 14:56. Malice exists when a charge is made with knowledge that it is false or with reckless disregard for the truth. Jefferson v. S.S. Kresge Co. d/b/a K-Mart, 344 So. 2d 1118 (La.App.3rd Cir.1977); Carter v. Catfish Cabin, 316 So. 2d 517 (2d Cir.1975). We find no error in the court's determination that plaintiff's actions indicated malice and a lack of probable cause.
Defendant next claims plaintiff has failed to prove any damages arising from his criminal prosecution. The record reveals that although plaintiff was not jailed, he did have to post bond and return to court for arraignment. While we agree the damage to plaintiff was minimal, we do not find the court's award of $300.00 a clear abuse of discretion. Reck v. Stevens, 373 So. 2d 498 (La.1979).
*711 Defendant lastly claims the court's adverse judgment violates Art. 1, Section 22[1] of the Louisiana Const. of 1974 by barring his access to the courts. Evidently, this is based upon a chilling effect upon the filing of a criminal charge. The constitutional provision does not afford "carte blanche" for unfounded or mistaken use of the criminal process for private ends. Because we find plaintiff did not act in good faith or upon reasonable grounds, we find his constitutional rights have not been violated. Cf. Robinson v. Goudchaux's, supra. As a matter of fact, defendant has had his day in court.
For the above reasons, the judgment of the trial court is affirmed at appellant's costs.
AFFIRMED.
NOTES
[1] La.Const. Art. 1, Section 22:
"All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595782/ | 28 So. 3d 173 (2010)
Brian KINGRY, Appellant,
v.
STATE of Florida, Appellee.
No. 1D09-4614.
District Court of Appeal of Florida, First District.
February 12, 2010.
Ross A. Keene of Beroset & Keene, P.A., Pensacola, for Appellant.
Bill McCollum, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
WEBSTER, J.
Appellant seeks review of an order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In that motion, appellant complained that, at his sentencing, he had been designated a sexual predator pursuant to section 775.21, Florida Statutes (2002), although he did not qualify for such a designation, and that the designation was, therefore, illegal. The trial court denied the motion on the ground that appellant had waived the right to complain about his designation as a sexual predator because it was clear from the record that appellant had agreed to that designation as a part of his plea bargain. We agree with the trial court and, accordingly, affirm.
Appellant had been charged with four counts of lewd or lascivious battery on a person 12 or older, but less than 16, in violation of section 800.04(4)(a), Florida Statutes (2001). Each charge was a second-degree felony, punishable by up to 15 years in prison. Appellant ultimately negotiated a plea agreement, pursuant to which he would plead no contest to the four counts, be adjudicated guilty on all counts, and be sentenced to 24 months of community control to be followed by 120 months of probation. Appellant also agreed to a sexual predator designation.
On appeal, appellant argues that he did not qualify as a sexual predator and, therefore, his designation as such constituted an illegal sentence, and he could not agree to an illegal sentence. We disagree. Our supreme court has said that "a sexual predator designation is `neither a sentence nor a punishment but simply a status. . . .'" Saintelien v. State, 990 So. 2d 494, 496 (Fla.2008) (quoting from section 775.21(3)(d), Florida Statutes (2003)). Because such a designation is "neither a sentence nor a punishment," appellant's agreement to be so designated is not controlled *174 by those cases which hold that one may not agree to an illegal sentence. See, e.g., Mobley v. State, 939 So. 2d 213, 214 (Fla. 1st DCA 2006). Rather, it is controlled by cases such as Ackermann v. State, 962 So. 2d 407, 408 (Fla. 1st DCA 2007) (stating that a defendant cannot be sentenced to drug offender probation unless he agrees to such as part of his plea bargain). See also Allen v. State, 642 So. 2d 815, 816 (Fla. 1st DCA 1994) (because an agreement to reimburse the county's medical expenses was a part of appellant's plea bargain, he could not challenge the legality of his obligation to pay those expenses); Pollock v. Bryson, 450 So. 2d 1183, 1186 (Fla. 2d DCA 1984) (while, ordinarily, a trial court may not require as a condition of probation that a defendant pay restitution in excess of the amount of damage his criminal conduct caused the victim, a defendant is estopped to raise such a complaint when he has expressly agreed to such a provision as a part of his plea bargain); Garcia v. State, 722 So. 2d 905, 907 (Fla. 3d DCA 1998) ("[a] plea agreement is a contract and the rules of contract law are applicable to plea agreements"). It is apparent from the record that appellant's agreement to a sexual predator designation was a bargained-for part of the plea agreement. Having freely and voluntarily entered into the agreement and accepted its benefits, appellant may not now seek to be relieved of one of the burdens imposed upon him pursuant to the agreement. E.g., Allen, 642 So.2d at 816. The trial court's order is affirmed.
AFFIRMED.
WOLF and THOMAS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595827/ | 399 So.2d 1352 (1981)
CIG CONTRACTORS, INC.
v.
MISSISSIPPI STATE BUILDING COMMISSION.
No. 52681.
Supreme Court of Mississippi.
June 3, 1981.
Rehearing Denied July 8, 1981.
Rolf L. Anderson, Reynolds & Johnson, Jackson, for appellant.
Bill Allain, Atty. Gen. by Richard E. Ulmer, Sp. Asst. Atty. Gen., Donald Clark, Jr., McKibben, Tolbert & Associates, Jackson, for appellee.
Before SMITH, P.J., and WALKER and BROOM, JJ.
*1353 WALKER, Justice, for the Court:
Cig Contractors, Inc. filed a declaration in the Circuit Court of the First Judicial District of Hinds County, Mississippi, against the Mississippi State Building Commission, seeking damages in the sum of $120,000 which were alleged to have resulted from the Commission's breach of contract. The trial court sustained the demurrer to the declaration and Cig appeals.
The declaration alleges that Cig Contractors, Inc., and the Mississippi State Building Commission entered into a contract on February 17, 1975, for the construction of a portion of the physical science facility (chemistry building) at the University of Mississippi. This contract required Cig to be responsible for the concrete, masonry, and general contracting work on the project. The Building Commission entered into separate contracts with B.J. Lee Company for the mechanical portion; Warren Electric Company for the electrical portion; and Hamilton Industries, Inc., for the laboratory case-work portion.
The declaration further alleges that after the Building Commission issued the notice to proceed, Cig began the excavation work for the construction of the utilities tunnel which was to be built under the main structure of the project. After installing the utility tunnel, Cig backfilled around the tunnel as required by the plans and specifications. *1354 B.J. Lee Company then excavated down to the elevation required to install various mechanical pipes which entered the walls of the tunnel. After the back fill around the tunnel was put back in place under the inspection and observation of the Building Commission, Cig placed a concrete slab on top of the backfill. Sometime after the concrete slab was poured it was noted that one of the pipes extending out of a concrete wall in an area adjacent to the elevator shaft was tilted. Upon further investigation it was found that the pipe had no soil compacted around it. It became necessary for Cig to remove the concrete slab in order to rebuild and replace the subsoil which had eroded from under the slab.
In its declaration Cig seeks to recover $80,000, the repair costs incurred by Cig involved in removing and replacing the concrete slab and compacting the soil underneath it. The suit also seeks to recover from the Building Commission an additional $40,000 in overhead costs.
The declaration alleges that the Building Commission had the duty to test and inspect the soil prior to the placing of the concrete slab by Cig, quoting Section 2c of the specifications to the contract, which states:
Soils Testing and Inspection Service: Owner will provide soils testing and inspection service for quality control testing during earth-work operations.
The declaration also alleges that B.J. Lee Company, under its contract with the Building Commission, was to have packed in the dirt below the concrete slab in order to prevent water from entering the subgrade, and that the Building Commission's failure to enforce these provisions of B.J. Lee Company's contract damaged the work of Cig, requiring the extensive repairs. The declaration also alleges that the Commission's actions or inactions were a breach of its implied promise and obligation to coordinate and cooperate with Cig and to do nothing which would hinder, delay or otherwise interfere with the performance by Cig of its contract.
To this declaration the Building Commission demurred, which demurrer was sustained by the trial court. The demurrer was grounded upon two theories:
(1) The Building Commission was not subject to suit because of sovereign immunity; and
(2) The declaration failed to state a cause of action.
The order sustaining the demurrer does not state upon which ground it is founded, but the parties agree that the lower court orally indicated that it was sustained upon the ground of sovereign immunity.
Much of the briefs of both parties addresses the question of whether or not the defense of sovereign immunity was waived by the legislature when it included in the power granted to the Building Commission by Chapters 280 of the Laws of 1956, the authority to "contract and be contracted with and to sue and be sued." The appellee Building Commission contends that the authority to sue and be sued in contractual matters under this Act of the legislature is limited to certain "revenue producing projects." However, in Horne v. State Building Commission, 233 Miss. 810, 823, 103 So.2d 373 (1958), a case which did not involve a revenue producing project, the Court commented on the applicability of that act saying:
Prior to the enactment of Chapters 280 of the Laws of 1956, approved April 5, 1956, there was no statute which conferred upon the State Building Commission the power and authority to sue or be sued.
Section 1 of the Act provides:
The State Building Commission created by Chapter 328, Laws of Mississippi, 1944, as amended by Chapter 276, Laws of Mississippi, 1946, and Chapter 467, Laws of 1950, is hereby continued as a public body corporate of the State of Mississippi and, in addition to the powers and duties otherwise prescribed by law, the State Building Commission shall have powers and duties hereinafter set forth and granted. (Emphasis added).
*1355 Although the question was not expressly before the Court in Horne, supra, we are of the opinion that Chapter 280 of the Laws of 1956 granting the State Building Commission the power to "contract and be contracted with and to sue and be sued,"[1] is supplemental to the existing general powers and authority of the State Building Commission in contractual matters and not limited to the "revenue producing projects" referred to in that Act. The portions of the Act which are limited to certain revenue producing projects are clearly and unambiguously so designated.
Moreover, this writer doubts seriously that this Court would uphold a claim of sovereign immunity in contractual matters between a subdivision of the State and individuals doing business with it. The general rule is that when the legislature authorizes the State's entry into a contract, the State necessarily waives its immunity from suit for a breach of such contract. 81A C.J.S. States § 172 (1977). Where the state has lawfully entered into a business contract with an individual, the obligations and duties of the contract should be mutually binding and reciprocal. There is no mutuality or fairness where a state or county can enter into an advantageous contract and accept its benefits but refuse to perform its obligations.
Although this declaration may be inartfully drawn, it is obviously an attempt to allege what amounts to a breach of contract, and therefore, the defense of sovereign immunity is not available in this instance.
The Building Commission also contends, that even if the lower court was wrong in sustaining the demurrer on the ground of sovereign immunity the decision should be affirmed if that decision was correct for any other reason, in this instance, if the declaration failed to state a cause of action.
The Building Commission argues that this declaration failed to state a cause of action upon which the relief sought could be granted. It contends that the express provisions of the contract negative any allegations that the Building Commission owed any implied duty to coordinate the work of the separate prime contractors on this project. However, the plaintiff did not attach a copy of the contract to its declaration and nowhere in the record is a copy of the contract provisions to be found. In 17A C.J.S. Contracts § 535 (1963), it is stated:
Where a written agreement is pleaded in haec verba, its terms, rather than allegations pertaining thereto, control in determining the construction of the contract and the sufficiency of the pleading as against a demurrer. In such case an allegation inconsistent with the legal effect of the writing or putting a false construction thereon may be struck out as surplusage but is not ground for demurrer. On the other hand, where the contract is not set out in haec verba but only the substance, or the pleader's construction of the provisions, thereof is stated, a demurrer to the petition must be ruled on the language of the petition, rather than the language of the contract. A further effect of a failure to set out the contract in haec verba is that a particular defect therein may be disclosed only by the evidence, and not by the pleading, and hence is not available on demurrer.
Although no recent Mississippi cases could be found on this subject, there is an old case which holds it is not necessary to use the words of the party, but the plaintiff may declare according to their legal effect, in declaring on a written contract. Mullen v. Jelks, 1 Miss. (Walk.) 205 (Miss. 1825).
However, there are numerous cases from this State in which it is said that all well-pleaded allegations of a declaration must be taken as true in considering whether a demurrer should be sustained or overruled. Downs v. Corder, 377 So.2d 603 (Miss. 1979); Poole v. Brunt, 338 So.2d 991 (Miss. 1976).
If the allegation in the declaration that the Building Commission was to perform testing and inspection of the soil prior to *1356 Cig placing the concrete slab is taken as true, along with the allegation that the Building Commission failed to perform this obligation thereby causing damages to the plaintiff, then this declaration does set out a cause of action sufficiently to overcome the demurrer, and the lower court erred in sustaining same.
The Building Commission contends that this case is factually on all fours with Hanberry Corp. v. State Building Commission, 390 So.2d 277 (Miss. 1980). However, in that case the express provisions of the contract were attached to the declaration, and the Court was able to determine that the express provisions negatived any allegation that the Building Commission had an implied contractual duty to coordinate the work of the three prime contractors and to see that the work of each was performed properly. Although this is the same, or substantially the same, allegation contained in this declaration, the express provision of this contract are not before the Court, and the Court cannot rely on them to affirm the sustaining of a demurrer. In this case, it must be assumed as true that the contract states what the pleadings say it states. If the contract does not state what the declaration says it states, the suit will no doubt fail on the evidence.
For the reasons stated above, the order of the trial court sustaining the Building Commission's demurrer is reversed and this cause is remanded thereto for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.
PATTERSON, C.J., SMITH and ROBERTSON, P. JJ., and SUGG, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.
NOTES
[1] Such grant of authority does not extend to tort claims. French v. Pearl River Valley Water Supply District, et al., 394 So.2d 1385 (Miss. 1981). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595830/ | 28 So.3d 838 (2009)
Joseph SMITH, Appellant/Cross Appellee,
v.
STATE of Florida, Appellee/Cross Appellant.
No. SC06-747.
Supreme Court of Florida.
December 17, 2009.
Rehearing Denied February 28, 2010.
*844 James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Appellant.
Bill McCollum, Attorney General, Tallahassee, FL, and Carol M. Dittmar, Senior Assistant Attorney General, Tampa, FL, for Appellee.
PER CURIAM.
Joseph Smith appeals his convictions for first-degree murder, kidnapping, and capital sexual battery and his sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm the convictions and the sentences imposed by the trial court.
I. FACTS AND PROCEDURAL HISTORY
On February 20, 2004, Joseph Peter Smith was charged with one count of sexual battery by a person over eighteen years of age upon a child less than twelve years of age and one count of kidnapping for the alleged abduction of and sexual battery upon Carlie Jane Brucia, an eleven-year-old female. That same day, Smith was also indicted on one count of first-degree murder for the killing of Ms. Brucia.
The trial court record reflects that on February 1, 2004, Carlie Brucia left the Sarasota home of a friend between 6:10 and 6:15 p.m. to walk home. The mother of the friend called Carlie's mother to verify that permission had been given for the young girl to walk home alone. The mother advised that she had not given permission and immediately sent Carlie's *845 stepfather to transport Carlie. When the stepfather arrived at the house of the friend, Carlie had already left. At approximately 7:30 p.m., after attempts to locate Carlie failed, a 911 call was made to report her missing. Law enforcement officers canvassed the area where Carlie would have walked from her friend's house to her home until 3 a.m. and continued the search throughout the morning of February 2, 2004. At approximately 12 p.m., a bloodhound tracked the scent of Carlie to the area behind a car wash located on Bee Ridge Road, where the dog suddenly lost her scent.
The proprietor of the car wash was advised that police officers and dogs were outside the business, and that the police were securing the area. The proprietor spoke with law enforcement and learned that a young girl was missing. He informed law enforcement that he had motion-sensitive cameras installed around the car wash and offered to review them to see if anything of use had been captured. A recording from one of the cameras, which was located at the rear of the car wash, revealed that at approximately 6:21 p.m. a girl (subsequently identified as Carlie) was led away from the car wash by a man dressed in what appeared to be a mechanic's uniform. On the evening of February 2, 2004, a video of the apparent abduction was released to the media and an Amber Alert was issued for Carlie.
On the morning of February 3, 2004, the wife of a former business associate of Smith saw the video on television, recognized the man in the video as Smith, and asked her husband to also view the video. The husband watched the video a number of times and recognized the man in the video as Smith:
I worked with him at the shop, so I knew what he looked like. The sneakers, the back of histhe way his hair was cut, the way that he walked, his gait was just like Joe walking through the shop. I mean, he's got a different type of walk to him. And then when I watched him ... reach for the girl ... the way he reached for it wasI've seen him pick up tools like that, you know.... I knew it was him.
The husband called the police, spoke with Detective Vincent Riva, and provided Riva with Smith's current address.
Riva and his partner proceeded to the address in an unmarked vehicle and were met there by two other officers. After a neighbor advised that someone was in the residence, the detectives approached the front door and knocked, but when no one responded, a detective called his supervisor and was advised that Smith was on probation. He then called Smith's probation officer and asked her to respond to the address. After the officers had been at the residence for approximately forty-five minutes, Smith's sister arrived at the scene and advised that she would retrieve her brother.
When Smith exited the house, a detective interrogated Smith with regard to his activities on the day of the abduction without specifically asking whether he had been at the car wash. Smith provided a timeline of his actions on February 1, which did not place him at or near the car wash that day. When a detective requested permission to examine Smith's tattoos, Smith inquired as to the purpose of the visit by law enforcement. A detective advised that they were investigating an abduction, to which Smith replied that he had no knowledge of an abduction. When Smith was confronted with a still photo from the car wash video, Smith responded: "That looks like me, but it's not me." A detective requested permission from Smith to search both the room in the house that Smith rented and his car, which was *846 parked at that location. Smith consented and signed a written consent form.
The search of Smith's room did not reveal anything of evidentiary value (although the detective did see a number of mechanic's uniforms in the closet). However, when Smith's vehicle was searched, a spoon was discovered under the front seat which appeared to have been used to melt or burn narcotics. A search of the trunk of the car revealed a cardboard box, which contained another spoon similar to the first and a syringe. When the probation officers arrived, the officers advised them of the items found in the car, and Smith was arrested for violation of probation and possession of drug paraphernalia.
As the vehicle search was being conducted, an owner of the house where Smith was living arrived in a yellow station wagon. When asked about Smith's whereabouts on February 1, she recalled that at around 6:30 p.m., Smith had engaged in a telephone call with his estranged wife from that residence. The detective explained that based on this information, the homeowner had basically established an alibi for Smith, he was "temporarily cleared" in the investigation, and the detectives left the residence to pursue other leads in the abduction case. However, later that day at approximately 6:30 p.m. (Tuesday, February 3), the husband of the woman with whom the detectives had interacted at the residence earlier that day appeared at the police station and informed the detective that his wife's recollection of the events from the evening of February 1 was inaccurate. The husband explained that Smith had borrowed his yellow station wagon at approximately 3 p.m. on February 1 and did not return it until approximately 7 a.m. on February 2.[1] The husband also identified Smith as the individual on the car wash video and relinquished the station wagon to the Sarasota County Sheriff's Office (SCSO). After receiving Miranda[2] warnings from the detective assigned to the abduction case, Smith invoked his right to counsel.
During the evening of February 4, 2004, John Smith, the brother of the defendant, arrived at the SCSO and was interviewed by FBI agents.[3] John informed them that although he was not on good terms with his brother, he had received a phone call from Smith at approximately 8 p.m. on Sunday, February 1, the night of the abduction. John refused to speak with his brother at that time. On Monday night, John and his girlfriend saw the abduction video on television. John recognized his brother in the video based upon the abductor's face and hair, and the fact that the abductor was wearing a mechanic's uniform. The girlfriend believed that the abductor was Smith because Smith had a distinctive walk due to prior back surgery. That same night, Smith appeared at John's house at approximately 11 p.m. Smith was apparently under the influence of drugs, and John sent his brother away.
When asked if he could identify that the abductor captured on video was his brother, John replied:
*847 I don't have any concrete evidence[,] it's just, it looks like him, it walks like him, the more I look at that video, the more I look at him, the more I look at the video[,] it just well, total resemblance, if it's not him.
During the interview, the FBI agent asked, "Have you ever thought about going to see him and asking if he did this?" John replied that if Smith had abducted the child, he would not confess; instead, "he will die with that secret. If it's him. You won't get it out of him." John then suggested that the only way to obtain any information from Smith would be to engage in trickery. John advised that if someone informed Smith that he or she had engaged in improper conduct similar to that for which Smith was being investigated, Smith would most likely open up and provide details about his own actions.
Later that evening, after the interview concluded, John informed the FBI agent that he wanted to see his brother. SCSO personnel advised the FBI agent that Smith had retained counsel, and any meeting would need to go through Smith's attorney. The next morning, Thursday, February 5, 2004, the public defender arranged a meeting between Smith, John, and their mother. The mother exited the interview room after approximately forty-five minutes, and John remained with Smith for an additional thirty minutes. When he exited the interview room, John commented that Smith "came close, but he didn't say anything." After exiting the room, neither John nor his mother was debriefed by law enforcement, and no surveillance was placed upon them when they left the building.
On the evening of February 5, 2004, John called the FBI agent from his cell phone and stated: "I guess you heard, what do you want to do?" Although John's cellular phone had never been tapped by law enforcement, John apparently believed that it had, and the FBI agent then realized that Smith must have provided John with information about Carlie. Two FBI agents along with one local officer travelled to John's residence, and John then directed the law enforcement officials to a local church. When they arrived at the church, John provided the investigators with an area in the field behind the church where they should look for a body. While at the church, John received a call from Smith. John eventually confirmed that Carlie's body was located approximately fifty yards from a group of concrete blocks out in the field.
After other officers arrived at the church and based upon the directions provided by John, Carlie's body was found in a wooded area of the field. She was lying on her back, naked below the waist except for a sock on her right foot, with her right leg stretched out and her left leg bent back and curled under her left buttock. A deep ligature mark was visible on her neck.
The FBI agents returned to the SCSO with John to obtain a second statement. John confessed to the agents that he lied to them during the morning meeting when he stated that Smith had not made any statements about Carlie. John now related that Smith had initially said, "I'm sorry I did this to you." After Smith's mother left the room, Smith informed John that on the night in question he ingested what he believed was cocaine and that everything that occurred afterwards was a blur. According to John, "It felt like he was afraid to say `you know she's dead' so I just said, `okay, Joe she's dead, fine, where is she? Where is she? We gotta find her. Where is she?'" Smith then revealed that Carlie was in a field near a church on Proctor Road. John advised the agents that he had not provided them with this information *848 after the earlier meeting because he did not believe his brother and because Smith never stated that he had murdered Carlie. John explained that after he left the jail with his mother, they proceeded to the church on Proctor Road, and John looked for the body without success.
That night, John spoke with Smith by telephone and advised him that he had been to the church but could not find the body. Smith then informed John that he had engaged in a sexual act with the girl in the car, and "it got carried away." When John asked if Smith had sexual intercourse with her, Smith responded in the affirmative. When John inquired if Carlie was dead, Smith responded, "I don't know, she could be." John decided to call the FBI agents after Smith admitted the sexual conduct and because, when John asked for specific details with regard to Carlie's location, Smith requested his attorney. John also revealed that during the phone call at the church, Smith admitted that he had "rough sex" with Carlie before he strangled her.
Subsequent to his arrest, Smith was transferred from the Sarasota County Jail to the Manatee County Jail. Before Smith's capital trial, discussions between Smith and family members were recorded at the jail and were later played in the presence of the jury during the trial:
February 9, 2004
MOTHER: Oh, Joe, the best thing that... you can do is try to explain it was an accident.
SMITH: But it was an accident, Mom.
MOTHER: I know that Joe.
SMITH: You don't think I would do that on purpose, Mom.
MOTHER: No. No, I don't. I don't think so at all Joe. Not at all. I know you better than that. But everyone ... is up in arms, the community, the press, the ... governor, the mayor. You just don't know, Joe.
. . . .
SMITH: Yeah, Mom. You know what my charges are, right?
MOTHER: Yeah, I do. Yeah, I do. You want me to tell [your estranged wife] anything?
SMITH: Yeah, Mom. Tell her that does she know what happened, the drugs and everything?
MOTHER: Yeah, she knows.
SMITH: That I didn't mean to do it. She knows I'm not an animal, right?
February 10, 2004
JOHN: You had to have met the girl before, the young girl.
SMITH: No.
JOHN: Because she knew you.
SMITH: No, John.
JOHN: Not to mention the fact that she don't look nowhere [sic] 11 years old. I was thinking 16 or 17.
SMITH: That's what I thought, too.
February 19, 2004
JOHN: How much time did you spend with her?
SMITH: It wasI was so far out there. You know, I ...
JOHN: [D]id it happen right there and then you drove there?
SMITH: It wasn't very long.
JOHN: An hour? Two hours? Did you go back afterwards to look again? What made you pick that place?
SMITH: Quiet.
. . . .
JOHN: She started something in the car?
SMITH: Yeah.
*849 JOHN: Where did you finish? There? And what made you finish it?
SMITH: [Inaudible] scared.
JOHN: Scared?
SMITH: I'm telling you. The adrenaline. I don't know. I just, I don't know.
. . . .
JOHN: Oh, what's some more things that Ilike you were just driving around and you copped, right?
SMITH: John, I was doing in the car and everything and
JOHN: And then what? You saw her walking?
SMITH: Yeah. Actually running.
JOHN: And then you parked somewhere.
SMITH: Uh-huh. Yeah....
. . . .
SMITH: I do love [my daughter]. I didn't do any of this to hurt anybody.
JOHN: What I originally ... wanted to do way back in the beginning, I never got to do it because I couldn't find it, remember I wanted to open (inaudible) shop?
SMITH: Yeah.
JOHN: Didn't happen. I couldn't find the material.
SMITH: That was bad. That was a bad idea anyway.
JOHN: You're probably right, but he [sic] could have sold it for big, big bucks. Your kids could have went to college.
SMITH: No. John, it was a bad, bad idea. Not only because of what it would have done to you, to be there and see that, but they would have followed you and they would have implicated you.
. . . .
SMITH: Tell mom this, okay? Because [the priest] came, I talked to him for quite a while about, you know, how I was brought up.... And then I did an Act of Contrition, which means he wipes all my sins away. You know, we did confession. I confessed to everything. Murder, all types of stuff. You know what I mean? Anything that could be you know, I just confessed to everything.
In addition to these conversations, on April 9, 2005, a letter from Smith to John, written in code, was intercepted by jail personnel. During trial, a cryptanalyst testified that the code had been broken and the message contained in the letter was the following:
I WLSH L HAD SOMETHLN JULCY TO SAY OH OK THE BACKPACK[[4]] AND CLOTHES WENT IN FOUR DIFFERENT DUMPSTERS.... I LEFT IT OUT IN THE OPEN I DRAGED THE BODY TO WHERE ST WAS FOUND DESTROY THIS AFTER DECIFERING IT AND SHUT UP.
Sarasota County medical examiner Dr. Vincent Vega concluded that Carlie died as a result of strangulation because there was a ligature mark around her neck, and there were no other evident injuries to her head or torso. Dr. Vega testified that a shoelace was consistent with the type of ligature that would make the indentations on her neck. The marks on the neck were deeper in the front than in the back and appeared to criss-cross in the back. These findings led Dr. Vega to conclude that during the strangulation, the ligature was not tied, but was held in the perpetrator's hands while he was standing behind the *850 victim.[5] Dr. Vega explained that if sufficient pressure is continuously applied to cut off the blood supply to the brain, unconsciousness will ensue in approximately eight to ten seconds; however, application of this pressure must continue for two to four minutes for death to result. Although Dr. Vega did not locate any defensive injuries on the body, he noted that ligature marks were found on the victim's wrists, indicating that she had been bound. There were also bruises on the inside of her right thigh and in the shin area of her right leg indicative of blunt-force trauma. Dr. Vega testified that these bruises could have been caused by a struggle with the perpetrator.[6] Dr. Vega also testified that abrasions on the side of the body indicated that the victim had been dragged.
Oral, anal, and vaginal swabs obtained from the body tested negative for semen. However, Dr. Vega testified that the presence of insect larvae and decomposition of the body impeded his ability to obtain optimal results from such testing. Dr. Vega further testified that he observed damage to the hymen membrane of the child. According to Dr. Vega, this injury was consistent with a pre-mortem loss of tissue due to penetration (i.e., sexual activity). However, Dr. Vega also noted that the larvae present on the victim could have caused the hymenal defect, and it merely appeared that the victim had suffered a premortem injury. Dr. Vega expressed the opinion that, based upon all of the available evidence, the victim had been sexually battered. In support of this conclusion, Dr. Vega explained that case reports and studies have demonstrated that ligature strangulations are most common in female victims and are highly associated with sexual batteries. Dr. Vega also reached his conclusion based upon the state of the victim's clothing when she was found; i.e., she was naked from the waist down. Lastly, Dr. Vega reached his conclusion based upon Smith's statements and DNA testing results which revealed the presence of semen on the back of Carlie's shirt.
An FBI team supervisor testified that the semen sample found on Carlie's shirt matched Smith's DNA profile at all thirteen relevant locations on the DNA strand. The supervisor testified that the likelihood of randomly selecting a DNA profile of a Caucasian male that matched the DNA sample found on the shirt was 1 in 32 quintillion. An FBI hair-and-fiber analyst testified that two head hairs recovered from the yellow station wagon that had been relinquished to the SCSO were consistent with the hair of the victim. Further, seven fibers that were removed from the station wagon were consistent with the fibers contained in the red shirt that Carlie was wearing on the day of her abduction and murder.
Smith chose not to testify on his own behalf and waived his guilt-phase closing statement. The jury convicted Smith of first-degree murder, sexual battery upon a child less than twelve years of age, and kidnapping.
During the penalty phase, the State presented evidence that Smith was on drug *851 offender probation during the time of these crimes. Dr. Vega testified that he believed Carlie was conscious when the ligature was applied to her throat because there was no evidence of an injury that would have produced unconsciousness. Moreover, the ligature marks on the wrists indicated that she was restrained. Finally, the State offered victim-impact statements written by Carlie's father, mother, stepfather, and a teacher.
Smith presented nineteen penalty-phase witnesses, who provided the following evidence: (1) Smith was extremely helpful to his friends, family, and neighbors; (2) Smith loved animals; (3) Smith's father had a drinking problem; (4) Smith appeared to have a good relationship with his children and loved them; (5) Smith began taking drugs at an early age, and addiction and relapse pervaded his adult life; (6) Smith suffered from chronic back pain and became addicted to prescription drugs; (7) Smith had expressed the desire to cease his drug use; (8) Smith's life began to unravel after he discovered the body of his best friend after a drug overdose; (9) Smith had been hospitalized or admitted to treatment programs for his drug addiction over a period of years and also for depression and suicidal thoughts;[7] (10) Smith had no disciplinary problems and had not engaged in violent acts while he was in jail; (11) Smith sought spiritual counseling; and (12) if Smith received a life sentence, he would be housed at the highest level of security, and it was highly unlikely that his security status would ever change. Smith declined to testify during the penalty phase; however, he requested an opportunity to make an allocution statement before the jury. The trial court declined to permit allocution before the jury unless Smith agreed to be subject to cross-examination by the State. Smith was allowed to provide such a statement during the later Spencer[8] hearing.
In rebuttal, the State presented a letter written by Smith to another inmate housed in the Manatee County Jail that had been intercepted. The letter expressed a desire for violence on his brother John and requested that a violent act be committed upon another inmate.
On December 1, 2005, the jury recommended a death sentence by a vote of ten to two. During the Spencer hearing, defense counsel explained that he would not call any experts to testify with regard to mental-health mitigation and would only introduce this mitigation through documentary evidence. The trial court inquired of both defense counsel and Smith with regard to this decision. Smith then offered the testimony of Dr. Vega, who testified that when he viewed the photos of Smith, he identified injection marks that were consistent with intravenous drug use. Smith offered an allocution statement to the court which provided, in part:
After a little time went by, I had called my wife and I had asked to come home, but on February 1st, I found out that she didn't want me.... I lost my business, my family, and my self-control was really coming apart fast. I just wanted to die on that day. So I went out, copped a bunch of heroin, cocaine, and *852 began injecting it hoping I would overdose.... I was so high, I've never experienced a high like that. It was different than any other time. I think it was mixed with something else.
... I want you to know that I take full responsibility for the crimes. I don't know how this all happened. I was very angry at myself and very high. I knew that getting high was wrong but I could not stop....
I'm not trying to make excuses for what happened, but I really don't remember much about anything on that day after about 4:00 p.m.
On March 15, 2006, the trial judge sentenced Smith to death for the murder. The trial court determined that the State had proven beyond a reasonable doubt the existence of six statutory aggravators: (1) Smith committed the felony while he was on probation, see § 921.141(5)(a), Fla. Stat. (2003) (moderate weight); (2) the murder was committed while Smith was engaged in the commission of a sexual battery or kidnapping, see § 921.141(5)(d), Fla. Stat. (2003) (significant weight);[9] (3) the murder was committed for the purpose of avoiding lawful arrest, see § 921.141(5)(e), Fla. Stat. (2003) (great weight); (4) the murder was especially heinous, atrocious or cruel (HAC), see § 921.141(5)(h), Fla. Stat. (2003) (great weight); (5) the murder was cold, calculated, and premeditated (CCP), see § 921.141(5)(i), Fla. Stat. (2003) (great weight); and (6) the victim was under twelve years of age, see § 921.141(5)(l), Fla. Stat. (2003) (great weight).
The trial court concluded that Smith had failed to prove the existence of any statutory mitigating circumstances.[10] The trial court found a total of thirteen non-statutory mitigating circumstances: (1) a long and well-documented history of mental illness (moderate weight); (2) a long and well-documented history of drug abuse (moderate weight); (3) longstanding severe pain from back injuries that contributed to his addiction (little weight); (4) Smith repeatedly sought help for his problems (little weight);[11] (5) Smith was repeatedly denied treatment or received inadequate treatment (little weight); (6) positive qualities, including-(a) skills as a mechanic, plumber, and carpenter; (b) performance of kind deeds for others; (c) love and support with his family; (d) despite his incarceration, attempts to exert a positive influence on family members; (e) artistic skills; and (f) he cares about animals (moderate weight); (7) providing information that led to the resolution of this case (very little weight); (8) his family assisted law enforcement with Smith's knowledge and cooperation (slight weight); (9) demonstration of spiritual growth *853 (moderate weight); (10) maintenance of gainful employment (slight weight); (11) he is a loving father to his three daughters (moderate weight); (12) remorse (little weight); and (13) he is amenable to rehabilitation and a productive life in prison (little weight).
In imposing a sentence of death, the trial court found that the aggravating circumstances in the case far outweighed the mitigating circumstances. The trial court also held that, with the exception of the probation aggravator, "[e]ach one of the aggravating factors in this case, standing alone, would be sufficient to outweigh the mitigation submitted in this case."
This direct appeal followed. The State has filed a cross-appeal, which presents a single claim.
