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https://www.courtlistener.com/api/rest/v3/opinions/1595911/ | 399 So. 2d 35 (1981)
Natalie KELNER, Melinda Kelner, Ann Kelner and John Kelner, Appellants,
v.
Woodrew W. WOODY and Anna Woody, His Wife, Hillcrest-by-the-Sea Associates, Inc., a Florida Corp., Jean Bigonesse and Yvette Bigonesse, His Wife; Jean Metivier; Jean Beauchemin; George Kousoulas; Claude Durivage and Theresa Durivage, His Wife; James Burke and Kathleen Burke, His Wife; Lucien Lauzon; Fritz Meyer and Elsie Meyer, His Wife; David Abraham and Sadie Abraham, His Wife; Herbert L. Carrel and Beverly Carrel, His Wife; Hector Echavarria and Nora Echavarria, His Wife; Vincent J. Errico and Carol A. Errico, His Wife; Louis Fortin and Georgeete Fortin, His Wife; Robert E. Kennedy and Cheryl A. Kennedy, His Wife; John W. Keeler and Helen B. Keeler, His Wife; Roger Lauzon and Anita Lauzon; William Matouk and Louise Matouk, His Wife; and William M.L. Matouk; Marcel Tessier; and Ahmad Saad and Faye Saad, His Wife, Appellees.
No. 80-1764.
District Court of Appeal of Florida, Third District.
May 19, 1981.
*36 Kelner & Kelner and Milton Kelner, Miami, for appellants.
Buchbinder & Elegant and Harris J. Buchbinder, Koppen & Watkins and George J. Lott, Miami, for appellees.
Before HENDRY, SCHWARTZ and NESBITT, JJ.
PER CURIAM.
Appellants, the plaintiffs below, seek review of the trial court's dismissal of their third amended complaint for a declaratory decree against the appellees. Appellants, owners of land encumbered by two ninety-nine year leases, sought a declaration of their rights and status under the leases. Specifically, they sought to have the leases declared null and void.
The subject property, improved by two buildings containing twenty-four apartment units, devolved to the appellants by inheritance in 1972. Appellees Woody had previously acquired the leasehold interest in 1956, and in 1979 subleased this interest to appellee Hillcrest. The remaining appellees are individual owners of twenty-two of the twenty-four cooperative apartments.
*37 In their complaint, appellants cite numerous lease violations by all appellees. As a result of these violations, appellants notified the appellees that the leases were terminated and demanded possession in 1979 pursuant to the lease provision pertaining to default by the lessees. After the appellees failed and refused to surrender possession, appellants instituted this suit for declaratory judgment.[1]
The trial court's order dismissing appellants' third amended complaint provides, inter alia:
It is apparent to this Court that the Plaintiffs are seeking to terminate a lease based upon alleged breaches of the 99 year lease, but refuse to seek the proper remedy or to comply with previous orders of the Court holding that such an action may not be maintained by an action for Declaratory Judgment. See Mayes Printing Company v. Flowers, 154 So. 2d 859 (Fla. 1st DCA 1963), M & E Land Company v. Siegel, 177 So. 2d 769 (Fla. 1st DCA 1965).
The purpose of the declaratory judgment act is to afford relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations, and is to be liberally construed, section 86.101, Florida Statutes (1979); however, the granting of such relief remains discretionary with the court, and not the right of a litigant as a matter of course. North Shore Bank v. Town of Surfside, 72 So. 2d 659 (Fla. 1954); Palm Corporation v. 183rd Street Theatre Corp., 309 So. 2d 566 (Fla. 3d DCA 1975); Garner v. De Soto Ranch, Inc., 150 So. 2d 493 (Fla. 2d DCA), cert. denied, 156 So. 2d 860 (Fla. 1963). The court's ruling is accorded great deference, and appellants have the burden of showing clear error for reversal. Groover v. Adiv Holding Co., 202 So. 2d 103 (Fla.3d DCA 1967). Based upon this standard, we conclude that appellants have not demonstrated that the trial court abused its discretion in dismissing their complaint, and therefore affirm the decision.
To trigger jurisdiction under the declaratory judgment act, the moving party must show that he is in doubt as to the existence or nonexistence of some right or status, and that he is entitled to have such doubt removed. Halpert v. Oleksy, 65 So. 2d 762 (Fla. 1953); Columbia Casualty Co. v. Zimmerman, 62 So. 2d 338 (Fla. 1952); Flagship Real Estate Corp. v. Flagship Banks, Inc., 374 So. 2d 1020 (Fla. 2d DCA 1979); Swain v. Reliable Insurance Co., 200 So. 2d 862 (Fla. 3d DCA 1967). We agree with the trial court that the present case falls squarely within the rule of M & E Land Company v. Siegel, 177 So. 2d 769 (Fla. 1st DCA 1965), where the court was faced with the following issue:
Where the lease agreement provides in clear and unambiguous language that in the event of default the lessor shall at all times have the right to enter and retake possession of the leased property without interference from the lessee, is the allegation of a default and a refusal of the lessee to permit the lessor to enter and retake possession a sufficient showing of "doubt" as to lessor's rights to state a cause of action for declaratory decree under Chapter 87 [now chapter 86] of the Florida Statutes, F.S.A.?
The court answered this query in the negative:
We are of the opinion that the amended complaint failed to allege a cause of action for declaratory decree under Chapter 87 of the Florida Statutes, F.S.A.
177 So.2d at 770. This reasoning applies to the instant case since the appellants have also alleged a default and a refusal by the lessees to allow them to retake possession. Although appellants have stated as a conclusion that they are in "doubt" as to their rights under the agreements, the amended complaint shows on its face that there is no doubt as to the meaning of the leases. Appellants have also failed to alleged the existence of any doubt as to the default clause of the agreements; to the contrary, they exercised their right to declare the lease terminated and demanded possession pursuant *38 to that provision. See Columbia Casualty Co. v. Zimmerman, supra; Broward Drug Stores, Inc. v. Perini Land & Development Co., 170 So. 2d 86 (Fla.2d DCA 1964). Only after appellees refused to surrender possession did appellants become doubtful about their position and doubts, uncertainty or insecurity as a basis for a declaratory decree must arise from the facts and circumstances creating them, and not merely from the state of mind or attitude of the movant. Garner v. De Soto Ranch, Inc., supra.
Appellants are actually seeking legal advice from the court as to the correct procedure to follow in litigating this case. The declaratory judgment act is not to be used as a tool to advise attorneys as to the proper path to pursue. May v. Holley, 59 So. 2d 636 (Fla. 1952); Deen v. Weaver, 47 So. 2d 539 (Fla. 1950). Nor is the act to be employed for the determination of purely factual issues under an instrument that is clear and unambiguous and presents no need for construction. Barrett v. Pickard, 85 So. 2d 630 (Fla. 1956); Perez v. State Automobile Insurance Ass'n, 270 So. 2d 377 (Fla. 3d DCA 1972); Burns v. Hartford Accident & Indemnity Co., 157 So. 2d 84 (Fla. 3d DCA 1963). Sub judice, the lease agreements are quite explicit, and the only existing issue whether appellees are in breach of the agreement is factual in nature and properly determinable in an action at law. Moreover, although the existence of other remedies does not preclude declaratory judgment, section 86.111, Florida Statutes (1979), it does bear on the proper exercise of the court's discretion in granting such relief, and the court may decline to grant a declaratory decree where more appropriate redress is available. Stark v. Marshall, 67 So. 2d 235 (Fla. 1953); Bowden v. Seaboard Air Line R.R. Co., 47 So. 2d 786 (Fla. 1950); Lyons v. Capi, 188 So. 2d 909 (Fla. 4th DCA 1966); Jacksonville Roofing Ass'n v. Local Union No. 435, 156 So. 2d 416 (Fla. 1st DCA 1963), cert. denied, 162 So. 2d 667 (Fla. 1964); Garner v. De Soto Ranch, Inc., supra. As we have pointed out, appellants may bring an action for breach of the lease agreements.
In short, we find that appellants are not really in doubt as to their rights under the leases; rather, appellants claim a default in said leases by the acts enumerated in the complaint and are simply uncertain as to what course of action they should employ to enforce their rights. Since the lease agreement is clear and unambiguous, leaving only factual issues to be resolved, declaratory relief is not available to appellants. We conclude, therefore, that the trial court did not err in dismissing appellants' complaint for failure to state a cause of action for declaratory judgment.
Affirmed.
NOTES
[1] Chap. 86, Florida Statutes (1979). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595921/ | 399 So.2d 1318 (1981)
Pamela Cato BARNES, separated wife of/and Jesse Richard Barnes
v.
FIREMAN'S FUND INSURANCE COMPANY.
No. 12113.
Court of Appeal of Louisiana, Fourth Circuit.
June 2, 1981.
Beard, Blue, Schmitt, Mathes, Koch & Williams, A. J. Schmitt, III, New Orleans, for Fireman's Fund Ins. Co., defendant and third-party plaintiff-appellant.
Carolyn W. Gill, New Orleans Legal Assistance Corp., Marrero, for Armel Lucas, defendant and third-party defendant.
Mollere, Flanagan & Arceneaux, by Nelson E. Rivers, Metairie, for Joseph R. Palmisano defendant and third-party defendant.
Before BOUTALL, SCHOTT and BARRY, JJ.
*1319 BOUTALL, Judge.
The issue in this appeal is the application of the one year prescriptive period in Louisiana Civil Code Article 3536 to a supplemental and amended petition and a third-party demand based on tort.
Mrs. Pamela Cato Barnes and her separated husband, Jesse Richard Barnes, sued their insurer Fireman's Fund Insurance Company for recovery of vandalism damage to their home around November 15, 1977. Their petition was filed on April 26, 1978, and the insurer answered on May 30, 1978. Nearly a year later, on May 9, 1979, Fireman's Fund filed a third-party petition against six named defendants, the parents or guardians of the minors alleged to have committed the vandalism, alleging that the vandalism occurred on November 30, 1977. Thereafter, on June 29, 1979, the plaintiffs filed a supplemental and amended petition in which they named as party defendants substantially the same persons.
To these two pleadings, defendant Barbara McFarland Czapla and defendant Joseph R. Palmisano, Sr., filed exceptions of prescription asserting that both the third-party petition and the supplemental and amended petitions were filed in excess of the one year limitation allowed by Louisiana Civil Code Article 3536. The trial court maintained the exception of prescription and dismissed plaintiffs' suit and the Fireman's Fund third-party demand, not only as to the two named exceptors, but as to all of the defendants. Fireman's Fund has appealed.
Although there was some sort of partial hearing of the case on trial day, resulting in a settlement of the main demand between plaintiffs and their insurer, as well as the judgment on the exception of prescription, there is nothing in the record before us to indicate what facts or pleadings may have been considered by the trial court. Suffice it to say that it is conceded that the vandalism took place in November, 1977, and that both the third-party demand of Fireman's Fund and the supplemental and amended petition of plaintiffs were filed more than one year beyond that date. On this appeal, Fireman's Fund would have us consider its third-party demand as a suit for indemnification, and has referred us to several authorities which support the view that prescription does not run in indemnification cases until after adverse judgment is rendered against the third-party plaintiff. That argument is not appropriate here. This is quite plainly a suit by an insured against its insurer to pay off a policy claim. The third-party demand by the insurer against the alleged vandals is authorized solely by the subrogation of the insurer to the insured's rights, either under the policy provisions or by agreement of the parties. The right of the insurer can be no more than those acquired by the Barnes. Because both the third-party demand and the supplemental and amended petition were untimely filed, each is barred by the one year prescriptive period. See for example, Northern Assurance Company of America v. Waguespack, 304 So.2d 865 (La.App. 4th Cir. 1974).
The major difficulty we have in this case is the application of the judgment to all defendants dismissing both original plaintiffs and third-party plaintiffs' demands. As noted, only two of the defendants actually filed exceptions of prescription and we see nothing in this record in order to permit us to apply the judgment to the other defendants as in Northern Assurance Company, supra. The exception of prescription is a peremptory exception which must be specially pleaded by a party in order for it to be operative. This exception cannot be supplied by the court. C.C.P. Article 927; Lawyer's Title Services, Inc. v. Boyle, 308 So.2d 479, 481 (La.App. 4th Cir. 1975); Bourgeois v. Ducos, 182 So.2d 539, 543 (La.App. 1st Cir. 1966). Nor has a plea of prescription been filed in this court. See C.C.P. Article 2163. Although on the face of the pleadings in this record, it appears that the claims against the other defendants have prescribed, neither the trial court nor this court has the authority to so rule. Additionally we note that only Fireman's Fund has appealed and only the judgment against it on its third-party demand *1320 is at issue here. The judgment against plaintiffs is final.
Accordingly the judgment of the trial court is affirmed insofar as it dismisses the demand of the third-party plaintiff Fireman's Fund Insurance Company against Barbara McFarland Czapla and Joseph R. Palmisano, Sr., but the judgment is vacated and set aside as it relates to the other named defendants, and this matter is remanded to the trial court for further proceedings. Appellant Fireman's Fund Insurance Company is to bear all costs of the proceedings against Barbara McFarland Czapla and Joseph R. Palmisano, Sr. Assessment of other costs to await the final decision in this case.
AFFIRMED IN PART, VACATED AND SET ASIDE IN PART AND REMANDED IN PART. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596480/ | 399 So. 2d 1038 (1981)
DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, State of Florida, Charles A. Nuzum, Appellants,
v.
Provende, Inc., D/B/a Club Alexandre, Appellee.
No. 81-273.
District Court of Appeal of Florida, Third District.
June 9, 1981.
*1039 William A. Hatch, Tallahassee, for appellants.
Donsky & Diner, Carhart & McGuirk, Sy Chadroff and S. Lane Abraham, for appellee.
Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
FERGUSON, Judge.
The Department of Business Regulation, Division of Alcoholic Beverages and Tobacco issued an emergency order suspending the liquor license of Provende, Inc., doing business as Club Alexandre. That same day, Provende petitioned the Dade County Circuit Court for injunctive relief asserting violation of due process and irreparable harm. The circuit court granted the temporary injunction staying the suspension of the license prior to a final administrative hearing. The Department appeals, challenging the jurisdiction of the circuit court to issue the injunction. We have jurisdiction pursuant to Florida Rules of Appellate Procedure 9.130(a)(3)(B).
We hold that the circuit court improperly exercised its jurisdiction to issue temporary injunctive relief because in this case the petitioner has an adequate remedy at law in Sections 120.68(1), and (2), Florida Statutes *1040 (1979) and did not establish on the face of its petition for injunctive relief, the likelihood of success on the merits of its allegation of a due process violation.
Section 120.68(1), supra, provides that a preliminary, procedural, or intermediate agency action or ruling is immediately reviewable by the judiciary if review of the final agency decision would not provide an adequate remedy. Where the license of a party has been temporarily suspended pending a final agency hearing, the subsequent administrative hearing may come too late to remedy the potential effects of severe economic deprivation, loss of business, or professional reputation and loss of clients or customers caused by an alleged erroneous agency action. The likelihood of irreparable harm caused by license suspension actions was recognized by the legislature when it provided in Section 120.68(3), supra that upon petition to the district court of appeal:
"[I]f the agency decision has the effect of suspending or revoking a license, supersedeas shall be granted as a matter of right upon such conditions as are reasonable, unless the court, upon petition of the agency, determines that a supersedeas would constitute a probable danger to the health, safety, or welfare of the state." (emphasis added).
Petitioner's remedy here is a legal one of petition for review in the district court of appeal, Section 120.68(2), supra, which then activates the provisions of Section 120.68(3).
The jurisdiction of circuit courts to issue injunctive relief is granted by the Constitution of Florida by Article V, Section 20(c)(3) (amended 1972),[1] and this constitutional and historical grant of equity jurisdiction may not be eliminated by the Administrative Procedure Act, Chapter 120, Florida Statutes (1979). State, Department of General Services v. Willis, 344 So. 2d 580 (Fla. 1st DCA 1977). The need for granting that injunctive relief may, however, be changed by statutory creation of adequate administrative or legal remedies sanctioned by the constitution.[2] As the court in Willis, supra at 590, noted in citing from Adams and Miller, "Origins and Current Florida Status of the Extraordinary Writs," 4 U.Fla.L.Rev. 421, 464-65 (1951):
A new remedy created by statute does not infringe upon the extraordinary writs; it merely reduces the demand for them. Cutting into the scope or nature of the extraordinary writs by statute is one thing; creating an adequate remedy for a sector of the right-enforcement front formerly protected by these writs is another... . The writs are always ready to take over if the range of the new statutory cannon proves too short, because their own range cannot be varied otherwise than by amendment to the Florida Constitution.
While recognizing that the constitutional grants of equity jurisdiction to the circuit courts, as well as original jurisdiction to hear constitutional issues,[3] Art. V, § 5(b), Fla. Const. (amended 1972), cannot be changed by administrative enactment, Florida courts have required compliance with the statutory remedies, including those provided by the Administrative Procedure Act, by adopting certain prudential, i.e., judicial limitations as to when circuit courts may exercise the power to grant injunctive relief. Willis, supra. By petitioning for injunctive relief a petitioner is, in effect, asking the court to exercise jurisdiction and grant the requested relief. The circuit court must then consider these judicially *1041 created limitations in determining whether it may exercise jurisdiction for purposes of granting the requested relief. We note that every court has jurisdiction to hear and determine the question of its own jurisdiction. Sun Insurance Company v. Boyd, 105 So. 2d 574 (Fla. 1958); Carter v. Dorman, 385 So. 2d 740 (Fla.3d DCA 1980). To the extent that the judicially created limitations prevent a circuit court from exercising its power to grant an injunction in a certain case, it may not accept jurisdiction, and in this limited sense may be said to be without jurisdiction. See, e.g., 13 Fla.Jur.2d, Courts and Judges, §§ 22-25.
In deciding whether it may exercise the constitutional grant of jurisdiction to issue temporary injunctive relief, the court must decide whether the petitioner has established the elements which the courts have found necessary to the granting of injunctive relief: (a) the likelihood of irreparable harm, and the unavailability of an adequate remedy at law, (b) the substantial likelihood of success on the merits, (c) that the threatened injury to petitioner outweighs any possible harm to the respondent and, (d) that the granting of preliminary injunction will not deceive the public interest. See, e.g., Erskine v. West Palm Beach, 473 F. Supp. 48 (S.D.Fla. 1979); Jets Services, Inc. v. Hoffman, 420 F. Supp. 1300 (M.D.Fla. 1976); Oxford International Bank and Trust, Ltd. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 374 So. 2d 54 (Fla.3d DCA 1979), cert. dismissed, 383 So. 2d 1199 (Fla. 1980); State, Department of Health and Rehabilitative Services v. Artis, 345 So. 2d 1109 (Fla. 4th DCA 1977).
The test stated by this court in Metropolitan Dade County v. Department of Commerce, supra, and Willis, supra, is in effect the same test the courts have traditionally applied in deciding whether to exercise jurisdiction for the purpose of granting injunctive relief. The requirement to show that there is no adequate administrative remedy to cure egregious agency error where circuit court equity jurisdiction is sought to review actions of an administrative agency is, in effect, the same as the traditional requirement to show the likelihood of irreparable harm and the unavailability of an adequate remedy at law. The traditional requirement to establish substantial likelihood of success on the merits is, in effect, the same as the requirement to state ultimate facts sufficiently detailed to establish constitutional violation on the face of the complaint. See, e.g., Metropolitan Dade County, supra, at 435.[4]
It is not disputed here that Provende has an adequate remedy at law in appeal to the district court of appeal as provided by Section 120.68(2). Because, however, the constitution provides that the circuit courts have original jurisdiction to hear constitutional issues,[5] we must also address the question of whether Provende has demonstrated on the face of its petition for injunctive relief, the likelihood of success on the merits of his allegation of violation of procedural due process.[6] We find it *1042 has not. There is no requirement that a hearing be held prior to an emergency order suspending a license, Barry v. Barchi, 443 U.S. 55, 99 S. Ct. 2642, 61 L. Ed. 2d 365 (1979); Aurora Enterprises, Inc. v. State, Department of Business Regulation, 395 So. 2d 604 (Fla.3d DCA 1981), and Provende's argument on appeal that there has been a delay in a subsequent hearing violating Provende's due process rights is irrelevant to the question of circuit court jurisdiction as it does not appear on the face of the petition. Although the circuit court has jurisdiction in the sense that the constitution grants it equity jurisdiction and original jurisdiction in cases involving constitutional violations, it lacked the power to issue the injunction because here there was no need for an equitable remedy and the judicially-created prerequisites were not satisfied.
Reversed.
NOTES
[1] See also Section 26.012(3), Florida Statutes (1979) providing that the circuit court may issue injunctions.
[2] Article V, Section 4(b)(2), Florida Constitution (amended 1972), provides that district courts of appeal shall have the power of direct review of administrative action as prescribed by general law.
[3] See Junco v. State Board of Accountancy, 390 So. 2d 329, 331 (Fla. 1980) (the jurisdiction of the circuit court to resolve constitutional issues is unaffected by the Administrative Procedure Act.) See also Metropolitan Dade County v. Department of Commerce, 365 So. 2d 432 (Fla.3d DCA 1978); Carrollwood State Bank v. Lewis, 362 So. 2d 110 (Fla.3d DCA 1978); Department of Transportation v. Morehouse, 350 So. 2d 529 (Fla.3d DCA 1977).
[4] We note that Metropolitan Dade County, supra, involved payments allegedly due the Department of Commerce from Dade County under the provisions of the Unemployment Compensation Law, Chapter 44, Florida Statutes, (1977) and not suspension of a license.
[5] Art. V, § 5(b), Fla. Const. (amended 1972). Willis, supra. See also cases cited at note 2, supra.
[6] We do not otherwise address this issue of jurisdiction between courts implied here, as it was not argued below. Accordingly, we do not decide whether there is any conflict between the constitutional grant of original jurisdiction to the circuit court to hear cases involving constitutional issues, Art. V, § 5(b), Fla. Const. (amended 1972), and the constitutional provision that the legislature may determine the extent of appellate court review of agency actions, Art. V, § 4(b)(2) Fla. Const. (amended 1972).
For the same reason we do not address the issue of whether Section 120.68(3) in providing for supersedeas as of right upon appeal to the district courts raises a presumption that irreparable harm occurs in license suspension cases which, in turn, necessarily implies a concomitant inference that the failure for a pre-suspension hearing renders the statute facially-unconstitutional in license suspension cases, or, alternatively, whether Section 120.68(3) by providing for pre-hearing relief, preserves the constitutionality of Chapter 120. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596477/ | 399 So. 2d 1225 (1981)
James BUCKLEY et al., Plaintiffs-Appellants,
v.
EXXON CORPORATION et al., Defendants-Appellees.
No. 7480.
Court of Appeal of Louisiana, Third Circuit.
May 27, 1981.
*1226 Evans, Bradley & Wallace, C. Allen Bradley, Jr., DeRidder, for plaintiffs-appellants.
William J. Sommers, Jr., New Orleans, Hall, Lestage & Lestage, W. E. Hall, Jr., DeRidder, for defendants-appellees.
Before GUIDRY, FORET and CUTRER, JJ.
FORET, Judge.
James and Earline Buckley (Plaintiffs) brought this action ex delicto on behalf of their minor child[1], Joel Buckley, to recover damages for personal injuries he suffered in an accident involving a large tractor-trailer truck. Defendants are Gilbert L. Royer, the driver of the truck, and his employer, Exxon Corporation, the owner of the truck.
The action was tried by a jury which returned a unanimous verdict in favor of defendants. The trial court, pursuant to that verdict, rendered judgment dismissing plaintiff's claim with prejudice, and plaintiff appealed to this Court. We affirmed the judgment of the trial court in an unpublished opinion. Plaintiff then applied for and was granted a writ of review by the Honorable Louisiana Supreme Court. The Supreme Court, in James Buckley, et al v. Exxon Corporation, et al, 390 So. 2d 512 (La.1980), reversed the judgment of this Court and remanded the case to us solely for a determination of the amount of damages to which plaintiff is entitled.
FACTS
See the opinion of the Supreme Court in Buckley v. Exxon Corporation, supra, for an account of the facts surrounding the accident in which Joel Buckley was injured. It is sufficient for our purposes to simply state that Joel was injured when the rear wheel or wheels of a trailer being pulled by a tractor (commonly known as an eighteen-wheeler) either passed directly over his legs or over a bicycle which was lying partially on top of his legs.
Joel was seven years old at the time of the accident and suffered multiple traumatic fractures of both legs. He was immediately taken by ambulance to the emergency room of the Beauregard Memorial Hospital where he was initially treated. He was then transferred and admitted to the Huey P. Long Memorial Hospital in Pineville, Louisiana, that same day.
X-rays and diagnostic procedures performed at the Huey P. Long Memorial Hospital revealed that Joel had suffered the following major injuries:
1. A closed mid-shaft fracture of the left femur;
2. A closed type 1 avulsion fracture of the left tibia spine;
3. A closed non-displaced fracture of the right tibia; and
4. A closed fracture of the first metatarsal of the right foot.
A Steinman pin[2] was then inserted through Joel's left leg so that traction could be applied to it and a cast was applied to both legs. Joel was given in-patient care for nineteen days until he was discharged from the hospital on April 21, 1977. However, prior to his discharge, Joel was placed under general anesthesia and a double hip spica cast[3] was applied.
Joel's condition was monitored by physicians at the Huey P. Long Memorial Hospital after his discharge. He was then re-admitted *1227 to that hospital on June 14, 1977 for removal of the spica cast and physical therapy. He was discharged some six days later. Joel has been seen for treatment and evaluation by a number of physicians since that time, and members of his family have participated in his recovery by learning and applying certain physical therapy treatments.
QUANTUM
A. SPECIAL DAMAGES.
The medical expenses incurred for the treatment of Joel's injuries were stipulated to by counsel at trial. They amounted to $74.00 for use of the emergency room at the Beauregard Memorial Hospital and $968.40 and $197.80 from the Department of Health & Human Resources, Office of Hospitals, for the Huey P. Long Memorial Hospital, all of which amounts to a total of $1,240.20.
We therefore award plaintiff the sum of $1,240.20 for medical expenses.
B. GENERAL DAMAGES.
An injured party is entitled to damages for past and future pain and suffering, loss of past and future earnings, permanent disability and incurred related medical expenses where such damages are supported by competent evidence. Reeves v. Louisiana and Arkansas Railway Company, 304 So. 2d 370 (La.App. 1 Cir. 1974), writ denied, 305 So. 2d 123 (La.1974); Barrois v. Service Drayage Company, 250 So. 2d 135 (La.App. 4 Cir. 1971), writ denied, 259 La. 805, 253 So. 2d 66 (1971); Brignac v. Pan American Petroleum Corporation, 224 So. 2d 84 (La. App. 3 Cir. 1969).