II. DIRECT APPEAL
A. ConfrontationDNA testimony
Smith first asserts that the State violated the Confrontation Clause of the Sixth Amendment to the United State Constitution when it failed to present the biologists who performed the DNA tests on the known sample taken from Smith and the unknown semen sample taken from the victim's shirt. According to Smith, this highly significant forensic evidence required cross-examination of the person(s) who conducted the actual tests. During trial, the State instead presented the testimony of the FBI team supervisor, a forensic DNA examiner who interpreted the data, formulated the conclusions, and prepared the official report.
In evaluating whether a Sixth Amendment violation occurred, it is essential to examine the role of the team supervisor in the evaluation of the semen sample found on the victim's shirt. During a proffer, the supervisor explained her role as the manager of a DNA-analysis team as follows:
I determine what items of [sic] exams will be conducted on which items. And I have the biologists who actually do[ ] the bench work for me. I then draw the conclusions, interpret their results and write the report and then testify, if needed.
When further asked to explain her duties as a team supervisor, she explained:
I manage the case, the case comes in, it gets assigned to me to be the DNA or serology manager. By that it means that I am in charge of talking with the contributors, determining what items will be worked. Then from there determining what stains will be worked. If the biologists have a question, they, you know, they can always come and talk to me about what exams to do and if further testing needs to be done.
When asked if she interprets the results of the tests conducted by the biologists on her team, the supervisor responded, "Yes, I do. I draw all the interpretations and all the conclusions based on their work an example would be if they test for blood, they will write the results of the test, but then it is my interpretation that says blood is there on that item of evidence." (Emphasis supplied.) She also testified that this protocol is standard for the FBI serology/DNA lab.
The supervisor also explained that the biologists on her team make notes and keep records of every test that they complete on a sample, that the notes become part of the file in the case, and that she uses the notes to reach her conclusions and prepare the final report. The supervisor testified that she was the individual who compared the DNA sample taken from the victim's shirt to that of Smith and determined that these specimens matched at all thirteen relevant locations on the DNA strand. She was also the individual who calculated the probability of selecting *854 an unrelated individual at random from the pertinent sample group who would have the same DNA profile as that found on the shirt.
In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that testimonial out-of-court statements that are introduced against a defendant violate the Confrontation Clause unless the declarant is unavailable and the defendant had a prior meaningful opportunity to cross-examine that witness. See id. at 68-69, 124 S.Ct. 1354. Smith contends that this case presents the same issue as that confronted in State v. Johnson, 982 So.2d 672 (Fla.), cert. dismissed, ___ U.S. ___, 129 S.Ct. 28, 171 L.Ed.2d 930 (2008), and that Johnson should control the outcome here. In Johnson, this Court held that a report prepared by a Florida Department of Law Enforcement analyst, which established the illegal nature of the substances that Johnson possessed, was admitted in violation of Crawford where the analyst who prepared the report did not testify during trialinstead, the report was introduced through her supervisor. See 982 So.2d at 673-74. We concluded that the report was testimonial in nature because the report there was clearly prepared in anticipation of trial and designed to establish an element of the crime. See id. at 680. An accusatory document such as the report there should only be admissible where the preparer is unavailable and the defendant had a prior opportunity to conduct cross-examination of the person who prepared the report. See id. at 680-81. Similarly, in State v. Belvin, 986 So.2d 516, 518 (Fla.2008), we held that admission of a breath-test affidavit violated the Confrontation Clause where the technician who performed the test did not testify during trial. Thus, in each of these cases, the person who prepared the report of the relevant results did not testify. See also Johnson v. State, 929 So.2d 4, 6 (Fla. 2d DCA 2005) (noting that the supervisor "did not conduct this particular test, but he was able to testify about the general procedures used by FDLE in preparing such reports").
We have carefully considered both Florida and federal cases, and we conclude that the instant case is distinguishable from both Johnson and Belvin. Here, it was the supervisor in her capacity as the head of an FBI DNA-analysis team who evaluated the raw test results obtained by the biologists on her team and compared the DNA sample found on the victim's shirt to the sample taken from Smith. She was the person who concluded that Smith's DNA matched the DNA from the shirt and calculated the probability of a random individual from the pertinent sample group submitting a DNA sample that matched the sample obtained from the shirt. Thus, although the FBI team supervisor did not perform each actual test on the material found on the shirt and the buccal swab taken from Smith, she was the person who interpreted the data obtained from the testing and formulated the conclusions that incriminated Smith in the sexual battery. Thus, while the results that the supervisor obtained in this case were indubitably testimonial in nature, she was present at trial and subject to cross-examination with regard to those results.
At least two federal courts have held that the Sixth Amendment Confrontation Clause does not require an expert to have performed the actual laboratory work to permissibly testify with regard to conclusions that he or she has drawn from those results. In United States v. Moon, 512 F.3d 359, 362 (7th. Cir.), cert. denied, ___ U.S. ___, 129 S.Ct. 39, 172 L.Ed.2d 19, and cert. denied, ___ U.S. ___, 129 S.Ct. 40, 172 L.Ed.2d 19 (2008), the Seventh Circuit Court of Appeals concluded that *855 "the Confrontation Clause does not forbid the use of raw data produced by scientific instruments, though the interpretation of those data may be testimonial." (Emphasis supplied.) Similarly, the Fourth Circuit Court of Appeals held that a Confrontation Clause violation did not occur where the chief toxicologist of a lab reviewed the data from tests conducted by technicians at the lab and issued a report based upon that data where the toxicologist testified at trial with regard to his conclusions. See United States v. Washington, 498 F.3d 225, 228 (4th Cir.2007) ("While Dr. Levine did not see the blood sample and did not conduct any of the tests himself, three lab technicians operating under his protocols and supervision conducted the tests and then presented the raw data from the tests to him.").
We find the rationale followed by the federal courts in Moon and Washington to be persuasive with regard to the challenge raised by Smith. Accordingly, even though the FBI team supervisor did not actually perform the testing to extract DNA samples from the shirt and from Smith, her testimony did not implicate the Confrontation Clause because she, as supervisor, formulated her own conclusions from the raw data produced by the biologists under her supervision and control on her team, and she was subject to cross-examination with regard to those conclusions.[12] Accordingly, relief on this claim is denied.
B. Sexual Battery Opinion Testimony
Smith next asserts that the trial court erred when it permitted Dr. Vega to present opinion testimony that the victim had been sexually assaulted. Smith asserts that to allow Vega to testify with regard to commonly understood facts invaded the province of the jury and created the possibility that the jury would forgo independent analysis of the evidence to determine whether a sexual battery occurred.
We have explained that "[t]he determination of a witness's qualifications to express an expert opinion is peculiarly within the discretion of the trial judge, whose decision will not be reversed absent a clear showing of error." Ramirez v. State, 542 So.2d 352, 355 (Fla.1989). Section 90.702, Florida Statutes (2005), provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.
Section 90.704, Florida Statutes (2005), further provides guidelines for the data upon which an expert may rely to reach an opinion or conclusion: "If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion *856 expressed, the facts or data need not be admissible in evidence."
This Court has previously allowed a qualified expert to testify that, based upon the circumstances surrounding the discovery of the victim's body, a sexual battery likely occurred. Specifically, in Dailey v. State, 594 So.2d 254, 258 (Fla.1991), this Court addressed and rejected a challenge similar to that raised by Smith here:
During the penalty phase, the judge qualified Detective Halliday as an expert in homicide and sexual battery and allowed him to testify that because the victim's body was found nude and her clothing scattered, it was highly likely that a sexual battery or attempt had occurred. Dailey claims that this testimony was only common sense and it was error for the court to permit expert testimony on a matter that is within the common understanding of the jury. Halliday, however, had extensive training and experience in homicides and sexual batteries; his expert testimony was helpful in consolidating the various pieces of evidence found at the crime scene. This would not necessarily be within the common understanding of the jury. We find no error.
We conclude that, with the exception of the testimony discussed below, the trial court did not abuse its discretion when it permitted Vega to present opinion testimony as to whether this victim had been sexually battered. During trial, Dr. Vega testified that various aspects of the crime scene were consistent with sexual battery: (1) the victim was discovered naked below the waist; (2) there was evidence of tearing to the victim's hymen, and one possible cause of that tearing could have been penetration during a sexual battery; (3) bruises on the body could have been caused by a struggle with her attacker; and (4) it is more likely that the victim's jeans and underwear were removed before she was dragged to the location where her body was found, rather than pulled off while she was dragged, based upon the uniformity of the abrasions found.
The fact that there were alternative explanations for the condition of the body does not render Dr. Vega's testimony inadmissible. Rather, it was for the jury to decide what weight to accord Dr. Vega's opinion based upon any alternative explanations. See Delap v. State, 440 So.2d 1242, 1253-54 (Fla.1983); see also Dailey, 594 So.2d at 258 (detective's testimony that it was highly likely a sexual battery occurred was admissible because it "was helpful in consolidating the various pieces of evidence found at the crime scene"). The testimony of Dr. Vega assisted the jurors in deciding what happened, not who was responsible for the acts perpetrated against the victim. Cf. Martinez v. State, 761 So.2d 1074, 1079 (Fla.2000) ("[A] witness's opinion as to the guilt or innocence of the accused is not admissible."). Accordingly, we conclude that Dr. Vega's opinion that the evidence pointed to a sexual battery here was properly admitted.
We agree with Smith, however, that the trial court should have excluded one portion of Dr. Vega's testimonythat ligature strangulation is "highly associated" with sexual battery. Dr. Vega failed to provide any basis whatsoever to support a purported connection or correlation between these two elements, no evidence of such a connection was found here, and Dr. Vega had no research, data, or other material from which he drew this conclusion. Since it is impossible to determine from Dr. Vega's testimony whether the facts or data were of a type reasonably relied upon by experts to support the opinion expressed, it is impossible to evaluate whether Dr. Vega's conclusion is scientifically *857 supported or even valid. Absent adequate explanation of data, research, or other material from which this conclusion was drawn, we conclude that Dr. Vega should not have been allowed to express the opinion of a purported abstract connection between ligature strangulation and sexual battery.
However, defense counsel did not object to this particular statement, nor did the defense ask Vega to provide more detail with regard to this statement during cross-examination. Accordingly, this challenge was unpreserved. We have held that "[t]he failure to contemporaneously object to a comment on the basis that it constitutes improper ... testimony renders the claim procedurally barred absent fundamental error." Sexton v. State, 775 So.2d 923, 932 (Fla.2000) (emphasis supplied). To warrant reversal on the basis of fundamental error, "the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." Walls v. State, 926 So.2d 1156, 1176 (Fla.2006) (emphasis supplied) (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)). We conclude that Dr. Vega's testimony with regard to the ligature strangulation/sexual battery connection did not rise to the level of fundamental error. As previously discussed, there was a plethora of evidence, including semen that matched the DNA profile of Smith and Smith's confession to his brother that he engaged in "rough sex" with the victim, to support a conviction on this charge. We have no doubt that even if Dr. Vega had not presented this testimony, the jury nonetheless would have convicted Smith of capital sexual battery. Accordingly, no harmful error occurred, and Smith is not entitled to relief on this basis.
C. Statements by John Smith
Smith next asserts that the trial court erred when it refused to suppress statements by his brother, John, which related to comments made by Smith with regard to the sexual battery and murder of the victim. According to Smith, John obtained these statements while he was acting as an agent of the FBI and the SCSO. We disagree.
This Court has stated that "[a] trial court's ruling on a motion to suppress comes to us clothed with a presumption of correctness and, as the reviewing court, we must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling." Connor v. State, 803 So.2d 598, 605 (Fla.2001) (quoting Murray v. State, 692 So.2d 157, 159 (Fla.1997)). Nevertheless, "mixed questions of law and fact that ultimately determine constitutional rights should be reviewed by appellate courts using a two-step approach, deferring to the trial court on questions of historical fact but conducting a de novo review of the constitutional issue." Id. (citing United States v. Bajakajian, 524 U.S. 321, 336 n. 10, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998)).
We have previously addressed the state-agent concept and the constitutional issues presented by the use of state agents:
In Massiah [v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964)], the United States Supreme Court announced for the first time that the Sixth Amendment prohibits law enforcement officers from interrogating a defendant after his or her indictment and in the absence of counsel. Consequently, statements "deliberately elicited" from a defendant after the right to counsel has attached and in the absence of a valid waiver are rendered inadmissible and cannot be used against *858 the defendant at trial. 377 U.S. at 206[, 84 S.Ct. 1199]. Nevertheless, incriminatory statements by a defendant will not be excluded merely because the statements are made after judicial proceedings have been initiated and in the absence of a valid waiver. Rather, law enforcement officials must do something that infringes upon the defendant's Sixth Amendment right.
While the "deliberately elicited" standard is clearly satisfied when the police directly interrogate or question a defendant in some fashion, it also may be satisfied by less direct types of questioning. See State v. Wooley, 482 So.2d 595, 596 (Fla. 4th DCA 1986). Usually, determining whether the "deliberately elicited" standard has been met becomes an issue in cases ... where incriminatory statements from a defendant were obtained through persons other than the police who allegedly acted as police informants or surrogates.
Rolling v. State, 695 So.2d 278, 290 (Fla. 1997) (footnote omitted). We held in Rolling that "a violation of a defendant's right to counsel turns on whether the confession was obtained through the active efforts of law enforcement or whether it came to them passively." Id. at 291 (emphasis supplied). For example, in Malone v. State, 390 So.2d 338, 339 (Fla.1980), an inmate and a detective established a plan whereby the inmate would be transferred to another jail. The inmate would then visit the defendant in civilian clothes and tell the defendant that he had been released, and that the inmate would attempt to retain an attorney for the defendant. See id. We held that the trial court erred when it failed to suppress the defendant's statements to the inmate indicating that the defendant had killed the victim and providing directions as to where the body was located. See id. In so holding, we concluded that the statements were "directly elicited by the State's stratagem deliberately designed to elicit an incriminating statement from [the defendant]." Id. (emphasis supplied); cf. Dufour v. State, 495 So.2d 154, 159 (Fla.1986) (inmate was not a state agent where the inmate approached the authorities on his own initiative and, after speaking with authorities, the inmate was "neither encouraged nor discouraged from obtaining further information").
We conclude that the record supports the determination by the trial court that John Smith was not acting as an agent of the State. First, both statements that John provided to FBI agents are transcribed in the record. Not once in either of these statements do the agents ask John to speak to his brother to determine whether Carlie was alive. While the agents on one occasion asked John, "Have you ever thought about going to see him and asking if he did this," the agents did not further pursue this line of inquiry. It was John who volunteered that the only way to persuade Smith to talk would be to engage in trickery. However, in response to this statement by John, the agents did not request that he trick Smith in an effort to locate Carlie. The agents encouraged John to contact them further only if he had forgotten something. Further, after the morning meeting with Smith and his mother, when John informed the FBI agent that Smith "came close, but he didn't say anything," the agent did not question John further with regard to that statement.
Second, there is no indication that law enforcement arranged the morning meeting between John, Smith, and their mother. During the hearing on the motion to suppress, an FBI agent testified that after John provided his first statement, he subsequently called and demanded to see his brother. The agent followed the chain of command and eventually informed John that it was not possible to arrange a meeting *859 with Smith that night because Smith had requested an attorney. SCSO personnel confirmed that the FBI agent was informed that a visit was not possible that night and could only be arranged through the public defender. It was the public defender who eventually requested the visitation between John, his mother, and Smith. Thus, the record reflects that law enforcement did not affirmatively arrange the meeting between John and his brother. Instead, law enforcement initially blocked John from seeing Smith and required that he arrange a meeting through the public defender.
Finally, John's actions refute any contention that he was working as a State agent. John misled law enforcement with regard to the morning meeting with his mother and Smith. John then traveled with his mother to the church where Smith informed him that the victim's body was located, and searched for the body. It appears that John may have been seeking some personal benefit for himself or his family, but not as a state agent. On February 19, 2004, when Smith advised John that it was a "bad idea" for John to search for the body, John replied, "You're probably right, but he [sic] could have sold it for big, big bucks. Your kids could have went to college." Finally, when Smith provided John with a note written in code that explained what happened to the victim's belongings, John did not decipher the code for the State or relinquish the note voluntarily. The State was required to enlist the services of a cryptanalyst to decipher the message.
Based on these record facts, and the absence of any facts to support the agency theory, we conclude that the trial court properly denied suppression of John's statements.
D. Juror Challenges
Smith next challenges the trial court's refusal to strike nine jurors for cause. According to Smith, each of the jurors he sought to strike for cause provided sufficiently equivocal responses to generate a reasonable doubt as to their fitness to serve as jurors in this case.
We have described the duty of an appellate court to review denials of for-cause challenges as follows:
The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render a verdict solely on the evidence presented and the instructions on the law given by the court. See Lusk v. State, 446 So.2d 1038, 1041 (Fla.1984). "In evaluating a juror's qualifications, the trial judge should evaluate all of the questions and answers posed to or received from the juror." Parker v. State, 641 So.2d 369, 373 (Fla.1994). A juror must be excused for cause if any reasonable doubt exists as to whether the juror possesses an impartial state of mind. See Bryant v. State, 656 So.2d 426, 428 (Fla.1995). The trial court has broad discretion in determining whether to grant a challenge for cause, and the decision will not be overturned on appeal absent manifest error. Overton v. State, 801 So.2d 877, 890 (Fla.2001).
Kopsho v. State, 959 So.2d 168, 170 (Fla. 2007).
We have considered Smith's challenges with regard to each of the nine jurors and agree with Smith that the trial court erroneously denied two for-cause challenges. The first juror whom the trial court should have stricken was juror number 29.[13] Juror 29 indicated that he possessed *860 knowledge about the case because one of his employment duties was to update the internal computer-information network for the business, and he "broke" news to his staff as this case unfolded. When the trial court asked juror 29 whether he had formed impressions about the case, he replied, "yeah," after which the following dialogue occurred:
COURT: Okay. Can you tell me what those are?
JUROR: I have a daughter who is the same age that Carlie was and, you know, up until that time, we had allowed her to ride her bike in our neighborhood. Now, with things being what they are, we decided that all of that is now supervised even though she's now 13.
My impression being that, you know, having seen the videotape and everything that came out and that he made the confession, my thought is, okay, well, he's accused, he probably did it. Those are the thoughts that are in my mind.
COURT: Do you feel that that impression or opinion that you have ... is so strong that it would always color your decision, would affect your decision in this case? Or do you feel that you can completely set that aside and any decision that you would make in this case as to the guilt or innocence of Mr. Smith as it relates to these charges would be based solely on the evidence that you received here in this courtroom and my instructions to you on the law? Or do you feel that those impressions that you have are going to bleed over and might fill the gaps for you here at the trial?
JUROR: Well, having a great respect for the judicial system, I think I would do my very best to be impartial and understanding that it would have to be based on the evidence. I would have to look at it in a very black and white manner, which is what I would like to consider myself being, a person of integrity who would be able to say that, you know, if this is what the law says, then we have to go by what the law says. So, for me, it would be a matter of integrity.
(Emphasis supplied.) Although juror 29 eventually stated that he would follow the law as a "matter of integrity," we conclude that this statement was totally insufficient to overcome (1) his expressed opinion that Smith "probably did it," (2) his employment duty to follow the Brucia case and provide updates to his coworkers, and (3) the fact that he changed his behavior towards his daughter based upon the events of the instant case.
We also conclude that the trial court erred when it refused to strike juror 89 for cause. Juror 89 painfully explained that he had been a witness in a capital case where his daughter was murdered and that the experience was "[v]ery, very painful." When questioned further by the State, the prospective juror professed that "time is a great healer," and stated that that he could follow the instructions given by the trial court as well as be fair during the trial. It is apparent from voir dire that this juror sincerely felt that he could be fair and impartial if he were selected to serve on this case. Although we do not question this sincerity, we nonetheless conclude that the trial court should have stricken juror 89 for cause. Despite the earnest expression of beliefs and the good intentions of juror 89, we cannot accept that a parent who testified as a witness during his own daughter's murder trial could not be influenced, albeit unintentionally, by such a painful and tragic experience.
Although these two jurors should have been stricken for cause, Smith is not entitled to relief because the failures here constituted harmless error. We have explained that "where a trial court has *861 awarded additional peremptory challenges to a defendant, each such additional challenge is treated as having replaced one that was expended on a juror who should have been but was not struck for cause." Conde v. State, 860 So.2d 930, 942 (Fla. 2003). Accordingly, "[a] defendant cannot demonstrate prejudice if the trial court grants the same number of additional peremptories as cause challenges that were erroneously denied." Busby v. State, 894 So.2d 88, 97 (Fla.2004). The trial court here granted Smith three peremptory challenges in addition to the original ten challenges that he received. Thus, because the failure to strike jurors 29 and 89 constitutes harmless error, Smith is not entitled to relief.
E. Admission of Photographs
In his next challenge, Smith contends that the trial court erroneously admitted photos of the victim's body. The standard of review for the admission of photographs is abuse of discretion. See Davis v. State, 859 So.2d 465, 477 (Fla. 2003). This Court has explained:
"The test for admissibility of photographic evidence is relevancy rather than necessity." Crime scene photographs are considered relevant when they establish the manner in which the murder was committed, show the position and location of the victim when he or she is found by police, or assist crime scene technicians in explaining the condition of the crime scene when police arrived. This Court has upheld the admission of autopsy photographs when they are necessary to explain a medical examiner's testimony, the manner of death, or the location of the wounds.
However, even where photographs are relevant, the trial court must still determine whether the "gruesomeness of the portrayal is so inflammatory as to create an undue prejudice in the minds of the jur[ors] and [distract] them from a fair and unimpassioned consideration of the evidence." In making this determination, the trial court should "scrutinize such evidence carefully for prejudicial effect, particularly when less graphic photos are available to illustrate the same point."
Douglas v. State, 878 So.2d 1246, 1255 (Fla.2004) (alterations in original) (citations omitted) (quoting Pope v. State, 679 So.2d 710, 713 (Fla.1996); Czubak v. State, 570 So.2d 925, 928 (Fla.1990); Marshall v. State, 604 So.2d 799, 804 (Fla.1992)). The admission of photographs will also be upheld if they are "corroborative of other evidence." Czubak v. State, 570 So.2d 925, 928 (Fla.1990). At the same time, the admission of the photographs of a deceased victim also "must be probative of an issue that is in dispute." Almeida v. State, 748 So.2d 922, 929 (Fla.1999). Nonetheless, we have also explained that "[t]hose whose work products are murdered human beings should expect to be confronted by photographs of their accomplishments." Chavez v. State, 832 So.2d 730, 763 (Fla.2002) (quoting Henderson v. State, 463 So.2d 196, 200 (Fla.1985)). Finally, with regard to the impact of gruesome photos upon the jury, this Court has noted:
It is not to be presumed that gruesome photographs will so inflame the jury that they will find the accused guilty in the absence of evidence of guilt. Rather, we presume that jurors are guided by logic and thus are aware that pictures of the murdered victims do not alone prove the guilt of the accused.
Henderson, 463 So.2d at 200.
The record reflects that the trial court carefully considered each of the photographic exhibits and even requested that the State speak to Dr. Vega with regard to *862 the photos that he thought would best illustrate his testimony. See generally Philmore v. State, 820 So.2d 919, 932 (Fla. 2002) (trial court's preliminary screening weighed in favor of admissibility). The trial court also excluded some photos that were proffered by the State. For example, the trial court admitted photo 53 to illustrate the testimony that the victim's wrists were bound, but excluded photos 54 and 55. We consider the challenged photos based upon the purpose for their admission.
Exhibits 34 and 35AThese photos depict the body of the victim as she was discovered in the field behind the church. Exhibit 34 is a side view of the lower half of her body. Exhibit 35A, which is clearly the more graphic of the two, is a photo taken from the foot of the body and depicts the victim's spread legs and exposed genitalia. The image reflects decomposition of, and insect larvae on, the body.
One of the disputed issues during trial was whether the victim was sexually battered. Dr. Vega testified that vaginal and anal swabs taken from the body tested negative for sperm. However, Dr. Vega explained that optimal testing was compromised by the presence of larvae and decomposition. These two exhibits were relevant to Dr. Vega's testimony that the genitalia of Carlie had been affected by outside forces, which may have played a role with regard to the lack of evidence of a sexual battery. Therefore, we conclude that the trial court did not abuse its discretion when it admitted these photographs.
Exhibit 42This exhibit depicts the right calf of the victim, which exhibits prominent abrasions. Although animal predation on her ankle is visible, around this injury is larval activity. Dr. Vega utilized this exhibit to support his conclusion that the body had been dragged across a concrete-like surface before it was deposited in the field behind the church.[14] On cross-examination, Dr. Vega agreed that the positioning of the victim's shirt (i.e., pushed up on the right side of her body with her right shirt sleeve pulled down off of her right shoulder) could have been caused by the dragging of the body, but that most likely her jeans and undergarments had been removed before she was dragged based on the uniformity of the abrasions on her legs. The uniformity and smoothness of these abrasions also led Vega to conclude that the dragging occurred while the victim was either unconscious or dead. Accordingly, exhibit 42 was admissible and relevant to illustrate Dr. Vega's testimony with regard to the nature and extent of the injuries, and also to establish the manner of, and circumstances surrounding, the victim's death. See Philmore, 820 So.2d at 931 (citing Jackson v. State, 545 So.2d 260, 265 (Fla. 1989); Wilson v. State, 436 So.2d 908, 910 (Fla.1983)); see also Engle v. State, 438 So.2d 803, 809 (Fla.1983) (noting that admitted color photos were "especially useful in showing the drag marks on the victim's body").[15]
*863 Exhibit 48This last contested exhibit depicts the inner thigh of the victim with two surgical incisions. Dr. Vega explained that when he first examined the body, he found what appeared to be a bruise on the inside of her thigh. He incised the skin in two places, and pooling of blood under the skin confirmed that at or around the time of death, she suffered a bruise to her inner thigh. Dr. Vega testified that such a bruise could have been caused by a struggle between the victim and her attacker. Although it is a graphic photo, we conclude that exhibit 48 was relevant to the conclusion of Dr. Vega that the body exhibited signs of blunt-force trauma. See Philmore, 820 So.2d at 931 (photographs admissible to illustrate injuries noted by the medical examiner).
Based on the foregoing considerations, we conclude that the trial court did not abuse its discretion with regard to the photographs.
F. Doubling of Aggravating Circumstances
Smith contends that the trial court improperly doubled the aggravating factors that the murder was committed during the course of a sexual battery upon a child under the age of twelve and that the victim of the murder was under the age of twelve. However, the State correctly notes that during trial proceedings, defense counsel contended that improper doubling with the victim-age aggravating circumstances would occur if the trial court also found and applied the aggravating factor that the murder was committed during the course of aggravated child abuse. Thus, defense counsel never asserted improper doubling based upon the sexual battery charge.[16] Smith contends for the first time on appeal that the application of the "committed during the course of a sexual battery upon a person under the age of twelve" and the "under the age of twelve" aggravating factors would constitute improper doublers. Therefore, the instant challenge is unpreserved and procedurally barred from appellate consideration. See Perez v. State, 919 So.2d 347, 359 (Fla.2005) (holding that for an issue to be preserved for appeal, the specific legal argument or ground to be argued on appeal must have been presented to the lower court), cert. denied, 547 U.S. 1182, 126 S.Ct. 2359, 165 L.Ed.2d 285 (2006).
However, even if defense counsel had asserted below that a determination and application of both of these aggravating circumstances would result in improper doubling, the position is without merit. We have previously explained:
Improper doubling occurs when both aggravators rely on the same essential feature or aspect of the crime. Provence v. State, 337 So.2d 783, 786 (Fla.1976). However, there is no reason why the facts in a given case may not support multiple aggravating factors so long as they are separate and distinct aggravators and not merely restatements of *864 each other, as in murder committed during a burglary or robbery and murder for pecuniary gain, or murder committed to avoid arrest and murder committed to hinder law enforcement.
Banks v. State, 700 So.2d 363, 367 (Fla. 1997) (emphasis supplied). As a result, "the focus in an examination of a claim of unconstitutional doubling is on the particular aggravators themselves, as opposed to whether different and independent underlying facts support each separate aggravating factor." Sireci v. Moore, 825 So.2d 882, 885-86 (Fla.2002).
We conclude that these two aggravators are separate and distinct because one is based exclusively upon the age of the victim and the other is based upon the commission of a totally separate, different, and additional felony at the time of the murder (i.e., sexual battery), regardless of whether it is a child who is the victim of that contemporaneous felony. Indeed, to conclude that the "in the course of a sexual battery" aggravator cannot also be found and applied with the "under the age of twelve" aggravator would produce illogical results. The "committed in the course of a felony" aggravator lists numerous felonies to which it applies, including robbery, burglary, or arson. Under Smith's interpretation, if a child dies while the defendant commits arson or a robbery, two aggravators may be found and applied by the trial court, simply because the contemporaneous felony does not provide a specific reference to the age of a child. Conversely, a defendant who sexually batters and murders a child will only be subject to one statutory aggravator. Neither a jury nor a sentencing court should be precluded from considering as an aggravating circumstance that the murder occurred during the commission of a second violent felony simply because the defendant murdered a child and the additional felony includes an age component. Section 921.141(5)(d), Florida Statutes (2004), lists sexual batterynot sexual battery upon a child under the age of twelveas a qualifying crime for application of this aggravating circumstance, and these two aggravators are not "merely restatements of each other" and do not rely upon the "same essential feature or aspect of the crime." Banks, 700 So.2d at 367. Accordingly, the trial court did not err when it found and applied both of these aggravators to the murder here. We deny relief on this claim.
G. Constitutionality of Section 921.141(5)(l), Florida Statutes (2004)
Smith next asserts that the statutory aggravating circumstance that the victim of the murder was under twelve years of age is unconstitutional. Smith contends that this circumstance is overinclusive and operates as an automatic aggravator because the statute requires neither that the defendant know the victim's age nor that the State demonstrate that an age-based vulnerability played a role in the homicide. We disagree.
The instant challenge presents an issue of first impression because, although similar challenges have previously been asserted, this is the first case in which such an issue has been properly preserved. See Stephens v. State, 975 So.2d 405, 426 (Fla. 2007) (appellate counsel not ineffective for failure to challenge the constitutionality of section 921.141(5)(l) where trial counsel did not object during trial); Lukehart v. State, 776 So.2d 906, 925 (Fla.2000) (constitutional challenge to section 921.141(5)(l) procedurally barred where defendant failed to object during trial to the jury instruction on constitutional grounds). The constitutionality of a statutory aggravator is a pure question of law and is, therefore, subject to de novo review. See *865 Troy v. State, 948 So.2d 635, 643 (Fla. 2006).
We reject Smith's constitutional challenge with regard to this aggravating circumstance. As argued by the State, this aggravator narrows the class of individuals who are subject to the death penalty because only a percentage of murder victims are under twelve years of age. See Francis v. State, 808 So.2d 110, 138 (Fla. 2001) ("[T]o be constitutional, an aggravating circumstance must `not apply to every defendant convicted of murder; it must apply only to a subclass of defendants convicted of murder.'" (quoting Tuilaepa v. California, 512 U.S. 967, 972, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994))).
With regard to the contention that section 921.141(5)(l) violates due process because it does not require the State to establish that Smith targeted the victim based upon her age, this assertion is also without merit. In Woodel v. State, 804 So.2d 316, 325 (Fla.2001), this Court considered the constitutionality of section 921.141(5)(m), which establishes an aggravating circumstance for consideration when the victim of the capital felony is particularly vulnerable due to advanced age or disability. We previously upheld the constitutionality of this statute in Francis and further noted in Woodel that the finding of this aggravator is not dependent on whether the defendant has targeted his or her victim based on the age or disability of the victim. See 804 So.2d at 325. We similarly conclude that to find the existence of the "under twelve" aggravating circumstance, the State need not demonstrate that the defendant targeted the victim based upon her age. See also United States v. Minerd, 176 F.Supp.2d 424, 447 (W.D.Pa.2001) (rejecting claim that aggravator did not apply because defendant did not select the victim based upon her age where in "the plain language of the statute the aggravator refers to the age or physical characteristics of the victim, and not to whether she was targeted because of those qualities").
Finally, although the "under twelve" aggravator does not expressly require that the victim be "particularly vulnerable," the absence of these words in section 921.141(5)(l) does not render this subsection constitutionally deficient. The Legislature has the discretion to deem all children under the age of twelve "vulnerable" and, at times, has even equated young children with vulnerable adults. See, e.g., §§ 39.908(3)(b), Fla. Stat. (2008) ("[r]eporting suspected abuse of a child or a vulnerable adult as required by law"); 393.0673(1), Fla. Stat. (2008) ("The agency may revoke or suspend a license or impose an administrative fine ... if: ... (b) The Department of Children and Family Services has verified that the licensee is responsible for the abuse, neglect, or abandonment of a child or the abuse, neglect, or exploitation of a vulnerable adult."); ch. 85-53, Laws of Fla. (preamble) ("WHEREAS, children are in need of special protection as victims or witnesses in the judicial system as a result of their age and vulnerability ...."); see also Leon v. State, 498 So.2d 680, 682 (Fla. 3d DCA 1986) ("All children under the age of twelve are, by definition, children of tender age who are particularly vulnerable to acts of child abuse."). We hold that section 921.141(5)(l) is constitutional.
H. Avoid Arrest Aggravating Circumstance
Smith asserts that the trial court erroneously found the existence of the avoid-arrest aggravating circumstance. According to Smith, the only evidence of Smith's motivation were his statements to his brother John, which reflect that at the time of the murder he was under the *866 influence of drugs and scared and that the killing was an accident. Smith asserts that there may have been several motives for the murder, and that the State failed to establish that the sole or dominant motive was to avoid arrest.
The State is required to establish the existence of all aggravating circumstances beyond a reasonable doubt. See Geralds v. State, 601 So.2d 1157, 1163 (Fla.1992). Where the evidence in the case is entirely circumstantial, the State can satisfy the burden of proof only if the evidence is "inconsistent with any reasonable hypothesis which might negate the aggravating factor." Id. "The standard of review applicable to this issue is whether competent, substantial evidence supports the trial court's finding." Conde v. State, 860 So.2d 930, 953 (Fla.2003).
This Court has described what must be demonstrated to satisfy the avoid arrest aggravator:
The avoid arrest/witness elimination aggravating circumstance focuses on the motivation for the crimes. See Jennings v. State, 718 So.2d 144, 151 (Fla.1998). Where the victim is not a police officer, "the evidence [supporting the avoid arrest aggravator] must prove that the sole or dominant motive for the killing was to eliminate a witness," and "[m]ere speculation on the part of the state that witness elimination was the dominant motive behind a murder cannot support the avoid arrest aggravator." Consalvo v. State, 697 So.2d 805, 819 (Fla.1996); accord Gore v. State, 706 So.2d 1328, 1334 (Fla.1997). However, this factor may be proved by circumstantial evidence from which the motive for the murder may be inferred, without direct evidence of the offender's thought processes. See Preston [v. State], 607 So.2d [404, 409 (Fla.1992)].
In other cases, this Court has found it significant that the victims knew and could identify their killer. While this fact alone is insufficient to prove the avoid arrest aggravator, see Consalvo, 697 So.2d at 819, we have looked at any further evidence presented, such as whether the defendant used gloves, wore a mask, or made any incriminating statements about witness elimination; whether the victims offered resistance; and whether the victims were confined or were in a position to pose a threat to the defendant. See Jennings, 718 So.2d at 151.
Farina v. State, 801 So.2d 44, 54 (Fla.2001) (emphasis supplied). We have also explained that "the avoid arrest aggravator is proper where the victim is transported to another location and then killed." Zile v. State, 748 So.2d 1012, 1027 (Fla.1999). Here, the trial court relied upon four factors to conclude that the State had established this aggravator: (1) Smith did not attempt to conceal his identity; (2) Smith removed the victim's belongings, disposed of them, and then dragged her body to a wooded location; (3) Smith initially lied to Detective Davis with regard to his whereabouts on February 1, 2004; and (4) Smith abducted the victim from one location and transported her to another to commit the sexual battery. The trial court ultimately found that
[Smith's] decision was not based on reaction or instinct, but was motivated solely by his decision to eliminate [Carlie] as a witness. No doubt, [Smith] realized that if he were caught and convicted [of] kidnapping and capital sexual battery, he would spend the rest of his life in prison.
We need not address the substance of this claim because we conclude that even if we were to find that competent, substantial evidence does not support *867 this aggravator as asserted by Smith, any error is harmless. Even if we were to strike this aggravating factor on appeal, the harmless error test would be applied. The trial court expressly stated that any one of the aggravators found (except felony probation) was sufficient to outweigh the mitigating factors due to the totality of the aggravating factors that we uphold and affirm today. There is no possibility that any erroneous finding on this issue affected the sentence imposed. Smith is not entitled to a new penalty phase.
I. CCP Aggravating Circumstance
Smith next contends that the trial court erred when it found that the murder here was cold, calculated, and premeditated. This Court has explained that:
To support the CCP aggravator, a jury must find "that the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage (cold), and that the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated), and that the defendant exhibited heightened premeditation (premeditated), and that the defendant had no pretense of moral or legal justification."
Buzia v. State, 926 So.2d 1203, 1214 (Fla. 2006) (quoting Jackson v. State, 648 So.2d 85, 89 (Fla.1994)). We have previously recognized that "[s]imple premeditation of the type necessary to support a conviction for first-degree murder is not sufficient to sustain a finding that a killing was committed in a cold, calculated, and premeditated manner." Holton v. State, 573 So.2d 284, 292 (Fla.1990). Moreover, "[t]he premeditation of a felony cannot be transferred to a murder which occurs in the course of that felony for purposes of [CCP]. What is required is that the murderer fully contemplate effecting the victim's death." Geralds, 601 So.2d at 1163 (quoting Hardwick v. State, 461 So.2d 79, 81 (Fla.1984)). CCP may be established by such facts as "advance procurement of a weapon, lack of resistance or provocation, and the appearance of a killing carried out as a matter of course." Swafford v. State, 533 So.2d 270, 277 (Fla.1988).
Here, the trial court based its finding of this aggravator on two purely circumstantial factors: (1) the kidnapping and sexual battery were deliberate acts planned by Smith; and (2) Dr. Vega testified that death by strangulation can take minutes to effect, and during the time that Smith held the ligature around the victim's neck, Smith had adequate time to reflect. According to the trial court, "as each moment passed, he made a conscious choice to slowly and methodically deprive her body of the blood and air necessary to sustain life." Because the facts of this case support another reasonable hypothesis that is inconsistent with this aggravator, we conclude that the State failed to establish beyond a reasonable doubt that this murder was cold, calculated, and premeditated.
The facts reflect that the abduction of Carlie was a spontaneous decision. Smith confided to his brother, John, on multiple occasions that he had never met the victim before. Accordingly, Smith could not have known that Carlie would be walking home alone that day without permission. Although Smith may have kidnapped her from the car wash with the intent to sexually batter her, there is no indication that at the time of the abduction he was planning to kill her. Cf. Geralds, 601 So.2d at 1163-64 (CCP aggravator rejected where defendant planned to burglarize the victim's home but evidence supported a reasonable hypothesis that defendant killed the victim in sudden anger). In the instant case, an equally if not more plausible explanation for the killing is that after *868 Smith battered this child, he panicked due to what he had done and he therefore strangled her. The latter scenario fails to present the careful and calm reflection that is required for the killing to qualify as "cold." See Holton, 573 So.2d at 292 (rejecting CCP aggravator when "[t]he strangulation murder occurred during another crime, sexual battery, and could have been a spontaneous act in response to the victim's refusal to participate in consensual sex"); Harmon v. State, 527 So.2d 182, 188 (Fla.1988) (rejecting CCP aggravator when murder happened during the commission of a robbery and the defendant became frightened when the victim said his name).
Moreover, while the ligatures used to bind and strangle the victim were never found, the record reflects that at the time of the abduction, Smith was not driving his own vehicle. Thus, when he made what appears to be the spontaneous decision to kidnap Carlie, he obtained whatever was available within the vehicle to bind her and eventually kill her. Thus, unlike the cases that the State relies upon in support of the CCP aggravating circumstance, it appears that Smith did not procure the murder weapon in advance. See Ibar v. State, 938 So.2d 451, 458 (Fla.2006) (defendant went to his house and retrieved a firearm before travelling to the locations where the murders occurred); Hertz v. State, 803 So.2d 629, 635 (Fla.2001) (evidence reflected that at the time the defendant approached the victims' home, he and his codefendants were armed with guns); cf. Geralds, 601 So.2d at 1164 (no CCP where the defendant used a knife from the victim's kitchen rather than one brought to the scene).
Moreover, unlike the cases upon which the State relies, there is no clear indication from the record that Smith had a window of time in which he "coldly and calmly decide[d] to kill." Ibar, 938 So.2d at 473-74 (CCP proper where the victims were bound and one of the victims was beaten for more than twenty minutes before the murder); Hertz, 803 So.2d at 650 (victims were bound and gagged for two hours before the murders); Wike v. State, 698 So.2d 817, 822 (Fla.1997) (after sexually battering one of the victims, the defendant drove both victims to another location and forced them walk into the woods, where he slit their throats). In light of the foregoing, we hold that competent, substantial evidence does not support the finding of this aggravator.
When this Court strikes an aggravating factor on appeal, the harmless error test is applied to determine whether there is a reasonable possibility that the error affected the sentence. See Jennings v. State, 782 So.2d 853, 863 n. 9 (Fla.2001); see also Douglas v. State, 878 So.2d 1246, 1268 (Fla.2004) ("Striking [an] aggravator necessitates a harmless error analysis."). We conclude that the erroneous finding of the CCP aggravator here was harmless because the trial court expressly stated in the sentencing order that any one of the aggravators found (except the felony probation aggravator) was sufficient to outweigh the mitigating circumstances found in this case and due to the other applicable aggravating factors. There is no reasonable possibility that the erroneous finding of CCP affected the sentence that was imposed by the trial court. Accordingly, Smith is not entitled to a new penalty phase.
J. Testimony of Smith's Mother and Sister
Both Smith's sister and mother expressed a desire to testify during the penalty phase. Defense counsel proffered that Smith's mother could testify to numerous elements of mitigation, and Smith's sister sought to read a letter that she had written. The State countered that such *869 testimony or statements would "open the door" to cross-examination about the fact that Smith allegedly had sexual contact with his sister when she was thirteen and he was seventeen, and that the mother sent Smith to live with his aunt when she learned from her daughter about the sexual contact. The trial court agreed that if these witnesses were called, they would be subject to cross-examination to "show the entire picture" with regard to Smith's prior actions. Smith ultimately chose not to present either witness. Smith now contends that the ruling of the trial court constituted an abuse of discretion because, had the sister and mother been cross-examined with regard to the alleged sexual conduct between Smith and his sister, the unfair prejudice of this testimony would have substantially outweighed its probative value. See § 90.403, Fla. Stat. (2004).
Trial court rulings on evidentiary issues are reviewed under the abuse of discretion standard. See Salazar v. State, 991 So.2d 364, 373 (Fla.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 1347, 173 L.Ed.2d 614 (2009). The State correctly notes that during the trial proceeding, defense counsel contended that the evidence of sexual conduct between Smith and his sister should not be disclosed because it was irrelevant to the instant proceeding. For the first time on appeal, Smith now contends that while this evidence may be relevant, the relevance is far outweighed by its prejudicial value and therefore should be excluded pursuant to section 90.403, Florida Statutes. Accordingly, this challenge in unpreserved and, therefore, procedurally barred for appellate consideration. See Perez, 919 So.2d at 359.
However, even if defense counsel had preserved this challenge below, we conclude that Smith would not be entitled to relief because the trial court did not abuse its discretion. This Court has explained that
the State "shall be provided a full opportunity to rebut the existence of mitigating factors urged by [the defendant] ... and to introduce evidence tending to diminish their weight if they cannot be rebutted." We usually allow the State to rebut the mitigation offered by the defense, and we allow the defense to offer evidence to rebut aggravation proposed by the State.
Kormondy v. State, 845 So.2d 41, 51-52 (Fla.2003) (citation omitted) (quoting Ellis v. State, 622 So.2d 991, 1001 (Fla.1993)).
During the penalty phase, Smith presented the testimony of various witnesses who testified positively as to Smith's relationship with his family. Smith's aunt testified that Smith is her godchild; that he was more of a son to her than a nephew; that he played with her son every day as the two grew up; that he attended family functions; that he was the best man at her son's wedding; and that when her husband passed away, Smith helped her, and she could not have made it through that time without him. Smith's cousin testified that she and Smith were more like siblings than cousins because they did everything together. She testified that Smith was always around to help her mother after her father died. The cousin also identified photographs of Smith with his sister feeding a baby lamb and Smith with other family members at his sister's communion.
This evidence was presented to demonstrate that Smith was a loving family member and that he maintained positive relationships with them. We agree with the State that this evidence "opened the door" for the presentation of evidence that rebutted the portrayal of Smith as an ideal family member. Indeed, to prohibit cross-examination of Smith's mother and sister would operate to deceive the jury. The *870 defense does not dispute that Smith engaged in sexual conduct with his then thirteen-year-old sister and was subsequently forced to leave his home and live with his aunt as a result of this conduct. If the court had permitted Smith to present witnesses to demonstrate that Smith was a good brother, nephew, and cousin, but then protected those witnesses from cross-examination with regard to the darker elements of Smith's childhood, the State would have been erroneously precluded from rebutting mitigation evidence. See Kormondy, 845 So.2d at 51-52. This also would have presented a skewed portrait of Smith to the jury. Therefore, although the trial court's decision not to allow Smith's mother or sister to testify without being subject to cross-examination may have strategically precluded some mitigation evidence from being presented during the penalty phase, we cannot conclude that the trial court's evidentiary ruling on this sensitive issue constituted an abuse of discretion.
K. Allocution Before the Jury
During the penalty phase, the jury submitted the following question to the trial court: "Is it within the realm of possibility to consider a sentence based on allocution to the crime?" Smith prepared a written statement and asked to make a statement of allocution to the jury in response to its question without being subject to cross-examination by the State. The trial court denied this request, and Smith challenges this ruling.
Smith concedes that the Court rejected a similar claim in Troy v. State, 948 So.2d 635 (Fla.2007); however, he notes one factual differencehere, the jury was sophisticated enough be aware of allocution and may have expected Smith to make a statement of remorse. According to Smith, when the jurors did not receive allocution, they may have believed that Smith had no remorse for what he had done. Smith contends that the ruling of the trial court deprived him of a fair penalty phase and due process of the law.
In Troy v. State, we held that the trial court did not err when it denied a capital defendant the opportunity to provide an allocution statement before the jury without being subject to cross-examination. In our analysis, we explained:
Spencer outlines the proper sentencing phase procedure to be followed in death cases; it also emphasizes the role of the circuit judge over the trial jury in the decision to impose a sentence of death:
First, the trial judge should hold a hearing to: a) give the defendant, his counsel, and the State, an opportunity to be heard; b) afford, if appropriate, both the State and the defendant an opportunity to present additional evidence; c) allow both sides to comment on or rebut information in any presentence or medical report; and d) afford the defendant an opportunity to be heard in person. Second, after hearing the evidence and argument, the trial judge should then recess the proceeding to consider the appropriate sentence. If the judge determines that the death sentence should be imposed, then, in accordance with section 921.141, Florida Statutes ... the judge must set forth in writing the reasons for imposing the death sentence. Third, the trial judge should set a hearing to impose the sentence and contemporaneously file the sentencing order. Such a process was clearly not followed during these proceedings.
. . . .
615 So.2d at 690-91 (emphasis added)....
In Johnson v. State, 608 So.2d 4 (Fla. 1992), this Court rejected the defendant's *871 claim that a videotape he made expressing remorse should have been shown to the jury. Id. at 10. At trial, the trial judge denied this request, agreeing with the prosecution that it would enable the defendant to escape cross-examination by not testifying in person. Id. This Court agreed with the trial court's decision to exclude the videotape, concluding,
"All witnesses are subject to cross-examination for the purpose of discrediting them by showing bias, prejudice or interest." Jones v. State, 385 So.2d 132, 133 (Fla. 4th DCA 1980). Johnson could have made this plea to the judge, the sentencer, and we find no error in refusing to let the jury hear his self-serving statement.
Johnson, 608 So.2d at 10. We reaffirm our holding in Johnson here.
Troy, 948 So.2d at 648-49.
In the instant case, consistent with Troy, Smith was allowed to make an allocution statement during the Spencer hearing. Accordingly, the trial court properly denied Smith's request, and relief on this claim is not warranted.[17]
L. Constitutionality of Section 775.051, Florida Statutes (2004)
Under this challenge, Smith contends that section 775.051, Florida Statutes (2004), which abolished the defense of voluntary intoxication under certain circumstances, violates due process.[18] Smith asserts that section 775.051 is fundamentally different from the voluntary-intoxication-defense abolishment statute upheld by the United States Supreme Court in Montana v. Egelhoff, 518 U.S. 37, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996), because the Montana statute removed voluntary intoxication across the board from the mens rea inquiry, thereby redefining the mental state for the committed offense. On the other hand, the Florida statute precludes the defense based upon the substance consumed. Thus, according to Smith, section 775.051 does not amount to a redefinition of the mental-state element of specific-intent criminal offenses as did the Montana statute. Rather, the statute unconstitutionally prohibits most, but not all, voluntarily intoxicated defendants from introducing evidence to negate the requisite mental state for commission of an offense.
In Egelhoff, the United States Supreme Court upheld a statute, see 518 U.S. at 56, 60, 116 S.Ct. 2013, which provided that voluntary intoxication "may not be taken into consideration in determining the existence of a mental state which is an element of [a criminal] offense." 518 U.S. at 39-40, *872 116 S.Ct. 2013 (plurality opinion). In reaching this determination, the plurality noted that under old English and early American law, defendants were precluded from arguing that, due to intoxication, they could not have possessed the mens rea required to commit the crime. See id. at 44, 116 S.Ct. 2013. The plurality noted that an exception to this common-law rule had been created in more recent years: "[B]y the end of the 19th century, in most American jurisdictions, intoxication could be considered in determining whether a defendant was capable of forming the specific intent necessary to commit the crime charged." Id. at 47, 116 S.Ct. 2013.
However, the plurality concluded that this exception had not become so deeply rooted in the tradition or conscience of our society as to qualify as a fundamental principle of justice, such that the decision of a state to abolish the exception would be "subject to proscription under the Due Process Clause." Id. at 43, 116 S.Ct. 2013 (quoting Patterson v. New York, 432 U.S. 197, 201-02, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)). Accordingly, the plurality held that "[t]he people of Montana have decided to resurrect the rule of an earlier era, disallowing consideration of voluntary intoxication when a defendant's state of mind is at issue. Nothing in the Due Process Clause prevents them from doing so." Id. at 56, 116 S.Ct. 2013.
As with the allocution issue, this Court in Troy considered and rejected a claim that section 775.051 violates due process. In Troy, we adopted the analyses of two Florida district courts that rejected constitutional challenges to section 775.051 and relied on Egelhoff in their analyses:
In Florida, two appellate decisions have addressed and upheld the constitutionality of section 775.051. See Barrett v. State, 862 So.2d 44 (Fla. 2d DCA 2003); Cuc v. State, 834 So.2d 378 (Fla. 4th DCA 2003). In Cuc, the defendant alleged that she was denied her right to due process of law under section 775.051 because she was not allowed to raise a defense of voluntary intoxication. 834 So.2d at 378. In affirming her conviction, the Fourth District noted that the statute at issue in Florida was similar to the one upheld in Egelhoff. Id. ...
In the case before the Second District, Barrett was convicted of first-degree murder; on appeal, he argued that section 775.051 "improperly excludes a class of relevant evidence and lessens the State's burden to prove his guilt beyond a reasonable doubt." Barrett, 862 So.2d at 45. Barrett conceded that the Florida statute was similar to the statute upheld in Egelhoff, but he argued that Florida's Constitution provides stronger due process protections than does the United States Constitution. Id. at 47, 518 U.S. 37, 116 S.Ct. 2013. The Second District disagreed, holding that "there is no basis to conclude that the Florida Constitution provides greater protections to Barrett than does the United States Constitution in relation to the elimination of voluntary intoxication as a defense to a criminal offense." Id. at 48, 518 U.S. 37, 116 S.Ct. 2013.
The Barrett court also considered whether section 775.051 effects a "substantive change to the mens rea element of criminal conduct or is simply a rule of evidence." Id. at 48. The court found that, based on this Court's precedent in State v. Garcia, 229 So.2d 236, 238 (Fla. 1969), and Caple v. Tuttle's Design-Build, Inc., 753 So.2d 49, 53 (Fla.2000), the change is substantive, in line with Egelhoff:
Substantively, section 775.051 addresses the mens rea element of criminal offenses by stating that voluntary intoxication is not a defense to criminal *873 conduct and cannot be used to show that the defendant lacked the specific intent to commit a crime. This is consistent with the State's interest in making persons who voluntarily become intoxicated responsible for their behavior. See Egelhoff, 518 U.S. at 49-50, 116 S.Ct. 2013. However, the statute also addresses procedural matters by excluding, at trial, evidence of voluntary intoxication.
Although section 775.051 has both substantive and procedural elements, this does not render the statute constitutionally infirm when the procedural provisions "are intimately related to the definition of those substantive rights." See Caple, 753 So.2d at 54. As was the case with the Montana statute under Justice Ginsburg's analysis, section 775.051 effects a substantive change in the definition of mens rea, and it is not simply an evidentiary rule. See Egelhoff, 518 U.S. at 57-60, 116 S.Ct. 2013.
Barrett, 862 So.2d at 48 (parallel citations omitted). We find the reasoning and conclusions in Cuc and Barrett to be sound and we adopt that reasoning as our own.
948 So.2d at 644-45. Thus, we have previously determined that section 775.051 does not violate due process.
To the extent Smith contends that the statute violates due process (or possibly equal protection) because it allows individuals who ingest illicit substances that are not listed in chapter 893, Florida Statutes (2004), to utilize a defense of voluntary intoxication, this challenge is unpreserved and, therefore, procedurally barred. See Perez, 919 So.2d at 359. The record reflects that Smith did not assert this specific legal challenge before the trial court. The only disparate-treatment contention that Smith argued below was that the statute violates equal protection because it allows a voluntary intoxication defense to be utilized when the person ingests a controlled substance pursuant to a medical prescription, but does not allow the defense for individuals who ingest drugs without a valid prescription. An identical equal-protection claim was decided adversely to Smith in Troy. See 948 So.2d at 645. Accordingly, relief is not warranted on this claim.
M. Challenges pursuant to Ring v. Arizona
In Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the United States Supreme Court invalidated sentencing schemes where the trial court was responsible for (1) the finding of an aggravating circumstance which rendered a defendant eligible for the death penalty, and (2) the ultimate decision to impose a death sentence. According to Smith, Florida constitutes a "judge-sentencing" state and, therefore, its sentencing scheme violates the Sixth Amendment.
Smith's claim is without merit. This Court has repeatedly held that Florida's capital sentencing scheme does not violate the United States Constitution under Ring. See, e.g., Gore v. State, 964 So.2d 1257, 1276-77 (Fla.2007); Hannon v. State, 941 So.2d 1109, 1147 (Fla.2006); Jones v. State, 845 So.2d 55, 74 (Fla.2003). Further, in Owen v. Crosby, 854 So.2d 182, 193 (Fla.2003), this Court rejected a Ring challenge where the trial court found as an aggravating circumstance that the defendant committed the murder during the commission of a burglary or sexual battery. In reaching this determination, the Court noted that this particular aggravator "involve[s] circumstances that were submitted to a jury and found to exist beyond a reasonable doubt." Id.
*874 In the instant case, a jury convicted Smith of sexual battery upon a child less than twelve years of age and kidnapping. Since the jury determined beyond a reasonable doubt that Smith committed these crimes, Smith's Ring challenge is without merit on this additional basis. Accordingly, this claim is denied.
N. Sufficiency
Even if a defendant has not specifically presented a sufficiency challenge, this Court has an independent obligation to review the record to determine whether sufficient evidence exists to support a conviction. See Overton v. State, 801 So.2d 877, 905 (Fla.2001); Fla. R.App. P. 9.142(a)(6). Here, the record evidence is sufficient to affirm Smith's convictions on each of the charged crimes. Carlie's kidnapping was captured on a video recording and, during trial, her stepfather testified that neither he nor her mother gave anyone permission to take custody of her on February 1, 2004. Smith subsequently confessed that he forced the victim to engage in sexual conduct and that he strangled her after "rough sex." Smith informed his brother John where victim's body could be found, and John led law enforcement agents to that location. Hair and fibers consistent with that of the victim were found in the yellow station wagon which was in Smith's borrowed possession on the night of the crimes. The child was found naked from the waist down, and semen which was found on the back of the shirt she was wearing at the time of her abduction and murder contained DNA that matched Smith. Finally, the record reflects that Smith admitted to his brother that he dragged the body of Carlie into the field behind the church and disposed of her personal belongings in four different dumpsters.
O. Proportionality
As with sufficiency of the evidence, even if a defendant does not challenge the proportionality of the death sentence, this Court has an independent obligation to review each case to ensure that death is the appropriate punishment. See Philmore v. State, 820 So.2d 919, 939 (Fla.2002); Fla. R.App. P. 9.142(a)(6). When we conduct a proportionality analysis, the totality of the circumstances should be considered and the matter should be considered in relation to other capital cases. See Nelson v. State, 748 So.2d 237, 246 (Fla.1999). This comparison, however, is not to be made as to the number of aggravating and mitigating circumstances found. See Porter v. State, 564 So.2d 1060, 1064 (Fla.1990). Additionally, the death penalty is "reserved only for those cases where the most aggravating and least mitigating circumstances exist." Terry v. State, 668 So.2d 954, 965 (Fla.1996).
In the instant matter, the jury recommended the death penalty by a vote of ten to two. The trial court found this recommendation appropriate after weighing the statutory aggravating circumstances with the mitigating circumstances. In imposing the death sentence, the trial court found five statutory aggravators (not including the stricken CCP aggravator): (1) Smith committed the felony while he was on probation (moderate weight); (2) the murder was committed while Smith was engaged in the commission of a sexual battery or kidnapping (significant weight); (3) the murder was committed for the purpose of avoiding lawful arrest (great weight); (4) HAC (great weight); and (5) the victim was under twelve years of age (great weight). The trial court also found thirteen nonstatutory mitigating circumstances.
*875 After reviewing the totality of the circumstances and considering the striking of the CCP aggravating circumstance, we conclude that the instant matter is proportional based on other capital cases in which this Court has upheld the death penalty. We have repeatedly affirmed the death penalty where the defendant has kidnapped, sexually battered, and murdered a child victim. In Davis v. State, 698 So.2d 1182 (Fla.1997), this Court affirmed the imposition of a death sentence where the defendant entered the home of his ex-girlfriend, removed the ex-girlfriend's eleven-year-old daughter, transported her to his trailer, digitally penetrated her, and then strangled her. See id. at 1186-87. In aggravation, the trial court found that Davis was under a sentence of imprisonment; the murder was committed in the course of a kidnapping and sexual battery; the murder was committed for the purpose of avoiding arrest; and HAC. See id. at 1187. The trial court found one statutory mitigating circumstancethat the murder was committed while Davis was under the influence of extreme mental or emotional disturbanceand accorded this factor great weight. See id. The trial court also found a number of nonstatutory mitigating circumstances:
Davis was capable of accepting responsibility for his actions and had shown remorse for his conduct and offered to plead guilty; that he had exhibited good behavior while in jail and prison; that he had demonstrated positive courtroom behavior; that he was capable of forming positive relationships with family members and others; that he had no history of violence in any of his past criminal activity; that he did not plan to kill or sexually assault the victim when he began his criminal conduct; that he cooperated with police, confessed his involvement in the crime, did not resist arrest, and did not try to flee or escape; that he had always confessed to crimes for which he had been arrested in the past, accepted responsibility, and pled guilty; that he had suffered from the effects of being placed in institutional settings at an early age and spending a significant portion of his life in such settings; and that Davis obtained his GED while in prison and participated in other self-improvement programs.
Id.; see also Chavez v. State, 832 So.2d 730, 767 n. 44 (Fla.2002) (death sentence affirmed where defendant kidnapped, sexually battered, and strangled nine-year-old victim; in aggravation, trial court found HAC, the murder was committed while the defendant was engaged in a kidnapping, and the murder was committed to avoid lawful arrest; trial court found six mitigating circumstances but held that "the strength of the aggravating circumstances in this case are so overwhelming that they make the mitigating circumstances appear insignificant by comparison"); Carroll v. State, 636 So.2d 1316, 1319 (Fla.1994) (death sentence affirmed where defendant sexually battered and strangled ten-year-old victim; in aggravation, trial court found HAC, the murder was committed while the defendant was engaged in a sexual battery, and the defendant had previously been convicted of two prior violent felonies; trial court found no statutory mitigation but found that the defendant suffered from "some possible mental abnormalities and has an antisocial personality").
Here, the trial court found the same aggravators as in Davis plus the "victim under the age of twelve" aggravator.[19]*876 Particularly compelling in this proportionality analysis is the trial court's finding with regard to HAC:
Carlie endured unspeakable trauma, which began at the time of her kidnapping at Evie's. Because of the surveillance cameras, Carlie's abduction was literally caught on tape. The image of the Defendant taking her by the arm and leading her away will, no doubt, forever be etched in our minds. Because of the forensic evidence, we know the truth of what Carlie experienced thereafter.
From Evie's, Carlie was transported to at least one location, possibly more, and subjected to demeaning and cruel acts including the binding of her hands, the removal of her clothes and being forced to engage in various sex acts by a man nearly four times her age and double her size. During those acts, Carlie was unable to fight back. At eleven years of age, there is no doubt she was aware of her dire predicament and that she had little, if any, hope of survival.
Any hope of survival Carlie may have clung to faded once the Defendant placed the ligature around her neck. At this time, Carlie was conscious, but clearly in no position to fight back. Perhaps worst of all, Carlie knew she was going to die. Although this Court may never know exactly how long it took for Carlie to be rendered unconscious once the defendant placed the ligature around her neck, this child had already suffered unspeakable terror and physical suffering at the Defendant's hands.
The trial court here found no statutory mitigating circumstances. While the trial court did find thirteen nonstatutory mitigating circumstances, a number of them were accorded little weight. As in Chavez, the mitigation found by the trial court in this case was insignificant in comparison to the established aggravation. Accordingly, we hold that the imposition of death for the murder of Carlie is proportionate, and we affirm the sentence.
III. CROSS-APPEAL
The State filed a pretrial motion seeking a determination that Smith's 1993 aggravated battery charge should be used to establish the "prior violent felony conviction" aggravating circumstance. The trial court relied upon this Court's decision in Garron v. State, 528 So.2d 353 (Fla.1988), and held that this aggravator did not apply because Smith pled no contest to the aggravated battery charge and adjudication was withheld. In Garron, we struck the "prior violent felony" aggravator under identical circumstances. Our analysis provided:
In McCrae v. State, 395 So.2d 1145 (Fla. 1980), cert. denied, 454 U.S. 1041, 102 S.Ct. 583, 70 L.Ed.2d 486 (1981), this Court upheld that aggravating factor because there was a guilty plea but no adjudication of guilt. In that case we recognized that a valid guilty plea should be considered a "conviction" for capital sentencing proceedings. The Court reasoned that the guilty plea is more than a confession; it is a conviction. In the present case, however, the prior "conviction" lacks a guilty plea. Under the McCrae analysis, the plea of guilty is an absolute condition precedent before the lack of adjudication can be considered a conviction. Here, appellant pled nolo contendere to the aggravated assault charge and received no adjudication of guilt. It does not follow from McCrae that a plea of nolo contendere amounts to either a confession of guilt or a "conviction" for purposes of capital sentencing proceedings. A nolo plea means "no contest," not "I confess." It simply means that the defendant, for whatever reason, chooses not to contest *877 the charge. He does not plead either guilty or not guilty, and it does not function as such a plea. None of the factors which go toward evidencing a conviction are present in this case, therefore, the first aggravating factor must fail.
528 So.2d at 360 (emphasis supplied) (citation omitted).
The State contends on cross-appeal that the ruling of the trial court was erroneous because Garron was statutorily abrogated by the Legislature's 1993 adoption of a broader definition for the word "conviction" as that term is used in chapter 921, Florida Statutes (2008), which governs sentencing. In support of this contention, the State relies upon Montgomery v. State, 897 So.2d 1282, 1286 (Fla.2005), in which this Court held, in the context of sentencing guidelines, that the statutory definition of "conviction" in section 921.0021, Florida Statutes (2002), includes those felonies to which a defendant pled no contest, regardless of whether adjudication was withheld.
A review of the legislative history of the definition of "conviction" leads us to conclude that the Legislature did not intend for the definition in section 921.0021, Florida Statutes (2003), to apply to the "prior violent felony conviction" aggravator. See generally § 921.002(1), Fla. Stat. (2008) ("The provision of criminal penalties and of limitations upon the application of such penalties is a matter of predominantly substantive law and, as such, is a matter properly addressed by the Legislature."); State v. J.M., 824 So.2d 105, 109 (Fla.2002) ("[L]egislative intent is the polestar that guides a court's statutory construction analysis.").
In 1993, the Florida Legislature adopted section 921.0011(2), Florida Statutes (2008), which defined "conviction" as "a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld." See ch. 93-406, § 9, at 2924, Laws of Fla. The session law provided that the definitions under section 921.0011 applied to the entire chapter. See id. ("921.0011 DefinitionsAs used in this chapter...."). Chapter 921, entitled "Sentence," included section 921.141(5)(b), which provides as an aggravating circumstance that "[t]he defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person." Thus, under the plain language of section 921.0011, the 1993 definition of "conviction" applied to section 921.141(5)(b), and a plea, regardless of whether adjudication was withheld, constituted a conviction.
In 1997, section 921.0011 was repealed and renumbered as section 921.0021. See ch. 97-194, §§ 1, 4, at 3674-75, Laws of Fla. While renumbered, section 921.0021 still indicated in 1997 that it applied to the whole of chapter 921. See ch. 97-194, § 4, at 3675, Laws of Fla. ("As used in this chapter ... (2) "Conviction" means a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld."). In 1998, however, the Legislature expressly limited this section to noncapital felonies:
As used in this chapter, for any felony offense, except any capital felony, committed on or after October 1, 1998, the term ... (2) "Conviction" means a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld.
Ch. 98-204, § 3, at 1937-38, Laws of Fla. (emphasis supplied). In Montgomery v. State, 897 So.2d 1282, 1285-86 (Fla.2005), we subsequently held that, under the statutory definition of "conviction" provided in section 921.0021, a no contest plea with adjudication withheld constituted a conviction for purposes of the sentencing guidelines, *878 which do not apply to capital felonies.
The specific decision of the Legislature in 1998 to limit section 921.0021 to noncapital felonies demonstrates that it did not intend for the broader definition of the word "conviction" to apply to the "prior violent felony" aggravating circumstance in capital cases. See State v. Mark Marks, P.A., 698 So.2d 533, 541-42 (Fla. 1997) ("When the legislature amends a statute, we presume it intended the statute to have a different meaning than that accorded it before the amendment."). Accordingly, the trial court properly denied the State's request to utilize Smith's 1993 aggravated battery charge to establish the "prior violent felony" aggravator.
IV. CONCLUSION
Based upon the foregoing analyses and considerations, we affirm Smith's convictions and sentences.
It is so ordered.
QUINCE, C.J., and PARIENTE and LEWIS, JJ., concur.
CANADY, J., concurs in result with an opinion, in which POLSTON, J., concurs.
LABARGA and PERRY, JJ., did not participate.
CANADY, J., concurring in result.
I agree with the conclusion that Smith's convictions and sentences should be affirmed, but I disagree with the per curiam opinion's reasoning on four points.
First, with respect to Smith's challenge to the expert opinion testimony of Dr. Vega that ligature strangulation is highly associated with sexual battery, I conclude that the merits of Smith's argument need not be addressed but that the argument should be rejected because it was unpreserved. On the merits, I disagree with the per curiam opinion's conclusion that the trial court erred in admitting Dr. Vega's testimony.
Pursuant to sections 90.704-.705, Florida Statutes (2005), Dr. Vega was permitted to testify on direct examination without disclosing the data upon which his opinion was based. See Jackson v. State, 648 So.2d 85, 91 (Fla.1994) ("[T]here is no requirement that the facts or data underlying an expert opinion be admitted into evidence in order to establish the basis of the opinion."). If Smith wished to challenge Dr. Vega's testimony and inquire as to the basis supporting his opinion, he could have done so through cross-examination, section 90.705(1), or voir dire examination, section 90.705(2). See also Jackson, 648 So.2d at 91. However, Smith failed to challenge Dr. Vega's testimony under either procedure. Since sections 90.704-.705 permit expert opinion without disclosure of the facts or data upon which the opinion is based, the trial court could not have abused its discretion in admitting Dr. Vega's testimony. Furthermore, it is unreasonable to fault the prosecutor for failing to adduce evidence of the basis for Dr. Vega's expert opinion. The rules of evidence do not place this burden on the prosecutor. See City of Hialeah v. Weatherford, 466 So.2d 1127, 1129 (Fla. 3d DCA 1985) ("Under current law, the burden of challenging the sufficiency of the basis for the opinion rests with the party against whom it is offered.").