Factors to be considered in assessing quantum for pain and suffering are the severity and duration thereof. Walker v. St. Paul Insurance Companies, 339 So. 2d 441 (La.App. 1 Cir. 1976), on remand, 343 So. 2d 251 (La.App. 1 Cir. 1977), writ denied, 345 So. 2d 61 (La.1977).
The record indicates, and common sense verifies, the fact that the injuries suffered by Joel were extremely painful. The frequent administration of narcotics and other pain killers as revealed by Joel's medical records, together with the observations of the nurses who attended him, convince this Court that Joel suffered through a painful ordeal made all the worse by his tender age. There is evidence in the record which indicates that Joel was still experiencing some pain as a result of the injuries suffered in the accident over seventeen months from the date of its occurrence.
The record also shows that Joel was an active child before he was injured but was unable to move his legs in any manner for some three months after the accident due to the cast which had been applied. He is still unable to participate in normal athletic activities with other children his age as there is still some stiffness in his left leg. We find that all of these factors produced much mental and physical pain and suffering for Joel and that such were a direct result of the injuries sustained by him in the accident.
Plaintiff also seeks to recover general damages for loss of future earning capacity and permanent disability.
Dr. J. Lane Sauls, a family practitioner in DeRidder, Louisiana, testified that he examined Joel twice, once on April 2, 1977, immediately following the accident, and again on May 31, 1979, approximately two weeks before the trial of this matter. He stated that at the time of his second examination, he found that Joel had only limited motion in his left knee and a limited ability to rotate his left leg. It was his opinion that the injuries suffered by Joel in the accident could lead to the above mentioned disabilities and limitations.
Dr. Jerome W. Ambrister, an orthopedic surgeon practicing in Lake Charles, Louisiana, first examined Joel on August 16, 1977. He found no residual symptoms with respect to Joel's right lower extremity, but did find some residual trouble in the left lower extremity, particularly the left knee in that it was rigid. He also found that the left leg was longer than the right and that Joel's thighs and calves were different in size. He attributed these residual effects to the injuries suffered by Joel in the accident.
*1228 He next examined Joel on September 5, 1978, which was some seventeen months after the occurrence of the accident. He noted that Joel was still complaining of pain in his left hip and was still walking with a limp. His examination revealed that there was still some limitation of motion in Joel's left knee, though it was much less than had been observed in the first examination. Dr. Ambrister testified that, at this time, he suspected that Joel was also suffering from a rotary malunion[4] of the left femur which could cause a person's foot to either point inward or outward, depending on which way the fractured bone had rotated and then healed. He also felt that Joel's residual condition would improve with the passage of time.
Dr. Ambrister last examined Joel on May 7, 1979, a little over a month before trial. He testified that Joel had regained even more motion in his left knee at this time. His examination revealed that Joel's left leg was still longer than the right and that there were still differences in the size of the knees and calves. Dr. Ambrister's best medical opinion was that there was a possibility that Joel would permanently suffer from some stiffness of the left knee. He again diagnosed a rotary malunion of the left femur but felt that there was no indication that this disability was severe enough to warrant corrective surgery. Dr. Ambrister also expressed the opinion that Joel would continue to improve with the passage of time. However, he did state that the different lengths of Joel's legs, together with the presence of the rotary malunion of the left femur and fracture of the left tibial epiphysis could lead to growth deformity in the future. We note, though, that there was expert medical testimony to the effect that the best method for detecting a rotary malunion was by special x-rays which were not employed by Dr. Ambrister in making his diagnosis of the presence of this condition.
Dr. James R. Oates, a specialist in physical medicine and rehabilitation practicing in Houston, Texas, first examined Joel on December 12, 1977. He too found that there was very limited motion in Joel's left knee and stated that this was consistent with the fact that the joint had been immobilized for such a long period of time.
He next examined Joel on May 8, 1979, at which time he found great improvement in Joel's ability to move his left knee. He stated that Joel's gait was perfectly normal. He could find no evidence of a rotary malunion of the fracture of the left femur but did state that he had made no x-rays.
Dr. Oates felt that Joel would have a slight (six percent) permanent residual disability in his left knee which would hamper his ability to perform in athletic competition. He also recommended, as did the other medical experts, that by placing a one-eighth to one-quarter inch lift in the heal of Joel's right shoe further problems with respect to the different lengths of Joel's legs could be avoided.
We find that plaintiff has proven that Joel will have a slight permanent disability of his left knee as a result of injuries suffered in the accident.
As to plaintiff's claim for loss of future earning capacity, we find that the record contains no evidence as to how, when, or how much the injuries sustained herein will affect the future earning capacity of this seven-year-old boy. We therefore find no merit in plaintiff's demands for damages for loss of future earning capacity.
For the above and foregoing reasons, judgment is rendered in favor of plaintiff and against defendants in the following amounts:
1. $1,240.20 for medical expenses;
2. $40,000.00 for mental and physical pain and suffering and disability, past, present and future.
It is therefore ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Earline Buckley, individually, in the amount of $1,240.20, plus legal *1229 interest thereon from the date of judicial demand; and
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Earline Buckley, as natural tutrix and in behalf of the minor child, Joel Buckley, in the amount of FORTY THOUSAND AND NO/100 ($40,000.00) DOLLARS, plus legal interest thereon from the date of judicial demand.
All costs of proceedings at trial and appellate level are assessed against defendants-appellees.
RENDERED.
NOTES
[1] At trial the defendants raised the peremptory exception of no right of action of James Buckley in the lawsuit because Joel Buckley was born fourteen months before the dissolution of an earlier marriage between his mother, Earline Buckley and Purvis Lewis. This exception was sustained at trial, leaving Joel Buckley's mother, Earline Buckley, as the remaining plaintiff.
[2] A Steinman pin is actually placed through the flesh and the bone of an injured extremity. The device which will place that extremity in traction is then attached to this pin. Joel was initially placed in what is termed Split Russell Skeletal traction.
[3] A double hip spica cast consists of a stockinette (bandage-type material easily applied) which is placed over the trunk and both lower extremities. Cast padding is then placed over the stockinette and cast material is applied and allowed to harden. The result is that both lower extremities are held rigidly in one position with respect to the trunk.
[4] A rotary malunion describes a medical problem in which parts of a bone which has been fractured rotate with respect to each other and then heal in this manner. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596487/ | 28 So. 3d 730 (2009)
Evan W. SMITH
v.
Billie C. BURKHALTER et al.
1080202.
Supreme Court of Alabama.
May 15, 2009.
Opinion Overruling Rehearing August 28, 2009.
Ralph K. Strawn, Jr., of Henslee, Robertson, Strawn & Sullivan, L.L.C., Gadsden, for appellant.
J. Shane Givens, Centre, for appellees.
BOLIN, Justice.
Evan W. Smith appeals from a judgment against him in an action filed by Billie C. Burkhalter, Jimmy Wallace, and Lenora McWhorter contesting the results of the Town of Cedar Bluff's election for mayor and two places on the Town's council.
Facts and Procedural History
On August 26, 2008, the Town of Cedar Bluff held a general election for the office of mayor and two positions on the Town's council. Wallace ran for mayor against Ethel Sprouse, Steve Lay, and Dale Reese. Burkhalter and Smith, along with another candidate, sought election to the council position for district one and McWhorter and Donald Sanders sought election to the *731 council position for district two. On September 2, 2008, the Town of Cedar Bluff certified the following results and concluded that a runoff election was necessary between Lay and Sprouse for the mayoral race[1] and between Burkhalter and Smith for the district-one council position[2] and that Sanders was elected to the council position for district two.[3] The runoff election was scheduled for October 7, 2008.
On September 3, 2008, Wallace, Burkhalter, and McWhorter (hereinafter referred to collectively as "the contestants") filed an election contest, pursuant to § 11-46-69, Ala.Code 1975. The contestants claimed that illegal absentee ballots were cast at the August 26, 2008, general election, which, if excluded, would change the results of the election in their favor.[4] The contestants claimed, among other things, that absentee ballots were cast by persons whose ballots had not been properly delivered to the absentee voters. The Town was named as a defendant along with all the other candidates for the three offices that were the subject of the contest. The contestants filed a motion for a preliminary injunction asking the circuit court to postpone the runoff elections scheduled for October 7, 2008.
On September 5, 2008, the Town of Cedar Bluff filed its answer. That same day, the contestants filed an amendment to their complaint alleging that absentee ballots "were picked up from the town clerk's office by agents of certain candidates" and "were neither hand mailed nor hand delivered to each respective elector by the [Town's clerk] as required in Alabama Code [1975,] 17-11-5." On September 8, 2008, mayoral candidate Sprouse filed a motion to dismiss the contestants' complaint on the ground that the circuit court lacked subject-matter jurisdiction because, she argued, § 11-46-69, Ala.Code 1975, authorizes a contest of a municipal election only when a person has actually been "declared elected" to the office and no person had yet to been declared elected to the offices they were seeking in the general election. On September 9, 2008, the contestants filed a response to Sprouse's motion, arguing that § 11-46-69 provided that an election contest may be brought "by any person who was at the time of the election a qualified elector of such ... town" and that Sprouse's interpretation of § 11-46-69 was in direct conflict with the purpose of the election-contest statute.
On September 10, 2008, district-one candidate Smith filed a motion to dismiss on the ground of insufficiency of process. Smith also argued that the election contest was barred by the five-day limitations period in § 11-46-69(b), because the service of process had been insufficient. That same day, district-two candidate Sanders filed a motion to dismiss on the grounds of lack of subject-matter jurisdiction under § 11-46-69 and insufficient service of process. On September 11, 2008, the contestants filed a response to Smith's and Sanders's *732 motions to dismiss. On September 29, 2008, the circuit court held a hearing on the motions to dismiss, and on September 30, 2008, the circuit court denied the motions. The court also stayed the runoff election scheduled for October 7, 2008. On October 3, 2008, mayoral candidate Lay died, and a suggestion of death was filed with the court along with a motion to dismiss Lay from the election contest. On October 6, 2008, Smith filed his answer and asserted several affirmative defenses including lack of subject-matter jurisdiction, insufficient service of process, and the five-day statute of limitations applicable to municipal-election contests.
On October 14, 2008, the contestants filed a motion entitled "Plaintiffs' First Notice of Nature of Evidence and Motion For Summary Judgment." In this motion, the contestants asserted that there were several reasons that many of, if not all, the absentee ballots should be excluded, but the contestants asked the court to make a determination as to whether the disputed absentee ballots had been improperly delivered to the voters by the Town's clerk. Specifically, the contestants argued that § 17-11-5, Ala.Code 1975, provides that the "absentee election manager" shall furnish absentee ballots to the applicant for the ballot by United States Mail or by personally handing the absentee ballot to the voter who intends to vote by absentee ballot. They argued that the Town's clerk, as absentee election manager, admitted that she mistakenly allowed persons other than the actual absentee voters who intended to vote by absentee ballot to pick up the ballots. They contended that a secretary for Smith picked up some absentee ballots and that a person campaigning for Sanders had picked up some absentee ballots.
In support of their motion, the contestants attached certain documents, along with the deposition of the Town's clerk. In her deposition, the Town's clerk stated that she had been clerk of the Town of Cedar Bluff for two years and nine months and that she had received training from the Alabama League of Municipalities regarding voting procedures, including absentee-ballot procedures. She testified that a voter requesting an absentee ballot could come to her office and pick up an absentee-ballot application. She indicated that it was her understanding that, although the application must be signed by the voter, anyone could pick up the application and deliver it to the voter. The clerk testified that she checks the registrar's list to see if the person on whose behalf an absentee ballot is being requested is a registered voter, and, if so, she provides the voter an absentee ballot and an envelope in which to seal the ballot. She also provides the voter with a second envelope in which to return the sealed ballot to the clerk's office. The ballot has to be witnessed or certified. The ballot must then be hand-delivered to the clerk or returned to the clerk's office by mail. According to the Town's clerk, the absentee ballots are numbered and a list of the absentee voters is posted in the town hall.
Regarding the absentee ballots for the August 26, 2008, general election, the Town's clerk explained as follows:
"Q: Is there anything in your blue book, in your procedure book, that speaks to this particular method of getting the ballot out?
"....
"A: At the time I did it, I thought, yes, sir.
"Q: You have subsequently discovered that there is another procedure
"A: Yes, sir.
"Q: other than the one you followed?
*733 "A: At the time I did it, I went by this paragraph. It says, `Upon receipt of the application for an absentee ballot, if the applicant's name appears on the list of qualified voters in the election to be held or, if the voter makes an affidavit for a provisional ballot, the absentee election manager shall furnish the absentee ballot to the applicant by forwarding it by U.S. mail to the applicant's or voter's residence or, upon written request of the voter, the address where the voter regularly receives mail or by handing the absentee ballot to the voter in person or, in the case of an emergency voting, his or her designee in person.' At the time, a lot of these people are elderly, shut-in people.
"Q: And you know them?
"A: No, sir, I do not. But I'm new in Cedar Bluff, and these people that picked up these are, I guess, you would say, lifelong residents of Cedar Bluff. They knew the people, and I believed them, that they were elderly. For some reason or another, they weren't able to go to the polls.
"And the his or her designee part, I let them take the ballots out, and I wasn't aware that I was doing anything that I wasn't supposed to do. I let them take them, and I understood thatThe paragraph above that says that they must come to me by U.S. mail. I told them they had to be mailed back to me. They took them out. The people voted whatever. They mailed them back to me.
"This went onWell, absentee ballots started going, I guess, about the 22nd day of July, and we could receive themthe last day for absentee ballots was like August 22.
"During that four-week period, I happened to be on the phone with the League of Municipalities, one of the attorneys. We were talking about some of the absentee ballots because I talk to them 15 times a day sometimes because I am not well versed in elections.
"And I read this paragraph and was talking to one of the attorneys, and I said something about what I had done. And he said, `DeLana, tell me that again.' And I did. He said, `That's not right.' And I said, `What's not right?' He said, `You're supposed to be mailing these ballots out.' And I said, `Tracy, then I've done them wrong. What am I supposed to do?' He said, `Well, it's done.'
"I got off the phone, and I went and told my mayor what I did. I told her what he said, that it's done. Until then, no one even knew that I had done anything wrong. I'm the one that told them I did it wrong."
The clerk testified that she simply mistakenly gave the absentee ballots to persons other than the voters who intended to vote by absentee ballot.
On October 17, 2008, Smith filed a response to the contestants' summary-judgment motion; on that date he also filed a summary-judgment motion, arguing that no grounds exist to set aside the absentee ballots. Smith argued that, if the manner of delivering the ballots to the absentee voters was improper, the mere negligence of the Town's clerk should not disenfranchise the voters who cast those absentee ballots. Smith went on to address the contestants' allegations in their complaint that the absentee ballots should be set aside on other grounds. Smith cited portions of the clerk's testimony that there was no one on the list of absentee voters who was not registered to vote; that there was no one on the list of absentee voters who voted in the wrong district; that there was no one on the list who was not *734 a resident of the Town of Cedar Bluff; that there was no on the list who had been convicted of a crime involving moral turpitude, which would prohibit that person from being eligible to vote; and that no votes cast in the absentee box were illegal because of insufficient or improper witnesses. In addition, Smith noted, there were no votes that were not witnessed or notarized; there was no one on the list who had not lived in the Town of Cedar Bluff long enough to participate in this general election; there was no one on the list who was incapable of voting because of mental disease or defect; there was no one on the list who had given a fraudulent, fictitious, or improper address; on none of the applications for the ballots counted was there a failure of the voter to indicate a reason for voting absentee; and there were no votes counted that had improper voter identification. Smith also argued that the circuit court lacked subject-matter jurisdiction over the contest based on § 11-46-69 because no one had been "declared elected" and that the contest was due to be dismissed as time-barred because service of process had been insufficient. Sprouse and Sanders both filed responses to the contestants' summary-judgment motion.
At a hearing on the summary-judgment motions, the parties agreed to waive the 10-day notice requirement for summary-judgment hearings set out in Rule 56, Ala. R. Civ. P. They also agreed that certain arguments were not waived if the circuit court determined at that hearing that the absentee ballots had not been improperly delivered.
On October 27, 2008, the circuit court entered an order declaring that there had been no fraud by the Town's clerk in allowing the absentee ballots to be picked up by various individuals who were not the actual absentee voters but that the clerk had been negligent and this negligence gave the court no choice but to throw out the absentee ballots that had been improperly delivered. The court declared that once the improperly delivered absentee ballots were subtracted from the vote total, there would be a runoff election in the mayor's race between Wallace and Sprouse, Burkhalter was the winner of the district-one position on the council, and McWhorter was the winner of the district-two position. The court directed all parties to indicate whether they agreed with the effect on the election results of the court's determination in throwing out the improperly delivered absentee ballots.
Both sides agreed that the consequence of not counting the improperly delivered absentee ballots would result in runoff election in the mayor's race between Wallace and Sprouse and that Burkhalter was the winner of the district-one council position and McWhorter was the winner of the district-two council position. On November 3, 2008, the circuit court entered an order declaring its October 27, 2008, order a final judgment. Smith is the only defendant who appealed.
Standard of Review
"`"This Court's review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So. 2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So. 2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So. 2d 756, 758 (Ala. *735 1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce `substantial evidence' as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989); Ala. Code 1975, § 12-21-12. `[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' West v. Founders Life Assur. Co. of Fla., 547 So. 2d 870, 871 (Ala.1989)."'"
Gooden v. City of Talladega, 966 So. 2d 232, 235 (Ala.2007) (quoting Prince v. Poole, 935 So. 2d 431, 442 (Ala.2006)).
Discussion
Smith argues, among other things, that the circuit court lacked subject-matter jurisdiction over the election contest because, he argues, no one had been "declared elected" for purposes of § 11-46-69, Ala.Code 1975, when the contestants filed their election contest and that only the need for a runoff election had been declared. He argues that § 17-16-44, Ala. Code 1975, expressly prohibits the courts from hearing an election contest unless permitted to do so by statute, and, he says, the language of § 11-46-69 is clear and unambiguous. Smith argues that because the district-one race resulted in a runoff, no candidate had been declared elected to that office and, therefore, the circuit court did not have jurisdiction over the election contest. We agree.
Section 11-46-69 provides:
"(a) The election of any person declared elected to any office of a city or town may be contested by any person who was at the time of the election a qualified elector of such city or town for any of the following causes:
"(1) Misconduct, fraud, or corruption on the part of any election official, any marker, the municipal governing body, or any other person;
"(2) The person whose election to office is contested was not eligible thereto at the time of such election;
"(3) Illegal votes;
"(4) The rejection of legal votes; or
"(5) Offers to bribe, bribery, intimidation, or other misconduct calculated to prevent a fair, free, and full exercise of the elective franchise.
"(b) Any contest of such an election must be commenced within five days after the result of the election is declared. Such contest shall be instituted in the manner prescribed by Section 17-15-29 and, except as otherwise provided in this article, all proceedings relative to contests of elections to municipal offices shall be governed by the provisions of Articles 2 and 3, Chapter 15, Title 17 of this Code, insofar as they are applicable."[5]
(Emphasis added.)
It is well settled that the legislature, by enacting § 17-16-44, has restricted the jurisdiction of the circuit courts in regard to elections. "This Court has been unequivocal in stating that elections normally do not fall within the scope of judicial review." Sears v. Carson, 551 So. 2d 1054, 1056 (1989). "We note again, as we have done on previous occasions, that a court does not have jurisdiction to interfere in an election result unless a statute *736 authorizes it to do so. The Legislature has made this abundantly clear. See § 17-5-6 [now § 17-16-44]." Etheridge v. State ex rel. Olson, 730 So. 2d 1179, 1182 (Ala.1999).
The contest of municipal general elections is governed by Chapter 46 of Title 11, Ala.Code 1975. Section 11-46-69 provides that the election of any person "declared elected" to a municipal office may be contested by any person who was a qualified elector of the municipality at the time of the election. On September 2, 2008, when the results of the general election for the Town of Cedar Bluff were declared, a runoff election was ordered for the district-one place on the council. Section 11-46-69 does not provide for an election contest to challenge the results of an initial municipal election for an office when there are more than two candidates for that office and no candidate receives a majority of the votes cast. See § 11-46-55(d). Only the election of a "person declared elected" may be contested under § 11-46-69; therefore, under § 11-46-69 a runoff election must first be held so that a person can be "declared elected" before a contest will lie, with the anomalous result that a potentially unnecessary runoff will be held. However, notwithstanding the fact that a contest challenging an initial election at which no one is "declared elected" to a particular office must wait until a candidate is "declared elected" after a runoff election, an election contest cannot be brought in any court unless allowed by statute. The statute here does not allow the challenge. "A judgment of a court without jurisdiction is void. An appeal will not lie from a void judgment." Harvey v. City of Oneonta, 715 So. 2d 779, 781 (Ala. 1998). The circuit court did not have jurisdiction to entertain an election contest from a municipal general election in a multi-candidate field when no candidate secured a majority of the votes cast; accordingly, the circuit court's judgment is void, and the appeal is dismissed. Because we conclude that the circuit court lacked subject-matter jurisdiction, we pretermit discussion of the other issues Smith raises in his appeal.
APPEAL DISMISSED.
COBB, C.J., and LYONS, WOODALL, STUART, SMITH, PARKER, MURDOCK, and SHAW, JJ., concur.
On Application for Rehearing
BOLIN, Justice.
On May 15, 2009, this Court dismissed Evan W. Smith's appeal of an election contest on the basis that the circuit court was without jurisdiction to enter a judgment. On application for rehearing, candidates Jimmy Wallace, Billie C. Burkhalter, and Lenora McWhorter ask this Court to clarify its holding that the circuit court did not have jurisdiction to entertain an election contest from a municipal general election in a multi-candidate field when no candidate received a majority of the votes. Specifically, they ask us to clarify whether that portion of the circuit court's judgment declaring McWhorter to be the duly elected council person for district two is also void.
On September 2, 2008, the Town of Cedar Bluff certified the election results and concluded that a runoff election was necessary between Steve Lay and Ethel Sprouse for the mayoral race and between Burkhalter and Smith for the district-one council position and that Donald Sanders was elected to the district-two council position. After a contest challenging absentee ballots, the circuit court declared Burkhalter the winner of the district-one position and McWhorter the winner of the district-two position and held that there should be a runoff election in the mayor's race between *737 Wallace and Sprouse. Smith appealed, and this Court held that the circuit court lacked subject-matter jurisdiction to entertain an election contest from a municipal general election in a multi-candidate field when no candidate secured a majority of the votes cast because § 11-46-69, Ala. Code 1975, provides that only the election of a person "declared elected" to a municipal office may be contested.
In the district-two council position, the Town of Cedar Bluff declared Sanders as the winner. In other words, Sanders was "declared elected" in accordance with § 11-46-69; therefore, the circuit court had subject-matter jurisdiction to entertain a contest challenging the election to the district-two council position. After the contest, the circuit court declared McWhorter the winner of the district-two race. Sanders did not appeal. Accordingly, the circuit court's judgment declaring McWhorter the winner of the district-two council position stands.
APPLICATION OVERRULED.
COBB, C.J., and LYONS, WOODALL, STUART, SMITH, PARKER, MURDOCK, and SHAW, JJ., concur.
NOTES
[1] The vote totals certified in the mayoral election were as follows: Sprouse 165, Lay 140, Wallace 124, and Reese 42.
[2] The vote totals certified in the election for the district-one council position were as follows: Burkhalter 61, Smith 36, and Timothy Miller 30.
[3] The vote totals certified in the election for the district-two council position were as follows: Sanders 46, and McWhorter 34.
[4] If the disputed absentee ballots are not counted, Wallace, and not Lay, would have been in the mayoral runoff election; Burkhalter would have been elected to the council position for district one without a runoff; and McWhorter would have been elected to the council position for district two instead of Sanders.
[5] Section 17-15-29 is now codified at § 17-16-56. Articles 2 and 3, Chapter 15 of Title 17, are now codified at §§ 17-16-47 through -62 and §§ 17-16-63 through -76, respectively. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596486/ | 530 N.W.2d 925 (1995)
247 Neb. 948
STATE of Nebraska, Appellee,
v.
Thomas A. WILSON, Appellant.
No. S-94-877.
Supreme Court of Nebraska.
May 5, 1995.
*926 Thomas A. Wilson, pro se.
Don Stenberg, Atty. Gen., and Kimberly A. Klein, Lincoln, for appellee.
WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, and CONNOLLY, JJ.
WHITE, Chief Justice.
In 1986, a jury convicted Thomas A. Wilson of second degree murder and of use of a firearm in the commission of a felony. He was sentenced to 35 years' imprisonment for the second degree murder conviction and 6 to 10 years' imprisonment for the use of a firearm conviction, the terms to run consecutively. We affirmed his convictions and sentences in State v. Wilson, 225 Neb. 466, 406 N.W.2d 123 (1987).
In May 1994, Wilson filed his second petition for postconviction relief in Douglas County District Court, contending that (1) the trial court at his original trial had erred when it failed to include malice as an essential element of second degree murder in its jury instructions, and (2) he was denied effective assistance of counsel when his trial counsel failed to object to the trial court's omission of malice as an essential element of second degree murder in its jury instructions. In considering Wilson's second petition, the district court refused to apply our mandates, concluding, sua sponte, that malice is not an element of second degree murder. The district court therefore denied Wilson's request for postconviction relief, and he appealed.
*927 An appellate court always reserves the right to note plain error of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, or fairness of the judicial process. State v. Williams, 247 Neb. 931, 531 N.W.2d 222 (1995); State v. Secret, 246 Neb. 1002, 524 N.W.2d 551 (1994). Recently, in Williams, we addressed the very same issues Wilson raises. In Williams, also a case involving a defendant's second petition for postconviction relief, we held that "[f]ailure to include the element of malice in the jury instruction on second degree murder constitutes plain error." Id. at 940, 531 N.W.2d at 229. See, State v. Martin, 246 Neb. 896, 524 N.W.2d 58 (1994); State v. Ladig, 246 Neb. 542, 519 N.W.2d 561 (1994); State v. Manzer, 246 Neb. 536, 519 N.W.2d 558 (1994); State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994); State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994); State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994). We therefore granted Williams' postconviction relief motion and remanded his case for a new trial.
In addition, we held that Williams was denied effective assistance of counsel when his trial counsel failed to object to the trial court's omission of malice as an essential element of second degree murder in its jury instructions. Williams, supra. Counsel's failure to object to the trial court's omission in an instruction of an essential element of a crime charged falls below an objective standard of reasonableness and renders the results of the trial both unreliable and fundamentally unfair, thereby substantively prejudicing a defendant's rights. Id. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). As a result, Wilson is entitled to a reversal of his murder conviction and a new trial.