Second, with respect to Smith's argument regarding juror challenges to jurors 29 and 89, I agree with the per curiam opinion's conclusion that any error with respect to those jurors was harmless because Smith was granted three additional peremptory challenges. Accordingly, there is no need to address the substantive merits of the challenges to jurors 29 and 89. On the merits, given the legal rules *879 governing juror challenges and the broad discretion afforded trial judges considering juror challenges, I disagree with the per curiam opinion's conclusion that the trial court erred in determining that jurors 29 and 89 could serve as impartial jurors.
Juror 29 expressed the initial impression that based on news reports he believed that Smith "probably did it." However, the trial judge twice asked juror 29 whether he could set aside his initial impression of Smith and decide the case based solely on the evidence presented in the courtroom and the instructions on the law that he would receive. In both instances, juror 29 answered affirmatively. Juror 29 explained that his role as a juror in the judicial system was a matter of integrity for him and that "if this is what the law says, then we have to go by what the law says." Juror 29 never equivocated on his ability to follow the law.
Section 913.03(10), Florida Statutes (2005), provides that a juror may be challenged for cause on the ground that "[t]he juror has a state of mind regarding the defendant," but goes on to specifically provide that "the formation of an opinion or impression regarding the guilt or innocence of the defendant shall not be a sufficient ground for challenge to a juror if he or she declares and the court determines that he or she can render an impartial verdict according to the evidence." In this case, juror 29 declared, and the trial court determined, that the juror could render an impartial verdict according to the evidence. It is unwarranted for an appellate court to discredit such a prospective juror's statementswhich the trial court credited evidencing that the juror could be fair and impartial. The per curiam opinion's view on this point cannot be reconciled with section 913.03(10).
With regard to juror 89, I am particularly concerned that the per curiam opinion appears to rely on a categorical rule of exclusion for prospective jurors based on the juror's relationship with a murder victim in an unrelated case. Juror 89 explained that he had been a witness in a case involving the murder of his daughter but unequivocally stated his commitment to be impartial in Smith's case. The per curiam opinion concedes that this juror sincerely felt that he could be fair and impartial if he were selected to serve as a juror. Again, it is unwarranted for an appellate court to discredit such a prospective juror's statementswhich the trial judge creditedevidencing that the juror could be fair and impartial. See Brown v. State, 755 So.2d 737 (Fla. 4th DCA 2000) (upholding trial court's denial of for-cause challenges to jurors whose relatives had been murder victims). This case is unlike cases where jurors were related to victims of violent crimes but did not assure the court of their ability to follow the law. See, e.g., Segura v. State, 921 So.2d 765 (Fla. 3d DCA 2006); Wilkins v. State, 607 So.2d 500 (Fla. 3d DCA 1992); Salazar v. State, 564 So.2d 1245 (Fla. 3d DCA 1990).
Finally, with respect to this point, I note that section 913.03 sets forth a list of grounds on which a challenge for cause may be based and provides that such a challenge "may be made only on" one of the specifically enumerated grounds. The statute does not contain a specific ground for challenge based on the prospective juror's status as a victim (or relative of a victim) of another defendant in an unrelated criminal case. Such a victim (or victim's relative) may, as a result of the prior experience, have "a state of mind regarding the defendant, the case, [or] the person alleged to have been injured by the offense charged ... that will prevent the juror from acting with impartiality." § 913.03(10). There is, however, no basis for establishing an irrefutable presumption that such a state of mind exists and that a for-cause challenge must be granted when such a juror credibly avows an ability and *880 intention to act with impartiality. Such a presumption is not consistent with section 913.03.
Third, I disagree with the per curiam opinion's conclusion that the State failed to establish beyond a reasonable doubt that the murder of Carlie Brucia was cold, calculated, and premeditated. In my view, Smith's use of a ligature in carrying out the murder is significant evidence of calculation and reflection, which supports the trial court's finding of the CCP aggravator.
Fourth, I would not reach the merits of the State's cross-appeal but would instead dismiss the cross-appeal as moot. See, e.g., Deparvine v. State, 995 So.2d 351, 361 n. 4 (Fla.2008) ("The state raises two cross-appeal issues, which we will not address because Deparvine's convictions and sentences are affirmed."); Hoskins v. State, 965 So.2d 1, 7 (Fla.2007) ("Because we affirm, we do not address the State's cross-appeal."); Buzia v. State, 926 So.2d 1203, 1208 n. 2 (Fla.2006) ("State cross-appealed and raised two issues. However, because we affirm all of the trial court's findings, the State's cross-appeal is rendered moot.").
POLSTON, J., concurs.
NOTES
[1] The yellow station wagon became relevant to the investigation because when the proprietor subsequently reviewed the images captured on other cameras that were stationed at the car wash, he discovered that a camera which faced Bee Ridge Road recorded a yellow station wagon at 6:18 p.m. on February 1, 2004 (approximately three minutes before the abduction). A second camera captured that station wagon driving through the parking lot of the car wash. As previously noted, Carlie Brucia was abducted from the car wash at approximately 6:21 p.m. that day.
[2] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
[3] The SCSO requested and received assistance from the FBI with regard to the abduction case.
[4] When Carlie left her girlfriend's house on February 1, she was carrying a pink vinyl backpack, which had not been located.
[5] Dr. Vega examined photos that were taken of Smith after he was arrested for violation of probation. Dr. Vega testified that an injury on one of Smith's fingers was consistent with the type of injury that would be caused by friction from the rubbing of a cord against the side of a finger during manual strangulation. However, Dr. Vega emphasized that he could not determine if that was in fact the cause of Smith's injury.
[6] Dr. Vega testified that a large bruise on the inside of Smith's knee, which had been photographed after his arrest on the probation violation, could have been caused by a struggle with another person (i.e., a kick).
[7] A doctor certified in addiction medicine who reviewed Smith's treatment history was of the opinion that certain entities that treated Smith failed to implement a coordinated plan to address all of Smith's health issuesi.e., pain, depression, and addiction. The doctor explained that she did not discuss the details of the crimes with Smith, including whether he was on drugs that night and, if so, what type. Accordingly, she had no opinion with regard to Smith's level of intoxication on the night of the murder.
[8] Spencer v. State, 615 So.2d 688 (Fla.1993).
[9] The trial court noted that even though the murder was committed during the commission of two separate crimes, the court considered this aggravating circumstance only once, and no doubling occurred.
[10] Specifically, the trial court found that there was no evidence presented to support the mitigating circumstances that Smith was under extreme mental or emotional disturbance during the commission of these crimes or that Smith's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. See § 921.141(6)(b),(f), Fla. Stat. (2003). In support of this finding, the trial court noted that on the day of the crimes, at approximately 8:15 p.m. (i.e., after the murder), Smith visited the home of an acquaintance where they discussed repairs to a vehicle for approximately thirty-five to forty-five minutes.
[11] The trial court concluded that the timing of certain admissions "supports [the] finding that [Smith] attempted to use his mental health and drug abuse problems to achieve the desired outcome of avoiding prison and rallying his family around him."
[12] The recent decision of the United States Supreme Court in Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), does not impact our holding today. In fact, the Supreme Court concluded that our decision in Johnson with regard to the Confrontation Clause was consistent with its holding in Melendez-Diaz. See id. at 2540 n. 11. In Melendez-Diaz, the analysts who conducted the tests that led to the conclusion that the defendant possessed cocaine did not testify during trialinstead, only affidavits which reported the results of the testing were introduced. We conclude that the present case is distinguishable from and not controlled by Melendez-Diaz because, as previously noted, the FBI team supervisor who interpreted the data, formulated the conclusions, and prepared the report that implicated Smith in the sexual battery actually testified during trial.
[13] Because of the high-profile nature of this case, the jurors were referenced by number throughout the trial.
[14] Vega explained to the jury that the injury to Carlie's ankle was most likely caused by animal predation and not by her attacker.
[15] We agree with Smith, however, that it was improper for the prosecutor during closing penalty-phase statements to contend that Smith should receive the death penalty because he left the body "exposed to animals, predators in the woods." Such a comment was not relevant to establish the method of death, but instead was intended to inflame the emotions of the jury. Defense counsel did not object to this statement; therefore, absent fundamental error, Smith is not entitled to relief based upon improper commentary. See Morton v. State, 789 So.2d 324, 329 (Fla. 2001). We conclude that the reference to animal predation does not reach into the validity of the trial to the extent that a jury recommendation of death could not have been obtained without this statement. See id. However, we again remind prosecutors that closing statements "must not be used to inflame the minds and passions of the jurors so that their verdict reflects an emotional response to the crime or the defendant." Bertolotti v. State, 476 So.2d 130, 134 (Fla.1985).
[16] In fact, during the penalty phase, the trial court asked the parties if there would be a doubling concern with regard to the "victim under the age of twelve" and the "during the course of a sexual battery on a child under the age of twelve" aggravating circumstances, and the State responded, "No sir, I have not seen that as an issue on those two aggravators." Defense counsel did not make any comment in response to the position of the State.
[17] When the jury in this case inquired about allocution, the trial court did not indicate (or even imply) that Smith did not wish to make such a statement. Instead, the court simply advised the jury that "a defendant does not have a right to allocute before a jury without being subject to cross-examination." This statement would have conveyed to the jury that although Smith may have greatly desired to make a statement to the jury, he felt unable to do so because he would be cross-examined.
[18] Florida's voluntary-intoxication statute provides:
775.051. Voluntary intoxication; not a defense; evidence not admissible for certain purposes; exception. Voluntary intoxication resulting from the consumption, injection, or other use of alcohol or other controlled substance as described in chapter 893 is not a defense to any offense proscribed by law. Evidence of a defendant's voluntary intoxication is not admissible to show that the defendant lacked the specific intent to commit an offense and is not admissible to show that the defendant was insane at the time of the offense, except when the consumption, injection, or use of a controlled substance under chapter 893 was pursuant to a lawful prescription issued to the defendant by a practitioner as defined in s.893.02.
§ 775.051, Fla. Stat. (2004).
[19] Davis committed the murder in 1994, and this aggravator was not enacted until 1995. See ch. 95-159, § 1, Laws of Fla. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595761/ | 399 So. 2d 1276 (1981)
Patricia McCarthy, wife of Neal PENDLETON, Jacqulin Ann DeLaune, wife of Gerald DeLaune, Virginia Fremaux, wife of L. C. Soileau, III, Rose Mary Fremaux, wife of Robert Schlicher, Jr. and Edward C. Fremaux
v.
SHELL OIL COMPANY.
No. 11933.
Court of Appeal of Louisiana, Fourth Circuit.
June 2, 1981.
*1277 Alonzo T. Stanga, III, Metairie, for plaintiffs-appellees.
Hulse, Nelson & Wanek, Craig R. Nelson, New Orleans, for defendant-appellant.
Before BOUTALL, BARRY and KLEES, JJ.
BARRY, Judge.
Defendant appeals from a judgment ordering its eviction resulting from an alleged breach of contractual obligations as a lessee.
This scenario began in 1954 when Luchester McCarthy purchased property in Jefferson Parish and subsequently filed a counter letter providing that Edna C. Neely was a co-owner[1]. In 1957 McCarthy leased the property to Shell Oil Company for fifteen years at $375.00 per month with a five year option at $600.00 monthly. Shell then constructed a service station and, in 1969, contacted McCarthy seeking an extension of the lease. On June 13, 1969 a new lease was negotiated to become effective August 1, 1969 at a rental of $600.00 per month and during the following four years Shell spent approximately $80,000.00 to renovate the property. In 1979 Shell demolished the service station and constructed a self-service facility; on adjacent land, previously leased from another owner in 1958, Shell built a four-bay service station in conjunction with its operation.
Plaintiffs filed a rule to evict Shell alleging that under terms of the 1957 lease they became owners of the service station when that lease was terminated in 1969 and demolition of their station constituted a breach of the lease. Shell filed dilatory and peremptory exceptions, the matter received a full hearing, and the district court orally stated that "... by a preponderance of the evidence the lease was in fact breached". Shell filed this appeal urging: that its dilatory exception to use of a summary proceeding for eviction was valid; that dismissal of its peremptory exception of non-joinder of an indispensable party, Shell's sub-lessee, was error; that the trial court erred in determining Shell breached its lease and in holding that plaintiffs had a right of reversion; that the trial court committed error on rulings concerning admissibility of evidence; and that Shell did not receive a fair trial because of the lower court's conduct during trial.
*1278 Ownership of the service station building at the time of its demolition should be determined first. Under the 1957 lease, Article 6, Shell had the right to and did construct an automobile service station at a cost of $25,000.00 and Article 14 of the lease provides in part:
"All buildings and improvements constructed, installed or placed on the premises by Shell, at any time during the term of this lease or any extension thereof or any tendency thereafter, shall become lessor's property at the termination of this lease or any tenancy thereafter."
It should be noted Article 14 was a specially typewritten clause used in lieu of a standard clause which provided that improvements on the leased property would be owned by the lessee at the end of the lease.
Again, in the 1969 lease the following standard language was stricken:
"All buildings, improvements, equipment, and other property constructed, installed or placed on the premises by Shell or acquired by Shell, at any time during the continuance of this or any previous lease or any tenancy thereafter; shall be and remain Shell's property, and Shell shall have the right to remove any or all of the same from the premises at any time during, and within sixty (60) days after any termination of this lease or any tenancy thereafter."
Had this provision remained a part of the 1969 lease, Shell could have reasonably argued that it retained ownership of the original service station and had the right to remove it during the term of the 1969 lease. However, the provision was lined out and initialed by the parties with the notation "see rider attached" which provides:
"All buildings and improvements constructed, installed or placed on the premises by Shell, at any time during the term of this lease or any extension thereof or any tenancy thereafter, shall become lessor's property at the termination of this lease or any tenancy thereafter. All equipment or other property installed or placed on the premises by Shell or acquired by Shell, at any time during the term of this or any previous lease or any extension thereof or any tenancy thereafter, shall be and remain Shell's property, and Shell shall have the right to remove any or all of the same from the premises, at any time during, and within sixty (60) days after any termination of, this lease or any tenancy thereafter."
This rider to the 1969 lease refers to "buildings and improvements" constructed during the term of the 1969 lease, and makes no reference to buildings constructed during the 1957 lease. We also note that the 1969 lease distinguishes between "buildings and improvements" and "equipment and other property", the former belonging to the lessors and the latter belonging to the lessee upon termination of the lease.
After the parties negotiated the new lease on June 13, 1969, for some reason they signed an agreement on July 30, 1969 to terminate the 1957 lease effective July 31, 1969, one day prior to commencement of the re-negotiated lease on August 1, 1969. The termination agreement provided that the parties:
"Agree that the lease dated June 19, 1957 ... shall be and is hereby terminated, effective as of July 31, 1969; and release each other from all claims which either now has against the other under or by virtue of the lease, as amended, supplemented or extended, reserving, however, to Shell its rights thereunder to remove its property from the premises...".
Shell argues that this provision released both parties from any cause of action and there is no basis for this lawsuit. However, when the termination agreement was executed in 1969 the service station building had not been demolished and this cause of action had not yet accrued. The last portion, providing for Shell to remove its property from the premises, refers to "equipment or other property". The provision "or any tenancy thereafter" is an alternative period to determine ownership of improvements, but is inapplicable if the lease is terminated.
*1279 Our courts have consistently enforced lease agreements providing that improvements placed on leased premises would become the property of the landowner on termination of the lease. Collette v. Blanchard, 348 So. 2d 722 (La.App. 1st Cir. 1977); Salem v. Haggart, 189 So. 2d 283 (La.App. 3rd Cir. 1966). Clearly, the 1957 lease provided and we conclude that any building constructed on the property during the lease became the lessors' property when the lease was terminated in 1969.
The lessors urge, in the alternative, that the second (1969) lease constituted a novation between the parties; however, since the original lease was effectively terminated by the parties in writing there is no reason to consider a novation.
The next question is whether demolition of lessors' building was sufficient to rescind the lease. Article 5 of the 1969 lease reads:
"USE OF PREMISES. Shell shall have the rights, at Shell's expense: to enter the premises, at any time after the date of this Lease, for the purpose of making investigations and surveys; to use the premises for any lawful purpose; to construct and install on the premises, and paint in colors of Shell's selection, an automobile service station, and any additional buildings, improvements and equipment (including advertising signs and billboards) that Shell may desire; and to make any alterations that Shell may desire in the premises and buildings, improvements and equipment at any time located thereon."
Plaintiffs maintain Article 5 only gives Shell the right to "construct and install on the premises ... an automobile service station... and to make any alterations that Shell may desire in the premises and the buildings ...", but to read "alteration of premises and buildings" to mean "destruction of premises and buildings" would be an unwarranted interpretation of the clause. Plaintiffs cite LSA-C.C. Articles 2710[2] and 2729[3] as authority that Shell had an affirmative duty to preserve and protect the lessors' building and land and to use the premises as a good administrator.
In its brief Shell argues it had the right "to do anything it desired with the building" and contends demolition of the building did not breach the lease because the building was in disrepair and worthless to plaintiffs; further, the improvements that replaced the building constituted a more valuable asset.[4]
We feel a lessee, as a prudent administrator, does not have the unrestrained right to determine unilaterally and without lessors' consent that a building on the leased premises should be demolished. Admittedly, the original service station was twenty years old, but in 1970 Shell spent $63,000 on improvements and during the following three years expended another $16,000. As a practical matter, it appears Shell wanted to expand this lucrative location[5] and did so by utilizing its adjacent lease. Nowhere does the lease give Shell the right "to do anything it desired" and demolition of the service station was to the detriment of these lessors and constituted a breach of the lease.
We are not concerned with lessors' "right of reversion" as stated by the lower court. The service station was not built or owned by lessors or their ancestors in title and it *1280 would be improper to say that this building would "revert" to lessors. Lessors' claim of ownership comes from mutual agreement that termination of the 1957 lease resulted in a transfer of title and is part of the original consideration which occurred during negotiation and execution of the 1957 lease.
In support of its peremptory exception of non-joinder of an indispensable party, its sub-lessee, Shell relies on C.C.P. Article 641 which provides:
"Indispensable parties to an action are those whose interests in the subject matter are so interrelated, and would be so directly affected by the judgment, that a complete and equitable adjudication of the controversy cannot be made unless they are joined in the action.
No adjudication of an action can be made unless all indispensable parties are joined therein."
Shell had the unrestricted right to sub-lease without first obtaining permission from the lessors, and alleges that it did execute a sub-lease, but the lease is not part of the record. Plaintiffs were not aware Shell had sub-leased the property, and without privity of contract, a sub-lessee is not an indispensable party to an eviction proceeding. See Miles v. Kilgore, 191 So. 556 (La.App. 2nd Cir. 1939) at pp. 559:
"All persons are presumed to know the law. Whether they do in reality know it or not is immaterial as its effects are visited upon all alike. One who subleases property is held to know what the penalty will be if the lessee breaches his contract of lease by not paying his rent. The foundation giving way carries with it the superstructure. This being true, a sub-tenant is without just grounds of complaint when he is forced to give up property, the subject of his lease, through the failure of the lessee to discharge his obligations to the lessor. The sub-tenant's recourse, if aggrieved, is against his own lessor. Audubon Hotel Co. v. Braunning, 120 La. 1089, 46 So. 33, 124 Am. St. Rep. 456.
Strange as it may seem, there appears to be no precedent for our holding herein. We have searched diligently for one without success. The absence of a precedent construing laws so well known and so often resorted to, in the light of facts like or similar to those in this case, should argue forcefully in favor of the thought that there is near unanimity of opinion as regards the meaning and intendment of such laws.
We are clear in the opinion that the law governing ejectment proceedings by landlords does not contemplate nor require that sub-tenants shall be made parties thereto as a condition precedent to the right to eject them as a means of restoring full possession of the leased premises to the lessor. If this were not true, it is easy to conceive of a case, involving a large hotel or apartment house, wherein the lessor would be subjected to interminable delays and a multitude of law-suits before he could regain possession of his own property."
We hold there is no requirement for a lessor to join a sub-lessee in an eviction proceeding against the lessee where there is no privity between the lessor and sub-lessee. The trial court's dismissal of Shell's exception of non-joinder of an indispensable party was appropriate.
Shell strongly urges that it was improper for the trial court to allow the eviction rule to be heard in a summary manner. We disagree.
C.C.P. Article 2592(3) states:
"Summary proceedings may be used for trial or disposition of the following matters only:
(3) An issue which may be raised properly by an exception, contradictory motion, or rule to show cause."
C.C.P. Article 4731 provides:
"If the lessee or occupant fails to comply with the notice required to vacate required under this Title, the lessor or owner, or agent thereof, may cause the lessee or occupant to be cited summarily by a court of competent jurisdiction to *1281 show cause why he should not be ordered to deliver possession of the premises to the lessor or owner."
A case in point is Shell Oil Company v. Moore, 257 So. 2d 177 (La.App. 4th Cir. 1972) wherein Judge (now Justice) Lemmon stated at p. 178:
"We conclude that Moore is in possession of the subject premises by virtue of a contract of lease and thereby occupies the status of a lessor or tenant. C.C. art 2677. When the lessee's right of occupancy has ceased because of the termination of the lease for any reason, the lessor is afforded the use of summary proceedings to obtain possession of the premises. See C.C.P. art. 4701 et seq. In these summary proceedings the lessor must prove that the lease was validly terminated, and the lessee may assert any available defenses.
It would be unreasonable to adopt the argument advanced in this case that Shell should first prove its right to terminate the agreement in an ordinary proceedings, for this would compel Shell to use ordinary proceedings to obtain entitlement to eviction by summary proceedings.
In this particular case Moore is not being deprived of any defenses, but is simply required to assert these defenses at an advanced trial date."
Shell further contends that summary eviction is not appropriate to try disputed title to property but is designed for situations where the possessor has no semblance of claim to title or possession. Foreman v. Luquette, 344 So. 2d 1111 (La.App. 3rd Cir. 1977). There is no title dispute here and lessee's right to occupancy ceased when it demolished lessors' property. Our holding in Shell Oil Company v. Moore, supra, supports plaintiffs' use of summary proceedings under these facts.
Shell complains that hearsay evidence (a statement and a letter) was improperly admitted in this bench trial. This evidence, even if excluded, would not change the above determinations and is not reversible error.
We have reviewed the entire record in order to evaluate Shell's claim that it did not receive a fair trial. Verbal exchanges did occur between the trial judge and counsel, but we find no evidence to conclude or even indicate that the trial judge was biased or impartial.
Shell strenuously complains that an adverse judgment would cause total abandonment of its $281,000.00 investment, including the "new" service station on the adjacent property, and that it could not have utilized this property any differently from a marketing standpoint. Both points may be financially valid as a practical matter, but have no foundation to circumvent the legal and factual determinations expressed above.
Accordingly, the judgment of the District Court is affirmed, appellant to pay all costs of these proceedings.
AFFIRMED.
NOTES
[1] The present owners/lessors/plaintiffs/appellees are heirs of the original co-owners.
[2] C.C. Article 2710. "The lessee is bound: 1. To enjoy the thing leased as a good administrator, according to the use for which it was intended by the lease. 2. To pay the rent at the terms agreed on."
[3] C.C. Article 2729. "The neglect of the lessor or lessee to fulfill his engagements, may also give cause for a dissolution of the lease, in the manner expressed concerning contracts in general, except that the judge can not order any delay of the dissolution."
[4] Shell claims it spent $157,000 for new construction on plaintiffs' property. Assuming the amount is correct, the breakdown shows $48,000 for land improvements, $6,000 for a cashier's booth, a $29,000 canopy, and the balance of $74,000 in equipment and fixtures which could qualify for removal at any time.
[5] This property forms one corner of Veterans Memorial Boulevard and Causeway Boulevard, one of the busiest intersections in Jefferson Parish. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595884/ | 581 F. Supp. 801 (1983)
Richard J. McKAY, Plaintiff,
v.
COMMUNISPOND, INC., Defendant.
No. 83 Civ. 2731 (JMC).
United States District Court, S.D. New York.
October 28, 1983.
*802 *803 Gibney, Anthony & Flaherty, New York City (John C. Klett and Richard Manning, New York City, of counsel), for plaintiff.
Fine, Tofel, Saxl, Berelson & Barandes, New York City (Sherman Saxl, New York City, of counsel), for defendant.
MEMORANDUM AND ORDER
CANNELLA, District Judge:
Plaintiff's motion for a preliminary injunction is granted and his motion adjudging defendant in contempt is denied. Fed. R.Civ.P. 44, 65.
Defendant's cross-motion for a preliminary injunction is granted in part and denied in part. Fed.R.Civ.P. 65.
Both parties' requests for attorneys' fees are denied.
BACKGROUND
Plaintiff commenced this action premised on diversity jurisdiction, seeking to enjoin defendant Communispond, Inc. ["Communispond"] from interfering with his right to pursue his career as an instructor in the communications field. Shortly thereafter, plaintiff sought a temporary restraining order to prevent Communispond and its employees from further interfering with plaintiff's career. After some discussion, both parties agreed to the entry of a restraining order which in part provides that neither party discuss the existence or content of the Order. Order, 83 Civ. 2731 (JMC) (S.D. N.Y. Apr. 26, 1983) [hereinafter "April 26 Order"].
Defendant cross-moves to enjoin plaintiff from violating a covenant not to compete; engaging in unfair trade practices; breaching a duty of confidentiality; and using or disclosing trade secrets. Defendant claims that its interference with plaintiff's career is warranted because he violated a covenant not to compete. Plaintiff, in response, contends that he neither signed an agreement with a covenant not to compete nor disclosed any trade secrets.
Plaintiff also seeks an order adjudging Communispond in contempt because it allegedly disclosed the existence of this action to a prospective client of plaintiff. On July 15, 1983, the Court conducted a hearing on plaintiff's contempt motion. This Memorandum and Order sets forth the Court's findings of fact and conclusions of law with respect to the above-mentioned motions.
FACTS
Since 1969, Communispond has offered programs for business executives to enhance their presentation skills. Today, the basic program consists of three stages: "benchmark," "eye/brain control" and "energy release." Other integral parts of defendant's core program include the use of "ideographs" or pictures, modules and question-and-answer sessions. Although Communispond continually revises its more specific programs which are designed for the needs of particular clients, it has retained the core program which includes benchmark, eye/brain control and energy release. Kevin Daley, co-founder and president of Communispond, contends that Communispond's program "together with the special sequence of our modules and our techniques of teaching constitute our trade secrets."[1] The programs are taught throughout the world by sixty instructors trained by Communispond, one of whom was McKay.
Because Communispond considers its program a trade secret, employees are apprised of this fact through seminars conducted by its general counsel. Furthermore, each employee is required to sign an employment contract which contains a covenant not to compete for three years after the employee leaves Communispond and *804 which forbids disclosure of confidential information or trade secrets.[2]
Plaintiff worked for defendant from April 1, 1978 through September 17, 1982 until he voluntarily left and started his own company which competes with defendant. Plaintiff alleges that he did not solicit Communispond's clients until after his termination when he sent announcements to 250 prospective clients, including some of defendant's. Plaintiff is the only full-time employee of his company. Three individuals, however, work on a part-time basis.
Plaintiff began working for Communispond as an instructor and was a vice-president when he terminated his employment. Plaintiff acknowledges that Communispond regarded its sequential program and teaching methods as trade secrets. Plaintiff also admits he attended annual seminars which informed employees of their obligation to preserve any confidentialities of Communispond pursuant to their employment agreements. Plaintiff alleges that other competitors including former employees of defendant also offer similar programs to those of defendant.
On December 20, 1982, Fiduciary Trust Company ["Fiduciary"], a client of defendant, expressed interest in having plaintiff conduct seminars for its employees. Fiduciary decided to use plaintiff's program because it was similar to but less expensive than defendant's. Through written and telephonic communications, plaintiff and Fiduciary agreed upon the dates and locations for seminars.
On February 18, 1983, Edward Fuller, senior vice-president and part-owner of Communispond, advised Fiduciary that plaintiff was contractually obligated not to compete with defendant. On February 23, 1983, Barbara Marcin of Fiduciary allegedly informed plaintiff that Fiduciary was no longer interested in retaining his services based on communications with defendant. On February 24, 1983, a settlement of the instant dispute was discussed. Unfortunately, the parties were unable to resolve their disputes amicably, and plaintiff moved to enjoin defendant from interfering with his right to pursue his career.
Plaintiff claims that he intentionally never signed an employment agreement. Moreover, plaintiff contends that he developed his program and teaching skills independent of defendant. Further, plaintiff asserts that the components of defendant's programs are not new and novel. Similarly, plaintiff argues that because articles concerning defendant's programs have been published in Fortune, New York Magazine, The Executive, and Across the Board,[3] defendant's product including its program and teaching methods is not a trade secret. Plaintiff also alleges that his programs are distinguishable from defendant's. Finally, plaintiff alleges that others in the field, including former Communispond employees offer comparable programs.
Defendant has not produced an employment contract signed by plaintiff, although defendant contends that one of its employees remembers plaintiff signing such a contract. In addition, defendant claims that it reviewed the employment contracts of its professional staff, which included plaintiff, to insure that all had agreements which included covenants not to compete. Defendant asserts plaintiff was not one of the three employees who had not signed the contract. Defendant also argues that prior to plaintiff's tenure with Communispond, plaintiff acquired little experience in the communications area.
With respect to the contempt motion, plaintiff alleges that defendant violated the April 26 Order by discussing this action with a potential client of plaintiff, Coopers and Lybrand ["Coopers"], and by disclosing information defendant learned through plaintiff's deposition. Coopers participated in defendant's programs since 1980. Plaintiff, *805 a former employee of Coopers, solicited work from the company in the spring of 1983. Plaintiff testified that on May 25, 1983 Fuller informed Murray Hirsch, a partner at Coopers, that plaintiff was "in litigation with defendant." Plaintiff stated that a Coopers' employee, Brian Horan, informed him of this discussion. Horan testified, however, that he did not tell plaintiff about his discussion. Nonetheless, plaintiff claims that defendant violated the April 26 Order and injured plaintiff's reputation and good will.
Defendant does not deny that it informed Coopers of the instant action but, rather, asserts that the disclosure occurred prior to the issuance of the April 26 Order. Specifically, defendant alleges that on April 20, 1983, Kevin Daley and Hirsch discussed plaintiff's former employment with Coopers and the instant action. Because plaintiff had recently left the employ of defendant, Daley alleges he was interested in discussing any problems Coopers may have experienced when plaintiff was a Coopers' employee.
Plaintiff also alleges that at the May 25th meeting, Fuller informed Hirsch that Horan had "moonlighted" by assisting plaintiff with one of his seminars. Fuller admits that he so informed Hirsch but asserts that the disclosure of this information was necessary to protect Communispond's business relationship with Coopers which is within the purview of the April 26 Order. Fuller also testified that he disclosed Horan's outside employment because he was afraid that Horan was seeking business for plaintiff, thereby interfering with defendant's relationship with Coopers. Defendant further justifies its conduct by arguing that it was not interfering with plaintiff's prospective business with Coopers because Hirsch indicated that he "was not impressed" with plaintiff and would not do business with him.
After his outside employment was made known to Hirsch, Horan agreed not to work for plaintiff again. Plaintiff testified that as a result of Horan's refusal to continue working on a part-time basis, he was unable to teach a course and lost income. In addition, plaintiff testified that defendant's disclosures have effectively precluded him from obtaining other work from Coopers unrelated to the programs offered by Communispond.
DISCUSSION
To preliminarily enjoin a party, "[t]here must be a showing of (A) irreparable harm, and (B) either (1) likelihood of success on the merits, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Warner Bros., Inc. v. Gay Toys, Inc., 658 F.2d 76, 78 (2d Cir.1981). Plaintiff can establish irreparable harm by proving that Communispond interfered with plaintiff's business. Defendant, on the other hand, can demonstrate irreparable harm by showing that plaintiff violated a valid covenant not to compete; breached a duty of confidentiality by disclosing trade secrets or other confidential material; or engaged in unfair competition. See VeloBind, Inc. v. Scheck, 485 F. Supp. 102, 109 (S.D.N.Y.1979); Diaz v. Indian Head, Inc., 402 F. Supp. 111, 114 (N.D.Ill.), aff'd, 525 F.2d 694 (7th Cir.1975) (applying New York law); Town & Country House & H.S. v. Newbery, 3 N.Y.2d 554, 147 N.E.2d 724, 170 N.Y.S.2d 328 (1958).
The record indicates that defendant interfered with plaintiff's pursuit of his career and that as a result plaintiff lost business. Defendant admits as much, but contends that it is justified because plaintiff breached his covenant not to compete. Indeed, defendant asserts that it will continue to interfere with plaintiff's business if he solicits business from any of defendant's former or existing clients and offers the programs he has been offering. If defendant lives up to its word, plaintiff will be foreclosed from pursuing his career, thus, causing him irreparable harm. If defendant's conduct is in fact justified, however, then plaintiff will not be entitled to injunctive relief. Accordingly, the Court must *806 determine whether plaintiff (1) was bound by a restrictive covenant; (2) breached a duty of confidentiality; or (3) engaged in unfair competition.
Restrictive Covenants
Initially, the Court notes that New York disfavors the enforcement of restrictive covenants because there are "powerful considerations of public policy which militate against sanctioning the loss of a man's livelihood," Purchasing Associates, Inc. v. Weitz, 13 N.Y.2d 267, 272, 196 N.E.2d 245, 247, 246 N.Y.S.2d 600, 604 (1963), and because enforcement is contrary to New York's policy of promoting free trade.[4]See American Broadcasting Co. v. Wolf, 52 N.Y.2d 394, 403, 420 N.E.2d 363, 367, 438 N.Y.S.2d 482, 486 (1981); Mohawk Maintenance Co. v. Kessler, 52 N.Y.2d 276, 283, 437, 419 N.E.2d 324, 328, 437 N.Y.S.2d 646, 650 (1981); Columbia Ribbon & Carbon Manufacturing Co. v. A-1-A Corp., 42 N.Y.2d 496, 499, 369 N.E.2d 4, 6, 398 N.Y.S.2d 1004, 1006 (1977); Borne Chemical Co. v. Dictrow, et al., 85 A.D.2d 646, 649, 445 N.Y.S.2d 406, 412 (2d Dep't 1981). New York courts will enforce a restrictive covenant in an employee-employer contract, however, if the employee is revealing trade secrets. See Mohawk Maintenance Co. v. Kessler, supra, 52 N.Y.2d at 284, 419 N.E.2d at 378, 437 N.Y. S.2d at 650.
Although defendant alleges that its form employment contract contains an anticompetitive clause, defendant has not produced a contract signed by plaintiff. Defendant suggests that production is unnecessary because all its employees are required to sign this contract. Defendant further argues that the covenant is enforceable because it (1) serves the legitimate purpose of protecting trade secrets and confidential materials, and (2) is reasonable because it is limited to a three-year period although worldwide in scope. The Court finds, however, that because defendant has failed to rebut this claim by establishing the existence of an express contract with a covenant not to compete and because plaintiff denies that he ever signed a contract with defendant which included a covenant not to compete, plaintiff is not bound by the contract and its anticompetitive clause.[5] Thus, the Court need not address the reasonableness of the restrictive covenant.
Defendant also claims that plaintiff's request for a preliminary injunction should be denied because he breached his duty of confidentiality and engaged in unfair competition by using defendant's trade secrets and by soliciting its customers while employed by defendant. Initially, the Court recognizes that a restrictive covenant is not necessary to enjoin plaintiff from appropriating defendant's alleged trade secrets because such conduct violates plaintiff's fiduciary duty to his former employer. See Speedry Chemical Products, Inc. v. Carter's Inc., 306 F.2d 328, 332 (2d Cir.1962); Velo-Bind, Inc. v. Scheck, supra, 485 F.Supp. at 109. Thus, the Court must determine if defendant's teaching techniques and programs constitute trade secrets.
*807 A trade secret has been defined as information known to only a few and not the general public, see Leo Silfen, Inc. v. Cream, 29 N.Y.2d 387, 394-95, 278 N.E.2d 636, 641, 328 N.Y.S.2d 423, 430 (1972); see also Speedry Chemical Products, Inc. v. Carter's Inc., supra, 306 F.2d at 331. New York recognizes that a trade secret need not be an isolated idea but may be "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." Restatement of Torts, § 757(b) (1939); see A.H. Emery Co. v. Marcan Products Corp., 268 F. Supp. 289, 299 (S.D.N.Y.1967), aff'd, 389 F.2d 11 (2d Cir.), cert. denied, 393 U.S. 835, 89 S. Ct. 109, 21 L. Ed. 2d 106 (1968); Eagle Comtronics, Inc. v. Pico, Inc., 89 A.D.2d 803, 453 N.Y.S.2d 470 (4th Dep't 1982). Similarly, the Second Circuit stated that "a trade secret can exist in a combination of characteristics and components, each of which, by itself, is in the public domain, but the unified process, design and operation of which, in unique combination, affords a competitive advantage and is a protectable secret." Imperial Chemical Industries v. National Distillers Chemical Corp., 342 F.2d 737, 742 (2d Cir.1965). Defendant argues that its product fits within this definition of a trade secret, acknowledging that portions of its program have been published. Defendant relies heavily on SmokEnders, Inc. v. Smoke Watchers International, Inc., 179 U.S.P.Q. 111 (N.Y.Sup.Ct.1973) ["SmokEnders"] to support its claim that its programs constitute a trade secret. First, the Court notes that in SmokEnders, supra, the program in question had not been published in various magazines. Second, the former employees in SmokEnders were financially successful once they established their own business, thereby posing a threat to their former employer. Defendant adduced no evidence to show that plaintiff as a sole practitioner has threatened defendant's position as the leader in this aspect of the communications field. Third, SmokEnders fails to rely on any leading New York authority in this area. Accordingly, the Court finds that SmokEnders is not dispositive in the action at bar.
To determine whether defendant's product constitutes a trade secret, the Court must consider (1) how much of the program is known outside of its business; (2) how much of the program is known to defendant's employees; (3) what has been done to protect the secrecy of confidential information; (4) the value of the material to defendant and to its competitors; (5) the amount of time, effort and money spent in developing the material; and (6) how easily the material could be acquired or copied by others.
First, the Court observes that much of defendant's core program has already been published by defendant and others.[6] Having read several of these publications, the Court concludes that they inform the reader of defendant's core program including its sequence. Benchmark, eye/brain control and energy release are discussed in detail sequentially by participants in the program. Techniques employed in teaching, such as video tapes, ideographs and question-and-answer sessions are also discussed. In addition, without particularizing its teaching techniques, defendant cannot enjoin plaintiff from using "intangible procedures and techniques that [plaintiff] learned while [he was] employed by [defendant]." Frederick Chusid & Co. v. Marshall Leeman & Co., 279 F. Supp. 913, 918 (S.D.N.Y.1968).
Second, defendant claims that it has sixty professional instructors who know its confidential information and trade secrets. The record indicates that some former instructors have established their own businesses and offer services in the same field. The record also establishes that defendant develops programs to fit the needs of individual clients and continually improves its *808 programs. Thus, it is conceivable that defendant's programs have changed since plaintiff's termination.
Third, defendant has tried to protect its confidential information and trade secrets by requiring employees to sign an employment contract which contains an anticompetitive clause. Nonetheless, defendant's voluntary disclosure of the contents of the core program and the publication by others diminishes and defeats defendant's efforts to protect its confidential matter.
Fourth, as to the value of the material, defendant alleges that it has spent years perfecting its program and teaching techniques. Defendant has successfully given courses to executives in more than 50% of Fortune 500 corporations. Because defendant's competitors presumably attempt to distinguish their programs from defendant's, it is unclear how valuable such information would be to them and defendant has offered no evidence in this area. Finally, as previously stated, others can easily acquire what defendant deems confidential matter because this information has been widely published and is available to the public.
Furthermore, the Court notes that at least one of defendant's former employees Jack McLinden who developed communication programs at McLinden Associates, after reading articles in Fortune and New York Magazine about defendant's program, concluded that his programs are different than defendant's. Significantly, the distinctions between McLinden's programs and those of defendant are almost identical to the alleged differences between plaintiff's and defendant's programs. Accordingly, because defendant's programs are readily available to the general public through several magazine articles, the Court finds defendant's program, its sequences and teaching techniques are not trade secrets.
Plaintiff acknowledges and defendant does not dispute that he returned all written material to defendant when he resigned. Nonetheless, if plaintiff merely reproduced defendant's material from memory, he may have misappropriated confidential material and breached his fiduciary responsibilities to his former employer. See A.H. Emery Co. v. Marcan Products Corp., supra, 268 F.Supp. at 300. With respect to the flip chart that is part of defendant's sales package, it appears that plaintiff uses flip charts to solicit customers, some of which are almost identical to defendant's charts.[7] Unlike the program itself, these charts or illustrations have not been published. Although the charts describe defendant's program which the Court finds is not a trade secret, the charts, however, represent "visuals" developed by defendant and constitute its work product. See American Institute of Chemical Engineers v. Reber-Friel Co., 682 F.2d 382, 391 n. 10 (2d Cir.1982). Although differences exist between defendant's and plaintiff's charts, there are enough similarities for the Court to enjoin plaintiff from further using them.
Other than the flip charts, the Court finds that defendant has failed to establish that its programs and teaching techniques constitute trade secrets or that plaintiff disclosed confidential information. See Columbia Ribbon & Carbon Manufacturing Co. v. A-1-A Corp., supra, 42 N.Y.2d at 500, 369 N.E.2d at 6, 398 N.Y. S.2d at 1007.
The Court also notes that while plaintiff generally uses the same format as defendant, the programs are not identical. Plaintiff's program involves fewer participants and fewer instructors per course. Plaintiff does not use the ideographs or other techniques employed by defendant. Plaintiff also divides his class into small groups for various sessions.
David Sobel of Federal Reserve Bank, an employee with personal knowledge of both defendant's and plaintiff's courses, compared the programs and determined that they were different. Sobel reached this conclusion because of the above-mentioned *809 differences and because defendant's programs are taught at its professional studios which adds a certain quality to the course independent of the teacher. In addition, Sobel indicated that plaintiff's course focused on the orchestrating of meetings and presentation skills, while defendant's program was directed solely at the latter. Although defendant may have a separate course on conducting meetings, Sobel's statements indicate that defendant's program is appealing not merely for its substance but also because of defendant's facilities. Plaintiff is unable to offer a similar package as a sole practitioner without a studio. Moreover, (1) defendant's programs and techniques are not trade secrets, and (2) plaintiff's and defendant's programs are different. Plaintiff has neither breached a duty of confidence nor engaged in unfair competition by offering his services to potential clients. See Leo Silfen, Inc. v. Cream, supra, 29 N.Y.2d at 391-92, 278 N.E.2d at 639, 328 N.Y.S.2d at 427; Wilkes v. Pioneer American Insurance Co., 383 F. Supp. 1135, 1141 (D.S.C. 1974).
Defendant further alleges that plaintiff engaged in unfair competition by soliciting defendant's clients while still employed by defendant. See American Institute, supra, 682 F.2d at 391. When deposed, plaintiff admitted that while employed by defendant he informed some of defendant's clients that he was considering starting his own business. While plaintiff's conduct does not constitute "solicitation," the Court does not condone such conduct. Although plaintiff developed business relationships with some of defendant's clients, there is no evidence, however, that plaintiff solicited business for himself or procured accounts while employed by defendant. Indeed, the present record shows that plaintiff's negotiations with potential clients began after his termination with defendant. See Uniform Rental Division, Inc. v. Moreno, 83 A.D.2d 629, 441 N.Y.S.2d 538 (2d Dep't 1981). Thus, the Court finds that plaintiff is offering his own programs rather than trying to sell the "Communispond" program. He is not engaging in unfair competition by "siphoning off" defendant's clients,[8]see Velo-Bind v. Scheck, supra, 485 F.Supp. at 109, or invading defendant's market by disclosing confidential information, see Schreyer v. Casco Products Corp., 190 F.2d 921, 924 (2d Cir.1951) (patent infringement). Accordingly, the Court finds that defendant has failed to establish that plaintiff breached its duty of confidentiality or engaged in unfair competition. See Quandt's Wholesale Distributors, Inc. v. Giardino, 87 A.D.2d 684, 448 N.Y.S.2d 809 (3d Dep't 1982); Continental Dynamics Corp. v. Kanter, 64 A.D.2d 975, 408 N.Y.S.2d 801 (2d Dep't 1978).
Moreover, defendant has not shown that it lost business or customers as a direct result of plaintiff's conduct, militating against a finding that defendant has been irreparably harmed. See Velo-Bind, Inc. v. Scheck, supra, 485 F.Supp. at 109 (loss of revenue and customers). Quandt's Wholesale Distributors, Inc. v. Giardino, supra, 87 A.D.2d at 685, 448 N.Y.S.2d at 811.
In short, the Court finds that defendant's interference with plaintiff's solicitation of clients was not justified and hereby enjoins defendant from such further conduct. The record indicates that plaintiff is likely to succeed on the merits because defendant's program is not a trade secret; defendant failed to produce a contract signed by plaintiff with a covenant not to compete; and because defendant interfered with plaintiff's pursuit of his career. In addition, the balance of hardships tips decidedly in favor of plaintiff.
Contempt Motion
Plaintiff alleges that defendant is in contempt of Court for violating the Court's *810 April 26 Order that restrained either party from disclosing the existence or the content of the order to any client. The April 26 Order provided, however, that defendant had the right to engage in normal solicitation of clients. Plaintiff contends that defendant through its officer, Fuller, intentionally disclosed the existence of this litigation and other information gleaned from plaintiff's deposition to a Coopers' partner, Hirsch, at a meeting on May 25, 1983. Plaintiff learned of defendant's alleged disclosure from Horan, an employee of Coopers, who testified at the contempt hearing on July 15, 1983.
The inconsistencies between Horan's testimony and statements in his affidavit require the Court to give little credence to his version of the events. Horan constantly consulted with counsel while on the witness stand before he responded to questions, and even then, answered hesitantly. Thus, the Court does not rely on his account of the meeting. Furthermore, Hirsch and Fuller were at the meeting and have personal knowledge of what transpired. Plaintiff's version of the discussion in question merely rehashes what he was allegedly told by Horan. The Court, therefore, credits Fuller's testimony, Daley's affidavit and Hirsch's affidavit that Hirsch was briefly informed by Daley of this lawsuit on April 20, 1983, prior to the issuance of the April 26 Order. Therefore, defendant did not violate the Court's April 26 Order. Moreover, the Court sees no reason to discredit defendant's claim that none of its employees discussed the instant action with Hirsch or anyone else after the imposition of the April 26 Order.
Fuller's statements to Hirsch concerning Horan's moonlighting with plaintiff were made, however, after the April 26 Order. Nonetheless, the Court finds that plaintiff has failed to establish by clear and convincing evidence that defendant violated the April 26 Order. One purpose of the April 26 Order was to assure that defendant not interfere with plaintiff's business. With respect to Coopers, Hirsch flatly stated that Coopers was not interested in plaintiff's programs. In addition, defendant believed that Horan had a bias against it because of Horan's relationship with plaintiff. By revealing Horan's relationship with plaintiff, defendant claims that such conduct was within the purview of the Order because it was maintaining its relationship with Coopers.
While it is sympathetic to plaintiff's claims, because Hirsch knew of this action prior to the entry of the Order, and because Fuller in good faith believed that he was not prevented from disclosing that Horan was moonlighting with plaintiff, the Court finds that there is no clear and convincing proof that defendant intentionally violated the April 26 Order. See Powell v. Ward, 643 F.2d 924, 931 (2d Cir.) (per curiam), cert. denied, 454 U.S. 832, 102 S. Ct. 131, 70 L. Ed. 2d 111 (1981); Hudson Transit Lines, Inc. v. Freund, 509 F. Supp. 1172, 1175 (S.D.N.Y.1981).
With respect to plaintiff's claim that he lost business because defendant's disclosures caused Horan's refusal to work for plaintiff again, the Court finds that plaintiff failed to adduce clear and convincing proof that defendant intentionally violated the April 26 Order. Furthermore, the Court notes that the April 26 Order is ambiguous as to whether the parties are foreclosed from mentioning this action to clients who already are aware of its existence. See Perfect Fit Industries, Inc. v. Acme Quilting Co., 646 F.2d 800, 808 (2d Cir.1980), cert. denied, 459 U.S. 832, 103 S. Ct. 73, 74 L. Ed. 2d 71 (1983). The record also indicates that defendant has diligently complied with the specific provisions of the April 26 Order with respect to its other clients.
In conclusion, because plaintiff did not establish that he was injured by defendant's conduct, see Vuitton et Fils, S.A. v. Carousel Handbags, 592 F.2d 126, 130 (2d Cir.1979), his request for damages is denied. Having determined that defendant did not violate the Order and that there was no willful conduct, the Court denies plaintiff's application for attorneys' fees and its motion to hold defendant in criminal and civil contempt of Court. See Hudson Transit Lines, Inc. v. Freund, supra, 509 F.Supp. at 1175.
*811 Finally, with respect to defendant's application for attorneys' fees, the Court finds such an award unjustified and not in the interest of justice. See Nichimen Co. v. M.V. Farland, 462 F.2d 319, 333-34 (2d Cir.1972). There is nothing in the record to indicate that plaintiff brought this motion in bad faith.
CONCLUSION
In accordance with the foregoing, plaintiff's motion for a preliminary injunction is granted and his contempt motion is denied. Fed.R.Civ.P. 65, 70. Plaintiff's application for attorneys' fees is denied.
Defendant's cross-motion for a preliminary injunction is granted in part and denied in part and its application for attorneys' fees is denied. Fed.R.Civ.P. 65.
Parties are directed to appear in Courtroom 1106 on December 1, 1983 for a pretrial conference.
SO ORDERED.
NOTES
[1] Affidavit of Kevin Daley at 2-3 (dated June 10, 1983).
[2] Defendant has obtained copyrights for some of its programs for particular clients; however, no copyright infringement violations are alleged herein.
[3] See Plaintiff's Motion for Preliminary Injunction, Exhibits E, F, G, H (filed Apr. 18, 1983).
[4] In a diversity action, a federal court must apply the substantive law of the state in which it sits. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). The Court notes that the complaint does not indicate defendant's state of incorporation but only its principal place of business, which is not New Jersey. Complaint, 83 Civ. 2731 (JMC) ¶ 2 (filed Apr. 8, 1983). Although Communispond is often referred to as a New York corporation, the parties do not dispute that New York law governs this action or the Court's jurisdiction.
[5] There is no evidence of an oral contract by which plaintiff agreed not to compete with defendant, and assuming arguendo there was such a showing, the Court notes that the agreement would be barred by the Statute of Frauds. See Lepel High Frequency Laboratories v. Capita, 278 N.Y. 661, 16 N.E.2d 392 (1938) (per curiam).
The Court further notes that the restrictive covenant in question is not one to restrain the use of defendant's customer list even though plaintiff has solicited defendant's clients. Presumably, no claim of this nature was alleged because defendant publishes its customer list for publicity reasons and does not contend that its list is a trade secret. See Columbia Ribbon & Carbon Manufacturing Co. v. A-1-A Corp., 42 N.Y.2d 496, 499, 369 N.E.2d 4, 6, 398 N.Y.S.2d 1004, 1007 (1977).
[6] Clark v. Bunker, 453 F.2d 1006 (9th Cir.1972) is distinguishable from the instant action because in that case, alleged confidential matter was not published in magazines and there was "concealment, affirmative misrepresentation and commercial espionage." Id. at 1010.
[7] See Affidavit of Edward M. Fuller, Exhibits 1A-6B (June 10, 1983).
[8] The Court notes that the term "client" has been broadly construed by defendant. In essence, defendant deems its clients to include any entity which at some point in time participated through its employees in one of defendant's programs. Thus, even though there is no ongoing relationship, plaintiff presumably would be precluded from soliciting business from that entity. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1737068/ | 535 F. Supp. 114 (1982)
OVERNITE TRANSPORTATION CO., Plaintiff,
v.
CHICAGO INDUSTRIAL TIRE CO., Defendant.
No. 81 C 0747.
United States District Court, N. D. Illinois, E. D.
March 11, 1982.
*115 Themis N. Anastos, Chicago, Ill., for plaintiff.
Jeffrey Keck, Bloom & Tese, Chicago, Ill., for defendant.
MEMORANDUM OPINION AND ORDER
ASPEN, District Judge:
This matter is before the Court on defendant Chicago Industrial Tire Company's motion for award of $1,392.50 in excess costs from either or both of the attorneys representing plaintiff, Overnite Transportation Company, pursuant to 28 U.S.C. § 1927. Defendant's motion is predicated on the theory that plaintiff's filing of this lawsuit in federal court, its opposition to defendant's motion to dismiss, and its appeal of the district court's decision to the Seventh Circuit despite an obvious absence of subject matter jurisdiction constituted an unreasonable and vexatious multiplication of proceedings entitling defendants to recovery of fees and expenses. Because the Court agrees with this assessment, it will grant defendant's motion for award of excess costs.
This lawsuit was initiated by plaintiff in the Circuit Court of Cook County to recover $2,243.72 from the defendant as the result of an alleged billing error in the shipment of forty wheels from Hubs and Wheels, Inc. of Saltville, Virginia, to the defendant. Plaintiff also initiated a similar action in federal district court alleging that Chicago Industrial Tire Company, as cosignee of the goods shipped, was unjustly enriched by the billing error. Although plaintiff sought only $2,210.00 in damages, it alleged jurisdiction "based on the Interstate Commerce Act, 49 U.S.C. Section 1, et seq." This Court dismissed the complaint for lack of subject matter jurisdiction observing that the "subject of controversy in the present case ... is the contract price of the goods shipped, a matter not in itself regulated by the Interstate Commerce Act." Overnite Transportation Co. v. Chicago Industrial Tire Co., 81 C 0747 (June 16, 1981).
Plaintiff subsequently appealed the district court's dismissal to the Seventh Circuit. The Court of Appeals affirmed this Court's decision on the ground that even if the Interstate Commerce Act did apply, which it did not, federal jurisdiction would exist pursuant to 28 U.S.C. § 1337(a) (Supp. 1981) "only if the matter in controversy for each receipt or bill of lading exceeds $10,000, exclusive of interest and costs." Overnite Transportation Co. v. Chicago Industrial Tire Co., 668 F.2d 274 at 275 (7th Cir. 1981). Plaintiff's claim of $2,210 obviously falls well short of this statutory requirement.
The vexatious character of plaintiff attorney's conduct in initiating this lawsuit in federal court and appealing its dismissal is manifest from the record. The statute from which plaintiff originally asserted jurisdiction was clearly inapplicable. Even if the Interstate Commerce Act did apply, the express terms of 28 U.S.C. § 1337(a) would have prevented this Court from exercising jurisdiction in any event over a $2,210.00 *116 claim. Plaintiff's purported reliance on Madler v. Artoe, 494 F.2d 323 (7th Cir. 1974), to support its jurisdictional theory is equally unpersuasive. In contrast to the present case, Madler was brought prior to the amendment establishing $10,000 as the jurisdictional amount under 28 U.S.C. § 1337(a). The Madler plaintiff, unlike the plaintiff in this case, was the assignee of a cause of action under an express provision of the Interstate Commerce Act. After reviewing Madler for the second time, this Court cannot discern any colorable argument upon which jurisdiction could be asserted in this action.
There is a difference between advancing an unlikely claim and repeatedly asserting a jurisdictional argument which has no basis in law. Unfortunately, the conduct of plaintiff's trial attorney and its attorney before the Seventh Circuit fall into this latter category. Accordingly, this Court will grant defendant's motion to award excess costs.
In an effort to apportion the costs of this litigation to the attorney most responsible for its character, this Court will direct plaintiff's trial attorney to pay 75 percent of defendant's costs and its appellate attorney 25 percent of such costs. Thus, Themis N. Anastos is directed to pay defendants $1,044.38 and Paul E. Peldyak is directed to pay defendants $348.12 pursuant to this motion. It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595789/ | 399 So. 2d 114 (1981)
Cordelia WALLACE, Appellant,
v.
P.L. DODGE MEMORIAL Hospital, Appellee.
No. 79-1584.
District Court of Appeal of Florida, Third District.
June 2, 1981.
Podhurst, Orseck & Parks and Joel D. Eaton, Joe N. Unger, Miami, Wolfson & Diamond, Miami Beach, for appellant.
Fowler, White, Burnett, Hurley, Banick & Strickroot and Henry Burnett, Miami, for appellee.
Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
DANIEL S. PEARSON, Judge.
This is the second appearance of this case before this court. Three years ago, a panel of this court overturned a summary judgment entered in favor of P.L. Dodge Memorial Hospital. See Wallace v. P.L. *115 Dodge Memorial Hospital, 355 So. 2d 855 (Fla.3d DCA 1978). In so doing, they held that "[t]here was a genuine issue of material fact as to the alleged negligence of the defendant hospital in failing to provide adequate attendants to protect the plaintiff as an invitee of the hospital against a violent attack by one of its mental patients," see Wallace v. P.L. Dodge Memorial Hospital, supra, at 855. After remand, the case went to trial. A jury resolved that issue of fact in favor of Mrs. Wallace. The trial court, notwithstanding the verdict, entered a judgment for the hospital. Mrs. Wallace appeals from that judgment.
The evidence from which this court determined that there existed an issue of fact precluding summary judgment is indisputably the same as the evidence later presented at trial. Therefore, our ruling in 1978 established the law of the case, precluding, except in extraordinary circumstances, a contrary determination that no issue of fact existed. Myers v. Atlantic Coast Line Railroad Company, 112 So. 2d 263 (Fla. 1959); Geller v. 2500 Collins Corp., 130 So. 2d 322 (Fla.3d DCA 1961); Lincoln National Life Insurance Company v. Roosth, 306 F.2d 110 (5th Cir.1962) (en banc). Since the trial court's judgment is a determination contrary to the established law of the case, and since we are of the view that this case paradigmatically requires us to apply the doctrine of law of the case, we reverse.
The situation in the present case is not unlike that addressed by the Fifth Circuit Court of Appeals, sitting en banc, in Lincoln National Life Insurance Company v. Roosth, supra. There a panel of the court reversed a judgment n.o.v. entered for the defendant-insurer. See Roosth v. Lincoln National Life Insurance Company, 269 F.2d 171 (5th Cir.1959). A retrial resulted in a verdict for the plaintiff-insured and the defendant appealed. The evidence in both trials was identical.
The panel to which the second appeal was assigned differed in its make-up from the panel which decided the first appeal. A serious question arose whether the second panel agreed with the decision of the former panel that the evidence was legally sufficient to present an issue to be decided by a jury. In light of that, the court on its own motion ordered an en banc hearing. The en banc court decided that it is precisely this kind of case which requires the application of the law of the case doctrine.
"The reconsideration of this identical record by the second panel and now by the full Court revealed another thing of equal positiveness. There are no differences among the Judges of this Court on the questions of law as such. The differences, such as they exist, relate to the facts. It is true, of course, that whether the evidence is sufficient to make out a jury case is a question of law. [citations omitted]. But it is one only in relation to the particular facts of the particular case. There is no disagreement over the controlling standard, only on whether the evidence does, or does not, satisfy that standard.
"It is that absence of any disagreement on controlling legal principles and the very substantial actual sameness of the two records which leads us to the conclusion that this is a case calling imperatively for the application of the doctrine of the law of the case."
* * * * * *
"[W]e think that when the issue resolves itself, as it does so clearly here, into a question of whether the same body of evidence is enough to permit a jury submission, neither a subsequent, second, or third, panel of this Court, nor the whole Court sitting en banc, should ordinarily undertake to review the correctness of the first decision or, doing so, arrive at a contrary conclusion... ." 306 F.2d at 112, 113.
The rationale of the Fifth Circuit applies with equal force to us:
"We think that in a multi-Judge Court it is most essential that it acquire an institutional stability, by which the immediate litigants of any given case, and equally important, the bar who must advise clients or litigants in situations yet to come, will know that in the absence of *116 most compelling circumstances, the decision on identical questions, once made, will not be re-examined and redecided merely because of a change in the composition of the Court or of the new panel hearing the case." 306 F.2d at 114.
We fully recognize that we have the power to reconsider our own rulings, notwithstanding that such rulings have become the law of the case. See Strazzula v. Hendrick, 177 So. 2d 1 (Fla. 1965). But that power is to be exercised only in the most compelling circumstances, only for the most cogent reasons, and only where a manifest injustice would result from strict adherence to the rule. Strazzula v. Hendrick, supra. This is not a case in which that power should be exercised.[1]See also Goodman v. Olsen, 365 So. 2d 393 (Fla.3d DCA 1979); Schempp v. Schempp, 339 So. 2d 672 (Fla. 1st DCA 1976). Instead, this is simply a case where a former decision of this court is attacked as being erroneous a case for which the doctrine of the law of the case was intended. Indeed, were we to carve an exception to the law of the case doctrine here, and question the soundness of the former decision, the doctrine would be subsumed by the exception.
The cases relied upon by Judge Barkdull in his dissent correctly point out that when the evidence before the appellate court at the time it reverses a trial court's entry of summary judgment differs from the evidence ultimately developed at trial, the appellate court's holding that there are triable issues of fact does not preclude the trial court from later entering a directed verdict.[2] Were we dealing here with even an arguable difference in the evidence, we would agree that the law of the case, which presupposes, in the present context, a ruling of law based on a specified set of facts, would not control. But the critical point in the present case is that the evidence concerning the number and training of the hospital's employees and staff, which was before this court when it held that it was for a jury to determine whether the number *117 and training of hospital employees and staff were adequate, was exactly the same as the evidence presented at trial. It is precisely when that body of evidence is, as here, the same that the reasoning of Lincoln National Life Insurance Company v. Roosth, supra (a case which, incidentally, is left undisturbed by later Fifth Circuit decisions found in the dissent), controls.
We therefore hold that the law of the case, predicated on evidence identical to that presented at trial, required that the issue of the hospital's negligence be decided by a jury, prevented the trial court from entering a judgment for the hospital, and prevents us from affirming that judgment.
We must, however, affirm the trial court's alternative order granting a new trial on the ground that the verdict was contrary to the manifest weight of the evidence. No abuse of discretion in this ruling has been demonstrated, and it may not, therefore, be set aside on appeal. Cloud v. Fallis, 110 So. 2d 669 (Fla. 1959); Rivera v. White, 386 So. 2d 1233 (Fla.3d DCA 1980); see Baptist Memorial Hospital, Inc. v. Bell, 384 So. 2d 145 (Fla. 1980); Castlewood International Corp. v. LaFleur, 322 So. 2d 520 (Fla. 1975). To the extent that Wackenhut Corp. v. Canty, 359 So. 2d 430 (Fla. 1978), and its progeny mandate that the trial court articulate the bases of its conclusion to grant a new trial on manifest weight grounds,[3] the order entered below fully satisfied that requirement. That order spells out the trial judge's reasons for his finding that there was no evidence at all of the defendant's liability.[4] Even though the law of the case compels us to disagree with that conclusion, it surely cannot be said that the court's opinion provides no record-based support for the determination that the manifest weight of the evidence was contrary to the jury's verdict.[5]See Robinson v. Allstate Ins. Co., 367 So. 2d 708 (Fla.3d *118 DCA 1979); Urti v. Transport Commercial Corporation, 479 F.2d 766 (5th Cir.1973); Keystone Floor Products Co. v. Beattie Manufacturing Company, 432 F. Supp. 869 (E.D.Pa. 1977). Thus, as in, e.g., Wagner v. McCormick, 153 So. 2d 860 (Fla.2d DCA 1963), we reverse the judgment for the hospital, but affirm the order requiring a new trial.
Reversed in part; affirmed in part.
BARKDULL, Judge, dissenting.
I respectfully dissent from the majority opinion that finds that the trial judge committed error in the entry of the N.O.V. because of the doctrine of the "law of the case".
Following our opinion in Wallace v. P.L. Dodge Memorial Hospital, 355 So. 2d 855 (Fla.3d DCA 1978),[1] this matter reoccurred in the trial court. At the conclusion of the plaintiff's case, upon a motion for directed verdict being made, the trial court indicated he was inclined to grant it but would submit the cause to the jury, and if the jury found in favor of the plaintiff he would grant N.O.V.
Subsequently, the plaintiff received a favorable jury verdict. The jury determined that the defendant was 80% negligent and that the plaintiff was 20% negligent. The trial court also indicated that if he was in error in granting the N.O.V. he would grant a new trial, because the verdict was against the manifest weight of the evidence and the jury had been inadequately charged. An order granting the N.O.V. and/or new trial reads as follows:
... .
"ORDER GRANTING JUDGMENT N.O.V. AND, IN THE ALTERNATIVE, ORDER GRANTING NEW TRIAL
At the conclusion of the Plaintiff's case the Defendant P.L. DODGE MEMORIAL HOSPITAL filed a motion for a Directed Verdict on the grounds that there is no evidence upon which the jury could lawfully return a verdict for the Plaintiff. This Court announced at the time that it was clearly convinced that the Motion should be granted but under the appropriate rule would reserve ruling, allow the matter to proceed to the jury and reconsider the Motion if the jury's verdict was returned.
The jury has found for the Plaintiff by finding that the Defendant was 80% negligent and the Plaintiff 20% negligent. The amount of damages was Eighteen Thousand Dollars ($18,000). This Court concerns itself only with the question of whether or not there is any basis for finding that the Defendant was negligent, which was a legal cause of injury to the Plaintiff. It will not consider the amount of damages.
This Court is still unable to find a basis upon which a jury could lawfully find that the Plaintiff suffered injuries through any negligence of the Defendant. The Plaintiff had caused her husband to be placed in the hospital by the institution of a Baker Act proceedings. She was injured by her husband when she visited him in the hospital. This occurred when she sat down on the bed with him, at which time he grabbed hold of her, took her into the bathroom and committed battery upon her. This case was before the Third District Court of Appeals, which reversed a Summary Judgment, stating that there is an issue of fact on whether or not the hospital provided an adequate number of employees and staff. There was no evidence in the record that *119 the staff was inadequate. Even if it were inadequate, there is no evidence that the number or the training of the staff contributed or was a legal cause of the Plaintiff's injuries in any way. The hospital staff had received no warnings or instructions to prevent the Plaintiff from visiting her husband. Her injuries were not the result of any lack of supervision by the hospital. This is not a case where the inmate had escaped and caused injury to third persons, as is set forth in the case in 70 A.L.R. 2nd, 366. I am unable to understand how the hospital breached any duty to the Plaintiff. In short, although I have reviewed the case and listened attentively to counsel for the Plaintiff, this Court is unable to find any legal basis for assessing liability against the Defendant hospital for injuries suffered by the Plaintiff resulting from battery performed on her by her husband.
In the event that an Appellate Court should disagree with this Court on the foregoing, then this Court still finds that the Defendant would be entitled to a new trial for the reason that the verdict was clearly against the manifest weight of the evidence. In addition thereto, this Court does not feel that the jury was adequately instructed in this matter. The Court, therefore, grants the Motion for a New Trial as an alternative to the entry of the judgment should that judgment be reversed. It is, therefore,
ORDERED and ADJUDGED that notwithstanding the jury verdict, the Plaintiff, CORDELIA WALLACE, take nothing of and from Defendant P.L. DODGE MEMORIAL HOSPITAL, and judgment be, and the same is hereby, entered for the Defendant P.L. DODGE MEMORIAL HOSPITAL."
... .
I would affirm the order granting the N.O.V. because the plaintiff failed to establish that the security personnel and/or attendants at the hospital were inadequate under the circumstances. It would appear that the standard of care for a psychiatric hospital is what is normal and customary for any hospital in the community, coupled with the hospital's knowledge of the patient's condition. See: DeMartini v. Alexander Sanitarium, 192 Cal. App. 2d 442, 13 Cal. Rptr. 564 (1961); 9 Am.Jur.2d, Proof of Facts, 223; 40 Am.Jur.2d, Hospital & Asylums, § 26. However, this duty of care is that extended to the patient and not to a third person, as in the case sub judice. Herein, the injured party is a visitor to the hospital and, as such, is an invitee. See: McNulty v. Hurley, 97 So. 2d 185 (Fla. 1957); North Broward Hospital District v. Adams, 143 So. 2d 355 (Fla.2d DCA 1962); Sparks v. Ober, 192 So. 2d 81 (Fla.3d DCA 1966); St. Vincent's Hospital, Incorporated v. Crouch, 292 So. 2d 405 (Fla. 1st DCA 1974); 40 Am.Jur.2d, Hospital's & Asylums, § 35.
The majority opinion, in reversing, relies primarily on Federal cases which do not involve summary judgments.[2] My research discloses cases from the Fifth Circuit that clearly indicate that a ruling on a summary judgment does not prevent a trial judge from subsequently entering, as a matter of law on the facts adduced before him (a judge), a directed verdict or other order favorable to the party advocating the motion for summary judgment in the first instance. See: Gross v. Southern Railway Company, 446 F.2d 1057 (5th Cir.1971), wherein the following is found at page 1059:
... .
"In our former opinion where summary judgment in favor of the railroad defendant was reversed, we said that under the pleadings, affidavits, exhibits and depositions on file, there were issues of fact that should have been submitted to a jury, such as whether this was a `special circumstances' crossing, which was more than ordinarily dangerous and required special warnings; whether the train whistle was blown as required by statute; *120 and whether any of the acts of negligence charged to the railroad constituted a proximate cause of the accident. Plaintiffs contend that our opinion has disposed of most of the issues herein and is `a mandatory blueprint for all subsequent proceedings.' Defendant disputes this contention.