Furthermore, because Wilson's use of a firearm conviction was predicated on his conviction of an underlying felony, the use of a firearm conviction also must be reversed. See Williams, supra.
The district court's order which denied Wilson's second petition for postconviction relief is reversed, and the cause is remanded for a new trial.
REVERSED AND REMANDED FOR A NEW TRIAL.
WRIGHT, Justice, dissenting.
I respectfully dissent from the majority opinion for the reasons given in State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994) (Wright, J., dissenting), and State v. Williams, 247 Neb. 931, 531 N.W.2d 222 (1995) (Wright, J., dissenting). Both Williams and the case at bar involved second motions for postconviction relief, and this court has granted relief on grounds of plain error because the jury instructions did not include malice as an essential element of second degree murder.
In Williams, the court held that the defendant was denied effective assistance of counsel because trial counsel failed to object to the trial court's omission of malice as an essential element of second degree murder in its jury instructions and that counsel's failure to object to the trial court's omission of an essential element of the crime charged fell below an objective standard of reasonableness and rendered the result of the trial both unreliable and fundamentally unfair, thereby prejudicing the defendant's rights. In the case at bar, the court notes plain error for the same reasons cited in Williams, reverses the judgment of the district court, and remands the cause for a new trial.
A second motion for postconviction relief will not ordinarily be entertained unless the motion affirmatively shows on its face that the basis for the requested relief was not available at the time the movant filed the prior motion. See, State v. Keithley, 247 Neb. 638, 529 N.W.2d 541 (1995); State v. Lindsay, 246 Neb. 101, 517 N.W.2d 102 (1994); State v. Stewart, 242 Neb. 712, 496 N.W.2d 524 (1993); State v. Luna, 230 Neb. 966, 434 N.W.2d 526 (1989). According to the majority, when counsel failed to object to the trial court's omission of malice as an essential element of second degree murder, counsel's conduct fell below the objective standard of reasonableness and rendered the results of the trial unreliable and fundamentally unfair. For the reasons set forth in my dissent to Williams, I believe that such *928 relief was available to Wilson at the time of the first postconviction proceeding and that there exists no basis to assert that the relief was not available to Wilson at that time. A motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal, no matter how those issues may be phrased or rephrased. State v. Stewart, supra.
In my opinion, there is no basis for Wilson to assert a claim of ineffective assistance of counsel in a second postconviction proceeding. I would affirm the district court's denial of Wilson's request for postconviction relief.
CONNOLLY, J., joins in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2110623/ | 708 S.E.2d 215 (2011)
SOUTHEAST BRUNSWICK SANITARY DIST.
v.
CITY OF SOUTHPORT.
No. COA09-1369.
Court of Appeals of North Carolina.
Filed February 1, 2011.
Certification Date February 21, 2011.
Case Reported Without Published Opinion
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1262391/ | 397 S.E.2d 882 (1990)
Roy V. ZICCA
v.
CITY OF HAMPTON.
Record No. 900298.
Supreme Court of Virginia.
November 9, 1990.
Oldric J. LaBell, Jr., Newport News, for appellant.
A. Paul Burton, City Atty., for appellee.
Present: All the Justices.
HASSELL, Justice.
In this appeal, we consider whether the City of Hampton complied with the decision of a grievance panel which decided that a City employee should be reinstated to his former position.
Roy V. Zicca was employed as a golf course superintendent for the City of Hampton. The duties of a golf course superintendent, as described in the City's job description, are:
Plans and directs the maintenance and operation of a 100 acre golf course. Directs the operation and maintenance of various types of golf course maintenance equipment. Maintains the cemetery and other public property in the immediate area. Supervises a staff of trades [sic] and technical employees.
Zicca was dismissed from the City's employ on October 4, 1988, because he purportedly made inappropriate remarks to his supervisor. Zicca then filed a grievance as provided by the City's ordinance establishing a grievance policy and procedure. Zicca specifically requested that the grievance panel reinstate him to the position of golf course superintendent. The grievance panel conducted a hearing and, on January 30, 1989, rendered the following decision: "Return the grievant [Zicca] to his former position as Golf Course Superintendent with full back-pay less thirty (30) working days *883 which will be shown as a disciplinary suspension in his record."
When Zicca returned to work, he was informed that he was assigned to a temporary position at the City's Aerospace Park. There, he performed clerical duties and research assignments. Zicca continued to receive the same salary he had received as golf course superintendent. Zicca objected to the temporary assignment. He was later transferred to a newly created position of maintenance manager.
Zicca filed a petition in the circuit court pursuant to Code §§ 15.1-7.1 and 2.1-114.5:1 and requested that the court enter an order requiring that the City reinstate him to the position of golf course superintendent. During the trial, Zicca and the City made the following stipulation of fact:
The Court: Were you able to stipulate any further as to other facts in the case? [I]s there any agreement among you as to whether Mr. Zicca was . . . actually returned to his position as golf course superintendent and then transferred . . .?
Mr. LaBell [Counsel for Zicca]: I think we agreed on the physical aspects of it, Your Honor. The legal connotations we differ on, but I think we could stipulate the fact that he [Zicca] never actually went out to the golf course, never acted in the capacity of superintendent, and never set foot in the place and never carried out any of those functions. I think we could stipulate to that.
The Court: Is this satisfactory, Mr. Burton [City Attorney for the City of Hampton]?
Mr. Burton: I will stipulate, Your Honor, that he [Zicca] did not go back physically out to the Hampton Golf Course and perform the duties out there.
At the conclusion of Zicca's presentation of evidence, the court granted the City's motion to strike. The court was of the opinion that the City had technically complied with the decision of the grievance panel. We disagree.
The City's grievance procedure was established pursuant to Code § 15.1-7.1 which states, in part, that:
Notwithstanding any other provision of law to the contrary, the governing body of every . . . city . . . which has more than fifteen employees shall have a grievance procedure for its employees that affords an immediate and fair method for the resolution of disputes which may arise between the public employer and its employees. . . .
Code § 15.1-7.2 requires each governing body to establish procedures which are consistent with the provisions of the state grievance procedure.
The grievance panel's decision is binding on the City. Angle v. Overton, 235 Va. 103, 106, 365 S.E.2d 758, 759-60 (1988). The City stipulated that Zicca never performed the duties of a golf course superintendent when he returned to the City's employ. In an untenable argument, the City contends that Zicca was reinstated for one day as golf course superintendent and then reassigned new duties on the following day. The purported "reinstatement and reassignment," which were reflected in the City's "employee transaction form" signed by the City's Director of Human Resources, were merely subterfuges by which the City sought to circumvent the panel's binding decision by providing for a one-day reinstatement.
We recognize that a City employee, such as Zicca, does not have a vested right to remain in a personnel classification indefinitely. However, this is not what Zicca seeks to do. Rather, he seeks to be reinstated to his former position in accordance with the decision of the grievance panel. Accordingly, we will reverse the judgment of the trial court and remand this case with directions that the trial court enter an order which requires that Zicca be reinstated to the position of golf course superintendent in accordance with the Panel's decision. See Code § 2.1-114.5:1(F).
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599426/ | 788 F.Supp. 800 (1992)
W.L. GORE & ASSOCIATES, INC., Plaintiff,
v.
TOTES INCORPORATED, Defendant.
Civ. A. No. 92-39-JLL.
United States District Court, D. Delaware.
March 19, 1992.
As Amended April 1, 1992.
*801 *802 *803 Robert H. Richards III, Allen M. Terrell, Jr. and Robert W. Whetzel of Richards, Layton & Finger, Wilmington, Del., David H. Pfeffer, Janet Dore, Dickerson M. Downing, Gabriel Kralik of Morgan & Finnegan, New York City, and John S. Campell of W.L. Gore & Associates, Inc., Newark, Del., of counsel, for plaintiff.
Rudolf E. Hutz and Collins J. Seitz, Jr. of Connolly, Bove, Lodge & Hutz, Wilmington, Del., and J. Robert Chambers, Gregory F. Ahrens of Wood, Herron & Evans, Cincinnati, Ohio, of counsel, for defendant.
OPINION
LATCHUM, Senior District Judge.
The plaintiff, W.L. Gore & Associates, Inc. ("Gore"), seeks a preliminary injunction to prevent Totes Incorporated ("`totes'") from making false and misleading descriptions and/or representations of fact in its advertising and from infringing on its trademark.[1] The plaintiff questions whether `totes' is telling the whole truth about its product in its advertisements and its literature.
To obtain relief, the plaintiff must make a showing of four factors: (1) reasonable probability of success on the merits, (2) irreparable injury absent relief, (3) the possibility of harm to the defendant and other interested parties, and (4) the public interest. Opticians Ass'n of America v. Independent Opticians of America, 920 F.2d 187, 191-92 (3d Cir.1990) (citing Bill Blass, Ltd. v. Saz Corp., 751 F.2d 152, 154 (3d Cir.1984)); Sandoz Pharmaceuticals Corp. v. Richardson-Vicks, Inc., 735 F.Supp. 597, 600 (D.Del.1989), aff'd, 902 F.2d 222 (3d Cir.1990) (citing Eli Lilly & Co. v. Premo Pharmaceutical Laboratories, Inc., 630 F.2d 120, 136 (3d Cir.), cert. denied, 449 U.S. 1014, 101 S.Ct. 573, 66 L.Ed.2d 473 (1980)). The defendant argues that the plaintiff cannot make the appropriate showing for a preliminary injunction because its claims are true and, in the alternative, that the plaintiff has not suffered irreparable damage and that the delay in bringing suit undercuts the urgency of this type of relief.
For the reasons set forth below, this Court finds that certain statements contained in the `totes' advertisements are likely to be shown to be false and misleading and that the plaintiff is likely to succeed on the merits under the Lanham Act. Furthermore, this Court finds irreparable harm to the plaintiff and a need to protect the public from confusion and deception. Therefore, in this Court's discretion, the plaintiff's motion for preliminary injunctive relief will be granted with respect to the false and misleading claims discussed infra. An order will be entered in accordance with this opinion.
I. RELEVANT BACKGROUND
Over the last thirty-five years, Gore expanded its operations from the manufacture of wire and cable to the manufacture of products in many different industries. (Docket Item ["D.I."] 1 ¶¶ 6-7.) Among Gore's most successful products is its patented GORE-TEX fabric which is simultaneously waterproof and breathable, although these are generally contradictory properties, and it is windproof as well. (D.I. 1 ¶ 8; 7 Hoover Decl. ¶¶ 2-3; 14 McElwee Decl. ¶ 3, Ex. 8.) A membrane laminated to the fabric itself ensures that these features are uniform over the entire garment *804 and the fabric has become the standard by which the performance of other fabrics are judged. (D.I. 6 at 7; 7 Hoover Decl. ¶¶ 2-3; 10 Ex. 5; McElwee Decl. ¶ 3 Ex. 13; 14 Exs. 9, 10, 11, 12.)[2] The GORE-TEX fabric is sold under the trademarked slogan GUARANTEED TO KEEP YOU DRY. (D.I. 1 ¶¶ 14-15, 17; 6 at McElwee Decl. ¶ 7, Exs. 11, 14.)[3]
Defendant `totes', also a well established company, is a leader in umbrellas and footwear/wearing apparel for inclement weather. (D.I. 27; 36.) The focus of the dispute is the defendant's golf suits, which compete with golf suits manufactured from GORE-TEX fabric, and the advertisements designed to sell the defendant's golf suits. (D.I. 1 ¶ 18; 38 Rastani Decl. ¶ 3.) Both the construction of the defendant's suit and the advertisements have changed over the relevant time period. When `totes' designed the suits in March of 1985, the golf suits consisted of a single layer of TECH-TEX fabric. Although the fabric supplier changed in January of 1988, `totes' made no changes to the single layer construction and the fabric remained substantially the same. A liner was added to the back of the pants in May of 1989 and to the sleeves of two styles[4] of golf suits in September of 1991. (D.I. 7 ¶ 9; 11 Martucci Decl. ¶ 5; 41 at 2; 44 at 25-26; 46 Fritz Decl.)
In the initial 1986 advertising, the TECH-TEX fabric was billed as "the Hi-Tech Break-Through in Super-Breathable/Water Resistant Fabrics," and that it "combine[d] superior air breathability and water-resistance to provide ... the ultimate in comfortable golf rain suit." The advertisements described the `totes' golf suits as "breathable," "quiet," "soft," "water-resistant," and "durable," and stated that "TECH-TEX keeps water out and allows sweat vapor to pass through, quickly ... easily." (D.I. 27 Exs. 2, 3; 37 Exs. 2, 3; 38 Rastani Decl. ¶¶ 4, 5.) `totes' compared the breathability between TECH-TEX and GORE-TEX, stating that "seven times more air passes through TECH-TEX than through GORE-TEX ... every second," concluding that "TECH-TEX fabric is seven times more breathable than GORE-TEX fabric." `totes' continued to make similar claims in the following years. (D.I. 27 Exs. 4, 5; 37 Ex. 4; 38 Rastani Decl. ¶¶ 6, 7.)
In January of 1990[5] the advertisements continued the previous claims but also began stating that: (1) TECH-TEX is "the best way to keep dry, keep cool and keep playing," (2) "rain rolls right off, but air and sweat vapor pass right through," and (3) that the TECH-TEX golf rainsuit was "waterproof." (D.I. 7 Ex. 3; 27 Ex. 5; 37 Exs. 5, 6.) To illustrate its confidence in its product, `totes' guaranteed[6] the performance of its golf suit. (D.I. 37 Ex. 5.) These claims continue to the present time. (D.I. 27 Ex. 6; 37 Ex. 6; 38 Rastani Decl. ¶ 8.) In September of 1991[7], a new advertisement *805 guaranteed that the `totes' rainsuit would keep the golfer dry and promised that the fabric was the "best waterproof fabric you can find." (D.I. 7 Ex. 1; 37 Ex. 11; 27 Ex. 7.) According to the advertisement, TECH-TEX is "guaranteed waterproof yet [it] is extremely breathable, allowing seven times more air and sweat vapor to pass through the rainsuit than suits produced from GORE-TEX fabric." (D.I. 7 Ex. 1.) The advertisement asserted that "the `totes' TECH-TEX rainsuits are ideal for bad weather conditions on the course [because] they are waterproof, windproof, breathable, and quiet." The suit is to keep the golfer "cool, dry and comfortable." (D.I. 7 Ex. 1.)
II. DISCUSSION
The plaintiff contends that the defendant's current advertisements include statements and comparisons that are false and misleading. In essence, Gore does not believe that `totes' can truthfully say that a golf suit made of TECH-TEX fabric is truly and uniformly waterproof, breathable, and windproof. (7 Hoover Decl. ¶¶ 6, 9.) Gore claims that each suit is constructed of (1) a breathable, but not waterproof or windproof, outer shell, and (2) a water and wind resistant, but not breathable, liner used in selected parts of the garment. In other words, Gore alleges that the `totes' golf suits are only partially breathable, waterproof, and windproof but that the advertisements have led consumers to believe and to expect that the entire suit is waterproof, windproof, and breathable.
A. Reasonable Probability Of Success On The Merits
"To prevail on a claim of unfair competition under federal law[8], a plaintiff must first prove by a preponderance of the evidence that the claims it challenges are either false or misleading." Sandoz Pharmaceuticals Corp. v. Richardson-Vicks, Inc., 735 F.Supp. at 600; Toro Co. v. Textron, Inc., 499 F.Supp. 241, 251 (D.Del. 1980). If the party challenging the advertising claim under § 43(a) shows actual deception, that the claim is literally false, the court need not consider the actual effect on the buying public. Upjohn Co. v. Riahom Corp., 641 F.Supp. 1209, 1222 (D.Del.1986). When the advertising claim is false, the court may grant relief on its own findings that the advertisements have a "tendency to deceive". Stiffel Co. v. Westwood Lighting Group, 658 F.Supp. 1103, 1111 (D.N.J.1987). However, "literal falsity" must be considered within the context in which the message was conveyed. Id., 658 F.Supp. 1103, 1110 (D.N.J.1987); Plough, Inc. v. Johnson & Johnson Baby Products, 532 F.Supp. 714, 716-17 (D.Del.1982).
If the claims are not so clearly false[9], the claim may be literally true but *806 misleading, then the court must consider the effect on the buying public. Sandoz Pharmaceuticals v. Richardson-Vicks, Inc. 735 F.Supp. at 600. The party challenging the claims must persuade the Court, either through market research, consumer studies, or other evidence, that the persons receiving the message will be left with a false impression about the product and that the deceptive statement is "material, in that it is likely to influence the purchasing decision." Toro Co. v. Textron, Inc., 499 F.Supp. at 251; Stiffel Co. v. Westwood Lighting Group, 658 F.Supp. at 1111. The Court must determine whether the evidence shows that the advertising claim has a tendency to deceive. Sandoz Pharmaceuticals Corp. v. Richardson-Vicks, Inc., 735 F.Supp. at 600; Toro Co. v. Textron, Inc., 499 F.Supp. at 251 (no requirement that purchasers actually be deceived).
1. Waterproof
`totes' claims that the TECH-TEX fabric is waterproof and, from this claim, promises that the golf rainsuit is waterproof. (D.I. 7 Ex. 1; 27 Ex. 6; 37 Ex. 5.) In connection with this claim, `totes' promises that the fabric/suit will keep the golfer dry and comfortable. (D.I. 7 Ex. 1; 27 Ex. 6; 37 Ex. 5.) In the strongest advertisement, `totes' guarantees that the golfsuit will keep the golfer dry and describes it as the "best waterproof fabric you can find." This Court is convinced that the TECH-TEX fabric is not waterproof[10] and that the claim of "waterproofness" is false on its face.
First, independent tests indicate that the lined portions of the suit are waterproof but that the outside shell alone is not. (D.I. 10 Hepler Decl.; 11 Marucci Decl.; 38 Ex. C.) Also, the fabric had not been substantially changed and, before a liner was added to the backside of the golf suit, `totes' had only claimed that the suit was water resistant. (D.I. 37 Exs. 2, 4.) In the absence of an explanation for the change in terminology by `totes', this Court agrees with the plaintiff that it is likely that `totes' added the liner because the fabric alone was not waterproof. (D.I. 44 at 14.) Because `totes' did not add a liner to the entire suit (D.I. 7 Hoover Decl. ¶ 9; 10 Hepler Decl. ¶ 3; 11 Martucci Decl. ¶ 5; 35 ¶ 25), it is reasonable to conclude that the areas without the liner can still only be claimed to be water resistant.[11] Therefore, the suit is only "waterproof" in selected places. (D.I. 10 Hepler Decl. ¶ 6; 11 Martucci Decl. ¶ 6.)[12]
Instead, the defendant denies that it has made any claim that "every inch" of the suit is uniformly waterproof. (D.I. 35 at ¶ 26.) But advertisements clearly represent that the fabric itself was waterproof and the fabric referred to covers the entire suit. (D.I. 7 Hoover Decl. Ex. 3; 46.) Also in 1990, the catalog reads "Finally, a waterproof golf rainsuit that not only keeps you dry ..." and a hangtag that claims that the "golf suit is waterproof even after washing...." (D.I. 7 Ex. 3; 12 Ex. 15.) Because these advertisements did not use qualifying language or disclaimers and referred *807 to the suit in its entirety, this Court finds that `totes' inferred that every inch of the entire suit was uniformly waterproof and this is the claim that must be analyzed.
`Totes' claims, and Gore admits, that there is not a commonly accepted industry definition of "waterproofness" from which to judge whether its claims are true or false. (D.I. 10 Ex. 5; 35 ¶ 26; 37 Exs. 14, 15; 38 Pacheco Decl.; 44 at 37.) From the lack of an industry standard, `totes' argues that "waterproof" means different things to different people. (D.I. 36.) This Court is convinced that technical industry standards are often irrelevant to consumer expectations and, at the very least, golfing consumers will expect that they will not get wet especially when the waterproofness claim is coupled with terms like "dry" or "guarantee" or "total." (D.I. 7 Ex. 3.) The definitional distinctions between water resistant and waterproof, found in an ordinary English language dictionary[13], are usually known by the general public. The defendant's use of the term "waterproof" as a representation, one with an accepted common sense definition as to quality, when its product does not conform to the generally accepted definition is an unfair and deceptive practice. See G. ROSDEN & P. ROSDEN, THE LAW OF ADVERTISING, § 26.01[87] (1991); In the Matter of Wilmington Chemical Corp., et al., 69 F.T.C. 828 (1966). In the eyes of the general consumer, a waterproof golf suit will protect them from rain and ensure that they will not get wet. The lack of an "industry standard" makes the claim no less false.
Not only is the `totes' product not waterproof, it certainly is not the "best waterproof" suit available or the "best way to keep dry." This Court concludes that `totes' had absolutely no grounds for believing that this claim was true and that existing evidence indicated that it was likely false. While the defendant had evidence that the golf suit was water resistant, (D.I. 38 Pacheco and Uffindell Decls.), the defendant offers no evidence of comparison testing, either before or after the claim was made, and no evidence for the basis of this claim. (D.I. 38 Pacheco Decl. ¶ 8, Uffindell Decl. ¶ 2.) The plaintiff's independent tests[14] show that the TECH-TEX shell provides only one-eighth the protection of GORE-TEX and the TECH-TEX shell coupled with the lining is less waterproof than GORE-TEX in two of the three suits. (D.I. 10 Hepler Decl. ¶ 6; 11 Martucci Decl. ¶ 6.) In fact, by the defendant's own admission, the TECH-TEX fabric falls within the midrange of an industry ranking. (D.I. 36 at 30.) Here, this is not a general claim of superiority or mere puffery, it is a claim juxtaposed with a comparison to GORE-TEX and, therefore, the claim is literally false.
The defendant maintains that the message was conveyed in the context of golfing activities and that its golf suits are waterproof with respect to its intended application as a golf suit. In other words, whether the claim is literally true or false "depends on the environment in which the article is intended to be used." (D.I. 36; 37 Pacheco Decl.; 44 at 30.) As evidence, `totes' points to the fact that the fabric and liner are waterproof under storm conditions and that the golfer's backside is protected when he/she is sitting in a golf cart. (D.I. 36; 37 Pancheco Decl. ¶¶ 4, 8, 9.) However, the game of golf encompasses more than sitting in a golf cart. None of the golf suits have a liner in the front of *808 the pants and a golfer will get wet when he/she kneels.[15] It appears to this Court that kneeling, although it may not happen often, may be part of the golfing experience. It is foreseeable that one could kneel to line up or mark a putt, to replace a divot, or to return to one's feet after accidently slipping on wet grass. The suits with a liner in the sleeves[16] do not "waterproof" the golfer's back and shoulders. This Court concludes that the claim of waterproofness is clearly false, even when limiting the claim within the context of golfing activities.
Finally, `totes' presents testimonials from happy customers and cites statistics that TECH-TEX has a 99.5% satisfaction rate with customers. (D.I. 27 Rastani Decl. ¶ 10; 36 at 23; 38 Bohrer Decl., Parthemer Decl., Rastani Decl., Rastani Supp. Decl.; 39.) `totes' argues that the consuming public is the best judge of its claims. But a false claim is still a false claim, even if customers do not think the false claim is important enough to complain about it. Section 43(a) also recognizes that competitors can be injured by false advertising and it protects competitors from damage caused by such claims. Thorn v. Reliance Van Co., 736 F.2d 929, 931 (3d Cir.1984). The defendant's argument that Gore and `totes' are not competitors is spurious and merits no discussion. (D.I. 36 at 21; 41 at 19-20.)
This Court concludes that the defendant's assertions that the `totes' golf suits are waterproof in their entirety are literally false because the suits are waterproof only in limited areas. The claims are only partially correct and, therefore, they are literally false. See Tambrands, Inc. v. Warner-Lambert Co., 673 F.Supp. 1190, 1193-94 (S.D.N.Y.1987) (pregnancy test promise that one will know that they are pregnant in 10 minutes is literally false when positive results are generally known in 10 minutes but negative results cannot be confirmed until 30 minutes have elapsed). The TECH-TEX suit is not waterproof and it is not the "best waterproof" suit available. To a golfer shopping for a rainsuit so that he/she can continue to play in inclement weather, `totes' has not told the whole truth and, given the use of the golf suits, this Court finds a tendency to deceive. The plaintiff is likely to succeed on the merits on this issue.
2. Breathability/Windproofness[17]
The `totes' advertisements claim that: (1) the TECH-TEX fabric is "breathable," "sweat vapors pass through ... quickly," (2) "the TECH-TEX fabric is seven times more breathable than GORE-TEX fabric," (3) the TECH-TEX suits are "extremely breathable, allowing seven times more air and sweat vapor to pass through the rainsuit than suits produced from GORE-TEX fabric," (4) the TECH-TEX fabric "allows seven times more air to your skin than the next leading fabric," and (5) the TECH-TEX rain suits are windproof. (D.I. 7 Ex. 1; 27 Ex. 6; 37 Exs. 4, 5.)
As to the first claim, this Court finds it to be neither false nor misleading. Both parties agree that "breathability" is a relative term, a word meaning different things to different people, and this Court notes the absence of a commonly accepted definition of quality or a minimum industry standard. (D.I. 14 Ex. 11; 37 Ex. 14, 15 at 11.) Breathability and comfort depend on individual perception and such a subjective claim cannot be literally true or false. Moreover, the defendant has stated that *809 the TECH-TEX fabric alone is breathable, a statement based upon its own testing, and for the last six years Gore has agreed. (D.I. 7 Hoover Decl.; 10 Hepler Decl.; 36 Ex. 2, 4; 38 Uffindell Decl. ¶ 3; 44 at 4.) The mere fact that a liner was added to certain parts of the suit does not preclude `totes' from making claims as to the fabric alone. Here, the wording clearly limits the scope of the claim to the fabric itself. Therefore, the claims addressing the breathability characteristics of the fabric alone are permissible.
Likewise, the comparative claim is not false or misleading. The actual TECH-TEX fabric has not substantially changed since 1986 and counsel for Gore indicated that the earlier `totes' claims had been tested and found to be sufficiently substantiated. (D.I. 44 at 4.) Given the limited areas where the lining affects "breathability," and the likelihood that both sides will have equally persuasive expert testimony, this Court cannot conclude that the plaintiffs have a reasonable probability of success on the merits of this particular claim. General comparative claims, claims that the fabric is "extremely breathable" or possesses "superior breathability" are permissible.