"An important threshold question, therefore, is whether our previous decision precluded the District Judge from giving due consideration to defendant railroad's motions for a directed verdict and later for judgment notwithstanding the verdict, on completion of a full trial on the merits. We have answered this question before on at least five occasions that the Trial Judge is free to consider such motions. It is settled in this Circuit, therefore, that prior denial of summary judgment does not rule out the possibility of a subsequent directed verdict. The earliest applicable decision of this Circuit is Robbins v. Milner Enterprises, Inc., 5 Cir., 1960, 278 F.2d 492, in which we said that `[T]he existence of a genuine controversy [in connection with a motion for summary judgment] does not foreclose a directed verdict if on the evidence as it is actually and finally adduced on a trial reasonable minds could not reach a contrary conclusion.' Id. at 496. We said that this holding `is a recognition that at times the issues may be such that only after the agony of a full-blown trial may it authoritatively be determined that there was never really the decisive issue of fact at all.' We concluded in Robbins that `Certainty, or predictable certainty, if not actually unobtainable, is often an illusion in the complex variables which pass through a courthouse door. The rules contemplate that a judge can take a first and a second and a third and a final look. It is the predictable uncertainty which sometimes makes this necessary.' Id. at 497, footnote omitted.
"In Braniff v. Jackson Ave.-Gretna Ferry, Inc., 5 Cir., 1960, 280 F.2d 523, 529, Robbins was cited with approval and we said: `[T]he reversal of summary judgment does not foreclose the right and the imperative duty of the District Judge to test the case against the actual evidence adduced at every stage of the trial. Nor is it a forecast that on remand the case must go to the jury. That depends upon the actual proof made and such proof may fall way short.'
"Later, in Stanley v. Guy Scroggins Construction Company, 5 Cir., 1961, 297 F.2d 374, 378, where granting of summary judgment was reversed and the case remanded for trial, we said: `This holding does not rule out the possibility of a directed verdict. It may be, when the evidence is in, that the district judge will find that the case should be disposed of by a directed verdict. He is free to do so. Robbins v. Milner Enterprises, Inc., 5 Cir., 1960, 278 F.2d 492, 496-497. On the other hand, this may prove to be a case where the underlying facts are susceptible of conflicting inferences, and the choice must be left to the jury.'
"In Gleason v. Title Guarantee Company, 5 Cir., 1963, 317 F.2d 56, 58, in response to a contention by appellant that since the evidence before the District Court on the hearing for summary judgment was substantially the same as the evidence on which the directed verdict was granted, the motion for a directed verdict should accordingly have been denied, we said, `Sound practical reasons * * * may justify a trial judge's denying a motion for summary judgment even on the identical evidence supporting his granting a directed verdict.' (Emphasis supplied.)
"To the same effect see Sheets v. Burman, 5 Cir., 1963, 322 F.2d 277, where the Court quoted with approval the prior holdings in Stanley and Robbins. See also 5 Moore, Federal Practice (2d ed. 1969) ¶ 50.03[4], p. 2338, in which Professor Moore states, `[T]he earlier denial of a motion for summary judgment should not, in any way, be considered a barrier to later consideration of a motion for directed verdict.' (Footnote omitted.)" [Emphases added.]
... .
*121 To the same effect, see: E.C. Ernst, Inc. v. General Motors Corp., 537 F.2d 105 (5th Cir.1976), wherein the following is found at page 108:
... .
"We noted at the outset of our opinion, however, that we were merely reviewing the record under `the usual standard' governing appeals from summary judgments. Id. [482 F.2d 1047] at 1049. That standard, of course, requires us to view the record in the light most favorable to the party who opposed the summary judgment motion; accepting his allegations as true and giving him the benefit of the doubt whenever his assertions conflict with those of the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962); Gauck v. Meleski, 5 Cir., 1965, 346 F.2d 433, 436; 10 C. Wright & A. Miller, Federal Practice and Procedure § 2716 at 430-32 (1973). Under this standard, our analysis of the limited record before us necessarily was of a binding character only with respect to the existence of a genuine triable controversy. As in any reversal of summary judgment, our assessment of the facts was not a mandatory blueprint for all subsequent proceedings upon remand. Gross v. Southern Ry., 5 Cir.1971, 446 F.2d 1057, 1060. Indeed, we have held that our reversal of a summary judgment does not preclude the trial court from subsequently directing a verdict against the appellant:
[T]he reversal of summary judgment does not foreclose the right and the imperative duty of the District Judge to test the case against the actual evidence adduced at every stage of the trial. Nor is it a forecast that on remand the case must go to the jury. That depends upon the actual proof made and such proof may fall way short.
Braniff v. Jackson Ave.-Gretna Ferry, Inc., 5 Cir., 1960, 280 F.2d 523, 529; accord, Gross v. Southern Ry., supra; Sheets v. Burman, 5 Cir., 1963, 322 F.2d 277, 281; Stanley v. Guy Scroggins Constr. Co., 5 Cir., 1961, 297 F.2d 374, 378; Robbins v. Milner Enterprises, Inc., 5 Cir., 1960, 278 F.2d 492, 496-97."
In Florida it has been held that failure to grant a summary judgment doesn't establish the "law of the case". City of Coral Gables v. Baljet, 250 So. 2d 653 (Fla.3d DCA 1971). It has also been held in Florida that the fact that a trial court should not have granted a defendant a summary judgment does not preclude it, in subsequent proceedings, from ruling in favor of the defendant. Boulevard National Bank of Miami v. Gulf American Land Corporation, 212 So. 2d 17 (Fla.3d DCA 1968).
For the above reasons, I would affirm the trial court in the entry of the N.O.V. I concur in the affirmance of the order granting a new trial, but note that this ruling seems contrary to the reasoning for the reversal as to the N.O.V. On the one hand the majority seems to be saying the matter should be left to a jury determination yet, on the other hand, approves of the action of the trial judge's ruling as a matter of law that the verdict of a jury is against the manifest weight of the evidence.
ADDENDUM TO DISSENT
After my dissent was prepared and circulated, Judge Pearson amended his opinion by removing certain authorities originally cited, and now bases the opinion primarily upon the Fifth Circuit Court of Appeals opinion, reported as Lincoln National Life Insurance Company v. Roosth, 306 F.2d 110 (5th Cir.1962), and contends that the identical evidence was previously before this court at the time it reversed the summary judgment. This cannot be ascertained from our prior opinion. The cited case (Lincoln National Life Insurance Company v. Roosth, supra) involved two trials with the identical evidence. This is not the case sub judice. Unless the earlier opinion and decision demonstrates that the factual basis was identical, the doctrine of the law of the case should not be applied. See: Greenberg v. Greenberg, 397 So. 2d 1032 (Fla.3d DCA 1981), wherein this court recently said:
*122 "... The law of the case applies where the same factual and legal issue is presented to the court a second time... ."
In reversing the summary judgment, the earlier opinion stated that "there was a genuine issue of material fact as to the alleged negligence of the defendant hospital in failing to provide adequate attendants...". The trial judge, in entering his order granting N.O.V., stated: "There was no evidence in the record that the staff was inadequate." (emphasis added) This clearly demonstrates that the evidence at the trial was not the same as that considered by this court in the earlier case, as this court found an issue of adequate attendants when reversing the summary judgment yet at the time of trial the trial judge found no evidence in this regard. The burden was on the plaintiff in the trial court to establish that the attendants were inadequate. The trial judge found that the plaintiff failed to establish this crucial part of her evidence. The doctrine of the law of the case cannot supply this deficiency of proof, even if applicable.
I adhere to my dissent as originally prepared and circulated.
NOTES
[1] The power to depart from prior rulings has been exercised circumspectly. Exceptions to the law of the case doctrine have been made only where the prior decision of the court (1) established unsound precedent for the guidance of others. e.g., State v. LoChiatto, 381 So. 2d 245 (Fla. 4th DCA 1979) (where court's initial decision authorized assessment of attorneys' fees against State for appellate proceedings in a criminal case under statute pertaining to civil cases only); Standard Oil Co. of California v. Johnson, 56 Cal. App. 2d 411, 132 P.2d 910 (1942); McGovern v. Kraus, 200 Wis. 64, 227 N.W. 300 (1929); (2) announced a doctrine in conflict with previous pronouncements of the court, e.g., Brewer v. Browning, 115 Miss. 358, 76 So. 267 (1917): (3) was made under a mistake of fact, e.g., Cochran v. M & M Transportation Co., 110 F.2d 519 (1st Cir.1940) (mistake of fact that judgments had been entered against the plaintiff, causing court to hold that plaintiff's failure to appeal precluded review); Putnam & Norman, Inc. v. Levee, 186 So. 368 (La. App. 1939) (mistake of fact that corporation in whose favor judgment had been entered was dissolved, causing court to set aside judgment); Bird v. Sellers, 122 Mo. 23, 26 S.W. 668 (1894) (mistake of fact that pertinent statute had been revised, causing decision based on supposed revision); (4) was impacted by an intervening decision, e.g., Johnson v. Cadillac Motor Car Co., 261 F. 878 (2d Cir.1919) (where court first held car manufacturer not liable to buyer with whom there was no privity of contract, but, in light of the intervening landmark decision in Macpherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), later held that an exception to the law of the case doctrine should be made where, inter alia, the initial decision "lays down a principle of law for future guidance which is unsound and contrary to the interests of society"; Maryland Casualty Company v. Hallatt, 326 F.2d 275 (5th Cir.), cert. denied, 377 U.S. 932, 84 S. Ct. 1335, 12 L. Ed. 2d 296 (1964), and Connor v. New York Times Co., 310 F.2d 133 (5th Cir.1962) (where federal court had initially decided cases in reliance on state court decisions later overruled); (5) involved an important public policy consideration, e.g., Beverly Beach Properties, Inc. v. Nelson, 68 So. 2d 604 (Fla. 1953) (where court's initial decision failed to give full faith and credit to judgment of sister state); see Annot., 87 A.L.R. 2d 271 (1963); 3 Fla.Jur.2d Appellate Review §§ 414-29 (1978).
[2] The proposition that a trial court may for sound practical reasons deny summary judgment, afford the parties a full opportunity to present evidence at trial, and thereafter direct a verdict on the identical evidence, is inapposite to the present inquiry. Gleason v. Title Guarantee Co., 317 F.2d 56 (5th Cir.1963). The denial of summary judgment merely defers the matter until final hearing. City of Coral Gables v. Baljet, 250 So. 2d 653 (Fla.3d DCA 1971).
[3] But see Hauser Motor Co., Inc. v. Byrd, 377 So. 2d 773 (Fla.4th DCA 1979), and Robinson v. Allstate Ins. Co., 367 So. 2d 708 (Fla.3d DCA 1979), holding that Wackenhut did not change the rule that the appellate court should examine the record to determine whether a new trial order granted on manifest weight grounds was an abuse of discretion, even if the particularized reasons are not specified in the order itself.
We assume without determining that Wackenhut applies to new trial orders other than those which, like Wackenhut itself, and most, if not all, of the subsequent decisions, deal with issues of the alleged excessiveness or inadequacy of damages.
[4] The order stated, in pertinent part:
"The jury has found for the Plaintiff by finding that the Defendant was 80% negligent and Plaintiff 20% negligent.
... .
"This Court is still unable to find a basis upon which a jury could lawfully find that the plaintiff suffered injuries through any negligence of the Defendant. The Plaintiff had caused her husband to be placed in the hospital by the institution of a Baker Act proceedings [sic]. She was injured by her husband when she visited him in the hospital. This occurred when she sat down on the bed with him, at which time he grabbed hold of her, took her into the bathroom and committed battery upon her. This case was before the Third District Court of Appeals, which reversed a Summary Judgment, stating that there is an issue of fact on whether or not the hospital provided an adequate number of employees and staff. There was no evidence in the record that the staff was inadequate. Even if it were inadequate, there is no evidence that the number or the training of the staff contributed or was a legal cause of the Plaintiff's injuries in any way. The hospital staff had received no warnings or instructions to prevent the Plaintiff from visiting her husband. Her injuries were not the result of any lack of supervision by the hospital. This is not a case where the inmate had escaped and caused injury to third persons, as is set forth in the case in 70 A.L.R. 2nd, 366. I am unable to understand how the hospital breached any duty to the Plaintiff. In short, although I have reviewed the case and listened attentively to counsel for the Plaintiff, this court is unable to find any legal basis for assessing liability against the Defendant hospital for injuries suffered by the Plaintiff resulting from battery performed on her by her husband."
[5] The dissent notes an apparent inconsistency in our holdings that the evidence was sufficient to present a jury question and that the trial court was empowered to grant a new trial when, in its view, the verdict was against the manifest weight of the evidence. The distinction between the weight and sufficiency concepts, and the separate, but consistent, function of each, has recently received full discussion in a different context in Tibbs v. State, 397 So. 2d 1120 (Fla. 1981).
[1] Which reads as follows:
"The plaintiff Cordelia Wallace appeals a final summary judgment in a negligence action in favor of the defendant P.L. Dodge Memorial Hospital and its insurer Appalachian Insurance Company and contends that the entry of such judgment was error because inter alia there was a genuine issue of material fact as to the alleged negligence of the defendant hospital in failing to provide adequate attendants to protect the plaintiff as an invitee of the hospital against a violent attack by one of its mental patients. We agree and reverse the judgment appealed from for further proceedings solely as to that issue. No other genuine issue of material fact exists in this case. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966); North Broward Hospital District v. Adams, 143 So. 2d 355, 356 (Fla.2d DCA 1962)."
[2] Only Schempp v. Schempp, supra, involved a summary judgment and, on its facts, it is not analogous to the case sub judice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595807/ | 399 So. 2d 1137 (1981)
Dr. Joseph VEY, Appellant,
v.
BRADFORD UNION GUIDANCE CLINIC, INC., et al., Appellees.
No. YY-53.
District Court of Appeal of Florida, First District.
June 25, 1981.
Rodney W. Smith, Gainesville, for appellant.
Stephen A. Rappenecker, Norm J. LaCoe, Gainesville, for appellees.
WENTWORTH, Judge.
This is an appeal from an order entered September 3, 1980, by a DOAH hearing officer dismissing Bradford Union Guidance Clinic, Inc. ("BUGC, Inc."), as a party to Chapter 120, Florida Statutes, proceedings before the Florida District III Mental Health Board. The only issues presented here by appellant, Dr. Vey, are (1) that the hearing officer lacked authority to enter the order of September 3, 1980, dismissing BUGC, Inc., upon its motion for rehearing of the order of August 12, 1980, denying such dismissal; and (2) that the September 3 order erroneously found that BUGC, Inc., was not an agency under § 120.57(1), Florida Statutes. We affirm.
An earlier appeal resulted in a decision by this court which reversed the Board's order denying Vey's request for de novo determination of an employment grievance (already heard and denied by a Clinic personnel committee). Vey v. District III Mental Health Board, 376 So. 2d 1210 (Fla. 1st DCA 1979). We found that "the Mental Health Board's election to act as a review board was unauthorized by its own rules and by the Administrative Procedure Act, Chapter 120, Florida Statutes. Appellant is entitled to a fair and impartial formal hearing conducted pursuant to the procedures provided by Section 120.57(1)(b), Florida Statutes, ..." Confusion has apparently resulted from the further direction that the proceeding should be conducted before a DOAH hearing officer *1138 as provided by § 120.57(1)(a). Whatever generated that direction, the court held only that the Board's function was not appellate in nature, and that the Board was required, as an agency subject to Chapter 120, to act on Vey's petition after the necessary hearing. The remand plainly permitted determination of all ensuing issues between the parties on both procedure and merits, and the terms of the remand therefore did not pre-determine the issue of employer status for either the Board or clinic, or any other issue beyond that above quoted.
The order now appealed was entered by the hearing officer on September 3, 1980. It recited an August 26 motion by BUGC, Inc. for rehearing of an order entered August 12, 1980, based on motions by the Board and BUGC to dismiss, to which Vey filed no response. The August 12 order made findings from the pleadings and statutes and held (1) that all facts pleaded in the complaint showed Vey's employer was BUGC, Inc., (2) that BUGC was not a state agency, (3) that Vey had no employment relationship with the Board and Vey's petition should be dismissed because "the Board has taken no action ... which will affect Dr. Vey's substantial interest," and:
Had this case not come here via the District Court of Appeal, First District, I would grant the Motions to Dismiss Dr. Vey's Petition. I do not believe that a Section 120.57(1) hearing is the proper forum to resolve employment disputes between private employers and their employees. The Court however, has spoken in this matter and whatever the wisdom of its holding, the decision is the law of this case ... For this reason the Motions to Dismiss must be and are DENIED.
The September 3 order on appeal states:
Because the Clinic was not a party to the case of Vey v. District III Mental Health Board, it is not bound by the rule of that decision. McGregor v. Provident Trust Co. of Philadelphia [119 Fla. 718, 162 So. 323]. For the above reasons and for the reasons set out in the Order of August 12, 1980, . .. It is ORDERED that the Second Amended Complaint inasmuch as it seeks to make the Bradford-Union Clinic, Inc., a party to these proceedings is dismissed. The Second Amended Complaint is not dismissed as to the Respondent, District III Mental Health Board.
Appellant Vey's first issue asserts the hearing officer lacked authority, based on motion for reconsideration, to alter his August 12 order denying motions to dismiss because no statute or rule provides for rehearing motions as to such orders. Conceding the lack of authority for the motion and acknowledging its inefficacy for tolling purposes, we conclude that under the recited circumstances the hearing officer acted properly in re-determining the merits of BUGC's motion to dismiss which had been denied by interlocutory order three weeks earlier. In analogous situations where the lack of provision for reconsideration of an agency order foreclosed any stay of a prior order, the Florida court has recognized an administrative power to control and modify orders by timely action "before an appeal from the original order of the administrative body has been lodged or before such order has become final by lapse of time without a timely appeal." Mills v. Laris Painting Co., 125 So. 2d 745 (Fla. 1961), quoting with approval from 73 C.J.S. Public Administrative Bodies and Procedure, § 156. The cited text, § 157, also states "without reference to statutory authority therefor and subject to some restrictions and limitations, it has been held that an administrative agency may correct or amend its orders" within the time they remain under its control, citing Leonard Bros. Transfer & Storage Co. v. Douglass, 32 So. 156, 159 Fla. 510; and State ex rel. Burr v. Seaboard Air Line Ry. Co., 111 So. 391, 93 Fla. 104. Appellant presents no authority or facts countering the application of this principle and we accordingly affirm.
Appellant's second point urges error in the determination that BUGC was not an agency subject to § 120.57(1), Florida Statutes. Section 120.52(1) provides that "agency" means
(a) the governor ... (b) each other state officer and each state department, departmental *1139 unit ..., commission, regional planning agency, board, district, and authority, ... (c) each other unit of government in the state ... to the extent they are expressly made subject to this act... .
The above definition does not in terms encompass a private entity which contractually agrees to provide services for a state agency. In State Road Department v. Cone Brothers Contracting Co., 207 So. 2d 489 (Fla. 1st DCA 1968), the court indicated that a private entity which contracted to provide services for a state agency does not thereby become a state agency itself. Under the terms of the agreement in the present case the Mental Health Center was required to honor BUGC's personnel decisions, and, while BUGC received public funding, it was also authorized to receive private payments. The contractual agreement also refers to BUGC as an independent contractor. See also Fla. AGO 078-106 (rendered 8/15/78), expressing the opinion that a private service provider does not become a state agency by subcontracting to perform services for a state agency.
Although this court has previously determined that appellant was entitled to a Chapter 120 hearing, See Vey v. District III Mental Health Board, 376 So. 2d 1210 (Fla. 1st DCA 1979), the court at that time did not consider whether appellee clinic, BUGC, was a state agency or a proper party to such proceeding on remand. Appellee was not a party before the district court and the order appealed correctly concluded that the decision had no collateral estoppel or res judicata effect as to appellee. In addition, as above noted, the earlier decision and opinion of this court did not reach the issue of the sufficiency of the petition to assert employer status for the Board, the review being confined to error on the face to the Board's order denying de novo consideration of the petition.
The order appealed is accordingly affirmed.
SHIVERS, J., and WOODIE A. LILES (Ret.), Associate Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2591796/ | 76 N.Y.2d 683 (1990)
In the Matter of Douglas E. Thurston, Respondent,
v.
Richard N. Durose, as Commissioner of the Oneida County Department of Social Services, et al., Appellants.
Court of Appeals of the State of New York.
Argued October 18, 1990.
Decided November 29, 1990.
Albert F. Lawrence for appellant.
Stephen L. Lockwood for respondent.
Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
*684Chief Judge WACHTLER.
In this case, we consider whether the appellant, the Oneida County Department of Social Services, can recover public assistance payments made to respondent Douglas Thurston after he reached the age of 21. Because we conclude that the Department can bring a direct action against the respondent (see, Social Services Law § 104) and, therefore, may place a lien against the proceeds of his personal injury settlement (see, Social Services Law § 104-b), even though he was a minor at the time his injuries were sustained, the order of the Appellate Division should be reversed insofar as appealed from, and the lien reinstated.
*685In 1984, respondent commenced an action against the City of Utica, five of its police officers and its chief of police, seeking damages under 42 USC §§ 1981, 1983, and 1988 for injuries he had sustained a year earlier when he was still under the age of 21. In his complaint filed in the United States District Court for the Northern District of New York, respondent claimed that the officers attacked him, wrongfully detained him, delayed medical treatment, and charged him with assorted violations of New York's Penal Law without cause. He settled his claim in 1988, after having reached his 21st birthday, for $65,000. Thereafter, the Department placed a lien against respondent's settlement proceeds pursuant to Social Services Law § 104-b. This section permits a public welfare official to attach the personal injury recovery of a public assistance recipient in order to recoup benefits paid on and after the date the injuries were sustained.
Respondent commenced an article 78 proceeding to annul the determination of the Department and to vacate the lien it had placed against his personal injury proceeds. His claim was that inasmuch as the action against the city arose prior to his reaching his majority, the lien could not properly attach. Respondent, however, did not challenge the Department's ability to recover medical expenses that the Department had incurred on respondent's behalf. Supreme Court ordered the respondent to reimburse the Department for the portion of his recovery that represented his medical and hospital expenses, but disallowed the remainder of the lien. The Appellate Division affirmed, holding that the portion of the settlement that represented damages for respondent's personal injuries was not subject to the lien. The Appellate Division stated that while the Department may have a claim for public assistance payments made after the respondent reached his majority, it could not seek recovery by placing a lien against the settlement proceeds.
We disagree. We have already examined the provisions of the Social Services Law that permit public welfare officials to seek recovery of public assistance benefits (Baker v Sterling, 39 N.Y.2d 397). Section 104 (1) allows officials to bring an action or proceeding against a recipient of public assistance who is "discovered to have real or personal property * * * [and who] received assistance and care during the preceding ten years." The official is "entitled to recover up to the value of such property the cost of such assistance or care" (id.)
*686The official's ability to proceed under section 104 (1) is limited by the express language of section 104 (2) when the recipient of public assistance is a minor. Subdivision (2) of section 104 provides that "[n]o right of action shall accrue against a person under twenty-one years of age by reason of the assistance or care granted to him unless at the time it was granted the person was possessed of money and property in excess of his reasonable requirements, taking into account his maintenance, education, medical care and any other factors applicable to his condition."
In Baker, we held that the lien statute, section 104-b, was similarly subject to the limitations contained in section 104 (1) and section 104 (2) (39 NY2d, at 405). "[S]ection 104-b is purely procedural. `It relates to the remedy rather than to the right' and the scope of the remedy is governed by the terms of the statute creating the right" (id., quoting Department of Welfare v Siebel, 6 N.Y.2d 536, 545). We thus concluded in Baker that "whether the agency seeks to recover directly in an action or proceeding, or indirectly by enforcing a lien in the recipient's suit, its right to recover is subject to the limitations imposed by section 104" (id.). As a result, under the facts of that case, we held that when the New York City Department of Social Services sought to place a lien on an infant's personal injury recovery, the lien would not attach "unless the infant possessed money or property in excess of his needs at the time the assistance was granted," as required by section 104 (2) (id.).
In Baker, we noted that "[a]n award for personal injuries * * * compensates the infant for his loss by providing a fund to satisfy his anticipated needs occasioned by the injury. By definition this fund can never be considered `money or property in excess of his reasonable requirements.'" (39 NY2d, at 405-406.) Respondent argues that this language insulates his personal injury settlement from either a lien or a direct action because the injury giving rise to the personal injury action occurred when respondent was a minor and because the settlement proceeds by their nature can never be considered "in excess of his reasonable requirements." We disagree. Whether the recovery here was in excess of this respondent's reasonable requirements would only be relevant if respondent were a minor and the Department's ability to recover expenditures made on the respondent's behalf was consequently limited by section 104 (2). Because the Department seeks to recover payments made only after the respondent had reached *687 his majority, however, the Department's ability to recover is limited solely by section 104 (1) and not by section 104 (2). As an adult, the respondent had received public assistance payments during the preceding 10 years and was discovered to have personal property, i.e., a cause of action that eventually led to a substantial recovery. Since the requirements of section 104 (1) were satisfied in this case, the Department's ability to assert a lien pursuant to section 104-b was triggered and it was entitled to recover those payments made when the respondent was an adult through the use of the lien.
The mere fact that respondent's injury was sustained while he was still a minor does not insulate the proceeds of his personal injury settlement from attachment. The Department should not be barred from seeking recovery for four years of public assistance simply by virtue of the fact that a settlement reached when respondent was 25 had its origins in an incident that occurred when the respondent was still a minor. Respondent was an adult when the public assistance payments at issue were made and we believe that this alone is determinative. The language of section 104 (2) is applicable only when the recipient is a minor and thus bars neither a direct action nor a lien under these facts. Our holding in Baker does not compel a contrary conclusion.
Although we agree with the Appellate Division that the Department has a claim for payments made after respondent reached his majority, we do not believe that the Department is barred from attaching a portion of respondent's settlement proceeds pursuant to section 104-b and that it can only bring a direct action under section 104. Our statement in Baker that a personal injury award cannot by nature be considered "in excess of [a recipient's] reasonable requirements" does not in any way dictate the result reached by the Appellate Division in this case. Because the respondent was an adult when the public assistance in question was granted, subdivision (2) is not triggered. As a result, the Department was free to proceed under either section in order to recover those payments made to the respondent after he reached his majority. Thus, the Department's lien on the respondent's personal injury settlement should be reinstated to the extent that the lien corresponds to public assistance that was granted to the respondent after he reached his 21st birthday.
Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and respondent's *688 application to vacate appellant's lien against the proceeds of respondent's settlement of his personal injury action, to the extent the lien was for public assistance granted after respondent attained the age of majority, denied.
Order, insofar as appealed from, reversed, etc. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596202/ | 399 So. 2d 758 (1981)
Betty Jean FREANO, Plaintiff and Appellee,
v.
Joseph Delbert ROSENBAUM, Defendant and Appellant.
No. 8189.
Court of Appeal of Louisiana, Third Circuit.
May 27, 1981.
A. J. Fazzio, Lake Charles, for defendant and appellant.
George V. Perez, Lake Charles, for plaintiff and appellee.
Before CULPEPPER, DOMENGEAUX and LABORDE, JJ.
CULPEPPER, Judge.
This is an action under the civil enforcement provisions of the Uniform Reciprocal Enforcement of Support Act (URESA), LSA-R.S. 13:1661-1688. The wife, currently residing in Tennessee, seeks child support for two of her children from the defendant, a Louisiana resident. After the hearing for support, the juvenile court ordered defendant to pay plaintiff $100 per month in child support payments. Defendant appeals.
The issue we address is whether under URESA an affidavit of the wife made in the initiating state without notice to defendant nor an opportunity for cross-examination is admissible at a hearing in the responding state to determine the wife's need for child support.
Plaintiff filed her petition for child support on June 2, 1980 in the Juvenile Court of Memphis and Shelby County, Memphis, Tennessee. Attached to her petition is an affidavit made by plaintiff listing, among other things, plaintiff's income, the names and ages of the children residing with plaintiff and an estimate of the monthly expenses necessary for the support of plaintiff and her children. These documents were *759 transmitted by the Juvenile Court in Tennessee to the Department of Health & Human Resources in Louisiana. Included along with the petition and affidavit is a "Certificate and Order" from the Memphis and Shelby County Juvenile Court which reads as follows:
"CERTIFICATE AND ORDER
"This cause came on for hearing before the Honorable Kenneth A. Turner, Judge of the Juvenile Court of Memphis and Shelby County, Tennessee, from all of which it appears as follows:
"1. That on the 2nd day of July, 1980, a petition was duly filed and verified by the above-named petitioner in this Court in a proceeding against the above-named respondent under the provisions of the Uniform Reciprocal Enforcement of Support Act, Sections 36-901 through 36-929 of the Tennessee Code Annotated, to compel the support of the dependent(s) named in the petition.
"2. That the above-named respondent is believed to be present in Lake Charles, Calcasieu Parish, Louisiana and that the Juvenile Court of Calcasieu Parish, Lake Charles, Louisiana may obtain jurisdiction of the respondent or his property.
"3. That in the opinion of the Court, the petition sets forth facts from which it may be determined that the respondent owes a duty of support and that such petition should be dealt with according to law.
"4. That the Court has examined the sworn petition and all other records in this cause, and it appears to the Court that the need of the dependent(s) named in the petition for support from the respondent is the sum of $200 per month.
"WHEREFORE, it is hereby ordered, adjudged and decreed that the petition filed herein, this certificate, together with copies of said Uniform Reciprocal Enforcement of Support Act, be transmitted in triplicate to the aforesaid Court."
Following receipt of certified copies of these documents, a hearing was scheduled before the Calcasieu Parish Juvenile Court in Lake Charles, Louisiana. Under the provisions of LSA-R.S. 13:1666, plaintiff was represented by the district attorney of the Fourteenth Judicial District. Plaintiff was not present at this hearing. At the hearing, objection by counsel for defendant was entered as to the admissibility of the affidavit on the ground that defendant had not been notified of the Tennessee proceedings and thus was unable to contest the accuracy of the affidavit by means of cross-examination. The affidavit was admitted over defendant's objection, and the judgment was subsequently rendered.
The question as to the admissibility of ex parte testimony where the defendant is denied the opportunity to cross-examine was considered in Carpenter v. Carpenter, 231 La. 638, 92 So. 2d 393 (La.1956). There the wife initiated proceedings for child support under URESA in California against her former husband who was in Louisiana. A hearing was held in the California court where the allegations of plaintiff's petition were proved solely on the basis of the wife's testimony. The husband had not received notice of the proceeding and did not appear. Thereafter an order for support was issued by the California court ordering defendant to make monthly payments of $160. A hearing was then held in the Family Court of the Parish of East Baton Rouge wherein the only evidence introduced was that of the proceeding in the California court. Based on this evidence, the Louisiana Family Court rendered judgment against the defendant ordering him to make support payments of $75 per month.
The Supreme Court, in concluding the judgment was predicated on improper and insufficient evidence, stated:
"When in his answer, [defendant] denied liability for the alimony herein sought a duty devolved upon plaintiff to prove her claim with legal evidence as in ordinary suits, that is, by means of oral testimony, interrogatories, depositions, etc., with the defendant having the right to cross-examine the witnesses. Yet this plaintiff introduced only, and she relied wholly on, the testimony given by her during the *760 hearing before the California court, at which the defendant was not cited to appear and hence had no opportunity for cross-examination; and it amounted to nothing more than an inadmissible ex parte statement."
See also Brown v. Brown, 185 So. 2d 286 (La.App. 1st Cir. 1966).
We think Carpenter is controlling in the present case. The record shows that no notice of the Tennessee hearing was ever received by defendant. Thus plaintiff's affidavit represents only an ex parte statement which is inadmissible. In a hearing for enforcement of support under URESA, a plaintiff must prove her case as in any other civil action. Plaintiff has failed to do so in the instant case. We therefore set aside the judgment and remand this case to the Calcasieu Parish Juvenile Court in order that further evidence be received.
We note that Section 1674 of URESA provides a vehicle by which evidence may be adduced where the obligee is not present at the support hearing. That section provides:
"§ 1674. Hearing and continuance
"If the obligee is not present at the hearing and the obligor denies owing the duty of support alleged in the petition or offers evidence constituting a defense, the court, upon request of either party, shall continue the hearing to permit evidence relative to the duty to be adduced by either party by deposition or by appearing in person before the court. The court may designate the judge of the initiating court as a person before whom a deposition may be taken."
Here neither party requested a continuance of the hearing so that further evidence could be adduced. This, however, does not validate a judgment based on improper evidence.
For the reasons assigned, the judgment appealed is reversed and set aside. This case is remanded to the Calcasieu Parish Juvenile Court for further proceedings in accordance with law and the views expressed herein.
REVERSED AND REMANDED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1640231/ | 989 So. 2d 1192 (2008)
NADCO TAPES & LABLES, INC.
v.
EXECUTIVE CONST. CO. OF SARASOTA, INC.
No. 2D07-3164.
District Court of Appeal of Florida, Second District.
September 12, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595844/ | 399 So.2d 1120 (1981)
Martin GOODMAN, Appellant,
v.
STATE of Florida, Appellee.
No. 80-680.
District Court of Appeal of Florida, Fourth District.
June 24, 1981.
Robert C. Stone of Stone & Dell, P.A., Hollywood, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
HERSEY, Judge.
Goodman appeals from his conviction and sentence for the crime of possession of over 100 pounds of cannabis with intent to deliver.
We first dispose of the sentence which provides for seven years of incarceration to be followed by five years of probation. Split sentences involving both incarceration and probation came under the scrutiny of our Supreme Court in Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla. 1981). In that opinion, given retroactive effect, the court determined that such split sentences may not validly impose a requirement of incarceration for more than one year. Goodman's sentence is violative of that precept.
Of the six points raised which relate to the conviction itself we consider only the *1121 first at length. The remaining points either were not adequately preserved for appeal or were not sufficiently meritorious on this record to warrant discussion.
Goodman questions the legality of an initial stop and frisk. This issue was raised in pretrial motions and at trial. We find that the arresting officer had both the authority and the necessary founded suspicion to make the stop in question. Since no evidence is alleged to have resulted from an illegal frisk we consider that aspect of the issue moot.
Goodman was stopped by Sergeant Ortenzo of the Fort Lauderdale police department at a location outside the city limits. The relevant and material facts essential to an examination into the legality of that stop unfold in the following fashion.
Ortenzo, along with two other officers of the Fort Lauderdale police department, was instructed by his superior officer to go to a certain location within the city limits and to assist the sheriff's department in making a drug arrest at that location. A van loaded with marijuana was seized and the driver arrested. The police learned that the marijuana had been picked up from the garage of a dwelling located outside the city limits. Sergeant Ortenzo was instructed by a deputy sheriff to proceed to that location and secure the premises. The house in question was located on a dead-end street terminating in a cul de sac, so that there was no through traffic.