The third claim, however, appears to be false and it has a tendency to deceive for two different reasons. First, `totes' appears to be warranting that the rainsuits themselves are seven times more breathable than suits made of GORE-TEX, rather than claiming that the fabric alone is more breathable. Because the numerical comparison gives the impression that the claim is based upon independent testing, this Court concludes that this is not a claim of general superiority or mere puffing. As discussed supra, the `totes' golf suit consists of more than an outer fabric shell. While any past representation that the suit itself was more breathable may have been accurate, the accuracy of this representation may no longer be accurate given the new dual construction of the suit. The defendant offers no comparative testing to ensure that the previously made claim continues to be accurate with the current dual construction. (D.I. 6 at Hepler Decl. ¶ 3, Martucci Decl. ¶ 2, Ex. 6, Venench Decl. ¶ 2, Ex. 7; 13; Hoover Decl.; 41 at 17; 44 at 11.)
Gore offers test results from an independent testing lab that the outside fabric is less permeable to water vapor than the GORE-TEX two-layer laminate and that the TECH-TEX shell/lining combination is not breathable in any meaningful degree. (D.I. 10 Hepler Decl. ¶ 6; 13 Venech Decl. ¶ 5.) The defendant's own expert opined that the suit designed with both the outer shell and the lining is not breathable, (D.I. 38 Pacheco ¶ 11, Exs. D, E), making the TECH-TEX suit "breathable" only in selected parts, not uniformly over the entire suit. The lining, which precludes breathability, is especially crucial under the arms where breathability is likely to be important. (10 Hepler Decl.; 13 Venech Decl.)
Again, the defendant contends that its TECH-TEX golf suit is breathable, albeit to different degrees in different portions of the suits, and that it never claimed that every inch of the suit is uniformly breathable. (D.I. 35 ¶ 26.) This Court again rejects this argument both for the reasons previously discussed and because the GORE-TEX suit, in its entirety, is the bases for the comparative claims at issue. Given this evidence, this Court finds that continuing to make breathability comparisons when the construction of the suit has materially changed, without new comparison testing, constitutes an unfair practice. This Court finds that the defendant did not have good faith grounds to believe that its claims were true and, to the contrary, the unrebutted subsequent studies indicate that the claims are literally false.
Second, Gore claims, and `totes' does not dispute, the absence of a recognized test to simultaneously examine air and sweat vapor properties and that air and sweat vapor are separate and distinct properties. (D.I. 7 Hoover Decl. ¶ 5, Ex. 2; 10 Hepler; ¶ 3.) Air penetration will be relevant to a windproofness claim while sweat vapor will be relevant to a breathability claim. (D.I. 10 Ex. 5.) While general claims of air penetration, if not contradicted by a claim of windproofness, and breathability *810 can be truthfully asserted, the advertised claim of "seven times more air and sweat vapor" indicates that `totes' ran independent tests before making this claim. Once more, this Court notes the absence of any such evidence. Given the separate and distinct nature of these properties and the absence of tests evaluating the simultaneous transmission of both air and sweat vapor, this claim must be deemed to be scientifically false. As activewear, breathability is likely to be a consideration when selecting a golf suit and this Court finds a tendency to deceive.
The defendant's fourth and fifth claims appear to be contradictory and, therefore, one claim must be false. The defendant states that the TECH-TEX fabric "allows seven times more air to your skin," but if air can pass through the suit, then the suit cannot be windproof. (D.I. 7 Hoover Decl. ¶ 6; 11 Martucci Decl. ¶ 6; 42 Ex. D; 10 Hepler Decl.; 44 at 15-16.) Intuitively, this statement makes sense and it is unrebutted by the defendant. The record does not reflect that these claims were paired together, or that any assertion of windproofness was ever made, before September 1991. (D.I. 41.) Again, the defendant only claims that its TECH-TEX golf suit as a whole is windproof, albeit to different degrees in different portions of the suits, not that every inch is windproof. (D.I. 35 ¶ 26.) The defendant's evidence in support indicates that the fabric itself permits air to permeate the suit, a claim which is accurate when limited to the fabric itself, but that the combined shell and lining do not allow any measurable amount of air to pass through. (D.I. 10 ¶ 6; 38 Pacheco Decl. ¶ 10.)
But the advertisement states that the "`totes' TECH-TEX rainsuits are ideal for bad weather conditions on the course [because] [t]hey are ... windproof." (D.I. 7 Ex. 1.) This Court concludes that the message conveyed is that the entire suit is windproof. Not only is the suit itself not windproof, the liner only covers the backside of the pants and, in two of the styles, the sleeves. (D.I. 7 Hoover Decl.; 35 ¶ 25; 38 Ex.D.) In spite of telling the consumer that the suit is windproof, the reality is that only the golfer's backside and arms are protected from the wind and that this protection is also only provided if the golfer purchases certain styles of the suit. This Court concludes that any assertions that the TECH-TEX fabric simultaneously permits air to enter but keeps the wind out is scientifically false and that the suit is only partially windproof in limited areas. This Court concludes that these claims are literally false and there is a reasonable probability the plaintiff will succeed on the merits with respect to the fifth claim. This falsity has a tendency to deceive a golfer shopping for a suit to protect him/her from the wind.
B. Irreparable Injury To W.L. Gore & Associates
To prove irreparable injury under § 43(a), Gore need only provide "a reasonable basis for the belief that ... [it] is likely to be damaged as a result of the false advertising." Upjohn Co. v. Riahom Corp., 641 F.Supp. at 1224 (quoting Johnson & Johnson v. Carter-Wallace, Inc., 631 F.2d 186, 190 (2d Cir.1980)). Irreparable injury does not require diversion of actual sales and it can include the loss of control of reputation, loss of trade, and loss of goodwill. Id.; Opticians Ass'n of America v. Independent Opticians of America, 920 F.2d at 195 (quoting 2 J. MCCARTHY, TRADEMARKS AND UNFAIR COMPETITION, § 30:18 (2d ed. 1984)).
Gore has shown irreparable harm under § 43(a). Gore contends, and this Court agrees, that it was a pioneer and innovator in the outerwear fabric market. Gore contends, and this Court agrees, that it has spent substantial resources in building its reputation as a leader in the field and a reputation for turning out a quality product. Gore contends, and this Court agrees, that Gore's higher price is directly related to the technological characteristics of the product. Here, the `totes' product is advertised as having the same technological characteristics, at a much lower price, when it is likely that the product does not *811 possess such characteristics and the advertisements go further to claim that the `totes' product is superior to GORE-TEX. (D.I. 7 Exs. 1, 3; 15 McElwee Supp.Decl. ¶ 5; 30 McElwee Supp.Decl. ¶ 5.) There is a reasonable basis to believe that Gore is likely to be damaged. This false advertising disparages Gore's product and tarnishes Gore's reputation. Repeated claims of competitive superiority made to the same market of consumers will eventually lead to lost sales[18] and deprive Gore of a legitimate competitive advantage. While the scope and amount of this damage may be difficult to measure, it is sufficient for the grant of injunctive relief under § 43(a).
`totes' claims that because there is no causal link between the advertisements and the irreparable harm, injunctive relief is inappropriate. However, this Court finds the advertising claims to be literally false and, therefore, it can make its own findings as to whether these claims have a "tendency to deceive." More concrete evidence is only needed if the claim is literally true but misleading. This Court is convinced that false waterproof and windproof claims made to golfers purchasing a golf suit to protect them from the wind and rain have a tendency to deceive. This Court is also convinced that false breathability claims made to purchasers of sportswear have a tendency to deceive. This Court finds that the deception will lead to a loss of control of reputation, a loss of trade, and a loss of goodwill. Moreover, this Court is convinced that a misleading comparison to a specific competing product necessarily diminishes the product value in the minds of the consumer. See McNeil-P.P.C., Inc. v. Bristol-Myers Squibb Co., 755 F.Supp. 1206, 1211 (S.D.N.Y.1990), aff'd, 938 F.2d 1544 (2d Cir.1991); McNeilab, Inc. v. American Home Products Corp., 848 F.2d 34, 38 (2d Cir.1988); Stiffel Co. v. Westwood Lighting Group, 658 F.Supp. at 1115-1116. Therefore, given this Court's findings, there is a reasonable basis for concluding that Gore will be irreparably injured as a result of the defendant's advertisements.
`totes' argues that GORE cannot be irreparably harmed by `totes' when GORE permits other manufacturers to make the same or similar claims. (D.I. 27; 37 Exs. 16-19.) However, the record does not adequately show the truth or falsity of these claims and Gore advertisements try to combat these claims, referring to the competing products as "so-called waterproof." Gore has taken great pains to minimize the effects of its competitors' claims and, thus, these battles are being fought in the marketplace where they belong. (D.I. 4 Ex. 10; 37 Exs. 14, 15.) Additionally, the record does not reflect that any of the other competitors are leaders in the rainwear market or directly compare their products in the manner that `totes' has, undercutting GORE's efforts to address the erroneous claims. (D.I. 37 Ex. 16; 42.) By specifically referring to GORE-TEX, `totes' has taken the battle out of the marketplace and triggered litigation.
As a related argument, `totes' argues that if GORE-TEX truly is the standard by which others in the marketplace are judged, it is unlikely that the public will be misled. (D.I. 36 at 23.) If GORE-TEX is so superior and well marketed, `totes' claims that the customers will know about the superior performance and move up to the more expensive model if dissatisfied with the TECH-TEX suit. (D.I. 36.) This Court notes three problems with this logic. First, this argument requires that the consumer make two purchases instead of one, possibly getting a refund for the `totes' suit but only after being inconvenienced. Second, the "more expensive, superior" model is belittled in the `totes' advertisements, apparently on the bases of scientific testing. This Court fails to understand, and `totes' fails to explain, why consumers would try the GORE-TEX product if they were dissatisfied with TECH-TEX when they are lead to believe that TECH-TEX is a superior, or at least equivalent, product. *812 Third, this Court rejects the defendant's argument that competitors making baseless and misleading claims should be protected by the reputation of their target, a reputation created by the investment of the target's resources in making its products known and respected in the marketplace.
C. Balance Of The Equities
The preliminary injunction to issue will not prohibit `totes' from selling its products or truthfully advertising those products. The order will require that "the product be marketed in a forthright manner in the future." Upjohn Co. v. Riahom Corp., 641 F.Supp. at 1225. This Court will not require the destruction of the advertisements, but will require the recall of the offensive advertisements in the marketplace and the setting aside of such advertisements until there is a final resolution on the merits. Until a decision on the merits, the older, accurate advertisements that are currently still in use may be used. (D.I. 41; 42 Hoover Supp.Decl. ¶ 13; 44 at 23.) Should `totes' ultimately succeed on the merits, they can reintroduce the recalled material. Thus, this Court finds no undue prejudice to `totes' as a result of granting injunctive relief.
`totes' claims that it will be expensive to recall the current advertising. (D.I. 36 at 41; 38 Rastani Supp.Decl. ¶¶ 6-9.) However, the defendant offered no factual support for many of the representations made to the public and it initially requested additional time to obtain experts to support these claims without explaining why the engineers and experts on staff would not suffice. (D.I. 27; 38 Uffindell Decl. ¶ 2.) In fact, a good bit of the data presented to this Court is from `totes' marketing department, rather than its research and development department, and the defendant's counsel conceded at argument that some of the statements in the most current advertisement should not have been made. (D.I. 44 at 31.) This Court concludes that these claims were carelessly or irresponsibly made and that any "prejudice" which accrues can be considered to be self-inflicted. The defendant appears to operate under the belief that falsity is expected in the marketplace and that is just how the advertising industry works. (D.I. 44 at 29.) However, this Court disagrees and, by enacting § 43(a), the Congress disagrees as well. This Court finds that the factual evidence to support the claims should have been in the defendant's control before the representations were made to the public, not after a competitor complains that it has been injured.
`totes' urges a denial of injunctive relief under the doctrine of laches.[19] The defendant contends that the advertising complained of has been used for over six years and that the delay in objecting undercuts the urgency necessary for granting injunctive relief. While this Court agrees an injunction of the general claims of breathability and the general comparative breathability claims would be inequitable, the Court finds that the other claims are newly discovered and that injunctive relief is appropriate. Also, as discussed supra, the only prejudice accrues because of the defendant's behavior, not the delay in bringing the action.
The defendant introduced the dual construction in mid-1989, the "waterproof" claim on a hangtag in January of 1990, and both the windproof claim and the air/sweat vapor breathability claim in late 1991. With respect to the claims made in September 1991, four months is not an inexcusable delay due to the fact that Gore tested the product and tried to negotiate a resolution without litigation. (D.I. 41 at 4; 29 Hoover Supp.Decl.; 10 Hepler Decl.; 11 Martucci Decl.; 13 Venech Decl.) Gore should not be penalized for its investigation into these advertising claims before seeking judicial intervention.
*813 With respect to the other claims, accurate for a single layer suit but false with a dual layer construction, this Court does not find the two and one-half year delay to be inexcusable. As late as April 1991, the older single construction suits and the accurate advertisements were still in the marketplace. (D.I. 42 Ex. B ¶ 9; 44 at 5-6.) The dates used in this opinion indicate when `totes' introduced the design or the advertisement, it does not necessarily mean infiltration of the marketplace. (D.I. 41; 29 Hoover Supp.Decl.; 42.) This Court finds that the defendant's claims slowly inched up over the last two and one-half years without giving the plaintiff's inquiry notice that changes were being made and the defendant does not offer any evidence that Gore had actual notice of the claims.[20] This Court does not find deliberate delay, bad faith, or improper motive on Gore's part nor does it find any lack of diligence in tracking advertising claims by competitors. The delay is not so unreasonable so as to bar a claim for prospective relief.
Finally, `totes' argues that, because of the conduct of GORE and its counsel, they do not come to this Court with clean hands, making the grant of injunctive relief inequitable. (D.I. 27.) This Court finds no impermissible conduct and finds this argument to be completely without merit. The Court finds no impropriety in contacting competitors for promotional brochures that are readily given to the public and are already in the public domain. The Court finds only diligence, not impropriety, in purchasing and testing competing products without the competitor's consent. GORE's counsel sent a letter to `totes' expressing concern as to the accuracy of its claims, indicating that irreparable damage would result in the continued use of such claims, asking for assurances that the perceived false claims would not continue, highlighting the urgency behind the request, and threatening further action if the requested assurances were not forthcoming. (D.I. 27 Exs. 7, 9; 37 Exs. 7, 9.) This Court is not aware, and `totes' offers no authority, of any duty imposed on GORE to specifically state that it will pursue its claims in court or that it is preparing a lawsuit.
GORE's complaint, its argument and its evidence constituted a "well thought out and carefully crafted plan of attack," (D.I. 27), but it is this Court's opinion that all parties should exercise such thought and diligence before approaching the Court. See Fed.R.Civ.P. 11. Perhaps fewer lawsuits would occur if attorneys would follow this practice. The Court finds no deliberate attempt to manipulate the judicial system, designed to generate publicity on the first day of the PGA show for improper commercial benefit. This Court's refusal to grant a temporary restraining order at that time cures any unfairness that might have existed when the motion for injunctive relief was first filed.
D. The Public Interest
The public has a right not to be deceived or confused. Opticians Ass'n of America v. Independent Opticians of America, 920 F.2d at 197 (quoting 2 J. MCCARTHY, TRADEMARKS AND UNFAIR COMPETITION § 30:21 (2d ed. 1984)); Upjohn Co. v. Riahom Corp., 641 F.Supp. at 1225 ("customer confusion is by its very nature against the public interest"). The public has a right to information that will allow them to assess the quality of a product and to accurately price the product in accordance with their priorities and desires. False advertising deprives the consumer of this information and deceives them into thinking that they are buying a less expensive equivalent, a bargain on a quality product. The public *814 also has an interest in commercial competition and the resulting technological innovation and customer service.
First, the public has an interest in protecting business goodwill. Second, there is a public interest in fostering open and fair competition. The former allows consumers to garner a degree of knowledge about products in the market and fosters a sense that they "know what they are getting" when they buy a given product. Indeed, the Seventh Circuit has indicated that the likelihood of confusion by the public as to whether it is receiving the desired product is an important public interest consideration. The latter is obviously a central feature of our economic system.
Tootsie Roll Industries, Inc. v. Sathers, Inc., 666 F.Supp. 655, 661 (D.Del.1987) (citation omitted).
Here, the public is given the unmistakable impression that the entire TECH-TEX garment is waterproof and windproof. The public is being told that the TECH-TEX golf suit is seven times more breathable than Gore's. Given that the suit will be purchased and worn in inclement weather by individuals actively engaged in the sport of golf, these claims definitely have a tendency to deceive. If `totes' is unable to deliver what is promised, the public interest requires that it should not be permitted to advertise that it can.
III. CONCLUSION
The Court concludes that `totes' has exceeded the boundaries of fair play and has violated federal law by making false and misleading claims. Effective upon giving bond, the defendant will be enjoined from making the following advertising claims, or similar claims to the same effect: (1) TECH-TEX is the best waterproof fabric you can find; (2) the TECH-TEX fabric or rainsuit is waterproof, guaranteed waterproof, or total water repellent; (3) TECH-TEX allows seven times more air and sweat vapor to pass through the rainsuit than suits produced from GORE-TEX fabric; (4) TECH-TEX suits are windproof.
Plaintiff will be required to give bond without surety in the amount of $100,000.00 as required by Rule 65, Fed.R.Civ.P.
ORDER
Pursuant to Fed.R.Civ.P. 65, this Court has considered the record and arguments of the parties supporting and opposing a preliminary injunction, and for the reasons stated in the opinion entered in this case this date, it is hereby
ORDERED that:
1. Defendant Totes Incorporated, its officers, directors, principals, agents, servants, affiliates, employees, attorneys, representatives, successors and assigns, and all those in privity or acting in concert or participation with defendant, and each and all of them, are until further order of this Court:
(a) PRELIMINARILY ENJOINED from directly or indirectly:
(i) stating, suggesting, communicating, or attempting to communicate to the trade or public, in any manner, including, but not limited to, through advertisements, through displays and presentations at trade shows, through telephone, television, radio, print or sales promotion, through displays, through labels or tags, through point-of-sale product information and merchandising including counter signs, pamphlets and posters, through brochures or in any form, in exact words or in substance that:
(1) TECH-TEX is the best waterproof fabric one can find;
(2) TECH-TEX fabric is waterproof, or total water repellent;
(3) TECH-TEX fabric allows seven times more air and sweat vapor to pass through the rainsuit than suits produced from GORE-TEX fabric;
(4) Golf suits made of TECH-TEX fabric are windproof;
(ii) manufacturing, producing, distributing, using, circulating, selling, offering for sale, advertising, promoting or displaying signs, point-of-purchase displays, advertisements, brochures, flyers, video tapes, audio tapes, hang tags, labels, and other materials containing or conveying the product *815 claims set forth in paragraph (i)(1)-(4) above or variations thereof;
(iii) making any false or misleading statement, representation or description whatsoever and/or making any false or misleading comparison with, reference to, or representation or description about W.L. Gore & Associates, Inc. ("Gore") or its GORE-TEX products which is likely to deceive or which misrepresents the nature, characteristics, or qualities of Gore's goods or commercial activities or of defendant's goods or commercial activities;
(iv) engaging in any other activity constituting unfair competition with Gore, or causing injury to Gore's reputation or goodwill or the reputation or goodwill associated with Gore's GORE-TEX products; and
(v) assisting, aiding or abetting any other person or business entity in engaging in or performing any of the activities referred to in subparagraphs (i) through (v) above; and further
(b) Defendant is required to cancel or withdraw any and all advertisements, promotions, brochures, tags and other materials which have been placed, circulated, or contracted for and which convey or contain the product claims set forth in paragraphs (a)(i)(1)-(4) above; and further
(c) Defendant is required to remove from all its TECH-TEX or other garments all tags, labels and other materials which convey or contain the product claims set forth in paragraphs (a)(i)(1)-(4) above.
2. In order for this preliminary injunction to become effective, plaintiff Gore shall post a bond in the amount of $100,000.00 without surety as security for the payment of such costs and damages as may be incurred or suffered by defendant who may be found to have been wrongfully enjoined.
ORDER AMENDING ORDER DATED MARCH 19, 1992
The Court having considered (a) defendant's motion for clarification and reconsideration and for an emergency stay of the order pending clarification or reconsideration (Docket Item ["D.I."] 51) and (b) plaintiff's cross-motion to conform order to opinion (D.I. 52), it is hereby
ORDERED that
1. Paragraph 1(a)(i)(2) of the order entered in the above captioned case on March 19, 1992 (D.I. 49) is amended to read as follows:
"(2) TECH-TEX fabric or rainsuit is waterproof, guaranteed waterproof, or total water repellent;"
No other amendment is made.
2. Paragraphs 1(a)(iii) and 1(a)(iv) are not amended or clarified.
3. The motion for a temporary stay is denied.
REASONS:
1. The amendment is necessary to conform the order to the accompanying opinion. Further amendment is unwarranted.
2. Parts (iii) and (iv) of 1(a) on page 2 are limited to the products and issues discussed in the opinion and, therefore, the sections are not vague nor do they impose uncertain behavioral guidelines. Moreover, the record indicates that the improper claims are likely to occur in the future and these sections are necessary to prevent the continuation of these claims.
3. A stay is not necessary to promote judicial economy or the fair administration of justice and the defendant offers no evidence as to prejudice.
NOTES
[1] Gore alleges that `totes' use of the phrase "guaranteed to keep you dry" infringes on its registered trademark, "GUARANTEED TO KEEP YOU DRY". However, the infringement of the mark is not at issue in the current motion for preliminary injunction. (Docket Item ("D.I."] 41 at n. 3.)
[2] Garments made from GORE-TEX fabric include such outerwear as golf suits, running suits, jackets, coats, raincoats, ski-wear, hats, gloves, and boots. (D.I. 1 ¶ 8; 14 McElwee Decl. ¶ 4.) This fabric has been distributed worldwide, discussed in the media, and extensively marketed. (D.I. 1 ¶¶ 9-13; 7 Hoover Decl. ¶ 12; 14 McElwee Decl. ¶¶ 5-6, 10, Ex. 13.)
[3] Gore contends, and `totes' does not dispute, that this trademarked slogan has achieved substantial goodwill and fame. (D.I. 1 ¶ 16.)
[4] `totes' advertises four styles of golf suits: (1) Elite, (2) Clubhouse, (3) Eagle, and (4) Fairway. (D.I. 12 Ex. 15; 27 Ex. 6.) Only the first three styles are at issue here and, of these three, the suits are basically constructed the same. Where differences occur, they will be noted in this opinion.
[5] This is after the `totes' suit adopted the dual construction, a fabric outer shell and a liner. The TECH-TEX jacket consisted of the fabric outer shell and the TECH-TEX pants consisted of the fabric outer shell with a liner in the back.
[6] The "guarantee" introduced in 1990 refers to a one-year warranty, during which time the customer may return the suit due to defective materials or workmanship. (D.I. 7 Ex. 3; 37 Ex. 5.) The written warranty given to the consumer does not give the impression that he/she can return it if not completely satisfied, notwithstanding the representations of the defendant's marketing manager. (D.I. 38 Rastani Supp. Decl.)
[7] This Court finds defendant's claim that it did not design and create this advertisement to be incredible and disingenuous. (D.I. 36 n. 4.) Assuming arguendo that the Professional Golf Association created an advertisement which made representations far exceeding those previously made by `totes', a `totes' representative approved the advertisement before it was published and `totes' is therefore responsible for its content. (D.I. 38 Fritz Decl. ¶ 2; 42.)
[8] Section 43(a) of the Lanham Trademark Act provides that:
Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol or device, or any combination thereof, or any ... false or misleading description of fact, or false or misleading representation of fact, which
....
(2) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities or geographic origin of his or her or another person's goods, services, or commercial activities,
shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
15 U.S.C. § 1125(a) (Supp.1991). The plaintiff also claims that the statements violate Delaware's Uniform Deceptive Trade Practices Act, Delaware's Trademark Act, and that the statements constitute unfair competition and trademark infringement under common law. Because Gore is entitled to a preliminary injunction under the Lanham Act, this Court need not consider the state and common law claims.
[9] Section 43(a) requires that the merchant tell the whole truth. The law embraces "innuendo, indirect intimations, and ambiguous suggestions evidenced by the consuming public's misapprehension of the hard facts underlying an advertisement." Upjohn Co. v. Riahom Corp., 641 F.Supp. at 1224 (quoting Vidal Sassoon, Inc. v. Bristol-Myers Co., 661 F.2d 272, 277 (2d Cir. 1981)); U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia, 898 F.2d 914, 921 (3d Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 58, 112 L.Ed.2d 33 (1990) ("partially incorrect or untrue statements resulting from a failure to disclose a material fact" are actionable under § 43(a)); Stiffel Co. v. Westwood, 658 F.Supp. at 1115 ("misdescription of specific or absolute characteristics of a product are actionable"); Johnson & Johnson v. Quality Pure Mfg., Inc., 484 F.Supp. 975, 983 (D.N.J.1979) (absence of credible substantiation for advertising claim forms basis for an injunction).
[10] The defendant offers a statement from the manager of its research and development department and from an independent expert stating that the suit is waterproof based upon a "rain test," which measures the resistance to penetration of water by impact. (D.I. 38 Pacheco Ex. A, Uffindell ¶ 2.) However, `totes' submitted no data from its in-house testing and as noted by its counsel, "tests can be performed in a manner to show almost anything." (D.I. 27 at 11.) The defendant's expert report also indicated that the test was a "resistance test" and that the outer fabric was not "waterproof" even under this test. (D.I. 38 Ex. C; 42 Ex. A.)
[11] A water resistant suit will likely permit rain to roll off, making this claim permissible.
[12] Gore contends and `totes' admits that only some of the seams of the TECH-TEX suit are covered with seam sealing tape. (D.I. 1 ¶ 27; 7 ¶ 9; 35 ¶ 27; 42 Exs. A, D.) The extent to which sealing tape is necessary to waterproofing is unnecessary to this Court's decision so the issue is not decided.
[13] "Waterproof" means impervious to water, not permitting penetration or passage, and is clearly a stronger claim than "water repellent" which means resistant but not impervious to penetration by water or "water resistant" which means resistant to but not wholly proof against the action or entry of water. (D.I. 42 Ex. 25.) A glossary in a fabric handbook defines "waterproof" as "[t]he ability of a fabric to withstand penetration by water." (D.I. 10 Ex. 5; 42 Ex. 24.)
[14] The experts disagree as to the correct test for measuring waterproofness. (D.I. 11 Martucci Decl.; 36; 38; 37 Pacheco Decl.; 41; 42 Ex. A.) The plaintiffs expert used a "hydrostatic test," which considers the application of pressure, rather than the "rain test" conducted by the defendant. Resolution of this battle of the experts is unnecessary to this Court's opinion, as discussed infra, and therefore no finding is made.