Goodman, owner of the dwelling in question, obtained a ride with one Hawkins, a neighbor, and they approached the premises in Hawkins' automobile. According to Sergeant Ortenzo's testimony, the automobile appeared to slow as though to pull into the driveway and then suddenly changed course and continued down the street with both male occupants staring intently at the house, even when they passed within two feet of Sergeant Ortenzo. The vehicle negotiated the cul de sac and approached the house from the opposite direction, the occupants continuing to look at the dwelling. At this point, Sergeant Ortenzo stopped the vehicle. There is testimony that a deputy sheriff was at that time in close proximity to the vehicle.
Goodman takes the position that Sergeant Ortenzo was without authority to make this stop outside the municipal limits of the city of Fort Lauderdale. The trial court held that the officer did have such authority and we agree.
Ortenzo had been requested to aid the sheriff's department in effecting an arrest and in securing premises related causually, if not geographically, to that arrest. By virtue of Section 901.18, Florida Statutes (1979), Ortenzo had, under these circumstances, the same authority as that of the deputy sheriffs. This authority encompassed any lawful act necessary to investigation of circumstances surrounding that arrest and the related premises, including the stop in question here. Another source of Ortenzo's authority is his position as a municipal officer conducting an investigation outside his territorial jurisdiction, the subject matter of which originated in his own jurisdiction. See State v. Chapman, 376 So.2d 262 (Fla.3d DCA 1979). More specifically, Ortenzo was involved in an investigation which began in the City of Fort Lauderdale with the arrest of the driver of the drug-laden van and led to the premises outside the city limits where the stop, a part of the investigation, was made. For these reasons, either one of which we deem sufficient, the officer had authority to make a stop based upon a founded suspicion.
The second prong of our inquiry, then, is whether the facts establish the basis for such a founded suspicion. The proper test, articulated in State v. Stevens, 354 So.2d 1244, 1247 (Fla.4th DCA 1978) is defined as:
To justify temporary detention, only `founded suspicion' in the mind of the detaining officer is required... . A `founded suspicion' is a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer's knowledge.
The Stevens court, in addressing the issue of whether mere or bare suspicion is enough to support detention, further stated that:
*1122 There will be borderline eases, of course, in which reasonable men might differ as to whether the circumstances witnessed by an officer gave an objective foundation to his suspicion. Certain factors might then be evaluated to determine whether they reasonably suggested the suspect's possible commission, existing or imminent, of a crime: The time; the day of the week; the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; any thing incongruous or unusual in the situation as interpreted in the light of the officer's knowledge.
Id. at 1247.
We conclude that the actions of Goodman and Hawkins, in light of the officer's knowledge that the premises had just previously been the repository for a cache of cannabis, were sufficient to justify a stop and investigatory detention.
For the foregoing reasons we affirm the conviction but vacate the sentence and remand for resentencing in conformity with the dictates of Villery, supra.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED FOR RESENTENCING.
ANSTEAD and HURLEY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595857/ | 399 So.2d 525 (1981)
TEMPLE BETH SHOLOM AND JEWISH CENTER, INC., a Nonprofit Florida Corporation, Appellant,
v.
THYNE CONSTRUCTION CORP., a Dissolved Florida Corporation; Seaboard Surety Company, a New York Corporation; and Marsh Roofing Company, Appellees.
No. 80-1688.
District Court of Appeal of Florida, Second District.
June 10, 1981.
A. Lamar Matthews, Jr. and Charles D. Bailey, Jr. of Williams, Parker, Harrison, Dietz & Getzen, Sarasota, for appellant.
Henry P. Trawick, Jr. of Trawick & Griffis, P.A., Sarasota, for appellees Thyne Construction Corp. and Seaboard Surety Co.
John M. Strickland of Livingston, Patterson & Strickland, P.A., Sarasota, for appellee Marsh Roofing Co.
GRIMES, Judge.
This case involves a dispute between an owner, its general contractor, and a roofing subcontractor over the installation of a defective roof.
Temple Beth Sholom and Jewish Center, Inc., contracted with Thyne Construction Corporation to build a sanctuary and social hall. The contract called for the installation of an asphalt roof membrane over a *526 concrete roof deck. Thyne subcontracted with Decks, Inc., to install the deck for $11,735 and with Marsh Roofing Company to install the membrane for $10,955. Less than a year after construction, the roof began to leak. The leaks eventually became so bad that they forced the replacement of the roof. Temple removed the entire membrane and substituted one of a different design which cost $72,000.
Alleging a breach of contract, Temple sued Thyne and Seaboard Surety Company for damages arising from the construction of the defective roof. Thyne and Seaboard then filed third party claims against Decks and Marsh alleging that if the defects in the roof existed, one or both of the third party defendants were responsible. Following a nonjury trial, the court entered a final judgment in favor of Temple against Thyne and Seaboard for $10,000. The court exonerated Decks but ruled that Thyne and Seaboard were entitled to recover $5,000 from Marsh on their third party claim. Temple filed an appeal attacking the adequacy of the judgment. Thyne and Seaboard, on the one hand, and Marsh, on the other, cross-appealed against each other.
While the final judgment made no findings, a reading of the judge's remarks at the conclusion of the hearing indicates that he was influenced by the original contract price for the membrane. Also, he apparently reduced Temple's recovery because he thought that Temple's representatives had pressured the contractor into putting on the roof at a time when the rainy weather conditions dictated the need for delay.
The proper measure of damages for construction defects is the cost of correcting the defects, except in certain instances where the corrections involve an unreasonable destruction of the structure and a cost which is grossly disproportionate to the results to be obtained. Gory Associated Industries, Inc. v. Jupiter Roofing & Sheet Metal, Inc., 358 So.2d 93 (Fla. 4th DCA 1978); Edgar v. Hosea, 210 So.2d 233 (Fla.3d DCA 1968). If in the course of making repairs the owner elects to adopt a more expensive design, the recovery should be limited to what would have been the reasonable cost of repair according to the original design. Cf. Pinellas County v. Lee Construction Co., 375 So.2d 293 (Fla.2d DCA 1979), in which this court reversed a judgment which had limited the award for construction defects to the contract price and permitted recovery of the cost of the most reasonable method for remedying the defects.
Temple's consulting engineer from Massachusetts estimated that it would have cost $39,000 to replace the roof according to its original design. This figure was subject to some criticism as not reflecting local construction costs. It is obvious, however, that the cost of making reasonable repairs would have far exceeded the amount of the judgment. Moreover, the court failed to take into account the damage caused inside the building by the water leakage.
Any reduction of Temple's recovery because of the conduct of its own representatives was based upon a misapprehension of the evidence. While the record reflects the possibility that Thyne may have pushed Marsh into putting on the membrane before the weather conditions were suitable, there is absolutely no evidence that Temple pressured anyone towards an early completion.
We affirm the judgment insofar as it holds Thyne and Seaboard liable to Temple for damages arising from the faulty roof construction. We reverse the amount of the award and remand the case for a new trial on damages in which Temple will be entitled to recover what it would have reasonably cost to replace the roof according to the original design, together with any engineering and architectural fees reasonably necessary to accomplish the repair. In addition, Temple will be entitled to recover for the damages to the interior and contents caused by the leaky roof. In view of our disposition of Temple's appeal, we also reverse the judgment for Thyne and Seaboard against Marsh and remand for a redetermination of the amount of damages owing on the third party claim.
SCHEB, C.J., and RYDER, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595860/ | 581 F.Supp. 1238 (1984)
COMMONWEALTH of PENNSYLVANIA, et al., Plaintiffs,
v.
UNITED STATES of America, et al., Defendants.
Civ. A. No. 83-0380.
United States District Court, M.D. Pennsylvania.
March 15, 1984.
*1239 LeRoy S. Zimmerman, Atty. Gen., Louis J. Rovelli, Kathleen F. McGrath, Deputy Attys. Gen., Harrisburg, Pa., for plaintiffs.
James W. Walker, Asst. U.S. Atty., Scranton, Pa., Lewis K. Wise, Anne L. Weismann, Dept. of Justice, Civil Div., Washington, D.C., for defendants.
MEMORANDUM
CALDWELL, District Judge.
Cross motions for summary judgment in this case were referred to Magistrate Raymond J. Durkin for the preparation of a report and recommendation for disposition. Now before the court are the Magistrate's report, filed January 13, 1984, and plaintiffs' objections to that report together with defendants' response. Pursuant to 28 U.S.C. § 636(b)(1), we are required to review de novo those portions of the report to which objection is made.
The factual background of this case has been fairly stated by the Magistrate in his report and we will but briefly restate it here. The Aid to Families with Dependent Children program (AFDC) provides that federal grants may be given to a state for providing such assistance to low income families with dependent children. The program is state administered but jointly funded, 57% of the funding provided by the federal government, 43% by the state. 42 U.S.C. §§ 601-15. Supplemental Security Income (SSI) by contrast is a federally funded, federally administered program which makes monies available for low income individuals who are blind, aged or disabled. 42 U.S.C. § 1381-1383c.
Determination of entitlement to SSI benefits may take a period of months, during which qualified individuals may receive AFDC payments. If entitlement to SSI benefits is established, however, the full amount of any AFDC benefits received by the claimant is deducted from any retroactive SSI benefits to which he may be entitled. Plaintiff contends that when this occurs, the Commonwealth should be reimbursed to the extent of its contribution to the AFDC payments.[1] The Magistrate disagreed and recommended that summary judgment be entered in defendants' favor. We concur with the Magistrate's conclusions.
As authority for their position, plaintiffs cite 42 U.S.C. § 602(a)(24) which provides:
*1240 [I]f an individual is receiving [SSI] benefits under subchapter XVI of this chapter, then, for the period for which such benefits are received, such individual shall not be regarded as a member of a family for purposes of determining the amount of the [AFDC] benefits of the family under this subchapter and his income and resources shall not be counted as income and resources of a family under this subchapter.
This language, plaintiffs argue, expresses the clear legislative intent that receipt of SSI bars simultaneous receipt of AFDC and that SSI coverage be primary. The Commonwealth, therefore, should be entitled to reimbursement as described above.
Further, plaintiffs argue that reimbursement is mandated by 42 U.S.C. § 1383(g), since the Commonwealth, through AFDC, has provided an interim benefit to successful SSI claimants:
(1) Notwithstanding subsection (d)(1) of this section and subsection (b) of this section as it relates to the payment of less than the correct amount of benefits, the Secretary may, upon written authorization by an individual, withhold benefits due with respect to that individual and may pay to a State (or a political subdivision thereof if agreed to by the Secretary and the State) from the benefits withheld an amount sufficient to reimburse the State (or political subdivision) for interim assistance furnished on behalf of the individual by the State (or political subdivision).
Benefits refer to SSI payments and the term "interim assistance" means "assistance financed from State or local funds and furnished for meeting basic needs during the period..."
Defendants argue that the statutory language just quoted is inapplicable to the present case, since it is meant to provide reimbursement only for wholly state funded benefits which the state is not otherwise obligated to disburse. Further, defendants argue, AFDC benefits constitute income which properly reduces the amount of retroactive SSI benefits, rather than resulting in a "recoupment" of funds by the federal government.
We find defendants' position more appealing than plaintiffs' and their arguments more persuasive. By statute, retroactive SSI benefits are reduced by the amount of income received by an individual during the determination period, unless the income falls within enumerated exclusions. 42 § 1382a(b). The AFDC payments do not fall within the statutory exclusions and thus properly reduce the amount of retroactive SSI benefits. This result is not barred by the language and intent of 42 § 602(a)(24) as suggested by the plaintiffs. That section speaks only to an individual's eligibility for AFDC benefits and renders an individual ineligible for such payments when he is "receiving [SSI] benefits under subchapter XVI of this chapter." (emphasis added). It is clear that, during the SSI determination period, an applicant does not receive SSI benefits, although he may later be found eligible to receive such benefits. When he does receive SSI benefits, the Commonwealth is obligated to terminate his AFDC payments. Thus, 42 § 602(a)(24) does not restrict AFDC payments during the determination period, nor does it require the adjustment suggested by plaintiffs. It addresses only the state's obligation with respect to AFDC eligibility when an individual is receiving SSI benefits.
We agree with the Magistrate that the Commonwealth is not entitled to reimbursement for payment of "interim assistance" pursuant to 42 § 1383(g). The Secretary's interpretive regulation provides that "interim assistance" does not include assistance payments financed wholly or partly with federal funds. 20 C.F.R. 1902. We agree with the Magistrate that Zambardino v. Schweiker, 668 F.2d 194 (3d Cir.1981), although not directly on point, suggests that the Secretary's interpretation in this regard should be upheld.[2]
An appropriate order will be entered.
NOTES
[1] This result was accomplished, prior to July 1, 1983, by the SSA considering state AFDC benefits under some circumstances as a loan to the AFDC recipient. This occurred if an AFDC recipient executed an agreement to repay the Department of Public Welfare the amount of the AFDC payments upon receipt of retroactive SSI benefits. The SSA would then exclude the state portion of AFDC benefits from the individual's countable income for SSI purposes. This practice prevailed in Pennsylvania only and was abolished as of July 1, 1983 to bring the practice in Pennsylvania in conformity with that in all other states.
[2] The interpretation is reasonably based upon a perception that the legislative history of 42 § 1383(g) indicates that it was intended as incentive for states to voluntarily provide interim assistance when not otherwise obliged to do so. In this case, the Commonwealth was obligated to provide AFDC benefits to qualified individuals, having elected to participate in the AFDC program. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595865/ | 399 So.2d 1088 (1981)
James HAWTHORNE, Appellant,
v.
The STATE of Florida, Appellee.
No. SS-275.
District Court of Appeal of Florida, First District.
June 22, 1981.
*1089 Dennis K. Larry, Pensacola, for appellant.
Jim Smith, Atty. Gen., and Miguel Olivella, Jr., Asst. Atty. Gen., for appellee.
McCORD, Judge.
This is an appeal from a judgment and sentence finding appellant guilty of first-degree murder and armed robbery and sentencing him to two consecutive life imprisonment terms. We affirm.
Appellant first contends that the trial judge abused his discretion when he denied appellant's challenge of juror Thadeus Grant for cause. The court ruled at the outset that the voir dire examination would be by individual examination of each prospective juror. Grant was the first juror called to the box, and after his examination, the attorneys announced their acceptance of him. He was then excused and was not called back to the jury box until approximately 10:00 the next morning, during which time other prospective jurors were examined until a complete jury had been selected. The court then inquired of the jurors as to whether any of them had become so irritated with the delays imposed during the voir dire examination that they could not render a fair verdict in the case. Mr. Grant expressed some irritation and attributed it to defense counsel although he had previously answered "no" to a question by the court as to whether or not he was upset by the delay and would hold this against the court or the parties. At a later point on a question by the court as to whether he was irritated enough that it might influence him in the case, he replied: "It's hard to say, Judge." After further questions and answers relative to the delay, however, Mr. Grant stated that if he was retained on the jury, "I will do my duty the best I can." Thereafter, he was asked the following question:
Q Do you have any reason to believe in your mind that you would not be a fair juror?
A No. I have decided many times what will happen to people.
Then defense counsel asked the following question: "Mr. Grant, one last question. Will you do your best to overlook the delay and take the case?" To which Mr. Grant responded: "I said that." Defense counsel then asked him to repeat his answer and he said: "I'll do my best."
The Supreme Court in Singer v. State, 109 So.2d 7 (Fla. 1959), stated the test in such cases as follows:
We think the true test to be applied should be not whether the juror will yield his opinion, bias or prejudice to the evidence, but should be that whether he is free of such opinion, prejudice or bias or, whether he is infected by opinion, bias or prejudice, he will, nevertheless, be able to put such completely out of his mind and base his verdict only upon evidence given at the trial.
Whether or not a prospective juror will be dismissed for cause is a mixed question of law and fact within the discretion of the trial judge, and his ruling will not be set aside unless error is manifest. Singer v. State, supra. Here, the trial court observed Mr. Grant and his demeanor during the course of the examination and evidently concluded that Grant would not let any irritation which he had developed toward defense counsel influence him in rendering his verdict. We find no abuse of discretion.
Appellant next contends that the prosecutor's conduct during closing argument resulted in prejudice to him and constituted reversible error. The remarks made by the prosecutor relative to defense counsel appear to have been an overreaction to critical remarks made by the defense counsel in his opening argument. Looking at the record as a whole, we do not find that the remarks constitute reversible error.
*1090 Appellant next contends that the trial court erred in allowing witness Nechetsky to testify from certain records. Appellant put on an alibi defense testifying that he was in Kokoma, Indiana, at the time of the robbery on April 7, 1978; that he had departed from Mobile, Alabama, early in the morning on April 4, 1978, on a Trailways bus to Indianapolis, Indiana, thereafter taking a local busline to Kokoma. In rebuttal of appellant's alibi, the State called as a witness Mr. Nechetsky, manager of the Mobile, Alabama, Trailways bus terminal, who had been employed by Trailways for approximately 27 years prior to the trial. Nechetsky testified that he kept a daily record of every ticket sold in the terminal showing the destination and ticket number; that this record was made in the regular course of business on the morning following the day the tickets were sold. He testified from these records that no Trailways bus ticket had been sold during the month of April to any person for passage from Mobile, Alabama, to Indianapolis, Indiana. Appellant's counsel objected to Nechetsky's testimony from the report and requested that the original tickets, carbons of those tickets or stubs of those tickets be produced so that he could check the accuracy of the reports. He also objected to Nechetsky's testimony on the ground that the record was not made at or near the time of the act, condition or event.
Nechetsky testified that the audit stubs (ticket stubs) from which his record is made are destroyed after a period of time and that he did not know whether or not the ones covering the period in question were then in existence; that if a salesman that issued a ticket threw away the ticket carbon and the audit stub, he would find it to be missing in his audit of tickets for that day from the ticket sequence numbers. The trial court ruled that the testimony was admissible, under the Florida rules of evidence. The pertinent portion of the Florida Evidence Code, § 90.803, Florida Statutes (1979), states as follows:
Hearsay exceptions; availability of declarant immaterial. The provision of s. 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness:
(1) * * *
(2) * * *
(3) * * *
(4) * * *
(5) * * *
(6) RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY.
(a) A memorandum, report, record or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances show lack of trustworthiness. The term "business" as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
* * * * * *
We find the trial court did not err in its ruling. The record fits the above statute. Contrary to appellant's objection, witness Netchetsky's testimony shows that the record was made at or near of the time of the act, condition, or event.
We have considered appellant's remaining point and find it to be without merit.
MILLS, C.J., and THOMPSON, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596014/ | 399 So.2d 907 (1981)
Leader LEWIS
v.
STATE.
3 Div. 297.
Court of Criminal Appeals of Alabama.
May 26, 1981.
*908 Charles Tom Payne, Montgomery, for appellant.
Charles A. Graddick, Atty. Gen., and J. Michael Horsley, Asst. Atty. Gen., for appellee.
BOWEN, Judge.
The defendant was indicted and convicted for the robbery of Flora Seymour. The trial judge sentenced the defendant to forty years' imprisonment because of the heinous and aggravating circumstances of this case.
The facts show that at approximately 6:00 o'clock on the evening of December 28, 1979, the defendant attacked Mrs. Seymour as she was attempting to unlock the door to her home after returning from the grocery store. The defendant struck her from behind, knocked her against the house, grabbed her purse and jerked it out of her hand. This occurred during a time when a number of elderly residents of the Old Cloverdale section of Montgomery were being attacked and robbed often right outside their own homes.
I
With the following order, the trial judge denied three pretrial motions filed by the defendant:
"The court having read and considered the motions for discovery, demurrers to the indictment, and motions to quash the indictments, and the court being of the opinion and finding that said motions are `canned' motions and `form' motions, the court finds that they are not filed in good faith and are due to be, and the same are, hereby denied."[1]
The defendant now contends that the overruling of his motions on the basis of the Alabama Rules of Civil Procedure constitutes reversible error.
We have carefully reviewed the defendant's pretrial motions and conclude that they are without merit and were therefore properly denied.
We do not interpret the order of the trial judge as being based solely on noncompliance with Rule 11 ARCP. The Alabama Rules of Civil Procedure "have no application in criminal proceedings." See Committee Comments to Rule 1, ARCP.
Even if the trial judge erroneously denied the motions strictly because of noncompliance with the ARCP, his judgment does not constitute reversible error on appeal since we have found the motions to be without merit. If a court's ruling is correct for any reason, it will not be reversed because the court assigned the wrong reason therefor. Harnage v. State, 290 Ala. 142, 274 So.2d 352 (1972); Knox v. State, 365 So.2d 349 (Ala.Cr.App.1978).
II
The defendant argues that the lineup procedure was "so necessarily prejudicial as to be a denial of due process of law."
*909 We have reviewed the totality of the circumstances surrounding the lineup which we have gathered from the testimony on the motion to suppress, the evidence presented at trial and the color photograph of the lineup. Without detailing all these circumstances, an adequate summary of the situation is contained in the order of the trial judge denying the motion to suppress.
"THE COURT: Mr. Payne (Defense Counsel), I don't find, and I don't think that the law requires, that the people who are in a line-up must be identical. I think it requires that they be substantially similar. And I think there are a sufficient number of people in this line-up that are of similar appearance to the Defendant's in this case and I am going to deny your motion.
"And it would be my opinion that the only issue you have with regard to this is the dissimilarity of the individuals who are in the line-up. I don't find from the facts that you have presented that there was any police misconduct or anything else that might have tainted the line-up in this case. And if you have an issue at all it is an issue of whether the people in the line-up, in and of themselves, are substantially similar enough to not make the line-up suggestive, or that the Defendant's appearance is so substantially dissimilar from the rest of the people in the line-up that that would make it unnecessarily suggestive. But I see that as the only issue you have. And it is the court's ruling that they are close enough; it is not suggestive."
In this lineup, all the participants were dressed identically (in jailhouse clothing). Compare Brazell v. State, 369 So.2d 25 (Ala.Cr.App.1978), cert. denied, 369 So.2d 31 (Ala.1979), and Griffin v. State, 356 So.2d 723 (Ala.Cr.App.), cert. denied, Ex parte Griffin, 356 So.2d 728 (Ala.1978). The fact, in and of itself, that there was some slight discrepancy in physical appearance among the participants of a lineup does not taint that identification procedure or render it suggestive as a matter of law. Tate v. State, 346 So.2d 515 (Ala.Cr.App.1977).
"(T)he disparate physical appearances of the lineup participants is not alone sufficient to warrant a finding of suggestiveness. Caver v. Alabama, supra (537 F.2d 1333 (5 Cir. 1976), cert. denied, 430 U.S. 910, 97 S.Ct. 1183, 51 L.Ed.2d 587 (1977)); United States v. Reid, 517 F.2d 953, 965-66, n.15 (2 Cir. 1975); United States ex rel. Pella v. Reid, 527 F.2d 380, 384 (2 Cir. 1975); United States v. Jackson, 166 U.S. App.D.C. 166, 172, 509 F.2d 499, 505 (1974). `Police stations are not theatrical casting offices; a reasonable effort to harmonize the lineup is normally all that is required.' United States v. Lewis, 547 F.2d 1030, 1035 (8 Cir. 1976), cert. denied, 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 566 (1977)."
Swicegood v. Alabama, 577 F.2d 1322, 1327 (5 Cir. 1978).
Our findings support the order of the trial judge and we find no error in the denial of the motion to suppress.
III
The trial court correctly admitted the testimony of Mrs. Elsie Walker and Mrs. Margaret McFall pertaining to robberies the defendant perpetrated against them on December 20, 1979, and December 18, 1979, respectively. Mrs. Walker and Mrs. McFall, like Mrs. Seymour, were returning to their homes, unaccompanied, after grocery shopping between 6:30 and 7:00 P.M. when the defendant accosted them and took their purses. All three ladies were elderly. Mrs. Walker had opened her car door and was preparing to exit when she felt the defendant touch her in reaching across the steering wheel to take her purse. Mrs. McFall had turned to get out of her car when the defendant wrestled her purse from her. Mrs. McFall like Mrs. Seymour, received minor injuries during her struggle with the defendant. None of the ladies had any doubt that the defendant was the robber.
The trial court instructed the jury that Mrs. Walker's and Mrs. McFall's testimony was being admitted for the limited purpose of showing plan, design, scheme, system or identity.
*910 As a general rule, in a prosecution for a particular crime, evidence of other acts which of themselves constitute distinct and independent offenses is not admissible. Ex parte Williams, 350 So.2d 708 (Ala.1971); Hayes v. State, 384 So.2d 623 (Ala.Cr.App. 1979), cert. denied, 384 So.2d 627 (Ala. 1980). However, this well established principle of criminal evidence is subject to several equally well-established exceptions. Mason v. State, 259 Ala. 438, 66 So.2d 557 (1953); Hayes, supra. Wharton's Criminal Evidence, Section 31, sets out the general categories of exceptions as follows:
"(1) Relevancy as part of the res gestae. (2) Relevancy to prove identity of person or of crime. (3) Relevancy to prove scienter, or guilty knowledge. (4) Relevancy to prove intent. (5) Relevancy to show motive. (6) Relevancy to prove system. (7) Relevancy to prove malice. (8) Relevancy to rebut special defenses. (9) Relevancy in various particular crimes."
See also C. Gamble, McElroy's Alabama Evidence, Sections 69.01 et seq. (3rd ed. 1977).
We hold that Mrs. Walker's and Mrs. McFall's testimony was properly admitted under three of above exceptions: relevancy to prove identity, relevancy to prove intent and relevancy to prove system.
The defendant's identity as Mrs. Seymour's robber was in issue. As in Hayes, even though Mrs. Seymour gave a detailed eyewitness account of what transpired, no one else witnessed the assault. While the defense did not present testimony as in Hayes, the defendant placed his identity in issue in two ways: by his motion to suppress the State's lineup procedures and by his extensive cross examination of Mrs. Seymour as to her eyesight, her opportunity to observe and the lighting conditions at the time she was robbed.
The State properly showed that the defendant robbed Mrs. Walker and Mrs. McFall in the same peculiar manner. The only difference in the three robberies is that Mrs. Seymour had already gotten out of her car when the defendant grabbed her purse; Mrs. Walker and Mrs. McFall were still in their cars. Mrs. Walker and Mrs. McFall both made positive identifications of the defendant as their assailant. Thus, under the identity exception their testimony was admissible. Hayes and cases cited therein. Also see McElroy, Section 69.01 (8) and cases cited therein for a full discussion on this exception.
Mrs. Walker's and Mrs. McFall's testimony was relevant to prove intent.
"If the accused is charged with a crime that requires a prerequisite intent, then prior criminal acts are admissible to show that he had the necessary intent when he committed the now-charged crime. This rule is based upon the theory that, because the unintentional doing of an act is abnormal and unusual, the more the person does other acts similar to the act in question, the greater the likelihood that the act in question was not done inadvertently."
McElroy, Section 69.01(5). Also see Hayes, 384 So.2d at 626.
Because of the prior similar robberies of Mrs. Walker and Mrs. McFall, the particular intent the defendant had toward Mrs. Seymour becomes more certain. The prior robberies demonstrate clearly that the defendant did not act inadvertently.
Finally, the testimony of Mrs. Walker and Mrs. McFall was relevant to prove system. Again, we must refer to Judge McElroy:
"Evidence of the accused's commission of another crime is admissible if such evidence, considered with other evidence in the case, warrants a finding that both the now-charged crime and such other crime were committed in keeping with or pursuant to a single plan, design, scheme or system. This rule is applicable whether such plan, design, scheme or system is narrow and specific in scope or is measurably broad and general in scope." McElroy, Section 69.01(6).
A clearer example of scheme or system than the instant case would be difficult to imagine. The defendant in each of the three robberies, which were committed within ten days of each other, sought out *911 unaccompanied elderly female victims returning home from the grocery store just after dark. In each case the victim either had just gotten out of her car or was preparing to do so. In each instance the defendant had one objective: to grab the victim's purse, using whatever force he felt necessary, and to escape on foot. Thus, the system exception was satisfied.
Under the facts of this particular case, the criminal acts of the defendant against Mrs. Walker and Mrs. McFall were properly admitted into evidence for the reasons stated.
IV
During the cross examination of Mrs. Seymour the following exchange occurred:
"Q. The individuals in the line-up were not dressed the same as the man that you saw on December 28, 1979, were they?
"A. He had been in jail.
"Q. Pardon?
"A. He had been in jail. They were all crumpled and messy looking."
The defendant's motion for mistrial was denied and the trial court instructed the jury to disregard Mrs. Seymour's remark, to "remove it from your minds. It is not evidence in this case."
The granting of a mistrial rests within the sound discretion of the trial judge. The exercise of that discretion will not be interfered with absent a clear abuse. Woods v. State, 367 So.2d 982 (Ala.1978). Here, there was no abuse of discretion. Witness after witness testified without objection that the lineup was conducted at the police station. Obviously, the defendant "had been in jail." Even had there been error in Mrs. Seymour's remark, we hold that it was rendered harmless by the trial judge's curative instructions.
We have considered each issue raised by the defendant. In addition, we have searched the record for errors prejudicial to the defendant's substantial rights and have found none. The judgment of the Circuit Court is affirmed.
AFFIRMED.
All Judges concur.
NOTES
[1] "`See Rule 11 ARCP wherein it provides, inter alia, "the signature of an attorney constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information and belief, there is good ground to support it; and that it is not interposed for delay."'"
This footnote is part of the Judge's order. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596149/ | 28 So.3d 51 (2010)
WEIMER
v.
CITY OF KISSIMMEE.
No. 1D09-2293.
District Court of Appeal of Florida, First District.
February 12, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596234/ | 530 N.W.2d 852 (1995)
Sarah E. WILLIAMS, Appellant,
v.
ST. PAUL RAMSEY MEDICAL CENTER, INCORPORATED, Respondent.
No. C9-94-2257.
Court of Appeals of Minnesota.
May 2, 1995.
Review Granted June 23, 1995.
*854 Robert J. Hennessey, Ansis V. Viksnins, Lindquist & Vennum, Minneapolis, for appellant, Sarah E. Williams.
Pat Skoglund, Thomas M. Countryman, Jardine, Logan & O'Brien, St. Paul, for respondent.
Douglas A. Hedin, Daniel S. Goldberg, Elizabeth A. Glidden, Minneapolis, for amicus curiae Minn. Chapter, Nat. Employment Lawyers Ass'n.
Considered and decided by KALITOWSKI, P.J., LANSING and SHORT, JJ.
OPINION
KALITOWSKI, Judge.
Appellant Sarah E. Williams contends the district court erred in ruling the exclusivity of remedies provision of the Minnesota Human Rights Act (MHRA), Minn.Stat. §§ 363.01-.15 (1992), barred her from bringing both a retaliation claim against respondent St. Paul Ramsey Medical Center (Ramsey) under Minn.Stat. § 181.932, subd. 1(a) (1992) (Whistleblower Statute), and a reprisal claim under the MHRA.
FACTS
From July 1987 through October 1991, Williams was employed as a pharmacy technician at Ramsey. Williams contends that during the fall of 1989, a co-worker began pursuing a romantic relationship with her. After declining to begin a relationship with her co-worker, Williams contends she was subjected to evaluation processes that reflected poorly on her job performance. Williams ultimately filed a three-count complaint against respondent contending: (1) her co-worker's conduct constituted illegal work-place sexual harassment in violation of the MHRA; (2) Ramsey retaliated against her, and thus committed an unlawful reprisal prohibited by the MHRA; and (3) Ramsey's retaliation against her violated the Whistle-blower Statute.
The district court granted Ramsey's motion for summary judgment with regard to Williams' whistleblower claim, concluding that it was preempted by the exclusivity provision in the MHRA. The district court denied Ramsey's motion for summary judgment on Williams' other claims because of the existence of factual disputes. After a bench trial on the two remaining claims, the district court entered judgment against Williams concluding that Williams failed to establish her co-worker's conduct constituted actionable sexual harassment and that Williams failed to establish a prima facie case of reprisal discrimination. On appeal Williams challenges the trial court's dismissal of her whistleblower claim.
ISSUES
1. Does the exclusivity provision of the MHRA preempt appellant's whistleblower claim?
2. Is appellant collaterally estopped from reasserting her claim under the Whistleblower Statute?
ANALYSIS
On appeal from a summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact; and (2) whether the lower court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The construction of a statute is a question of law for the court and is subject to de novo review on appeal. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985).
I.
Minnesota's Whistleblower Statute codified the public policy exception to the general rule of at-will employment. See Phipps v. Clark Oil & Refining Corp., 408 N.W.2d 569, 570-71 (Minn.1987). Generally, an employer is prohibited from retaliating against an employee who reports a violation of a federal or state law. Minn.Stat. § 181.932, subd. 1(a) (1992). Section 181.932, subdivision 1 provides:
*855 [a]n employer shall not discharge, discipline, threaten, otherwise discriminate against, or penalize an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because:
(a) the employee * * * in good faith, reports a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official.
The Whistleblower Statute only protects employees who expose violations of laws designed to protect general public interest. Vonch v. Carlson Cos., 439 N.W.2d 406, 408 (Minn.App.1989), pet. for rev. denied (Minn. July 12, 1989).
The MHRA prohibits employer reprisal against an employee who reports a violation of the MHRA. Minn.Stat. § 363.03, subd. 7 (Supp.1993). The MHRA provides in part:
It is an unfair discriminatory practice for any employer * * * to intentionally engage in any reprisal against any person because that person:
(1) Opposed a practice forbidden under this chapter or has filed a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.
Id.
Whether a plaintiff may assert a reprisal claim under the MHRA along with a retaliation claim under the Whistleblower Statute is a matter of first impression. We conclude the district court erred in dismissing Williams' claim under the Whistleblower Statute.
First, we agree with the court's conclusion in Thompson v. Campbell that reporting sexual harassment furthers a "clearly mandated public policy and, therefore, constitute[s] conduct protected by the Whistleblower Act." 845 F.Supp. 665, 675 (D.Minn. 1994). In addition, although the preemption issue was not addressed, federal cases have allowed plaintiffs to assert claims under both the MHRA and the Whistleblower Statute. See id. at 674-75 (denial of summary judgment on MHRA reprisal claim and whistleblower claim); Baufield v. Safelite Glass Corp., 831 F.Supp. 713, 715-16 (D.Minn.1993) (discriminatory reprisal under MHRA and whistleblower claims tried together).
Further, the rules of statutory construction support the conclusion that Williams' whistleblower claims are not preempted. When provisions in two statutes are irreconcilable, the specific provision prevails over the general,
unless the general provision shall be enacted at a later session and it shall be the manifest intention of the legislature that such general provision shall prevail.
Minn.Stat. § 645.26, subd. 1 (1992).
The MHRA provides that when bringing a claim alleging a discriminatory practice, "the procedure herein provided shall, while pending, be exclusive." Minn.Stat. § 363.11 (Supp.1993). The Whistleblower Statute provides:
In addition to any remedies otherwise provided by law, an employee injured by a violation of section 181.932 may bring a civil action to recover any and all damages recoverable at law.