[15] The plaintiff demonstrated this fact at the February 19, 1992 hearing. (D.I. 44.) A product specialist from the Golfwear Division at Gore, wearing a pair of TECH-TEX pants over his regular pants, knelt on a dampened napkin for a couple seconds. He then removed the TECH-TEX pants and found a waterspot on the knee of his regular pants. (D.I. 44 at 13-14.) Counsel for `totes' did not challenge or object to this demonstration.
[16] While the Clubhouse and Eagle styles have a liner in the sleeves, the Elite style does not. (D.I. 17.)
[17] "Breathability" is the ability of a fabric to allow moisture vapor (sweat vapor) to pass through its fibers and "Air permeability" is the ability of a fabric to allow air to pass through its fibers (windproofness). (D.I. 7 Hoover Decl.; 10 ¶ 3, Ex. 5; 42 Ex. 24.) Breathability and windproofness are contrary properties. (D.I. 7 Hoover Decl.)
[18] Not only may the cheaper price encourage the consumer to purchase the `totes' product, thinking it is the equivalent of GORE-TEX, but consumers dissatisfied with `totes' may not bother to purchase Gore on assumption that it too does not work.
[19] A laches defense consists of two essential elements: (1) inexcusable delay in instituting suit, and (2) prejudice resulting to the defendant from such delay. University of Pittsburgh v. Champion Products, Inc., 686 F.2d 1040, 1044 (3d Cir.), cert. denied, 459 U.S. 1087, 103 S.Ct. 571, 74 L.Ed.2d 933 (1982). An inexcusable delay that is not so unreasonable so as to constitute abandonment, may bar a claim for an accounting for past infringement but it will not necessarily bar a claim for prospective relief. Id. at 1044-45.
[20] The defendant does contend that the advertisements were available at the annual trade shows in 1990 and 1991 and that both parties attended these trade shows. However, the record reflects an animosity between the competitors and `totes' refusal to amicably exchange promotional brochures. (D.I. 42 Ex. B ¶ 11.) It also appears that the dual construction was not readily apparent and that catching the inaccuracies due to the change in construction required great scrutiny. In absence of precedent to the contrary, this Court refuses to find that Gore's diligence was not sufficient. (D.I. 41 at 2; 42 Hoover Supp.Decl.; 44 at 4.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596018/ | 399 So.2d 902 (1981)
Dale Lee ROBINSON
v.
STATE.
1 Div. 219.
Court of Criminal Appeals of Alabama.
May 26, 1981.
*903 Floyd C. Enfinger, of Lacey & Enfinger, Fairhope, for appellant.
Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for appellee.
BOWEN, Judge.
The defendant was indicted for burglary in the first degree and convicted of burglary in the second degree. Sentence was ten years' imprisonment.
I
The only semblance of a predicate laid by the State for introducing the in-custody statement of the defendant was on direct examination of Lieutenant Ellie McDowell, Jr. of the Bay Minette Police Department.
"Q. Did you warn Mr. Robinson of his rights?
"A. Yes, sir."
* * * * * *
"Q. Did he indicate that he understood his constitutional rights?
"A. Yes, sir."
Defense counsel objected on the basis that "the proper predicate has not been laid." The trial judge made the following ruling.
"THE COURT: Would you (speaking to defense counsel) like tounless you want to explain some area that the witness has not touched on specifically I am going to take his declaration that he gave the defendant his warnings or his constitutional rights as provided in the constitution.
"MR. ENFINGER (Defense Counsel): We are going to except."
Because an in-custody statement by an accused is prima facie involuntary and inadmissible, the predicate laid for the admission of the statement is entirely inadequate. The assumption of the trial judge was unauthorized and has been rejected by the courts of this State. Thomas v. State, 370 So.2d 1066, 1069 (Ala.Cr.App.), cert. quashed, 370 So.2d 1070 (Ala.1979); Swicegood v. State, 50 Ala.App. 105, 277 So.2d 380 (1973). The State must show the precise and specific warnings given the accused so that the trial judge may make a determination of the compliance or noncompliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Thomas, supra; Kelley v. State, 366 So.2d 1145, 1149, n. 3 (Ala.Cr.App.1979). The duty rests in the first instance on the trial court to determine whether or not a confession is voluntary. Lokos v. State, 278 Ala. 586, 179 So.2d 714 (1965); Kendrick v. State, 356 So.2d 1222 (Ala.Cr.App.1977); Reynolds v. State, 346 So.2d 979 (Ala.Cr.App.), cert. denied, 346 So.2d 986 (Ala.1977).
Although it is generally recognized that a specific objection to evidence offered is a condition precedent to appellate review, a general objection is sufficient to predicate error on appeal if the evidentiary matter to which it is addressed is patently inadmissible. Satterwhite v. State, 364 So.2d 359 (Ala.1978). Here the objection was specific enough to inform the trial court that a proper predicate for the admission of the confession had not been established. Everett v. State, 25 Ala.App. 432, 148 So. 171 (1933).
This Court has a statutory duty to consider "all questions apparent on the record" whether or not argued in brief. Sanders v. State, 278 Ala. 453, 179 So.2d 35 (1965); Norris v. State, 236 Ala. 281, 182 So. 69 (1938); Alabama Code 1975, Section 12-22-240.
II
The defendant contends that the trial court erred in charging the jury on the elements of burglary in the second degree when the undisputed evidence showed that *904 he was guilty of the crime of burglary in the first degree or nothing at all. Because of our decision in part I of this opinion we need not decide this issue. However, we would refer to Richardson v. State, 390 So.2d 4 (Ala.1980), wherein the Supreme Court of Alabama held that a defendant indicted and convicted for the crime of attempt to commit larceny is not entitled to a reversal of his conviction based on the fact that the evidence at trial shows that his attempt was completed or amounted to a perpetration of larceny.
The judgment of the Circuit Court is reversed and the cause remanded.
REVERSED AND REMANDED.
All Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596021/ | 399 So.2d 9 (1981)
CITIZENS OF the STATE of Florida, Appellants,
v.
FLORIDA PUBLIC SERVICE COMMISSION, et al., Appellees.
No. XX-7.
District Court of Appeal of Florida, First District.
May 12, 1981.
Rehearing Denied June 24, 1981.
*10 Jack Shreve, Public Counsel, and J. Roger Howe, Asst. Public Counsel, Tallahassee, for appellants.
Arthur C. Canaday, Jr., Susan F. Clark, Virginia Daire Reber, and Raymond E. Vesterby, Tallahassee, for appellee, Public Service Commission.
James L. Ade and William A. Van Nortwick, Jr., Jacksonville, for appellee, General Waterworks Corp.
LILES, WOODIE A. (Retired), Associate Judge.
Pursuant to Article V, Section 3(b)(2), Florida Constitution (1980), the Public Counsel is before this Court urging that we disallow a rate base which includes "add back" of accumulated depreciation attributable to contributions-in-aid-of-construction (CIAC).
The Public Service Commission (PSC) granted General Waterworks Corporation d/b/a General Waterworks Central Florida District (General Waterworks) a rate increase and in doing so allowed the accumulated depreciation on CIAC to be added back, and Public Counsel maintains that this is that type of "double-dipping" prohibited by the Supreme Court in Citizens of the State of Florida v. Hawkins (Holiday Lakes), 364 So.2d 723 (Fla. 1978).
There, the Court said:
The process of setting public utility rates involves at least two essential elements: the utility's rate base and the rate of return. Rate base represents the utility property which provides the services for which rates are charged. The rate of return is a percentage figure which is applied to the rate base in order to establish a reasonable return for the utility's investors. When these two figures are multiplied the net operating income of the utility results. Operating expense and income taxes are then added to the net operating income to calculate gross revenue. The actual rates charged the customers are determined in such a way as to allow the utility to collect this gross revenue. Id., at 724.
Here, as in Holiday Lakes, a significant portion of the utility's assets, or property, is attributable to CIAC, which is plant for which the utility's investors have not paid. In calculating General Waterworks' rate base, the PSC has allowed the utility to add back into its computation a figure which represents accumulated depreciation on CIAC. Stating its computation of rate base as a formula, PSC's method defines rate base as follows:
RB = (X + Y) - [(A + B) + X] + A[1]
First, and most importantly, Holiday Lakes is factually distinguishable because there the PSC, in addition to allowing the add-back into the rate base, also allowed the utility to treat that depreciation on CIAC as an operating expense. In this case, however, the PSC did not allow depreciation on CIAC as an operating expense. This difference in treatment is important. The practice of allowing CIAC depreciation as an operating expense instead of allowing the add-back in the rate base would lead to a greater revenue requirement for the utility and, consequently, higher rates for the utility's customers because a utility receives a dollar-for-dollar return on operating expenses, but only a percentage on its rate base. Further, while the practice of allowing depreciation on CIAC as an operating expense was not at issue in Holiday Lakes, the end result of that case disallowed the add-back in the rate base so as to prevent the utility from double-dipping. Accordingly, we think that the PSC's present practice of disallowing depreciation on CIAC as an operating expense constitutes an offsetting factor "which would neutralize this practice (adding back accumulated depreciation on CIAC in the rate base) and the harmful effects that ensue from allowing utilities to earn a return on contributed capital." Id., at 727.
The Supreme Court also specifically noted in Holiday Lakes that its decision in no *11 way conflicted with its prior ruling in Westwood Lake, Inc. v. Dade County, 264 So.2d 7 (Fla. 1972), and quoted approvingly from that case:
[T]o disregard arbitrarily that part of a utility's equipment because it was "contributed" and to allow no recognition of its replacement ignores reality; it would only mean a raise in rates later on when it became necessary to replace it. A depreciation loss factor may be proper if necessary to prevent a resulting unfair rate, because its purpose is to save against loss and this must be anticipated. Id., at 11.
Holiday Lakes, 364 So.2d at 726. Stated differently, depreciation is not merely a measure of the recovery of investment; rather, it also reflects deterioration of equipment which, inevitably, will have to be replaced. Here, by utilizing the PSC's formula for rate base the utility can make provisions today for the replacement of property as it is retired from service. The formula allows the utility to receive a fair return on its investment and in no way penalizes the rate payers who are paying for the cost of using up the equipment which provides them service.
Finally to the Public Counsel's contentions, PSC's allowance of the add-back does not reintroduce CIAC into the rate base. Rather, it completely eliminates its influence! If CIAC and accumulated depreciation on it are completely excised from the rate base formula described above, one ends up with the following formula for rate base:
RB = Y-B.
As noted earlier, the PSC's formula for computing rate base is:
RB = (X + Y) - [(A + B) + X] + A.
As can be readily seen, these two formulas are equal:
Y - B = (X + Y) - [(A + B) + X] + A.
Y - B = (X + Y) - [(a + B) + x] + a.
Y-B = Y-B.
CIAC has thus been completely eliminated from the rate base. Hence, the actual accounting procedures used need not be scrutinized under the "end result" doctrine first enunciated in Jacksonville Gas Corporation v. Florida Railroad & Public Utilities Commission, 50 So.2d 887 (Fla. 1951). See also, Westwood, supra; General Telephone Company of Florida v. Carter, 115 So.2d 554 (Fla. 1959); Federal Power Commission v. Hope Natural Gas Company, 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333 (1944).
We have considered the other points on appeal and cross-appeal and find them to be without merit. Accordingly, PSC's order is
AFFIRMED.
SHIVERS and WENTWORTH, JJ., concur.
NOTES
[1] X represents CIAC; Y represents invested capital in utility; (X + Y) represents the total assets of the utility; A represents accumulated depreciation on CIAC; B represents accumulated depreciation on invested capital; (A + B) represents accumulated depreciation on total assets. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595939/ | 399 So.2d 356 (1981)
David Livingston FUNCHESS, Appellant,
v.
STATE of Florida, Appellee.
No. 47828.
Supreme Court of Florida.
April 2, 1981.
Rehearing Denied June 30, 1981.
Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., and Carolyn M. Snurkowski and Charles W. Musgrove, Asst. Attys. Gen., Tallahassee, for appellee.
PER CURIAM.
David Livingston Funchess was tried and convicted of two counts of murder in the first degree and was sentenced to death in trial court proceedings affirmed by this Court.[1] Following a subsequent United States Supreme Court decision in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), we vacated Funchess' death sentences and remanded his case to the trial court for resentencing without an advisory jury proceeding.[2]
On remand, an evidentiary hearing was conducted by the trial court at which Funchess presented evidence in mitigation of his sentences. Nonetheless, the trial court in due course entered an order again sentencing Funchess to death, following which Funchess brought this case to us for review.
Funchess makes a number of legal attacks on the propriety of instructions given to the jury at the sentencing proceeding of his first trial, arguing that the order remanding for so-called "Gardner relief" should have included a mandate for reconvening an advisory jury. We reject all of these contentions. The purpose for our remand was to comply with the dictates of the United States Supreme Court in Gardner v. Florida; it was not to provide an entirely new sentencing proceeding at which a new advisory jury could be reconvened. Songer v. State, 365 So.2d 696 (Fla. 1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979). Complying with our mandate, the trial court properly rejected all legal points raised by Funchess' counsel.
The only proper question now presented is whether there is substantial competent evidence to support the express findings of the trial judge that sentences of *357 death are appropriate for Funchess. We are satisfied from our review of the evidence presented at the resentencing procedure, and from the record of the original sentencing proceeding: first, that the trial judge properly performed his weighing function with respect to the one new mitigating circumstance developed at the resentencing proceeding and the aggravating factors which had been established at the original proceeding (all but one of which were unchallenged on remand); and second, that there was substantial and competent evidence to support the findings of the trial judge with respect to the aggravating and mitigating circumstances articulated in his resentencing order.
The dictates of Gardner v. Florida have been faithfully met by the trial court in this case, and sentences of death were properly imposed. We affirm the trial court's new death sentences.
It is so ordered.
SUNDBERG, C.J., and ADKINS, BOYD, OVERTON, ENGLAND and ALDERMAN, JJ., concur.
McDONALD, J., dissents.
NOTES
[1] Funchess v. State, 341 So.2d 762 (Fla. 1976), cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158 (1977).
[2] Funchess v. State, 367 So.2d 1007 (Fla. 1979). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595981/ | 399 So.2d 551 (1981)
STATE of Louisiana
v.
Thomas Rhuel SPELL.
No. 67058.
Supreme Court of Louisiana.
May 18, 1981.
Rehearing Denied July 2, 1981.[*]
*552 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan *553 Stansbury, Dist. Atty., Jack Derrick Miller, Asst. Dist. Atty., for plaintiff-appellee.
Nolan Edwards, of Edwards, Stefanski & Barousse, Larry Dupuis, Crowley, for defendant-appellant.
JASPER E. JONES, Justice Ad Hoc.[**]
Thomas Rhuel Spell was charged by grand jury indictment with the crime of second degree murder of Ricky Mire in violation of LSA-R.S.14:30.1. On December 20, 1979 defendant was convicted before a jury of twelve by a vote of eleven to one.[1] The defendant was sentenced to life imprisonment without eligibility for parole, probation, or suspension of sentence for forty years.
Defendant appealed his conviction. While the case was pending on appeal, defendant filed a motion for new trial based upon a contention that he had discovered new evidence which, if it had been introduced at trial, would probably have changed the verdict of guilty. The defendant's new trial motion contended that the new evidence could not have been discovered by him before or during the trial. This court remanded the case to the trial court for a hearing on defendant's motion for a new trial. See State v. Spell, 388 So.2d 754 (La.1980).
Following a hearing on the new trial motion the trial court denied the new trial. The case is now before this court on the merits of the appeal which were not considered before the remand and on an assignment of error designated as No. 5 directed at the trial court's refusal to grant a new trial.
The evidence at trial reflected the following facts:
On November 12, 1975, at about 4:00 p. m., Anthony Broussard was driving his car in the south part of Crowley, La. in the Parish of Acadia when he was stopped by defendant. Defendant asked Broussard to take him for a ride, and Broussard agreed to the request. Shortly after Broussard and defendant commenced their ride they observed Ricky Mire walking down the street. Defendant had Broussard stop and defendant went and talked to Mire. Mire returned to Broussard's car with defendant and got into the car with Broussard and defendant.
At defendant's direction Broussard drove to an isolated area in Crowley near a dried-up drainage canal and stopped. Mire and defendant got out of the car, and while Mire was standing near the front of the vehicle, defendant secured the car keys from Broussard, opened the trunk of the car and removed from it a tire tool. Mire and defendant then walked out of sight in the direction of the drainage ditch. Defendant carried the tire tool with him as he left the vehicle. Soon after defendant and Mire disappeared from view Broussard got out of the car and went in search of them and found them a short distance away, apparently over the drainage ditch levee. Broussard observed defendant push Mire who was in front of him. Broussard then returned to his car. After the elapse of about ten minutes defendant returned to Broussard's vehicle without Mire and advised Broussard not to ask any questions and to return him to his car which he had left at the point where he had entered Broussard's vehicle.
Broussard did not see the tire tool in defendant's hands when he returned to the car, but he heard defendant drop it upon the floor. When the pair arrived back at defendant's car, defendant got out of Broussard's car and the tire tool was not left in Broussard's vehicle. Broussard did not see defendant take the tire tool out of his car. (These facts were obtained from the trial testimony of Anthony Broussard).
*554 At about 5:00 p. m. that afternoon, three horseback riders found Mire in the drainage ditch apparently unconscious with his head and face covered with blood. There was a lot of blood on the ground near Mire. They notified the sheriff's office who obtained an ambulance and carried Mire to a Crowley hospital where his head was bandaged in the emergency room. The parish coroner arrived at 6:30 p. m. and observed that Mire was in a critical condition and ordered his immediate transfer to a Lafayette hospital where Mire died at 9:35 p. m. that night.
Mire's body was returned to Crowley and examined by the parish coroner who testified he died from several head injuries that appeared to have been caused by a blunt instrument with a sharp end.
Defendant relies on five assignments of error for the reversal of his conviction and sentence.
ASSIGNMENT OF ERROR # 1
At trial a series of four black and white pictures designated as S-3 which were taken of Mire shortly after he was brought from the drainage ditch to the emergency room of the Crowley hospital, were admitted into evidence over defendant's objections. These pictures showed Mire's bandaged head with his head, face, neck, and upper chest covered with dried blood.
Two black and white pictures were admitted into evidence designated as S-4 which were taken of Mire's head after his body was returned from Lafayette to Crowley. These pictures of decedent's shaved head showed the several cuts across decedent's skull which the coroner testified showed multiple open skull fractures caused by multiple blows to the face and head. He expressed the opinion that the numerous injuries were inflicted with a blunt instrument, perhaps with a sharp, narrow end. He testified Mire died from massive brain damage caused by multiple skull fractures. He made this determination from the examination of Mire's body and stated that the pictures reflected the extent of the injuries upon which he made his determination of the cause of death.
Defendant made no objection to the introduction into evidence of S-4 but objected to the pictures designated as S-3 on the grounds they had no probative value and served only to inflame the jury. He contends that S-4 adequately shows the nature and extent of the wounds.
The test of admissibility of allegedly gruesome pictures is whether their probative value outweighs the possible prejudice that may result from their display to to the jury. State v. Myles, 389 So.2d 12 (La.1979); State v. Scott, 337 So.2d 1087 (La.1976); State v. Gilmore, 332 So.2d 789 (La.1976). Photographs of the deceased victim have generally been held relevant to prove the corpus delicti, to corroborate other evidence of the manner in which the death occurred, to establish the location, number and severity of wounds, and to establish the victim's identity. State v. Myles; State v. Scott, supra; State v. Williams, 343 So.2d 1026 (La.1977).
The photographs here objected to have probative value in that they show the bloody head and face of the victim in a substantially similar condition as was the condition of the victim at the time he was found in the drainage ditch. The pictures were taken shortly after the victim was brought from the drainage ditch. The pictures corroborate the testimony of the witness who found the victim in the drainage ditch and testified that large amounts of blood were on the victim's face and head and upon the ground near him. The pictures show the dried blood on the victim and corroborate the coroner's testimony that because of the dried blood he believed the victim had sustained his fatal injuries some two hours before his examination at approximately 6:30 p. m. These pictures taken before Mire's death supplement the pictures taken after his death and corroborate the testimony of the coroner as to the manner in which the death occurred and the location and severity of the wounds.
An examination of these black and white pictures showing substantial amounts of blood about the face and head of the victim *555 is unpleasant, but the pictures are not unusually gruesome and we conclude that their probative value outweighs any prejudice to the defendant that may have resulted from their display to the jury.
This assignment of error is without merit.
ASSIGNMENT OF ERROR # 2
The state called the 16 year old victim's half-sister as a witness. She testified, over defendant's objection, that about two weeks before the murder the victim told her he was in love with defendant who was his homosexual lover.
Defendant objected to this testimony on the grounds that it was an inculpatory statement requiring notice to defendant of an intention to use at trial. LSA-C.Cr.P. art. 768 provides:
If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state's opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.
It is clear that this provision applies only to inculpatory statements made by defendant and the objectionable testimony related to statements made by the victim, and for this reason this contention is without merit.
Defendant in brief argues that the statement was evidence of other crimes committed by defendant and for this reason he was entitled to the Prieur State v. Prieur, 277 So.2d 126 (La.1973) notice. Defendant failed to base his objection on this ground at the time he made the objection at trial and cannot assert it for the first time in brief on appeal. State v. Risen, 357 So.2d 531 (La.1978).
Defendant objected to the testimony as hearsay and contends it is inadmissible because it was not covered by any of the exceptions to the rule that hearsay evidence is inadmissible.
Hearsay is an out-of-court assertion introduced to prove the truth of its content. State v. Weedon, 342 So.2d 642 (La.1977). Hearsay is generally inadmissible because of its historic unreliability and because of the unfairness to defendant who cannot test the truth of the statement by cross examination. State v. Thompson, 331 So.2d 848 (La.1976); State v. Sheppard, 371 So.2d 1135 (La.1979); State v. Weedon, supra.
Out-of-court statements of the decedent made within a few hours of the crime which were relevant to the circumstances immediately preceding the murder have been held admissible by this court. State v. Raymond, 258 La. 1, 245 So.2d 335 (1971); State v. Sheppard, supra. See also State v. Albert, 381 So.2d 424 (La.1980). In Raymond as the victim observed the approach of defendant, he stated he was hiding behind a tree because defendant would want him to have abnormal sexual relations. This occurred several hours before the homicide. One issue in the case was whether the victim and defendant were together on the night of the murder which occurred several hours after the victim made the out-of-court statement. The court held the out-of-court declaration tended to establish the likelihood of a later contact between the victim and defendant and was evidence of the victim's state of mind or emotional attitude toward defendant.
The state here contends the hearsay is admissible to show Mire's state of mind and attitude towards defendant. The state argues the hearsay explains why Mire got into the car with defendant and Broussard and why a few minutes later he got out of the car with defendant alone and went voluntarily to the site where he received his fatal injuries.
The hearsay found admissible in Raymond and Sheppard and alluded to as admissible in Albert, supra, were all declarations made by decedents within a few hours before their death.
In State v. Weedon, supra, we quoted with approval a concurring opinion in Raymond which explained the state of mind exception as follows:
"... conduct or declarations of the decedent shortly before his killing may sometimes be admissible as tending to show *556 the immediately antecedent circumstances explanatory of the killing and connecting the accused with it." Id. at 646.
In Weedon this court without discussion found inadmissible hearsay statements of the victim that she intended to leave the defendant-husband which were made three and five weeks before the wife's death, stating that these declarations "plainly do not fall within the Raymond rule."
The Raymond exception is inapplicable here and the hearsay testimony was inadmissible as it only related to the state of mind of the victim two weeks before his death and was not a declaration of the deceased made shortly before his death.
The hearsay testimony to the effect that defendant committed unsavory and illegal acts with the victim inferred defendant was a bad character and was prejudicial to him before the jury.
The state's witness Jenkins was called before the victim's sister's inadmissible hearsay was admitted. Jenkins testified that on October 5, 1979, while discussing the murder with defendant in the prison yard at Dixon Correctional Institute at Jackson, La., that the defendant told him of his homosexual relationship with the victim. Defendant told Jenkins that he killed Mire in order to prevent Mire from disclosing their relationship to defendant's wife. It is therefore evident that all of the information which the state placed before the jury with the inadmissible hearsay testimony of Mire's sister was already before the jury.
Inadmissible hearsay which is merely cumulative or corroborative of other testimony adduced at trial is considered harmless. State v. Sterling, 377 So.2d 58 (La. 1979); State v. McIntyre, 381 So.2d 408 (La.1980).
The admission of the objectionable hearsay is harmless error and this assignment of error is without merit.
ASSIGNMENT OF ERROR # 3
Defendant contends that the trial judge erred in admitting over his objection the testimony of Ronald Jenkins that defendant had told him he had killed the victim. Defendant contends that these inculpatory statements were made to Jenkins in confidence and were therefore inadmissible. Jenkins, an inmate of the prison, was assigned to the law library to help other prisoners with their legal problems by writing letters, preparing pleadings, and otherwise giving them whatever advice he could. Defendant contends that the information was a privileged communication because Jenkins was acting as an attorney in the law library at the Dixon Correctional Institute when the inculpatory statements were made to him by defendant.[2] Defendant cites no authority for his contention.
Jenkins was not an attorney and did not hold himself out as a lawyer. Defendant knew that Jenkins was a fellow inmate in the prison and was not an attorney. He voluntarily gave the information to Jenkins. The communication is not subject to the attorney-client privilege. In the case of State v. Lassai, 366 So.2d 1389 (La.1978), the court rejected the contention that a communication given by the defendant to a counselor at a drug abuse center was privileged under LSA-R.S. 37:2714 where communications to certified social workers are classified as privileged communication. The court there said:
"Nor does the record disclose a privilege which would prevent the evidentiary use of an admission by defendant to the director of counseling at the Euterpe Center; it was not shown that she was a social worker, and for that reason R.S. 37:2714 is not applicable. Privileges are narrowly construed, and will not be extended to the counselor solely because she was `in the same position' as a physician *557 (making R.S. 15:476 applicable) or social worker." Id. at 1390-1391.
Defendant's inculpatory statements to Jenkins were not subject to any privilege.
This assignment of error is without merit.
ASSIGNMENT OF ERROR # 4
During trial defendant's request for an earlier written statement taken from state's witness, Anthony Broussard, which was in possession of the prosecutor, was denied. Defendant contends that the statement contained statements inconsistent with Broussard's trial testimony and he desired to use the written statement for cross examination, and that the trial judge committed reversible error when she denied him the request for the statement.
Louisiana Code of Criminal Procedure Art. 844[3] requires a party to designate those errors which are to be urged on appeal. The scope of review is limited to those errors designated in the assignments of error and those discoverable by a mere inspection of the pleading. LSA-C.Cr.P. art. 920[4].