Minn.Stat. § 181.935(a) (1992) (emphasis added). Thus, to the extent the Whistleblower Statute applies to persons alleging discrimination under the MHRA, its remedy provision conflicts with the MHRA's exclusivity provision.
The MHRA's provision prohibiting reprisal against an employee who raises a claim under the MHRA applies more specifically to the facts here than the Whistleblower Statute, which prohibits retaliation against an employee who "reports a violation * * * of any federal or state law or rule." Minn.Stat. § 181.932, subd. 1(a) (emphasis added). The MHRA was enacted in 1955, however, and the Whistleblower Statute was enacted in 1987. In addition, because the language at issue in the Whistleblower Statute is "clear and free from all ambiguity," we must follow the "letter of the law" in construing the intent of the statute. Minn.Stat. § 645.16 (1992).
We conclude that the language in the Whistleblower Statute: "[i]n addition to any *856 other remedies otherwise provided by law," takes precedence over the exclusivity provision of the MHRA because: (1) it was enacted later in time than the MHRA; and (2) the legislative intent to allow additional remedies is manifest from its language. The district court erred in concluding the MHRA preempted Williams from asserting a claim under the Whistleblower Statute.
II.
Respondent contends that even if the district court erred in dismissing Williams' claim under the Whistleblower Statute, Williams is now collaterally estopped from pursuing this claim because the elements necessary to establish a whistleblower violation were litigated and finally determined in Williams' bench trial on her MHRA claims. Collateral estoppel precludes parties from relitigating issues between the same parties that were previously determined by a court of competent jurisdiction. Kaiser v. Northern States Power Co., 353 N.W.2d 899, 902 (Minn.1984).
The elements necessary to make a prima facie case under a whistleblower claim are: (1) the plaintiff engaged in conduct protected under the act; (2) adverse employment action by the employer; and (3) causal connection between the two. Thompson, 845 F.Supp. at 674 (citing Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 444 (Minn. 1983)). A prima facie case of reprisal discrimination under the MHRA requires the same elements. Hubbard, 330 N.W.2d at 444. Here, after a trial on Williams' MHRA reprisal claim, the district court concluded Williams failed to establish a prima facie case, and ruled in favor of respondent. Thus, respondent argues, Williams should be collaterally estopped from reasserting her claim under the Whistleblower Statute. We disagree.
We conclude that the application of collateral estoppel in this case is directly addressed by the holding in the United States Supreme Court decision in Lytle v. Household Mfg., 494 U.S. 545, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990). In Lytle the employee filed an action under both Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981, alleging his employer had discriminated and retaliated against him. Id. at 548, 110 S.Ct. at 1334. The district court dismissed the employee's section 1981 claims, concluding that Title VII provided the exclusive remedy for his claims. Id. at 548, 110 S.Ct. at 1335. After conducting a bench trial on the employee's Title VII claim, the district court entered judgment in favor of the employer. Id. On appeal, the Supreme Court agreed with the Fourth Circuit's conclusion that the district court erroneously dismissed the employee's section 1981 claims, but reversed the Fourth Circuit's ruling that the district court's findings with respect to Title VII collaterally estopped the appellant from litigating his section 1981 claims. Id. at 551, 110 S.Ct. at 1336. The Supreme Court held that when a court erroneously dismisses a claim under which a party would have had a right to a jury trial, collateral estoppel cannot apply to deny that party's right to a jury. Id. at 552, 110 S.Ct. at 1336-37. Ensuring that appellant be able to litigate his section 1981 claims was "essential to vindicating [appellant's] Seventh Amendment rights" to a jury. Id. at 553, 110 S.Ct. at 1337.
The respondent in Lytle further argued that because the record indicated the district court would have directed a verdict in favor of the employer on the section 1981 claims if they had gone to a jury, the Court should affirm the Fourth Circuit, despite its resolution of the collateral estoppel issue. Id. at 554, 110 S.Ct. at 1337. The Supreme Court rejected this argument, distinguishing the application of a directed verdict from a dismissal. Id. at 554-55, 110 S.Ct. at 1338. The Court noted that although a court might decide in favor of a party moving for dismissal,
that court might not take the same case away from the jury because it might believe that the jury could reasonably find for the nonmoving party.
Id. at 555, 110 S.Ct. at 1338 (emphasis in original).
Applying the holding in Lytle, we conclude that because Williams was entitled to a jury trial on her whistleblower claim, collateral estoppel does not prevent relitigation of *857 issues determined by the district court. The Minnesota Constitution guarantees the right to a jury trial to all actions at law. Minn. Const. art. I, § 4. The Whistleblower Statute codified the existing common law remedy. See Phipps, 408 N.W.2d at 570-71; Snesrud v. Instant Web, Inc., 484 N.W.2d 423, 426 (Minn.App.1992) (denying right to jury trial in workers' compensation cases because Workers' Compensation Act substituted fundamentally different remedy), pet. for rev. denied (Minn. June 17, 1992). Further, Williams sought money damages as relief for her Whistleblower Statute claim. See Minn. R.Civ.P. 38.01 (factual issues shall be tried by a jury in actions for recovery of money only). Finally, we note that other courts have granted jury trials on whistleblower claims. See, e.g., Baufield, 831 F.Supp. at 715; Kresko v. Rulli, 432 N.W.2d 764, 766 (Minn.App.1988) (bifurcated trial granted; court trial on MHRA claims, and jury trial on whistleblower and other claims) pet. for rev. denied, (Minn. Jan. 31, 1989).
We conclude that by erroneously dismissing Williams' whistleblower claim, the district court denied Williams her right to a jury trial and that under the rationale in Lytle, Williams is not collaterally estopped from now asserting this claim.
DECISION
The exclusivity of remedies provision of the MHRA does not preempt Williams' retaliation claim under the Whistleblower Statute. We therefore reverse the district court's grant of summary judgment in favor of Ramsey. Because Williams was denied her right to a jury trial she is not collaterally estopped from pursuing her whistleblower claim.
Reversed and remanded.
SHORT, Judge (dissenting).
I respectfully dissent and would affirm the trial court's decision. The exclusive remedies of Minn.Stat. § 363.11 (1992) preempt Williams' statutory claim under Minn.Stat. § 181.932 (1992) because both claims are identical and are based on the same underlying facts. Williams alleged St. Paul Ramsey Medical Center terminated her because she filed a sexual harassment complaint. She sought actual and compensatory damages for her employer's alleged retaliation under both the Minnesota Human Rights Act and the Minnesota Whistleblower Act. The trial court granted summary judgment against Williams on her whistleblower claim. The sexual harassment and reprisal claims were tried to the court, and the trial court issued findings of fact, conclusions of law, and an order for judgment in favor of the employer.
To reverse and remand the whistleblower count permits Williams a second trial on her reprisal discharge claim and circumvents the unambiguous preemption language contained in the Minnesota Human Rights Act. See Minn.Stat. §§ 645.16 (1992) (law should be construed to give effect to all provisions); 645.17(2) (1992) (legislature intends entire statute to be effective and certain); 645.26, subd. 1 (1992) (special provision prevails over general provision, unless general provision is enacted later and contains manifest intention that general provision shall prevail over special provision); Mein v. Masonite Corp., 109 Ill.2d 1, 92 Ill.Dec. 501, 504, 485 N.E.2d 312, 315 (1985) (Human Rights Act is exclusive source of redress for human rights violations); Vaughn v. Ag Processing Inc., 459 N.W.2d 627, 638 (Iowa 1990) (wrongful discharge preempted by state Civil Rights Act); cf. Hawaiian Airlines, Inc. v. Norris, ___ U.S. ___, ___, 114 S.Ct. 2239, 2251, 129 L.Ed.2d 203 (1994) (45 U.S.C. § 151 did not preempt state law causes of action because statutory claim involved rights independent of collective bargaining claims); Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, 378 (Minn.1990) (exclusivity provision of Human Rights Act does not abrogate common law battery claim); Shoemaker v. Myers, 52 Cal.3d 1, 276 Cal.Rptr. 303, 314-16, 801 P.2d 1054, 1065-67 (1990) (California Workers' Compensation Act did not preempt a whistleblower claim brought under California Government Code § 19683 because "evils" addressed by statute were different than those addressed by the workers' compensation law).
In addition, there is no evidence of a causal connection between Williams' complaint that her employer violated the Minnesota Human Rights Act and her discharge. It is undisputed *858 that Williams' complaint came eleven months before her discharge, six months before she was placed on an employment improvement plan, and four months before she was given a critical evaluation. See Figgous v. Allied/Bendix Corp., 906 F.2d 360, 362 (8th Cir.1990) (discharge was not close enough in time to the filing of complaints to suggest retaliatory motive). The trial court found:
the clear weight of the evidence establishes that defendant's adverse actions against Ms. Williams were motivated by her consistently unprofessional and incorrigible behavior in the workplace and her failure to improve after repeated complaints by people who would have no reason to know of her allegations toward Mr. Heerwald.
Given these facts, Williams failed to prove an essential element of her whistleblower claim. See Thompson v. Campbell, 845 F.Supp. 665, 674 (D.Minn.1994) (essential elements include causal connection between plaintiff's protected conduct and adverse employment conduct).
Finally, there is no evidence that Williams' discharge was motivated by her good faith action. See Minn.Stat. § 181.932, subd. 1(a) (creating action for employee who, in good faith, reports employer's violation of law); Phipps v. Clark Oil & Refining Corp., 408 N.W.2d 569, 572 (Minn.1987) (creating action for employee's good faith refusal to commit an illegal act for employer). The Phipps decision does not create a general cause of action for every wrongful discharge or a common law cause of action for violation of every remedial statute. Steinbach v. Northwestern Nat'l Life Ins. Co., 728 F.Supp. 1389, 1394 (D.Minn.1989). The trial court found:
plaintiff's allegations of sexual harassment were brought not because of a sincere belief that she had been a victim of sexual harassment, but rather as a vindictive response to Mr. Heerwald's criticism of her job performance.
Williams was given a full and fair opportunity to be heard on the issue of her motivation, and the fact finder resolved that issue against her. Cf. Lytle v. Household Mfg., Inc., 494 U.S. 545, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990) (refusing to accord collateral estoppel effect to trial court's factual determinations under Title VII, and remanding section 1981 claims for a jury trial). Unlike the plaintiff in Lytle, Williams did not argue below that she was entitled to a jury trial. See Republic Nat'l Life Ins. Co. v. Lorraine Realty Corp., 279 N.W.2d 349, 355 n. 2 (Minn.1979) (issues not presented to the trial court cannot be raised on appeal). Under these circumstances, Williams waived her jury trial claim and the doctrine of collateral estoppel prevents relitigation of an essential element of her prima facie case.
The trial court properly dismissed Williams' whistleblower cause of action. A remand would dissipate judicial resources in needless litigation over previously-resolved issues. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596259/ | 399 So.2d 187 (1981)
STATE of Louisiana
v.
John R. EDMOND.
No. 80-KA-2373.
Supreme Court of Louisiana.
May 18, 1981.
Rehearing Denied June 22, 1981.
*188 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Wiley Dial, Jeffrey Hollingsworth, Asst. Dist. Attys., for plaintiff-appellee.
A. Edward Hardin, of Middleton & Hardin, Baton Rouge, for defendant-appellant.
PIKE HALL, Jr., Justice Ad Hoc.[*]
Defendant was charged and convicted of indecent behavior with a juvenile, a violation of LSA-R.S. 14:81. He was given a two year suspended sentence and placed on active probation for two years, with the special conditions that defendant would pay the costs of a jury trial, $250, and pay a $150 fine. On appeal to this court, defendant specified nine assignments of error for reversal of his conviction; six are argued on appeal.[1] Finding none of the assignments to be meritorious, we affirm the conviction.
By his second assignment of error, defendant contends that the trial court erred in refusing to suppress a confession obtained as a product of his warrantless arrest in his own home. In support of this argument, defendant relies principally on Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), and this court's decision in State v. Brown, 387 So.2d 567 (La.1980).
Police investigation into this incident was prompted by a complaint from the victim's parents. East Baton Rouge Sheriff's Deputy Gerry Frey responded to the call, drove to the victim's home and there interviewed the victim and the defendant's daughter. The events giving rise to this prosecution occurred while the victim was spending the night with defendant's daughter at defendant's home. Defendant's daughter was present but asleep at the time of the incident.
Deputy Frey then proceeded with another deputy to the home of the defendant where they were admitted by defendant's wife or his brother. The deputies were led into the kitchen, where the defendant was sitting.
Deputy Frey informed the defendant that they were police officers and then Frey's partner read defendant his constitutional rights. Deputy Frey then informed defendant that he had received a complaint and that they had already obtained a statement from the alleged victim. The defendant was then asked if he would like to give his side of the story, which defendant proceeded to do. Defendant generally admitted the occurrence of the events as related by the victim, and said he had been drinking and just got carried away.
After taking defendant's statement, Deputy Frey arrested defendant. It is this warrantless arrest which defendant takes issue with. Defendant argues that the arrest, *189 which took place on December 30, 1979, was an illegal arrest under Payton v. New York, supra, and State v. Brown, supra, and that his confession should be suppressed as a product of that illegal arrest. Defendant does not deny the voluntariness of the confession.
Defendant's argument is without merit. Both Payton and Brown were decided subsequent to defendant's arrest. In State v. Friddle, 396 So.2d 1242 (La.1981), this court declined to apply Payton and Brown retroactively. At the time defendant was arrested, his warrantless arrest was specifically authorized by Article 213 of the Louisiana Code of Criminal Procedure.[2] The arrest was made on probable cause and in good faith reliance on what the officers believed to be a valid statute under previously announced standards. See United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975).
This assignment of error is without merit.
By his third assignment, defendant contends that the trial court erred in advising the assistant district attorney of the necessity of filing a notice pursuant to LSA-C.Cr.P. Art. 768. Defendant's complaint arises from a question asked by the trial judge during the course of a hearing on defendant's motion to suppress. Apparently in an effort to determine what evidence the defense was trying to have suppressed, the trial court asked the prosecutor if a 768 notice had been filed. The prosecutor responded that the notice had not yet been filed but that the state was prepared to file the notice prior to opening statements, which the state subsequently did.
Defendant contends that if the trial court had not prompted the prosecutor in this fashion, the state would not have filed the notice required by Article 768. The article provides that if the state fails to give the defendant written notice of its intention to introduce a confession or inculpatory statement prior to beginning the state's opening statement, the confession or inculpatory statement shall not be admissible in evidence. Defendant contends that if the judge had not made the remark complained of, the state would have failed to file the proper notice and the court would have excluded defendant's confession.
This assignment lacks merit. The record does not support defendant's assertion that, absent the remark complained of, the state would not have filed the required notice. The notice was filed prior to the opening statements. It was not error for the trial court to inquire about the state's compliance with a procedural requirement.
In assignments four and nine, defendant argues that the trial court erred in denying defense counsel the opportunity to cross-examine the victim regarding her prior sexual activity and in denying defense counsel the opportunity to impeach the credibility of the victim.
During the course of the trial, defense counsel asked the victim if she had ever had sexual relations with anyone. The state timely objected and the trial court sustained the objection on the basis of LSA-R.S. 15:491 which reads:
"When the general credibility is attacked, the inquiry must be limited to general reputation, and can not go into particular acts, vices or courses of conduct."
Clearly, the trial court was correct in sustaining the state's objection to this line *190 of questioning because the victim's chastity or lack of it is a particular course of conduct which, under LSA-R.S. 15:491, may not be delved into when general credibility is attacked. The trial court properly restricted cross-examination of the victim.
The court did not, as argued by defendant, sustain the objection on the basis of the rape shield statute, LSA-R.S. 15:498; therefore, we do not reach defendant's argument regarding this statute.
The defense called only one witness who was to testify regarding the general reputation of both the defendant and the victim. After testifying that people in the community generally thought the defendant to be a good man, the witness was asked if he knew the general reputation of the victim in the community. At this point, the state objected and the court sustained the objection. No reason was given as to why the question was objectionable. Defense counsel did not further pursue the line of questioning.
The trial court did not err in sustaining the state's objection. The question as asked was too broad. The question should have been limited to the witness's knowledge of the victim's general reputation for truth or moral character. LSA-R.S. 15:483, 490 and 491. The question as posed could well have elicited a response beyond the permissible scope of a credibility attack.
These assignments lack merit.
Defendant argues in Assignment of Error No. 5 that the trial court erred in permitting the victim's father to testify regarding his daughter's age at the time of the offense. Defendant's objection that such testimony constituted hearsay was overruled by the trial court.
The witness's testimony as to the date of birth of his daughter and her age at the time of the offense was properly admitted over defendant's objection. Such testimony was based on the witness's personal knowledge and does not fall within the definition of hearsay.
This assignment lacks merit.
By Assignment of Error No. 6 defendant contends the trial court erred in permitting a state witness to give inadmissible hearsay testimony. Over defense counsel's objection, the victim's father was allowed to testify that on the day following the offense, the defendant had told him, "I'm sorry for what I've done, I was drunk."
The trial court's ruling was not in error. Inculpatory statements are admissible as a recognized exception to the hearsay rule. State v. Godeaux, 378 So.2d 941 (La.1979).
This assignment lacks merit.
Decree
For the reasons assigned, defendant's conviction and sentence are affirmed.
Affirmed.
NOTES
[*] Judges Pike Hall, Jr., Charles A. Marvin, and Jasper E. Jones of the Court of Appeal, Second Circuit, participated in this decision as associate justices ad hoc; joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Fred A. Blanche, Jr., and Harry T. Lemmon.
[1] Assignments of Error Nos. 1, 7 and 8 were neither briefed nor argued. We, therefore, consider these assignments of error to have been abandoned. State v. Blanton, 325 So.2d 586 (La. 1976); State v. Carlisle, 315 So.2d 675 (La. 1975).
[2] LSA-C.Cr.P. Art. 213 provides as follows:
"A peace officer may, without a warrant, arrest a person when:
"(1) The person to be arrested has committed an offense in his presence; and if the arrest is for a misdemeanor it must be made immediately or on close pursuit;
"(2) The person to be arrested has committed a felony, although not in the presence of the officer;
"(3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer; or
"(4) The peace officer has received positive and reliable information that another peace officer holds a warrant for the arrest.
"A peace officer in close pursuit of a person to be arrested, who is making an arrest pursuant to this article may enter another jurisdiction in this state and make the arrest." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595853/ | 399 So.2d 408 (1981)
STATE of Florida BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND, State of Florida Department of Natural Resources, Appellants,
v.
Melvin J. LANEY, Appellee.
No. 80-1525.
District Court of Appeal of Florida, Third District.
June 2, 1981.
*409 Henry Dean, Tallahassee, for appellant.
Madigan, Parker, Gatlin, Swedmark & Skelding and Ross A. McVoy, Tallahassee, for appellee.
Peter Guarisco, Tallahassee, for Florida Land Title Ass'n as amicus curiae.
Before DANIEL S. PEARSON and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
FERGUSON, Judge.
The Trustees of the Internal Improvement Trust Fund of the State Department of Natural Resources appeal from a final summary judgment in which the trial court found that appellee, Melvin Laney, is the fee simple owner of and has record title to certain mangrove swamp land in Monroe County, Florida. The land is identified as Rodriguez Key and is legally described as:
Government Lot 1 of Section 8, Township 62 South, Range 39 East; Government Lot 1 of Section 17, Township 62 South, Range 39 East; Government Lot 1 of Section 18, Township 62 South, Range 39 East.
This property was conveyed to Laney on June 28, 1978. A predecessor in title originally purchased the property from the State in 1892. The State had acquired the right to convey Rodriguez Key and other swamp and overflowed lands from the United States by the Congressional Act of September 28, 1850[1] which set up procedures for conveying such lands. In 1872, Rodriguez Key was surveyed by a United States government surveyor and a meander line drawn roughly outlining the vegetation growth on the island. In 1879, the United States patented as swamp and overflowed lands the whole of fractional sections 8, 17, and 18 to the State of Florida by Patent No. 19, Tampa District, thereby passing title to these lands to the Internal Improvement Trust Fund as Trustees of the State of Florida. Title remained with the Trustees until the land was sold in 1892.
The Trustees raise four points on appeal: (a) there is a material issue of fact as to whether the high-water line can be located and is, therefore, the boundary between sovereign and uplands, (b) the Marketable Record Title Act does not extinguish the State's right, (c) the waters surrounding Rodriguez Key are navigable both in fact and law, and (d) the State of Florida vested appellee with title only to those lands above the mean high-water line. We affirm the summary judgment.
The trial court correctly found that the evidence establishes no genuine issue as to any material fact or law as to the controlling boundary line. The affidavit of surveyor Paul O'Hargan offered by Laney and the cases cited in support of his motion for summary judgment, Florida Board of Trustees of the Internal Improvement Trust Fund v. Wakulla Silver Springs Co., 362 So.2d 706 (Fla.3d DCA 1978), cert. denied 368 So.2d 1366 (Fla. 1979); and Trustees of the Internal Improvement Trust Fund v. Wetstone, 222 So.2d 10 (Fla. 1969), conclusively establish that the boundary line separating the uplands owned by Laney from sovereign lands is the meander line of the U.S. survey of 1872. Holl v. Talcott, 191 So.2d 40 (Fla. 1966); Martin v. Busch, 93 Fla. 535, 112 So. 274 (1927). The general denial by the Trustees and their statement in response to the motion for summary judgment that significant advancements and refinements in surveying title elevation measuring techniques within the past five years have made it possible to accurately determine the mean-high water line in Rodriguez Key are not sufficient evidence to prevent entry of summary judgment. Jones v. Stoutenburgh, 91 So.2d 299 (Fla. 1956).
There is also no genuine issue of material fact that the Marketable Record Title Act[2] does not preserve any claims of *410 the State to Laney's lands above the meander line. The State acquired the right to own and hold the land under navigable waters[3] lying within the State, including the shores and space between the ordinary high and low water marks upon its admission to the Union in 1845. Title to all other lands in the State remained in the United States, including title to certain swamp and overflowed lands. Wakulla Silver Springs Co., supra. Under the Swamp and Overflowed Land Grant Act of Congress of 1850 the State acquired the right to convey these federally owned lands.[4] As the Florida Supreme Court stated in Martin v. Busch, supra, at pages, 93 Fla. 568, 112 So. 285:
Lands bordering on the shores of a navigable lake or other navigable body of water may be swamp and overflowed lands within the meaning of the Swamp and Overflowed Land Grant Act of Congress of September 28, 1850; but such swamp and overflowed lands do not extend beyond the ordinary high-water mark of navigable lakes, or other bodies of navigable water, since lands under navigable waters to ordinary high-water mark became the property of the State by virtue of its sovereignty, attained when admitted into the Union as a state under the Act of Congress March 3, 1845.
Where, however, there is no official survey indicating what the high-water mark is or that it is any different from a meander line established by official survey, that meander line stands as the boundary line dividing swamp and overflowed lands from sovereignty lands. Busch, supra at 93 Fla. 572, 112 So. 286. See also Wakulla Silver Springs Co., supra; Wetstone, supra. It is the duty of the State to officially determine the limits and existing boundaries of the sovereignty lands under navigable waters on which the sold or conveyed lands border. Busch, supra at 93 Fla. 568, 112 So. 285.
In order to show that the lands in question are sovereign lands, the State must prove the existence of the high-water mark on Rodriguez Key and that the lands conveyed fell below this mark. This the State failed to do. There is no question of fact or law that the property conveyed to Laney's predecessor in title in 1892 was legally swamp and overflowed lands properly conveyed by the State under the Swamp and Overflowed Land Grant Act of 1850 and that by such conveyance, the State gave up any interest it had in these lands.
Because we find the meander line controlling in this case, we also find no material issues of fact or law raised by the Trustees' points (c) and (d).[5]
Affirmed.
NOTES
[1] Chapter LXXXIV, Acts of Congress of the United States, September 28, 1850, 43 U.S.C.A. § 981 et seq. (1979).
[2] §§ 712.01 .10, Fla. Stat. (1979).
[3] Navigability is a question of fact dependent upon whether the body of water is permanent in character, and, in its ordinary and natural state, is navigable for useful purposes and so situated that it may be used for purposes common to the public in the locality where it is located. Odom v. Deltona Corp., 341 So.2d 977 (Fla. 1976). See also § 197.228, Fla. Stat. (1979).
[4] See note 1, supra.
[5] The Florida Land Title Association, Inc. and the Florida Title Underwriters Bureau filed a brief of amicus curiae. We decline to discuss the issues raised in this brief as they are not relevant to a determination of this appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595862/ | 399 So.2d 731 (1981)
Frances Vandersypen LACHNEY, Plaintiff-Appellant,
v.
Gordon Wayne LACHNEY, Defendant-Appellee.
No. 7869.
Court of Appeal of Louisiana, Third Circuit.
May 27, 1981.
*732 Edward G. Randolph, Jr., Alexandria, for plaintiff-appellant.
Gordon Lachney, pro. per.
Before GUIDRY, FORET and CUTRER, JJ.
GUIDRY, Judge.
This matter was previously before us on appeal. We remanded this matter to the trial court for completion of the record. Lachney v. Lachney, 391 So.2d 46 (La.App.3rd Cir. 1980). The matter has now been returned to us and although the record as now lodged with this court is still partially incomplete, we consider that it is sufficiently complete so as to permit the rendition of a judgment which is just, legal and proper.
The record reflects the following. Plaintiff and defendant were married on June 7, 1975 in Rapides Parish. They were judicially separated on March 27, 1978. In the judgment of separation plaintiff was awarded custody of the parties' minor child, Tammy Lynn, and defendant was ordered to pay child support to plaintiff in the amount of $125.00 monthly. On March 17, 1979 defendant, in the course of visiting his child, discovered the child severely bruised and suspected that the child had been physically abused. The defendant thereafter caused proceedings in the interest of the minor to be instituted in the Juvenile Court for the Parish of Iberville, Louisiana, where Tammy Lynn and the plaintiff then resided. Following a hearing in March of 1979 the Juvenile Court awarded temporary custody of the minor, Tammy Lynn, to the defendant, her father. The defendant retained custody of the minor, pursuant to this court order, until December 4, 1979 at which time the Juvenile Court ordered a return of custody of Tammy Lynn to the plaintiff. Immediately thereafter defendant instituted the instant proceeding seeking permanent custody of Tammy Lynn. Plaintiff also filed a rule seeking arrearages in child support allegedly due under the judgment of March 27, 1978, specifically, the sum of $937.50 allegedly due for the period during which the defendant had custody of the minor child under order of the Juvenile Court for the Parish of Iberville. The rules were consolidated for hearing. The trial court by judgment dated February 15, 1980, removed Frances V. Lachney as legal custodian of her minor child and awarded permanent care, custody and control of Tammy Lynn to her father. Additionally, the judgment dismissed plaintiff's demand for arrearages in child support. Plaintiff, has appealed from only that part of the judgment which denied her right to child support payments allegedly in arrears.
Although as aforestated the record on appeal is partially incomplete the parties do not dispute the fact that the minor child was in custody of her father from March 20, 1979 to December 4, 1979 under order of the Juvenile Court for the Parish of Iberville and that during such period the father made no child support payments pursuant to the judgment of March 27, 1978.
*733 The narrow issue on appeal is whether plaintiff's right to child support payments under the judgment of the Ninth Judicial District Court dated March 27, 1978, was suspended during the period of time that the defendant father had custody of the minor child under order of the Juvenile Court of Iberville Parish.
In support of her demand for reversal of the trial court judgment plaintiff relies on Pisciotto v. Crucia, 224 La. 862, 71 So.2d 226 (1954), Hebert v. Hebert, 159 So.2d 537 (La. App.3rd Cir. 1964) and Granger v. Granger, 193 So.2d 898 (La.App.3rd Cir. 1967).
In each of the cited cases the courts held in effect that a judgment awarding alimony, including one for child support, is immune to alteration, change or suspension, until such time as the party held liable applies to a court of competent jurisdiction and is granted a modification thereof. In Pisciotto, supra, the court stated:
".... (A) judgment for alimony, as to the amount that has become past due, is the property of him in whose favor it has been given, and is protected against alteration or annulment except by the method and for the causes prescribed by law.... (A) reduction of alimony or a discharge from the obligation to pay may be granted only from and after the time when it is sought, by suit or in answer to a suit to enforce payment...."
In Hebert, supra, this court was presented with a factual situation akin to that presented by the instant case. In Hebert, relying on the earlier cases of Pisciotto v. Crucia, supra, and Sampognaro v. Sampognaro, 222 La. 597, 63 So.2d 11 (1953) we denied the father credit for unpaid child support during a period when he was vested with custody by the juvenile court stating:
"We agree with the trial court that it is extremely inequitable to hold the husband liable for child support under the alimony decree for the nearly three months during which the mother did not in fact have custody of the child and during which the husband in fact actually supported the child. Although this did result from the official action of the juvenile court action in quasi-criminal proceedings, nevertheless under the jurisprudence this did not result in depriving the wife of her vested property right under the alimony judgment, in the absence of any judicial modification of such alimony judgment (or of a waiver by the wife of her rights thereunder)."
In Granger v. Granger, supra, the child had been placed by the juvenile court in a correctional school for boys pursuant to R.S. 13:1561. Thus the issue in Granger, supra, was whether the father was relieved of his obligation to pay child support while the child was temporarily removed from the mother's custody under the authority of the juvenile court. In that case we considered the earlier ruling of this court in Hebert v. Hebert, supra, to be dispositive of the issue presented and accordingly refused to allow the father credit for child support accrued during the period of time that the child remained in the correctional school.
In the year 1977 our Supreme Court in Halcomb v. Halcomb, 352 So.2d 1013 appeared to re-affirm the principle that a judgment awarding alimony is not subject to alteration or modification absent a suit for modification by the party against whom the judgment had been rendered. In Halcomb, supra, the court stated:
"Reduction of or discharge from a judgment condemning one to pay alimony must ... be sued for by the party against whom the judgment was rendered... In the absence of such a suit, however, the judgment cannot be altered or modified ... except in certain instances where the award is terminated by operation of law. An example of an automatic revocation of alimony is when an award in favor of a wife is revoked when she remarries."
However, in the recent case of Dubroc v. Dubroc, 388 So.2d 377 (La.1980) our Supreme Court appears to have departed from this seemingly established principle concluding in Dubroc that neither the Civil Code nor the Code of Civil Procedure mandates a lawsuit for a change in alimony. In Dubroc, supra, following divorce the mother *734 was awarded custody of the two children and child support in the amount of $250.00 monthly. Sometime subsequent to the rendition of judgment the father and mother agreed that the father would take custody of one of the children and his obligation for child support payments to the mother would be reduced by one-half. Neither party complained of this arrangement until Mrs. Dubroc instituted a rule to make past due child support executory. The trial court found in favor of the plaintiff on the arrearages, concluding, in reliance on Halcomb v. Halcomb, supra, that the only manner in which a court-ordered child support obligation could be altered is through a suit properly instituted. Our Supreme Court, in affirming the judgment of the Court of Appeal, Fourth Circuit, 380 So.2d 672, which concluded that the agreement to suspend support payments was enforceable, stated:
"Halcomb and the cases upon which Halcomb relies (e. g., Pisciotto, supra) rest on a strong policy in the area of child custody judgments to safeguard the sanctity of judgments and the orderly processes of law, and to prevent husbands from invoking `self-help'. It is an effort by the courts to prevent overreaching by husbands compelled to pay estranged wives support for their children. The cases have interpreted Civil Code Article 232 to require this result, namely, to require parties to resort to the courts for any alteration in a custody decree.
We find nothing in the Civil Code or the Code of Civil Procedure to compel the interpretation set forth in Halcomb et al.
. . . .
Article 232, which is directly at issue herein, provides:
`When the person who gives or receives alimony is replaced in such a situation that the one can no longer give, or that the other is no longer in need of it, in whole or in part, the discharge from or reduction of the alimony may be sued for and granted.' (emphasis added)
. . . .
The Civil Code nowhere mandates a lawsuit for a change in alimony, and the Code of Civil Procedure merely provides for the proper procedure in seeking arrearages. This Court in Halcomb and earlier in Pisciotto engrafted a jurisprudential rule onto the alimony statutes to the effect that absent a lawsuit to alter an alimony decree the plaintiff in a rule for arrearages would be entitled to the full amount under the prior judgment up to three years prior to the rule.
. . . .
Despite the wording of Article 227, quoted supra, what obliges parents to nourish and rear their children is the fact of maternity or paternity and not that of marriage. Plainol, Section 1681. To facilitate the enforcement of this obligation, however, each spouse is given, in his or her own name, a right of action against the spouse without custody to compel him or her to turn over in advance the money necessary to contribute toward the child's maintenance.... Since the parent's duty of support and upbringing is a legal duty owed to the child, it cannot be renounced or suspended. There is no prohibition, however, expressed by the law against a spouse's agreement to suspend his right to compel the other parent without custody to turn over to him in advance money necessary for the child's maintenance.... The parent may not, by suspension of this right, thwart the purpose for which the right is established, i. e., the enforcement of the child's right to support and upbringing.
. . . .
....If the parties clearly agree to a suspension of the payments, and such agreement does not interrupt the child's maintenance or upbringing or otherwise work to his detriment, the agreement should be enforceable." (Emphasis supplied; citation and footnotes omitted).
We do not consider that the principles announced in Dubroc, supra, are strictly limited to instances where parents have by bilateral agreement, which does not interrupt the child's maintenance or upbringing, stipulated for a suspension of child support payments. Rather, we believe and so hold *735 that such principles are likewise applicable to a situation where, as in the present case, the mother's right to custody has been temporarily divested by order of a court of competent jurisdiction and simultaneously vested in the father who assumes full responsibility and does in fact provide for the child's maintenance and upbringing. In Dubroc, supra, the court noted that our law does not prohibit a spouse's agreement to suspend his right to child support payments under an alimony judgment so long as such agreement does not thwart enforcement of the child's right to support and upbringing. In other words the spouse's vested property right under the alimony judgment may be suspended by mutual agreement if such agreement in no way jeopardizes enforcement of the child's right to support and upbringing. We can conceive of no valid reason why an order of a court of competent jurisdiction temporarily divesting the mother of custody and simultaneously vesting the father with custody should not have the same effect. We hold that it does and that plaintiff's right to child support payments under the judgment of March 27, 1978 was suspended during the period of time that defendant was vested with custody of the parties' minor child by order of the Juvenile Court of Iberville Parish.
For the above and foregoing reasons the judgment appealed from is affirmed at appellant's cost.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595914/ | 28 So.3d 55 (2010)
KELLER
v.
STATE.
No. 3D09-2369.
District Court of Appeal of Florida, Third District.
March 9, 2010.
Decision Without Published Opinion Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595883/ | 28 So. 3d 45 (2010)
LOZADA
v.
HSBC MORTG. CORP. (USA).
No. SC10-125.
Supreme Court of Florida.
January 26, 2010.
Decision Without Published Opinion Mandamus dismissed. | 01-03-2023 | 10-30-2013 |
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