Defendant did not include the assignment of error here urged in the assignments of error submitted to the trial judge, and for that reason this assignment of error argued in brief is not before the court for review. State v. Spears, 350 So.2d 603 (La.1977); State v. Marrero, 363 So.2d 494 (La.1978).
ASSIGNMENT OF ERROR # 5
This assignment of error is directed at the trial judge's denial of defendant's motion for new trial on the ground of newly discovered evidence.
During the trial the state called Ronald Jenkins, an inmate of Dixon Correctional Institute at Jackson, Louisiana, as a witness. Jenkins testified that one of his duties at this prison was to work at the law library and assist other prisoners with their legal problems. His work included the preparation of letters and pleadings designed to secure modification of their prison terms from authorities in the criminal justice system. Jenkins was no lawyer and had no paralegal training. He indicated he had acquired some knowledge of the law and judicial procedure by association with his wife who was a court reporter.
Jenkins testified that on October 1, 1979, Thomas Spell who was also an inmate at DCI, came into the law library and sought advice concerning the pending charge against him of the murder of Ricky Mire. Jenkins testified during their discussion of the case that defendant admitted he had killed Mire. Jenkins further testified that on October 5, 1979, while he and defendant were engaged in a conversation on the prison yard, defendant again stated that he killed Ricky Mire. Defendant stated he killed Mire to prevent Mire from disclosing to defendant's wife that there was a homosexual connection between Mire and defendant.
After the trial Jenkins gave a deposition to defendant's attorney wherein he stated that the testimony he had given at trial that defendant had told him he had killed Mire was false and untrue. In the deposition Jenkins intimated he gave this false testimony in return for a promise from the district attorney, who was prosecuting defendant, to assist Jenkins in some way in connection with Jenkins' prison term.
Defendant relies upon the recantation by Jenkins of his trial testimony to support his motion for a new trial.
Grounds for a new trial are defined in LSA-C.Cr.P. art. 851 which provides in pertinent part:
*558 "The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegation it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
. . . . .
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;
. . ."
At the hearing on the motion for a new trial Jenkins repudiated his recantation given in the deposition taken by defendant's attorney. Jenkins testified that his trial testimony to the effect that defendant twice told him he murdered Mire was true and correct. Jenkins testified the reason he changed his story after trial was that he was paid $2500 by defendant's father to change his story.
Defendant now contends the trial judge was in error in denying his motion for new trial because if the jury could hear the testimony from Jenkins that he changed his trial testimony after trial and then again adopted his trial testimony at the hearing on the new trial motion, that Jenkins' testimony would be so discredited that the jury would not believe him.
Defendant contends that because the evidence against him was only circumstantial with only Anthony Broussard and Ronald Jenkins giving testimony linking him directly with the crime, that when the effectiveness of Jenkins' testimony is severely impaired this probably would change the verdict.
The test to be applied in considering a motion for new trial based upon newly discovered evidence is whether the new evidence is so material that it ought to produce a different result from the verdict rendered at trial. The trial court has considerable discretion in evaluating the impact of newly discovered evidence on the verdict and its ruling will be disturbed on appeal only when there is a clear showing of abuse of that discretion. State v. Williams, 362 So.2d 530 (La.1978); State v. Huckaby, 368 So.2d 1059 (La.1979); State v. Manning, 380 So.2d 54 (La.1980).
Recantation of trial testimony should be looked upon with the utmost suspicion. It was held in State v. McDonald, 387 So.2d 1116 (La.1980), and State v. Tyler, 342 So.2d 574 (La.1977), that the trial judge did not abuse his discretion in denying a motion for a new trial based upon the recantation of trial testimony by a key witness. See also State v. Linkletter, 345 So.2d 452 (La.1977).
While the witness Jenkins recanted his trial testimony, he reaffirmed his trial court testimony when he testified on the motion for new trial and gave an understandable explanation for his out-of-court recantation.
These circumstances together with the testimony of Anthony Broussard, which provides substantial evidence of circumstances which strongly indicated that Mire was murdered by defendant, provide sound reasons for the trial judge to conclude that defendant's newly discovered evidence if introduced at trial would not have changed the verdict of guilty. We find no abuse of discretion in the trial judge's denial of the motion for new trial.
This assignment of error is without merit.
DECREE
For the reasons assigned, defendant's conviction and sentence are AFFIRMED.
NOTES
[*] Dixon, C. J., Calogero and Dennis, JJ., would grant a rehearing.
[**] 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] Defendant had been convicted in a trial before a judge alone on November 17, 1978, but upon defendant's motion the trial court had granted him a new trial.
[2] LSA-R.S. 15:475Privileged communications between attorney and client
No legal adviser is permitted, whether during or after the termination of his employment as such, unless with his client's express consent, to disclose any communication made to him as such legal adviser by or on behalf of his client, or any advice given by him to his client, or any information that he may gave gotten by reason of his being such legal adviser.
[3] La.C.Cr.P. art. 844"The party appealing shall designate, in writing, those errors which are to be urged on appeal. This assignment of errors shall be filed within the time specified by the trial judge, but not later than five days prior to the return date.
The trial judge may submit such per curiam comments as he desires."
[4] La.C.Cr.P. art. 920"The following matters and no others shall be considered on appeal:
(1) An error designated in the assignment of errors; and
(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." [emphasis supplied]. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2722944/ | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRIAN DICKSON, DOCKET NUMBER
Appellant, SF-0752-14-0320-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: August 21, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL ∗
Zepuor Parsanian, Tujunga, California, for the appellant.
Catherine V. Meek, Long Beach, California, for the agency.
Donna M. Butler, San Diego, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only when: the initial decision contains erroneous findings of material
∗
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
fact; the initial decision is based on an erroneous interpretation of statute or
regulation or the erroneous application of the law to the facts of the case; the
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The appellant was a U.S. Postal Service carrier technician. Initial Appeal
File (IAF), Tab 7 at 8. The agency placed him in non-pay status in December
2013 and removed him effective in January 2014. IAF, Tab 2 at 2, 7. The
appellant appealed the placement in non-pay status and removal. Id. In response
to an order to show cause why the appeal should not be dismissed for lack of
jurisdiction, the appellant argued that he is a preference-eligible veteran and
therefore entitled to appeal rights before the Board. IAF, Tab 6 at 1. The agency
filed a motion to dismiss, arguing that the appellant is not a preference eligible.
IAF, Tab 7 at 5-7. In a conference call with the administrative judge, the
appellant confirmed that he did not have additional military service other than
that listed on his Department of Defense Form 214 (DD-214) and that he was not
a disabled veteran. However, the appellant stated that he had received notice of
possible exposure to contaminated water during his service. IAF, Tab 8 at 1. In
the initial decision, the administrative judge granted the agency’s motion to
dismiss for lack of jurisdiction. IAF, Tab 9, Initial Decision at 2-4. On petition
for review, the appellant states that he learned that he might be entitled to
3
service- connected disability benefits based upon contaminated water exposure
and that he filed a claim for such with the Department of Veterans Affairs (VA)
in March 2014. Petition for Review (PFR) File, Tab 1 at 1. The appellant also
states that his spouse became ill in 2002. Id. at 2. The agency argues, inter alia,
that the new evidence does not establish that the appellant is a preference eligible.
PFR File, Tab 4 at 6-7.
¶3 The Board’s jurisdiction is not plenary; it is limited to those matters over
which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit
Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). A U.S. Postal Service
employee may file a Board appeal under chapter 75 only if he is covered
by 39 U.S.C. § 1005(a) or 5 U.S.C. § 7511(a)(1)(B)(ii). 5 U.S.C. § 7511(b)(8).
Thus, to appeal an adverse action under chapter 75, a Postal employee: (1) must
be a preference eligible, a management or supervisory employee, or an employee
engaged in personnel work in other than a purely nonconfidential clerical
capacity, and (2) must have completed 1 year of current continuous service in the
same or similar positions. Toomey v. U.S. Postal Service, 71 M.S.P.R. 10, 12
(1996). In this case, it is undisputed that the appellant had at least 1 year of
current continuous service. IAF, Tab 7 at 8. It is also undisputed that the
appellant, who was employed as a carrier technician, was not a management or
supervisory employee and did not engage in personnel work. Id. The appellant
instead argues that the Board has jurisdiction based upon his status as a
preference-eligible veteran. IAF, Tab 6 at 1.
¶4 For the purposes of establishing Board jurisdiction, a “preference eligible”
is a person entitled to a veteran’s preference under 5 U.S.C. § 2108, including
certain veterans, disabled veterans, and spouses or mothers of veterans. For
purposes of Title 5, a “veteran” means an individual who “served on active duty
in the armed forces during a war, [or] in a campaign or expedition for which a
campaign badge has been authorized” and who was honorably
discharged. 5 U.S.C. § 2108(1)(A); Hamilton v. U.S. Postal Service, 86 M.S.P.R.
4
215, ¶5 (2000). Status as a “veteran” may be established through certain service
during specified periods including from April 28, 1952, to July 1, 1955; from
January 31, 1955, to October 15, 1976; from August 2, 1990, to January 2, 1992;
and after September 11, 2001. 5 U.S.C. § 2108(1)(A)-(D). Proof of such service
is typically shown through the submission of a DD-214 showing the dates of
service and any badges and awards received. Jackson v. U.S. Postal Service, 91
M.S.P.R. 506, ¶5 (2002). The appellant’s DD-214 reflects that he served on
active duty from December 1985 to October 1989 and was honorably discharged.
The appellant received the Good Conduct Medal, the Rifle Sharpshooter Badge, a
Letter of Appreciation, and the Sea Service Deployment Ribbon. IAF, Tab 7 at 9.
The appellant confirmed in a conference call with the administrative judge that
his DD-214 reflects all of his military service. IAF, Tab 8 at 1. The appellant’s
service does not confer preference eligible status, however, because the record
does not reflect that the appellant served during a war or in a campaign or
expedition for which a campaign badge has been authorized, or that he served
during the statutorily specified periods. 5 U.S.C. § 2108(1)(A)-(D).
¶5 An individual may also establish preference eligible status by showing that
he is “an individual who has served on active duty in the armed forces, has been
separated therefrom under honorable conditions, and has established the present
existence of a service-connected disability or is receiving compensation . . .
.” 5 U.S.C. § 2108(2); see Carey v. U.S. Postal Service, 50 M.S.P.R. 359, 361
(1991). On petition for review, the appellant argues that he received information
concerning possible exposure to contaminated water, he applied for disability
benefits from the VA in March 2014, and he previously did not know he was
eligible for VA disability benefits. PFR File, Tab 1 at 3. The appellant does not
argue that he was in receipt of compensation or had a service-connected disability
in December 2013, when the agency placed him in a non-pay status, or January
2014, when the agency terminated him. IAF, Tabs 2, 6; PFR File, Tab 1. We do
not find that evidence of the appellant’s application for VA disability benefits and
5
possible exposure to contaminated water establishes preference eligible status
because this evidence does not show the existence of a service-connected
disability or receipt of compensation at the time of employment with the agency
or presently. 5 U.S.C. § 2108(2); Downs v. Department of Veterans
Affairs, 110 M.S.P.R. 139, ¶10 (2008). The appellant was therefore not a
preference-eligible veteran either at the time of his employment with the agency
or currently. Thus, we find that the administrative judge properly dismissed the
appeal for lack of jurisdiction.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
6
Of particular relevance is the court’s “Guide for Pro Se Petitioners and
Appellants,” which is contained within the court’s Rules of Practice, and Forms
5, 6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C. | 01-03-2023 | 09-02-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2441058/ | 967 N.E.2d 499 (2008)
382 Ill. App. 3d 1217
359 Ill. Dec. 769
PEOPLE
v.
TAYLOR.
No. 2-06-1033.
Appellate Court of Illinois, Second District.
June 24, 2008.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596085/ | 581 F. Supp. 1144 (1984)
The CLEVELAND-CLIFFS IRON COMPANY, Plaintiff,
v.
CHICAGO & NORTH WESTERN TRANSPORTATION COMPANY, Defendant.
No. M81-68 CA2.
United States District Court, W.D. Michigan, N.D.
March 5, 1984.
*1145 *1146 *1147 Crowell & Moring by Herbert J. Martin, Frederick W. Claybrook, Jr., Mark R. Rosen, Washington, D.C., Warner, Norcross & Judd by William K. Holmes & Joseph G. Scoville, Grand Rapids, Mich., for plaintiff.
Christopher A. Mills, Sr. Commerce Counsel, C & NW, Chicago, Ill., for defendant.
OPINION RE MOTION FOR SUMMARY JUDGMENT
HILLMAN, District Judge.
This is an action for declaratory and injunctive relief, to enforce a rail tariff agreement between a carrier and a shipper and to enjoin the carrier from charging a higher rate, set forth in a supplemental tariff which was filed with the Interstate Commerce Commission (hereinafter "ICC"). Federal jurisdiction exists under 28 U.S.C. § 1332 and 28 U.S.C. § 1331, the federal question arising under Section 208(a)(i)(2) and (j) of the Staggers Rail Act of 1980, [49 U.S.C. § 10713(i)(2) and (j)]. The case is now before the court on plaintiff's motion for summary judgment. Oral argument on the motion was heard on August 8, 1983.
I.
The shipper, Cleveland-Cliffs Iron Company ("Cleveland-Cliffs") is the owner or long-term lessee of extensive iron rich properties in the Upper Peninsula of Michigan. Cleveland-Cliffs and groups of steel manufacturers have formed three partnerships which are engaged in the business of mining and pelletizing iron ore from the Republic, Tilden and Empire mines in the Marquette Iron Range. Defendant, Chicago & North Western Transportation Company ("C & NW") is a rail carrier, which, in conjunction with the Lake Superior and Ishpeming Railroad, transports iron ore and pellets from these mines to the port of Escanaba, Michigan.
In 1967, the C & NW began construction of a modern highly-mechanized iron ore storage and transfer facility in Escanaba. This new facility became operational in 1969. The facility has a current capacity to handle 10 million tons of ore annually and a potential capacity of 20 million tons.
In March, 1969, plaintiff and defendant entered into two agreements for the transportation of large amounts of ore and pellets to the Escanaba dock facility at bulk prices. The first of these agreements, the Marquette Range Agreement, provides for the shipment of 1.5 million long tons of ore from the Republic and Tilden mines to the C & NW Escanaba dock. The second agreement, the Empire Agreement, provides for the annual shipment of 2.21 million tons of iron ore from the Empire mine to Escanaba. The rates for these shipments were established by a tariff schedule *1148 incorporated into the agreements and filed with the ICC. The tariff provides for periodic price increases through an acceleration clause. The minimum life of the agreement extends to April 3, 1984, unless the mines permanently cease ore production. Plaintiff contends that a February, 1969, letter from C & NW to Cleveland-Cliffs transmitting the two agreements ("Braun letter"), contains the proposed terms and conditions binding upon the parties.
Cleveland-Cliffs and C & NW have observed the agreements for 12 years. On March 10, 1981, the carrier sought to increase the rail rate by filing a supplemental tariff with the ICC. On March 25, 1981, the shipper filed a complaint with the ICC asking the Commission to suspend the supplemental tariff before its effective date of April 25, 1981. On April 24, 1981, the ICC issued an order stating its intention to investigate the supplemental tariff, but declining to suspend it. On that same day, and after the ICC decision, the shipper filed the instant action seeking a temporary restraining order, a declaration that its contracts with the carrier were valid and binding, and injunctive relief.
The ICC intervened to support the railroad's position that this court lacked subject matter jurisdiction over rate contracts entered into prior to the effective date of the Staggers Act. The court ruled, however, that under section 208 of the Act, 49 U.S.C. § 10713, it had jurisdiction to decide all questions relating to the 1969 contract, except whether the rate provided for in that contract was confiscatory. The court ruled that the ICC retained exclusive jurisdiction over that question.
On May 27, 1981, the court granted the shipper's request for a preliminary injunction enforcing the contract until either the ICC determined whether the contract was confiscatory, or the court reached a decision on the merits. On the same day, the court denied the carrier's motion to dismiss for lack of subject matter jurisdiction. See generally, Cleveland-Cliffs Iron Company v. Chicago & North Western Transportation Company, 516 F. Supp. 399 (W.D. Mich.1981).
On June 8, 1981, the court certified for immediate appeal to the United States Court of Appeals for the Sixth Circuit, the issue of whether the Staggers Act gives the district court jurisdiction to enforce rate agreements entered into prior to the effective date of the Act, where such contracts were not at issue in an ICC proceeding pending on the effective date of the Act. On March 29, 1982, the Court of Appeals, 701 F.2d 175, upheld this court's ruling on the jurisdictional issue, noting that the contracts at issue are no longer subject to reasonableness review by the ICC, and that jurisdiction to enforce such contracts lies in the courts. See also Cleveland-Cliffs Iron Company v. ICC, 664 F.2d 568 (6th Cir.1982).
On December 23, 1981, the ICC completed its investigation, determining that the C & NW's proposed rates were unlawful, and ordered them cancelled. The Commission ordered that all but one contract rate be enforced, and ordered that a rate be negotiated to replace the rate which was not enforced. C & NW agreed to cancel its proposed rates, thus mooting a major portion of this lawsuit.
However, on June 8, 1981, Cleveland-Cliffs filed a First Amended Complaint. The amended complaint differs from the original complaint in that it contains allegations that C & NW breached the 1969 agreement. It is also alleged that during the 1979 shipping season, C & NW charged Cleveland-Cliffs rates in excess of those contained in the Braun letter. Similar violations are alleged for the 1980 shipping season. As a result of those alleged breaches, Cleveland-Cliffs claims that it was injured in the amount of $240,902 for the 1979 season and $244,312 during the 1980 season.
C & NW then filed a motion to dismiss the amended complaint, 553 F. Supp. 371 (W.D.Mich.1982), arguing that under section 229 of the Staggers Act, this court lacked jurisdiction. This court held that where the railroad rates at issue were in *1149 effect on the effective date of the Staggers Act and where the lawfulness of those rates was not challenged in this action, the matter was properly subjected to the jurisdiction of this court. Id. at 375. On July 28, 1983, C & NW filed its Amended Answer, in which it raised nine affirmative defenses, and counterclaimed for damages, declaratory relief and reformation of the Marquette Range and Empire Agreements.
The matter is now before the court on plaintiff's motion for summary judgment. Also before the court is defendant's motion to join Lake Superior and Ishpeming Railroad, a signatory to one of the agreements as a co-defendant, under Rule 19.
II.
On a motion for summary judgment the movant bears the burden of showing conclusively that there is no genuine issue of material fact, and that the moving party is entitled to summary judgment as a matter of law. Smith v. Hudson, 600 F.2d 60 (6th Cir.1979); Tee-Pak, Inc. v. St. Regis Paper Co., 491 F.2d 1193 (6th Cir.1974); Fed.R.Civ.P. 56(a). In determining whether there are issues of fact requiring a trial, "the inferences to be drawn from the underlying facts contained in [the affidavits, attached exhibits and depositions] must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962). A court may not resolve disputed questions of fact in a summary judgment decision, and if a disputed question of fact remains, the district court should deny the motion, and proceed to trial. United States v. Articles of Device, 527 F.2d 1008, 1011 (6th Cir. 1976). However, the fact that two parties to a contract may differ on the interpretation of terms in that contract does not, by itself, render summary judgment inappropriate. See Steinmetz Electrical Contractors v. Local Union No. 58, 517 F. Supp. 428, 432 (E.D.Mich.1981). See also Tennessee Consolidated Coal Co. v. United Mine Workers of America, 416 F.2d 1192, 1199 (6th Cir.1969); Freeman v. Continental Gin Co., 381 F.2d 459, 465 (5th Cir.1967). The real issue is not whether the parties disagree on the meaning of terms to the contract, but whether the terms themselves are ambiguous. If the contract terms are not ambiguous, then contradictory inferences which may be drawn are subjective, and irrelevant. Naph-Sol Refining Co. v. Murphy Oil Corp., 550 F. Supp. 297, 301-302 (W.D.Mich.1982), rev'd on other grounds, 728 F.2d 1477 (T.E.C.A.1983). From the complaint and answer, and the briefs and oral argument on this motion, it is readily apparent that the facts leading up to this dispute are not at issue; the disagreement between the parties centers on the legal effect of those facts. At its heart, this is a contract action, concerning the enforceability of an agreement between the two parties, and the defenses raised by C & NW basically argue that the agreements signed by the parties cannot be enforced for a number of reasons. Cleveland-Cliffs, on the other hand, asks the court for a declaratory judgment that there is a valid contract in force between the two parties.
The remedy made available by the Declaratory Judgment Act and Rule 57 is designed to minimize the danger of avoidable loss and the unnecessary accrual of damages. Cunningham Bros., Inc. v. Bail, 407 F.2d 1165, 1168 (7th Cir.), cert. denied, 395 U.S. 959, 89 S. Ct. 2100, 23 L. Ed. 2d 745 (1968). Its use is discretionary on the part of the court, Abbott Labs v. Gardner, 387 U.S. 136, 155, 87 S. Ct. 1507, 1519, 18 L. Ed. 2d 681 (1967), and a court may not grant a declaratory judgment if no controversy exists. See 28 U.S.C. § 2201. However, there is little difficulty in finding an actual controversy if, as here, all the acts that are alleged to have created liability already have occurred. Armour & Co. v. Ball, 468 F.2d 76, 79 (6th Cir.1972).
In determining whether a contract exists, this court will apply Michigan law. Under Michigan law, where the contract is to be performed in a state (here Michigan) other than the state in which the contract is made (Illinois and Ohio), the law of the *1150 state in which the contract is to be performed governs the nature and effect of the contract. George Realty Co. v. Gulf Refining Co., 275 Mich. 442, 266 N.W. 411, 415 (1936).
III.
C & NW argues that the Marquette and Empire Range Agreements are unenforceable and void as a matter of law. It raises nine affirmative defenses to Cleveland-Cliffs' complaint.
First, it claims that the agreements are unenforceable for lack of mutuality, in that C & NW was obligated to charge certain rates, but Cleveland-Cliffs was not obligated to ship any ore. While lack of mutuality of obligation may still be a defense to a contract action in Michigan, see McInerney v. Detroit Trust Co., 279 Mich. 42, 46, 271 N.W. 545 (1937); Toussaint v. Blue Cross, 408 Mich. 579, 630, 292 N.W.2d 880 (Ryan, J. concurring); where consideration is present, mutuality of obligation is not an essential element of an enforceable agreement. Toussaint v. Blue Cross, supra at 600, 292 N.W.2d 880; Earl Dubey & Sons v. Macomb Concrete Corp., 81 Mich. App. 662, 266 N.W.2d 152 (1978), cert. denied, 441 U.S. 944, 99 S. Ct. 2163, 60 L. Ed. 2d 1046 (1979). See also 6 M.L.P. Contracts § 7; Restatement of Contracts § 79 (1971).
C & NW's second affirmative defense, that the agreements are not supported by adequate consideration, is closely related. If the agreements are supported by adequate consideration, then this defense will obviously fail, as will the defense of lack of mutuality of obligation. There is no question that defendant was compensated for its service. Cleveland-Cliffs paid C & NW just as any other shipper would. The defendant claims, however, that the rate which Cleveland-Cliffs is required to pay under the agreement at issue is insufficient to support a finding that a contract exists. While inadequacy of consideration, unaccompanied by other elements of bad faith will warrant the cancellation of a contract where it is "so grossly inadequate as to shock the conscience," Wroblewski v. Wroblewski, 329 Mich. 61, 65, 44 N.W.2d 869, 872 (1950), the general rule is that courts will not inquire into the adequacy of the consideration of a contract. Kennedy v. Shaw, 43 Mich. 354, 5 N.W. 415 (1880); see also Sambo's Restaurants v. City of Ann Arbor, 473 F. Supp. 41, 45 (E.D.Mich. 1979) (any consideration, however slight, sufficient to support contract). Although the rates set under the two agreements may not be as high as they would be if C & NW was negotiating them today, they are certainly not so low that they produce "an inequality so strong, so gross and manifest that it must be impossible to state it to a man of common sense without producing an exclamation at the inequality of it." Lenawee County Bd. of Health v. Messerly, 98 Mich.App. 478, 295 N.W.2d 903, 908 (1980). Since the consideration for the contract is legally adequate, that defense fails, as does the defense of mutuality of obligation.
C & NW's third affirmative defense is that both parties knew the contracts were illegal and unenforceable, and therefore neither party intended to be bound by them. The question of intent to be bound is an issue which was raised in the ICC hearing on these rates. The ICC's December 21, 1981, opinion dealing with those rates states that: "A document with this degree of detail covering all relevant matters and containing language stating specifically that the parties agree to the arrangement, appears on its face to be stating the intent of the parties ..." Rates on Iron Ore to Escanaba, Michigan, Chicago and Northwestern, ICC No. 28566 (December 21, 1981) at 11. I concur. Judge Learned Hand, nearly 75 years ago, put it this way: "If however, it were proved by twenty bishops that either party, when he used the words, intended something else than the usual meaning which the law imposes upon him, he would still be held...." Hotchkiss v. National City Bank of New York, 200 F. 287, 293 (S.D.N. Y.1911). C & NW and Cleveland-Cliffs reduced their agreement to writing. This *1151 writing is capable of interpretation under recognized rules of law. If a contract exists, neither party may avoid the consequences of it by stating that such was not its subjective understanding of the meaning to be given to the language used.
The alleged illegality of the contract appears to rest on the presumption that since the ICC was the government body responsible for setting rates at the time the agreements were signed, the parties could not legally make a rate agreement. The Sixth and Eighth Circuits have both held that railroad rate contracts entered into prior to the Staggers Act are not per se illegal. Cleveland Cliffs Iron Co. v. ICC, 664 F.2d 568, 574 (6th Cir.1981); Iowa Power & Light Co. v. Burlington N., Inc., 647 F.2d 796, 808 (8th Cir.1981), cert. denied, 455 U.S. 907, 102 S. Ct. 1253, 71 L. Ed. 2d 445 (1982). In a similar situation, where a trucking company raised the possible illegality of a rate agreement it had signed with a shipper, the Michigan Supreme Court ruled that shippers and carriers entering into rate agreements "shall be deemed to have made the kind and character of contract permitted by the statute regulating such transaction." Robert McDaniel Trucking Co. v. Oak Construction Co., 359 Mich. 494, 511, 102 N.W.2d 575 (1960).
The language of 49 U.S.C. § 10713 emphasizes the current enforceability of rate contracts made prior to the Staggers Act.
"The provisions of this section shall not affect the status of any lawful contract between a rail carrier and one or more purchasers of rail service that is in effect on the effective date of the Staggers Rail Act of 1980. Any such contract shall hereafter have the same force and effect as if it had been entered into in accordance with the provisions of this section."
49 U.S.C. § 10713(j). Even assuming that the agreements were illegal when made, the language of the Staggers Act makes it clear that C & NW cannot now raise that illegality as an affirmative defense to the existence of a contract. As Justice Black, writing for the Court in McNair v. Knott, 302 U.S. 369, 58 S. Ct. 245, 82 L. Ed. 307 (1931), noted in an analogous context:
"There is nothing novel or extraordinary in the passage of laws by the Federal Government and the States ratifying, confirming, validating, or curing defective contracts. Such statutes, usually designated as `remedial,' `curative,' or `enabling,' merely remove legal obstacles and permit parties to carry out their contracts according to their own desires and intentions. Such statutes have validated transactions that were previously illegal relating to mortgages, deeds, bonds, and other contracts. Placing the stamp of legality on a contract voluntarily and fairly entered into by parties for their mutual advantage takes nothing away from either of them. No party who has made an illegal contract has a right to insist that it remain permanently illegal. Public policy cannot be made static by those who, for reasons of their own, make contracts beyond their legal powers. No person has a vested right to be permitted to evade contracts which he has illegally made."
Id. at 372-373, 58 S.Ct. at 247. Thus, as a matter of state and federal law, the agreements were and are legal.
C & NW raises the defenses of impracticability, frustration of purpose and mutual mistake of fact. However, Michigan law recognizes impracticability only as a defense to an action for breach of a sales contract under the Uniform Commercial Code. See M.C.L.A. § 440.2615. In other situations, such as the agreement at issue here, the fact that subsequent market conditions render a contract unprofitable will not excuse performance. Milligan v. Haggerty, 296 Mich. 62, 71, 295 N.W. 560 (1941); see also Stotts v. Memphis Fire Dept., 679 F.2d 541, 561 (6th Cir.1982).
C & NW argues that passage of the Staggers Act, which limits ICC jurisdiction to provide relief from non-compensable rate contracts, frustrates the purpose of the agreements and thus leads to a mutual mistake of fact (that ICC jurisdiction would *1152 never change). It is difficult to understand how a statute affecting the procedure for enforcement of rate contracts, and not their substance, frustrates the purpose of those contracts. The Staggers Act obviously does not prohibit the mining or shipping of iron ore. Therefore, the frustration of purpose doctrine defense is inapplicable here.
The case of Sherwood v. Walker, 66 Mich. 568, 33 N.W. 919 (1887), the leading case on mutual mistake of fact, makes it clear that the doctrine applies only to mistakes of fact existing at the time the contract was made, and not subsequent developments. In that famous case, defendant sold plaintiff a cow, Rose 2d of Aberlone. Both parties thought the cow was barren. Defendant subsequently learned that the cow was pregnant, and refused to tender the cow to plaintiff. Plaintiff sued for enforcement of the contract. The Michigan Supreme Court held that the contract was for the sale of a barren cow, and since Rose was not barren, there was a mutual mistake of fact. Rose of Aberlone was pregnant when she was sold, but the Staggers Act did not come into existence until more than a decade after the agreements here were signed. C & NW alleges no mistake concerning facts in existence at the time the agreements were signed in February and March 1969, and hence the defense does not apply to the instant case.[1] Finally, C & NW argues that Cleveland-Cliffs is barred from relief by section 229 of the Staggers Act. C & NW raised this same issue in its motion to dismiss. See Cleveland-Cliffs Iron v. Chicago & North Western, 553 F. Supp. 371 (W.D.Mich.1982). This court ruled then that section 229 does not bar the instant action, and having so ruled, the court rejects C & NW's section 229 defense.
Having examined the agreements, and considered and rejected C & NW's affirmative defenses concerning the existence of a contract, I conclude that there is indeed a valid, enforceable contract for transporting iron ore in existence between C & NW and Cleveland Cliffs. The remaining discussion concerns the terms of the contract, and whether either party is in breach of that contract.
IV.
C & NW claims that, even if the agreements constitute a contract, the area known as the Tilden Mine is not included in the mines covered by the Marquette Range Agreement. Nevertheless, the Marquette Range Agreement itself, statements of C & NW employees before the ICC, and C & NW internal memoranda all include the Tilden Mine within the Marquette Range Agreement. Moreover, the Tilden Mine has been included in the tariff since shipments began from the Tilden Mine. In addition, the Tilden tonnage has always been counted by the parties in determining whether the volume minimums were met under the Marquette Range Agreement and the incorporated tariff. If indeed the Tilden Mine was not to have been included in the Marquette Range Agreement, the issue should have been raised at the outset of the agreement. C & NW's failure to do so estops them from raising it at this late dateafter having acquiesced in the inclusion of the Tilden Mine for more than a decade. See Wheat v. Van Tine, 149 Mich. 314, 112 N.W. 933 (1907). Therefore, I am satisfied that the Tilden Mine is included in the Marquette Range Agreement.
BREACH
Cleveland-Cliffs, in its amended complaint, and C & NW in its answer and counterclaim, both charge that the other *1153 party is in breach of the agreements. Cleveland-Cliffs alleges that during the 1979 and 1980 shipping seasons, C & NW charged rates in excess of those contained in the agreements, and claims damages as a result of the alleged breach. In addition, Cleveland-Cliffs argues that C & NW breached by filing a supplemental tariff. C & NW contends that Cleveland-Cliffs breached the agreements in two ways. First, C & NW argues that Cleveland-Cliffs was obligated to provide C & NW with estimates of the amount of iron ore it intended to ship, and to revise those estimates on a monthly basis if need be. C & NW alleges that in 1980 and 1982 Cleveland-Cliffs provided C & NW with estimates it knew to be erroneous, and therefore, Cleveland-Cliffs is in breach. Second, C & NW contends that the agreements require Cleveland-Cliffs to ship certain minimum amounts, which it failed to do, and as a result, Cleveland-Cliffs is in breach. C & NW further contends that since Cleveland-Cliffs has breached, C & NW is no longer obligated to perform under the contracts, and seeks damages as a result of the alleged breach.
Under Michigan law, to allow repudiation or rescission, a breach must be material. Walker & Company v. Harrison, 347 Mich. 630, 81 N.W.2d 352, 355 (1957). While there is no single definition of materiality, the factors to be considered include the extent to which the injured party will obtain the substantial benefit which he reasonably anticipated, the extent to which the injured party may be adequately compensated in damages, the extent of partial performance, the relative hardship on the parties, and the bad faith of the breaching party. Id. 355. In addition, a party may waive their right to rescind a contract for breach by accepting continued performance even though the party may still have a right to damages. Schnepf v. McNamara, 354 Mich. 393, 93 N.W.2d 230, 232 (1958). Here, where both parties have continued substantial performance, that is the supplying of iron ore for transport, and the transportation of that ore, any breach is less than material, and the parties are limited to recovering damages they have suffered, if any.
DAMAGES
Cleveland-Cliffs, in addition to requesting a declaratory judgment as to the existence of a contract, has also requested damages for alleged overcharges by C & NW in the 1979 and 1980 shipping seasons. Cleveland-Cliffs alleges that during those two seasons, it shipped sufficient tonnage to qualify under the agreement for a lower base rate than that charged by C & NW. As a result, the shipper argues it was overcharged $240,902 in 1979 and $244,312 in 1980. It is clear that a letter to the C & NW, dated February 4, 1969, establishes a variable rate, dependent upon the amount shipped. Before deciding the amount of damages, if any, the court requests the parties to submit affidavits, where appropriate, and a stipulation covering all essential facts not in dispute, such as the variable rates in effect, and detailing the amount actually shipped during the shipping seasons in question. This stipulation and affidavits should be filed within sixty (60) days.
As noted earlier, C & NW's claim for damages is three pronged: (a) that Cleveland-Cliffs had an obligation to adjust throughout the year its designated annual volumes, which obligation it breached; (b) that Cleveland-Cliffs did not achieve the 2.5 million-ton level specified in the contracts in the 1981-82 tariff year; and (c) that Cleveland-Cliffs had an obligation to ship tonnage each month within a zone of six to fifteen percent of its annual estimate, and any shipments outside that zone should have been charged at higher, single-car rates. A careful examination of the record reveals that, on the undisputed facts, Cleveland-Cliffs did not breach any duty owed C & NW.
First, neither the agreements themselves, nor the memoranda and affidavits submitted in support, reveal any obligation on the part of Cleveland-Cliffs to revise its annual estimate during the year. *1154 Rather the agreements detail C & NW's remedies should Cleveland-Cliffs ship less than the estimated amounts. In that event, any undercharges were billed to Cleveland-Cliffs at the end of the tariff year. Second Affidavit of Alex R. Rankine at ¶¶ 3, 4. Therefore, C & NW's remedy here was payment for undercharges, not revised estimates; and Cleveland-Cliffs is under no duty to revise its annual estimate throughout the year.
Second, Cleveland-Cliffs contends, and C & NW does not dispute, that Cleveland-Cliffs' failure to ship 2.5 million tons in the 1981-82 shipping season is due to C & NW's closing its docks on December 20, 1981. If C & NW had not shut down its docks, Cleveland-Cliffs would have been able to ship iron ore to Escanaba and in late December or early January, 1982, the total shipment for the tariff year would have exceeded 2.5 million tons. Cleveland-Cliffs tendered tonnage in March and April, 1982, which C & NW was not able to accept because C & NW had not resumed operations, and cars were not available. Under the agreement and tariff, if railroad equipment is unavailable, Cleveland-Cliffs was due "disability" credits, i.e. credit for ore which would have been shipped had C & NW had the equipment to ship it. Cleveland-Cliffs was entitled to disability credits, which when added to the amounts actually shipped would have met the 2.5 million ton level. Affidavit of Alex R. Rankine at ¶ 8. Even without the disability credit formula, C & NW's refusal to receive ore which Cleveland-Cliffs was prepared to ship, waived any right to claim that Cleveland-Cliffs did not meet the 2.5 million ton level, see Apponi v. Sunshine Biscuits, Inc., 652 F.2d 643, 649 (6th Cir.1981), and is, therefore, estopped from attempting to collect additional amounts. Ott v. Midland-Ross Corp., 600 F.2d 24, 31-32 (6th Cir.1979).
Third, C & NW, apparently in reliance on a letter written prior to the agreements, argues that Cleveland-Cliffs was under an obligation to ship tonnage each month within a range of 6% to 15% of the annual estimate. The language of the agreements themselves state that the railroad(s) agree to furnish transportation sufficient "to transport not less than 6 percent per month nor more than 15% per month of such volume of iron ore as is designated at the beginning of or subsequently during each annual period...." Empire and Marquette Range Agreement, at ¶ 2. The best interpretation of this language obligates the railroad to transport that amount of ore per month, but places no affirmative obligation on Cleveland-Cliffs to supply ore within 6 to 15 percent. By the same token, C & NW has no obligation to transport tonnages in excess of the contracted for 15%. However, C & NW has waived damages for ore which it moved in the past outside the 6% to 15% range. For 12 years C & NW acquiesced in the periodic monthly shipment of ore in excess of the contractual 15%. (See Defendant's Answer to Plaintiff's Interrogatories, Set 1, ¶ 20(a)(7).) As a result, that alleged damage must be denied. See Schnepf, supra.
C & NW has also asked the court to declare that the contracts do not "provide for or contemplate any capital expenditures for replacement or addition of equipment ... at Escanaba." However, Cleveland-Cliffs has not raised any issue relating to construction or capital expenditure in its pleadings, nor does there appear to be any mention of a requirement that C & NW make any capital expenditures in the agreements. Since there is no apparent controversy, this court lacks jurisdiction to grant relief. Flast v. Cohen, 392 U.S. 83, 95-97, 88 S. Ct. 1942, 1950-1951, 20 L. Ed. 2d 947 (1968).
V.
As noted earlier, defendants have moved to join Lake Superior and Ishpeming Railroad ("LS & I") as a necessary party defendant under Rule 19. Without joinder, C & NW asserts, the court cannot grant complete relief. LS & I is a signatory to the Marquette Range Agreement. It has not challenged the validity of that agreement, nor has either party to the instant action alleged that LS & I has breached *1155 the contract. C & NW's analysis is apparently based in part on the assumption that, if this court were to reform the contracts, LS & I, as a signatory to one of the agreements, would be a necessary party to any reformation. Since I have already ruled that the court has no equitable power to reform the contract, C & NW's analysis must fail. Rule 19(a)(1) provides that a party shall be joined if feasible where its absence precludes "complete relief among those already parties." (Emphasis added.) "Complete relief refers to relief as between the persons already parties, not as between a party and the absent person whose joinder is sought...." 3A Moore's Federal Practice, ¶¶ 19.07-1[1] at 19-128; see also Morgan Guaranty Trust Co. v. Martin, 466 F.2d 593, 598 (7th Cir.1972). C & NW is the only party which disputes the enforceability of the agreements, and C & NW is the only party against which Cleveland-Cliffs has claimed damages. I therefore conclude that LS & I is not a necessary party to this action, and defendant's motion is denied.
Plaintiff has requested that it be awarded attorney fees in this action. The general rule is that attorney fees are not ordinarily recoverable in the absence of a statute or enforceable contract providing for their award. Fleischmann Distilling Co. v. Maier Brewing Co., 386 U.S. 714, 717, 87 S. Ct. 1404, 1406, 18 L. Ed. 2d 475 (1967). There was no contractual provision concerning attorney's fees in this case. Plaintiff has alleged no facts which would support a finding that defendant acted in bad faith, Huecker v. Milburn, 538 F.2d 1241, 1246 (6th Cir.1976), or that an award for attorney's fees would be "in the interest of justice." Grinnell Bros. v. Touche Ross & Co., 655 F.2d 725, 726 (6th Cir. 1981). Accordingly, plaintiff's request for attorney's fees is denied.
CONCLUSION
Plaintiff's motion for summary judgment is granted. I find that the Marquette Range and Empire Agreements, along with the February, 1969, letter of transmittal constitute a valid contract between the parties.
The parties will submit, within sixty (60) days, a stipulation and affidavits on the issue of damages for overcharges in 1979-1980.
NOTES
[1] Since there was no mutual mistake of fact, the court must also reject C & NW's request for reformation of the agreements. While a court, in its equity power may reform a contract, such reformation is dependent on a mutual mistake or fraudulent concealment. National Bank of Detroit v. Whitehead & Kales Co., 528 F. Supp. 940, 950 (E.D.Mich.1981); Fred L. Alpert Industries v. Oakland Metal Stamping Co., 379 Mich. 272, 285, 150 N.W.2d 765 (1967). Since C & NW has alleged no fraud, and there was no mutual mistake of fact at the time the agreements were signed, this court has no power to reform the agreements. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596102/ | 399 So. 2d 1045 (1981)
CITY OF DEERFIELD BEACH, Wardell Chance, Doris Hunn, Myrle Johnson, Richard Mowry and Lawrence Vanderwiele, Petitioners,
v.
Michael H. VAILLANT, Respondent.
No. 78-2149.
District Court of Appeal of Florida, Fourth District.
June 10, 1981.
Rehearing Denied July 6, 1981.
*1046 Andrew Maurodis and James G. Kincaid, Fort Lauderdale, for petitioners.
Philip S. Shailer of Shailer & Purdy, Fort Lauderdale, for respondent.
LETTS, Chief Judge.
This matter is before us by reason of an "appeal" brought by the City of Deerfield Beach from a Circuit Court order reversing the Civil Service Board's decision to fire the Superintendent of the Wastewater Treatment Department. We treat it as a petition for a writ of certiorari which we deny.
Our scope of review is limited when an appellant seeks review from a Circuit Court which has acted in its appellate capacity. See Campbell v. Vetter, 375 So. 2d 4 (Fla. 4th DCA 1979) and our second opinion in the same case Campbell v. Vetter, 392 So. 2d 6 (Fla. 4th DCA 1980). See also City of Winter Park v. Jones, 392 So. 2d 568 (Fla. 4th DCA 1980). It is true that a recent ruling from the Third District held a plenary appeal appropriate to review the decision of a Circuit Court which had acted in its appellate capacity. See United Teachers of Dade v. Save Brickell Avenue, Inc., 378 So. 2d 296 (Fla. 3d DCA 1979). However, we must respectfully disagree with this latter ruling and in so doing note a more recent case from the same Third District which in its initial footnote also appears to disagree. See Save Brickell Avenue, Inc. v. City of Miami, 393 So. 2d 1197 (Fla. 3d DCA 1981).
The controversy is complicated by the sometimes interchangeable use of the words "certiorari" and "appeal" with the intention, in generic terms, of denoting a seeking out of higher appellate review. Thus we note, for example, that the "Civil Procedure for Appeals" written up for Deerfield Beach provides for review of Civil Service Board decisions by "petition [to] the Circuit Court for a review by certiorari." However, this is not a discretionary review and inescapably the circuit court must review it. As we said in Campbell v. Vetter, supra, any such review by the Circuit Court centers around whether or not the Civil Service Board (itself a quasi-judicial appellate forum):
1. Provided procedural due process;
2. Observed the essential requirements of the law; and
3. Supported its findings by substantial competent evidence.
Frankly, we think the Civil Service Board's decision satisfied all three of these *1047 requirements in this case, but the fact remains we believe that a plenary appeal from this circuit court ruling is not available and that recourse to us must be by certiorari pursuant to Florida Appellate Rule, 9.030(b)(2)(B) which provides:
"The certiorari jurisdiction of district courts of appeal may be sought to review ... final orders of circuit courts acting in their review capacity." (emphasis supplied)
In contrast to our view, the Third District in United Teachers, supra, held that review by the district courts from administrative action, even though already reviewed by a circuit court, is appealable as a matter of right under Article V, Section 4(b) of the Florida Constitution which states:
District Courts shall have jurisdiction to hear appeals, that may be taken as a matter of right, from final judgments or orders of trial courts, including those entered on review of administrative action, not directly appealable to ... a circuit court. (emphasis supplied)
At first blush we agreed with the Third District but further study convinces us that a final judgment of a circuit court acting in its review capacity is not appealable as a matter of right to a district court if it has already been directly "appealed" to a circuit court. Thus the constitutional provision above quoted is not applicable.
It is true that the "appeal" to the circuit court under the city provisions now before us was styled "a review by certiorari." Nonetheless the circuit judge treated it as if it were an appeal and reviewed "the entire record including hundreds of pages of proceedings and testimony." Inevitably then, no matter what the magic word, the end product was an appeal to circuit court. This being so, recourse to us must be by certiorari.
To quote from appellee's brief: "The critical question ... centers on the scope or extent of such appellate review. Appellants ... would seem to suggest that as a case moves up the appellate ladder, each level of review becomes more broad ... than the one preceding it. In effect appellants desire to invert the pyramid."
We ascribe to the pyramid analogy, but, like the appellee, believe its vertex must be uppermost. This being so, we cannot consider the question of substantial competent evidence already reviewed by the Circuit Court. This leaves only two of the three criteria first above set forth. Accordingly, we can only examine to see if:
1. Procedural due process was afforded; and
2. The essential requirements of the law were observed.
(See Campbell v. Vetter, supra)
In this respect we must ourselves confess generic use of the term "appeal," for in our first rendering of Campbell v. Vetter, supra, we called the review to our court an "appeal" though we there correctly defined it as if it were a petition for certiorari which it really was.
We recognize our holding here appears to be in conflict with the Third District's United Teachers case, but common sense dictates that no one enjoys three full repetitive reviews to,
1. a civil service board
2. a circuit court
3. a district court of appeal,
the one exception being in the field of criminal law where an indigent criminal appears to be afforded a chain of review ad infinitum in one form or another.
Applying our scope of review to the case at hand, we cannot say that the trial judge either failed to provide due process or departed from the essential requirements of the law. Accordingly, the petition for a writ of certiorari is denied.
CERTIORARI DENIED.
DOWNEY and BERANEK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/791344/ | 418 F.3d 138
Frank UZDAVINES, (deceased), Marie Uzdavines, (widow), Petitioner,v.WEEKS MARINE, INC., Respondent,Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, Interested-Party.
Docket No. 03-40084.
United States Court of Appeals, Second Circuit.
Argued: May 13, 2004.
Decided: August 3, 2005.
COPYRIGHT MATERIAL OMITTED Philip J. Rooney, Israel, Adler, Ronca & Gucciardo, New York, NY, for Petitioner.
Christopher J. Field, Field Womack & Kawczynski, South Amboy, NJ, for Respondent.
Joshua T. Gillelan II, U.S. Dept. of Labor, Office of the Solicitor, Washington, DC, for Interested-Party.
Before: FEINBERG and CABRANES, Circuit Judges, and KRAVITZ, District Judge.*
JOSÉ A. CABRANES, Circuit Judge.
1
We consider here the proper scope of the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 901 et seq., which provides compensation to land-based maritime employees. Marie Uzdavines, the widow of decedent Frank Uzdavines, petitions for review of an April 18, 2003 decision of the U.S. Department of Labor, Benefits Review Board (the "Board"), affirming an Administrative Law Judge's ("ALJ") disallowance of her claim against respondent Weeks Marine, Inc. ("Weeks") for recovery of death benefits. Petitioner filed a survivor's claim under the LHWCA, contending that her husband's death was caused by cancer that resulted, in part, from his exposure to asbestos while working for Weeks aboard a "bucket" dredge in 1990.
2
The Board concluded that, at the time of the decedent's alleged injury, he was a "member of a crew of [a] vessel" within the meaning of 33 U.S.C. § 902(3)(G).1 Consequently, the Board affirmed the ALJ's finding that petitioner was excluded from coverage under the LHWCA and upheld the denial of petitioner's claim.
3
The Board also rejected petitioner's assertion that the doctrines of collateral and judicial estoppel preclude Weeks from "relitigating" the issue of the decedent's coverage under the LHWCA, despite the fact that Weeks had previously stipulated, during proceedings on an earlier disability claim, that it would "assume arguendo" that the decedent was covered under the LHWCA.
4
We heard argument in this matter on May 13, 2004 and held a disposition in abeyance pending the Supreme Court's resolution of Stewart v. Dutra Construction Co., No. 03-814. That case having been decided, ___ U.S. ___, 125 S. Ct. 1118, 160 L. Ed. 2d 932 (2005), we now deny the petition for review.
BACKGROUND
5
The findings of fact by ALJ Robert D. Kaplan and the Board are summarized below. Between 1956 and 1991, the decedent was employed primarily as a welder at construction sites, shipyards, and factories, where he was exposed to asbestos. Beginning in October 1990, the decedent was employed by Weeks, first as a deck hand on a tugboat, and later as an oiler aboard a "bucket" dredge. The bucket dredge was a "large barge unit with a crane" that was located off-shore near the U.S. Navy shipyard at Staten Island. Pet'r's Br. at 6. The purpose of the dredge was "to deepen [navigation] channels, by removing debris from the bottom of the river; the crane and bucket scooped up the silt and placed it into a barge." Id. While the dredge relied primarily on a tugboat for its locomotion, it also had a limited capacity to move itself during the dredging process: "Steel spuds [were] raised, spun, and dropped again so that the dredge walked its way down the channel while depositing the silt onto a barge alongside." Id.
6
For a period of approximately three to four consecutive weeks ending December 9, 1990, the decedent served as an oiler aboard the dredge, working on "the break drums and friction drums which suspend the cable to lift up the bucket while dredging." Id. According to the decedent's testimony before ALJ Ralph A. Romano, the decedent's responsibilities as an oiler included "[w]orking around the engines, checking the oils" and "mak[ing] sure that everything was running properly." Hr'g Tr. of Apr. 15, 1996, at 38. The decedent discharged his responsibilities as an oiler aboard the dredge while the dredge was "in the middle of the water" and gradually moving across the channel. Id. at 37-38.
7
In May 1991, after having retired, the decedent filed a disability claim against Weeks seeking compensation under the LHWCA for asbestosis he had developed. The decedent claimed that he had been exposed to asbestos while working as an oiler on the dredge and that Weeks was solely responsible for compensation because it was the last employer to expose him to asbestos. See Travelers Ins. Co. v. Cardillo, 225 F.2d 137, 145 (2d Cir.1955) (concluding, under the LHWCA, that "the employer during the last employment in which the claimant was exposed to injurious stimuli, prior to the date upon which the claimant became aware of the fact that he was suffering from an occupational disease arising naturally out of his employment, should be liable for the full amount of the award"). During the administrative proceedings, the decedent admitted that he had entered into third-party settlements with asbestos manufacturers in 1991 without informing Weeks or securing its consent. Weeks then moved to dismiss the disability claim under 33 U.S.C. § 933(g)(1), which provides, in pertinent part: If the person entitled to compensation . . . enters into a settlement with a third person . . . for an amount less than the compensation to which the person . . . would be entitled under this [Act], the employer shall be liable for compensation . . . only if written approval of the settlement is obtained from the employer and the employer's carrier, before the settlement is executed, and by the person entitled to compensation . . . .
8
Id. (emphasis added). On July 31, 1996, ALJ Romano concluded that decedent had entered into settlements without the written approval required by the statute and dismissed the disability claim.
9
On appeal, the Board vacated ALJ Romano's dismissal and remanded for further review of the applicability of 33 U.S.C. § 933(g)(1). Specifically, the Board instructed that the disability claim could not be dismissed pursuant to § 933(g)(1) without a finding that: (1) the claimant was a "person entitled to compensation" under § 933(g)(1), and (2) the claimant settled "for an amount less than the compensation to which [he] . . . would be entitled under [the LHWCA]." On remand, the parties stipulated that this second condition was met. They also agreed in writing to "assum[e], arguendo" that the first condition was met. Petitioner acknowledges that Weeks's counsel stated, at the time of entering the stipulation, that the stipulation was "in no way binding with respect to any other claims brought against the employer." See Resp't's Letter Br. of May 17, 2004, Ex. 6. Based on these stipulations, ALJ Romano again dismissed the decedent's disability claim under § 933(g)(1), stating:
10
The parties have agreed that Claimant: is a "person entitled to compensation" under the Act; recovered a gross amount of $17,050 in third party settlements for the medical condition asserted in the instant claim; and would be entitled to compensation in an amount far more than such settlements. Accordingly, based upon [33 U.S.C. § 933(g)(1)], this claim is DISMISSED.
11
Decedent died on August 10, 1999. On September 27, 1999, petitioner brought a survivor's claim against Weeks seeking death benefits pursuant to 33 U.S.C. § 909.2 Weeks moved for summary judgment partly on the basis that, as a "member of a crew of [a] vessel," the decedent was excluded from coverage under the LHWCA. 33 U.S.C. § 902(3)(G), see note 1, ante. On March 29, 2002, ALJ Kaplan determined that the decedent was in fact excluded from the LHWCA's coverage, and dismissed the claim. The Board affirmed, and petitioner now seeks review by this Court.
12
Petitioner presents two arguments for our review. She asserts (1) that the Board erred in concluding that the decedent was a "member of a crew of [a] vessel" within the meaning of § 902(3)(G), and therefore excluded from coverage under the LHWCA, and (2) that because Weeks stipulated during the disability claim proceedings before ALJ Romano that the LHWCA applied to the decedent, Weeks is now precluded by the doctrines of collateral and judicial estoppel from "relitigating" the issue in the context of petitioner's survivor's claim.
DISCUSSION
I. Standard of review
13
Our review of the Board's decision is limited to "whether the [Board] made any errors of law and whether [an] ALJ's findings of fact, in light of the entire record, are supported by substantial evidence." Sealand Terminals, Inc. v. Gasparic, 7 F.3d 321, 323 (2d Cir.1993) (quoting Crawford v. Dir., Office of Workers' Comp., 932 F.2d 152, 154 (2d Cir.1991)) (internal quotation marks omitted).
14
The first question — whether the decedent was a "member of a crew" excluded from the LHWCA — is a mixed question of law and fact. Chandris, Inc. v. Latsis, 515 U.S. 347, 369, 115 S. Ct. 2172, 132 L. Ed. 2d 314 (1995). The Supreme Court has explained:
15
Because statutory terms are at issue, their interpretation is a question of law and it is the court's duty to define the appropriate standard. On the other hand, "[i]f reasonable persons, applying the proper legal standard, could differ as to whether the employee was a `member of a crew,' it is a question [of fact]."
16
Id. (quoting McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 356, 111 S. Ct. 807, 112 L. Ed. 2d 866 (1991)) (internal citation omitted). We review "mixed questions of law and fact either de novo or under the clearly erroneous standard depending on whether the question is predominantly legal or factual." United States v. Selioutsky, 409 F.3d 114, 119 (2d Cir.2005).
17
The second question — whether the doctrines of collateral and judicial estoppel precluded the Board's decision — is a pure question of law, which we review de novo. See id.
18
II. Whether the decedent was a "member of a crew of any vessel"
19
The LHWCA and the Jones Act, 46 U.S.C. § 740 et seq. are mutually exclusive compensation regimes for injured maritime workers. The Jones Act provides for "an action for damages at law" for "any seaman who[,] . . . in the course of his employment," sustains a personal injury. 46 U.S.C.App. § 688(a). By contrast, the LHWCA provides compensation for injuries sustained by land-based maritime workers and expressly excludes "a master or member of a crew of any vessel," i.e. any seaman, from coverage. See 33 U.S.C. § 902(3)(G), 905(a). Accordingly, if a person is a "seaman" for the purposes of the Jones Act, he is excluded from coverage under the LHWCA, and cases interpreting the scope of the term "seaman" under the Jones Act necessarily interpret the scope of the LHWCA's exclusion of a "master or member of a crew of any vessel." Chandris, 515 U.S. at 355-56, 115 S. Ct. 2172. Conversely, it is "`odd but true that the key requirement for Jones Act coverage now appears in [the LHWCA].'" Id. (quoting Wilander, 498 U.S. at 347, 111 S. Ct. 807).
20
The Supreme Court has recognized that there are two requirements for "seaman" status: (1) "an employee's duties must `contribut[e] to the function of the vessel or to the accomplishment of its mission,'" and (2) the employee "must have a connection to a vessel in navigation . . . that is substantial in terms of both its duration and its nature." Id. at 368, 115 S. Ct. 2172 (quoting Wilander, 498 U.S. at 355, 111 S. Ct. 807) (alteration in original, internal quotation marks omitted).
21
Petitioner conceded below, and does not now contest, that her husband satisfied the first requirement — that is, he "contribut[ed] to the function of the [purported] vessel or to the accomplishment of its mission." Upon review, petitioner initially maintained that the decedent did not meet the second requirement in two ways: she argued (1) that the dredge on which her late husband worked was not a "vessel in navigation," and (2) that even if it was, his connection to the dredge was not "substantial in terms of both its duration and its nature." In light of the Supreme Court's recent decision in Stewart v. Dutra Construction Co., ___ U.S. ___, 125 S. Ct. 1118, 160 L. Ed. 2d 932 (2005), however, petitioner now concedes that "a structure such as a bucket dredge involved herein is, in fact, a vessel." Pet'r's Letter Br. of Mar. 21, 2005, at 2. Nonetheless, because the Supreme Court's ruling revised our Court's previous test for "vessel" status under the LHWCA, we apply the holding in Stewart to the facts of this case.
22
A. "Vessel in navigation"
23
In Stewart, the Supreme Court considered "whether a dredge is a `vessel' under the [LHWCA]," and concluded that it is. 125 S. Ct. at 1121. To qualify as a vessel, a ship must be "`used, or capable of being used, as a means of transportation on water.'" Id. at 1124 (quoting Rev. Stat. § 3, codified at 1 U.S.C. § 3). While "structures may lose their character as vessels if they have been withdrawn from the water for extended periods of time," id. at 1128, "permanently moored[,] or otherwise rendered practically incapable of transportation or movement," id. at 1127, a ship does not move in and out of "vessel" status because it is temporarily "at anchor, docked . . . or berthed for minor repairs," id. Likewise, "a watercraft [does not] pass in and out of Jones Act coverage depending on whether it was moving at the time of the accident." Id. at 1128. Provided that at the time of the accident a watercraft's use as a means of transportation remains a "practical possibility," rather than "merely a theoretical one," it qualifies as a "vessel in navigation" for the purposes of LHWCA coverage. Id.
24
Applying these tests to the dredge at issue in Stewart, the Supreme Court emphasized that the dredge "was not only `capable of being used' to transport equipment and workers over water — it was used to transport those things. Indeed, it could not have dug the Ted Williams Tunnel had it been unable to traverse the Boston Harbor, carrying with it workers like Stewart." Id. at 1128. The Court added that "[d]espite the seeming incongruity of grouping dredges alongside more traditional seafaring vessels under the [LHWCA and Jones Act], Congress and the courts have long done precisely that." Id. at 1129.
25
In all material respects, the bucket dredge in the instant case is indistinguishable from the dredge at issue in Stewart: both have "a clamshell bucket . . . suspended beneath the water," and both move "long distances by tugboat" and navigate "short distances by manipulating . . . anchors and cables." Id. at 1121. In addition to sharing these physical features, the dredge on which the decedent worked was actively used to deepen navigation channels in the vicinity of Staten Island and could not have performed this task without the ability to transport equipment and workers across navigable waters.
26
The Supreme Court's decision in Stewart supersedes the three-part test we developed in Tonnesen v. Yonkers Contracting Co., 82 F.3d 30 (2d Cir.1996), which stated that a floating structure would not qualify as a "vessel in navigation" if, inter alia, the "transportation function performed by the [purported vessel] was merely incidental to its primary purpose of serving as a work platform." Id. at 36. On the basis of Stewart, we conclude that the test announced in Tonnesen no longer applies and that the bucket dredge on which the decedent worked is properly classified as a "vessel" for purposes of the LHWCA.
B. "Substantial" connection to a vessel
27
Although petitioner does not dispute that, for a period of three or four consecutive weeks, the decedent worked exclusively as an oiler aboard a dredge that was (1) located "in the middle of the water" and (2) moved across the channel, Hr'g Tr. of Apr. 15, 1996, at 37-38, she nonetheless challenges ALJ Kaplan's determination that the decedent had a "substantial" connection to the dredge. Petitioner concedes that "under certain circumstances, four weeks of work could be a substantial connection to a vessel," Pet'r's Br. at 13, but contends that ALJ Kaplan erred principally by failing to consider the decedent's work history — which included predominantly land-based work over the course of thirty-five years — prior to his work on the dredge.
28
As a preliminary matter, we conclude that ALJ Kaplan need not have considered the decedent's prior work history. The Supreme Court has unequivocally stated that "[t]here [is] no . . . need to examine the nature of an employee's duties with prior employers," Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 557, 117 S. Ct. 1535, 137 L. Ed. 2d 800 (1997), because this "would undermine the interests of employers and maritime workers alike in being able to predict who will be covered by the Jones Act . . . before a particular work day begins," id. at 558 (internal quotation marks omitted). Therefore, if an employee "receives a new work assignment in which his essential duties are changed, he is entitled to have the assessment of the substantiality of his vessel-related work made on the basis of his activities in his new position." Chandris, 515 U.S. at 372, 115 S. Ct. 2172 (emphasis added). The Supreme Court specifically contemplated "situations in which someone who had worked for years in an employer's shoreside headquarters is then reassigned to a ship in a . . . seaman's job that involves a regular and continuous, rather than intermittent, commitment of the worker's labor to the function of the vessel." Id. In such circumstances — which strongly resemble those of the decedent's employment aboard the dredge in the instant case — the Court concluded that "[s]uch a person should not be denied seaman status if injured shortly after the reassignment." Id.
29
Based on the record before us, we hold that, during the time period that the decedent worked aboard the dredge, he established a connection to the vessel that was "substantial in terms of both its duration and its nature" rather than merely "transitory or sporadic." Chandris, 515 U.S. at 368, 115 S. Ct. 2172. Bearing in mind that "[t]he inquiry into the nature of the employee's connection to the vessel must concentrate on whether the employee's duties take him to sea," Papai, 520 U.S. at 555, 117 S. Ct. 1535, we particularly note that the decedent worked aboard an active vessel, maintaining the ship's engines so that it could perform the task of transporting equipment and personnel across a navigable waterway. Cf. id. at 559, 117 S. Ct. 1535 (finding no substantial connection where employee "was hired for one day to paint [a] vessel at dockside and he was not going to sail with the vessel after he finished painting it"); O'Hara v. Weeks Marine, Inc., 294 F.3d 55, 64 (2d Cir.2002) (finding no substantial connection where employee performed tasks aboard a barge that was at all times "secured to [a] pier").
30
With respect to petitioner's final argument — that we should disregard the decedent's employment aboard the dredge because this employment was temporary, rather than "of indefinite or permanent duration," see Pet'r's Letter Br. of Mar. 21, 2005, at 5 — even if we were to perceive a distinction between temporary or "fill-in" work and more permanent kinds of employment, the coverage of the LHWCA does not depend on any such distinction, nor does petitioner point to any authority suggesting that it does.
31
We therefore find no error in the legal reasoning of either ALJ Kaplan or the Board, and we affirm their findings that the decedent had a "substantial" connection to a vessel at the time of his injury. In our view, both the ALJ and the Board properly determined, in light of the considerable evidence in the record, that the decedent had a connection to the dredge that was "substantial in both its duration and its nature."
III. Estoppel
A. Collateral estoppel
32
Petitioner next argues that Weeks is collaterally estopped from "relitigating" the coverage of the LHWCA because (1) Weeks stipulated during the disability proceedings before ALJ Romano that the decedent was covered by the LHWCA, and (2) ALJ Romano relied on that stipulation in dismissing the decedent's disability claim.
33
Collateral estoppel, or issue preclusion, applies where: "(1) the identical issue was raised in a previous proceeding; (2) the issue was actually litigated and decided in the previous proceeding; (3) the party had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue was necessary to support a valid and final judgment on the merits." Boguslavsky v. Kaplan, 159 F.3d 715, 720 (2d Cir.1998) (quoting Interoceanica Corp. v. Sound Pilots, Inc., 107 F.3d 86, 91 (2d Cir.1997)) (internal quotation marks omitted).
34
ALJ Kaplan and the Board concluded that collateral estoppel did not apply to the instant case because the issue of whether the decedent was covered under the LHWCA was not "actually litigated" before ALJ Romano during the disability proceedings. Instead, the decedent and Weeks merely submitted a stipulation assuming that coverage existed for the narrow purpose of allowing ALJ Romano to resolve Weeks' motion to dismiss under § 933(g), in accordance with the Board's remand. Further, it is undisputed that counsel for Weeks stated, at the time he entered the stipulation, that the "stipulation [was] in no way binding with respect to any other claims brought against the employer." Resp't's Letter Br. of May 17, 2004, Ex. 6. While ALJ Romano relied on the parties' limited stipulation that the decedent could be considered a "person entitled to compensation under the [LHWCA]," he made no express findings that the decedent was not a "seaman," or that the decedent fell within the coverage of the LHWCA.
35
Most courts have held that a fact established in prior litigation by stipulation, rather than by judicial resolution, has not been "actually litigated." See, e.g., United States v. Botefuhr, 309 F.3d 1263, 1282-83 (10th Cir.2002); United States v. Young, 804 F.2d 116, 118 (8th Cir.1986); see also 18 James Wm. Moore et al., Moore's Federal Practice § 132.03[2][h][i] (3d ed.2005) (collecting cases). However, we have specified that where parties intend a stipulation to be binding in future litigation, issues to which the parties have stipulated will be considered "actually litigated" for collateral estoppel purposes. See Cent. Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 369 n. 4 (2d Cir.1995); see also Red Lake Band v. United States, 221 Ct. Cl. 325, 607 F.2d 930, 934 (1979) ("[A]n issue is not `actually litigated' for purposes of collateral estoppel unless the parties to the stipulation manifest an intent to be bound in a subsequent action."); cf. Otherson v. Dep't of Justice, 711 F.2d 267, 274 n. 6 (D.C.Cir.1983) ("[Issue] [p]reclusion is appropriate when the stipulation clearly manifests the parties' intent to be bound in future actions.").
36
In the instant case, the parties expressed a mutual understanding that the stipulation would not be binding on future claims against Weeks. The written stipulation only "assum[ed], arguendo" that coverage existed, and counsel for Weeks clearly stated that the stipulation was limited to the decedent's initial disability claim. Therefore, the Board was not precluded from resolving whether the decedent was covered by the LHWCA for the purposes of addressing petitioner's separate survivor's claim for death benefits.
37
Finally, petitioner's assertion that collateral estoppel applies suggests that Weeks should have litigated the issue of LHWCA coverage before the ALJ, even though the Board had already determined that the decedent's claim — assuming that it was properly raised under the LHWCA — would be dismissed on other grounds. In such circumstances, it is appropriate for parties to stipulate to coverage for the purpose of a single proceeding while reserving the right to "actually litigate" the question of jurisdiction in future proceedings.
B. Judicial estoppel
38
Petitioner also briefly argues that "judicial estoppel" offers a basis, independent of collateral estoppel, for vacating the Board's decision. Pet'r's Br. at 34-35. The equitable doctrine of judicial estoppel provides that, "`[w]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.'" New Hampshire v. Maine, 532 U.S. 742, 749, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001) (quoting Davis v. Wakelee, 156 U.S. 680, 689, 15 S. Ct. 555, 39 L. Ed. 578 (1895)). The Supreme Court, exercising its original jurisdiction over a boundary dispute between New Hampshire and Maine, identified "several factors" that "typically inform the decision whether to apply the doctrine in a particular case":
39
First, a party's later position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled. . . . A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.
40
Id. at 750-51, 121 S. Ct. 1808 (internal quotation marks and citations omitted). In "enumerating these factors," the Court cautioned that it was not establishing "inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel." Id. The Court concluded that judicial estoppel applied to prevent New Hampshire from re-litigating its eastern boundary with Maine, where New Hampshire would be taking a position inconsistent with a consent decree it entered into in 1977. Id. at 756, 121 S. Ct. 1808.
41
Our circuit has consistently limited the application of judicial estoppel to "situations where a party both takes a position that is inconsistent with one taken in a prior proceeding, and has had that earlier position adopted by the tribunal to which it was advanced." Stichting v. Schreiber, 407 F.3d 34, 45 (2d Cir.2005); Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d 113, 118 (2d Cir.2004) (same); Adler v. Pataki, 185 F.3d 35, 41 n. 3 (2d Cir.1999) (same). Moreover, we "limit[] the doctrine of judicial estoppel to situations where the risk of inconsistent results with its impact on judicial integrity is certain." Simon v. Safelite Glass Corp., 128 F.3d 68, 72 (2d Cir.1997).
42
Judicial estoppel cannot be applied against Weeks in the instant case. The parties' stipulation concerning the scope of the LHWCA was limited to the decedent's disability claim, and therefore Weeks is not taking an "inconsistent" position by now asserting, as a defense to petitioner's survivor's claim, that the decedent was not covered. Furthermore, the parties' stipulation did not confer "an unfair advantage" on Weeks, or impose "an unfair detriment" on the decedent, New Hampshire, 532 U.S. at 751, 121 S. Ct. 1808; the decedent's disability claim would have been dismissed in any event — whether based on his settlement of third-party claims without obtaining written approval from Weeks, or based on his exclusion from the LHWCA. Perhaps in the interests of judicial economy and in anticipation that dismissal was inevitable under 33 U.S.C. § 933(g)(1), the parties stipulated to LHWCA coverage. No one — not ALJ Romano, not ALJ Kaplan, not the Board, and not petitioner — was "misled" by the parties' stipulation in the original disability claim proceeding, and the judicial integrity of the Board's determination was not compromised by the parties' stipulation. Under these circumstances, equity does not suggest, much less require, that we hold that the decedent was covered under the LHWCA.
CONCLUSION
In sum, we hold that:
43
(1) the decedent was properly classified as a "member of a crew of [a] vessel" within the meaning of 33 U.S.C. § 902(3)(G) and thereby excluded from coverage under the LHWCA because (a) at the time of his alleged injury, he "contributed to the function" of a bucket dredge, which qualifies as a vessel, and (b) his connection to the dredge was "substantial in both its duration and its nature"; and
44
(2) in the present circumstances, petitioner may not invoke the doctrines of collateral and judicial estoppel to preclude respondent from "relitigating" the issue of the decedent's coverage under the LHWCA.
45
For the reasons stated above, we deny the petition for review.
Notes:
*
The Honorable Mark R. Kravitz, United States District Judge for the District of Connecticut, sitting by designation
1
33 U.S.C. § 902(3) provides, in relevant part:
The term "employee" means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker, but such term does not include. . . a master or member of a crew of any vessel.
2
33 U.S.C. § 909 provides, in relevant part:
If the injury causes death, the compensation therefore shall be known as a death benefit and shall be payable . . . for the benefit of . . . a widow or widower . . . [in the amount of] 50 per centum of the average wages of the deceased, during widowhood, or dependent widowerhood, with two years' compensation in one sum upon remarriage . . . . | 01-03-2023 | 04-19-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/581421/ | 961 F.2d 677
UNITED STATES of America, Plaintiff-Appellee,v.Robert J. RIPPEE, Defendant-Appellant.
No. 91-2485.
United States Court of Appeals,Seventh Circuit.
Argued Dec. 2, 1991.Decided April 14, 1992.
Kit R. Morrissey, Asst. U.S. Atty. (argued), Thomas Edward Leggans, Office of the U.S. Atty., Criminal Div., Fairview Heights, Ill., for plaintiff-appellee.
Renee E. Schooley, Federal Public Defender (argued), Office of the Federal Public Defender, East St. Louis, Ill., for defendant-appellant.
Before POSNER and MANION, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
MANION, Circuit Judge.
1
By pretending to be a United States Marshal, Robert J. Rippee talked his way out of a traffic ticket and into an indictment in federal court. A jury convicted Rippee of impersonating a federal officer to obtain a thing of value in violation of 18 U.S.C. § 912 (1976), and the district judge sentenced Rippee to seven months imprisonment pursuant to the Sentencing Guidelines. On appeal, Rippee argues only that the district court erred in denying his motion to dismiss the indictment for failure to state an offense under section 912. We affirm the defendant's conviction.
I. Background
A. Facts
2
On January 1, 1991, officers from the National City, Illinois, Police Department stopped Rippee for making an illegal U-turn. The officers let Rippee go without a ticket, however, when he told them he was a United States Marshal on his way to break up a fight at Fannies' Night Club in Brooklyn, Illinois.
3
On February 21, 1991, the grand jury in the Southern District of Illinois charged Rippee in a one count indictment with obtaining a thing of value by pretending to be an officer acting under the authority of the United States in violation of 18 U.S.C. § 912. Rippee filed a motion to dismiss the indictment arguing that the indictment failed to state an offense under section 912. After the district court denied the motion, the case proceeded to trial. Rippee stipulated that he was not and had never been a United States Marshal. After hearing the evidence, the jury convicted Rippee.
B. Statute
4
Since 1948, 18 U.S.C. § 912 has read as follows:
5
Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined not more than $1000 or imprisoned not more than three years, or both.
6
Rippee seeks to distinguish his conduct from the conduct criminalized under section 912 in two ways. First, Rippee argues that even though he did impersonate a federal officer he did not "obtain a thing of value." Therefore, his conduct did not fall within the category of conduct prohibited by section 912. Second, Rippee argues, even if he obtained a thing of value, he acted for his personal benefit and not as a representative of the United States, which absolves him from criminal liability under section 912.
II. Analysis
7
Section 912 criminalizes two kinds of conduct: (1) false impersonation of a federal official coupled with an overt act in conformity with the pretense and (2) false impersonation of a federal official coupled with demanding or obtaining a thing of value. United States v. Kimberlin, 781 F.2d 1247, 1250 (7th Cir.1985), cert. denied, 479 U.S. 938, 107 S. Ct. 419, 93 L. Ed. 2d 370 (1986) (citing United States v. Barnow, 239 U.S. 74, 75, 36 S. Ct. 19, 20, 60 L. Ed. 155 (1915) (decided under the predecessor statute to § 912)). Rippee's indictment charges him with the second type of section 912 offense, and his argument before this court initially requires us to determine what it means to "obtain a thing of value" within the meaning of the statute.
8
As Rippee correctly observes, most cases under section 912 involve defendants who obtain money, credit or property as a result of deceit. E.g., Kimberlin, 781 F.2d at 1249 (defendant used Department of Defense insignia to obtain property); United States v. Etheridge, 512 F.2d 1249, 1250 (2d Cir.1975), cert. denied, 423 U.S. 843, 96 S. Ct. 77, 46 L. Ed. 2d 63 (1975) (defendant obtained loan of $200 from Army Emergency Relief by falsely stating that he was a current member of the U.S. Army); United States v. Milton, 421 F.2d 586, 587 (10th Cir.1970) (defendant represented himself as an FBI agent to obtain money); Honea v. United States, 344 F.2d 798, 800-801 (5th Cir.1965) (defendant represented himself as a CIA agent and obtained $4000). The phrase "thing of value" under section 912 has also been construed to encompass more than tangible objects having commercial worth. United States v. Sheker, 618 F.2d 607, 609 (9th Cir.1980) (holding that information constituted a "thing of value"). Rippee observes, however, that "[e]ven those cases which do not involve a literal transfer of cash, credit, or other valuable property still require that the defendant receive something for his efforts in order to be convicted." (Appellant's Brief at 3). In Rippee's view, his conduct falls outside the reach of section 912 because he avoided something but obtained nothing.
9
Rippee proposes a novel interpretation of section 912, and we have found no indication that any other circuit has pondered the meaning of the word "obtain" in the context of section 912. However, Rippee's semantic distinction between "avoid" and "obtain" in this case fails because Rippee did obtain something of value--forbearance. Forbearance by the National City Police conferred upon Rippee a substantial benefit because if Rippee had received a ticket (instead of forbearance) he may have had to pay a fine, appear in court, and perhaps even shoulder an increase in insurance premiums. Also, as the district court noted, Rippee at least gained the value of time for not having to defend himself in court. Few traffic violators who pull over in response to the ominous flashing light would conclude that they did not obtain something of value if the officer, after hearing the driver's "reason" for the infraction, let the offender go without writing a ticket.
10
We note that our interpretation of section 912 comports with the statute's general purpose articulated by the Supreme Court. Both types of section 912 offenses described in Kimberlin require both a pretense and an act. See, e.g., United States v. Harmon, 496 F.2d 20 (2d Cir.1974) (an indictment charging false impersonation without alleging that the defendant acted in conformity with his pretended character or obtained anything of value held insufficient). The statute does not punish mere puffing. However, "[i]t is the false pretense of Federal authority that is the mischief to be cured...." Barnow, 239 U.S. at 78, 36 S.Ct. at 21. That mischief is the same whether the impersonator swindles a widow out of $4000 as in Honea or dupes a police officer out of issuing a ticket.
11
Our study of the word "obtain" does not end our analysis. In the second part of his argument, Rippee contends that he is exempt from liability under section 912 because even assuming he did obtain benefits, those benefits accrued to him in his personal capacity and not as a representative of the United States Marshals Service. Rippee maintains that "[a]ssuming, arguendo, that [he] ... obtained any benefits at all, these benefits would accrue to him in his personal capacity. Even if he had been a Marshal, whether he received a traffic ticket or not was certainly of no concern to the federal government or the United States Marshal's [sic] Service." (Appellant's Reply Brief at 3). The Ninth Circuit and the Second Circuit have rejected similar arguments. In Littell v. United States, 169 F. 620 (9th Cir.1909), the defendant obtained board, lodging and a loan of $600 for a personal investment on the basis of his statement that he was in town to oversee construction of the Federal Building and other government works. The Ninth Circuit held that although the benefits the defendant obtained accrued to him personally, the predecessor statute to section 912 reached the defendant's conduct. Id. at 622. Relying in part on Littell, the Second Circuit rejected a comparable argument in Etheridge where the defendant obtained a personal loan from Army Emergency Relief by falsely representing that he was a member of the United States Army. Etheridge, 512 F.2d at 1252-1253. Likewise, we find it irrelevant that the benefit that Rippee received was conferred on him as an individual and not as a representative of the United States Marshals Service.
12
As authority for his contrary position, Rippee cites United States v. Grewe, 242 F. Supp. 826 (W.D.Mo.1965) and United States v. York, 202 F. Supp. 275 (E.D.Va.1962). In York and Grewe, the defendants pretended to be employed by the United States but did not assert that they were acting under federal authority at the time they obtained a benefit. In York, the defendant, a teenage girl, obtained credit to buy a dress by listing her employer as the FBI. The court held that her conduct did not constitute a violation of section 912. While the defendant pretended to be an employee of an agency of the United States, she did not pretend " 'to be an officer or employee acting under the authority of the United States or any department, agency, or officer thereof ' " because she never represented that she was buying the dress under the authority of the FBI. York, 202 F. Supp. at 276 (quoting 18 U.S.C. § 912) (emphasis original). Similarly, in Grewe, the defendant cashed checks for personal obligations and personal funds using a counterfeit United States Army identification card. Grewe, 242 F. Supp. at 828. The court pointed out that the defendant falsely represented "only that she 'was employed by the United States.' " Id. at 828 (emphasis in original). Noting the "vast factual difference between representing that one is 'acting under the authority of the United States' and merely representing that one is 'employed by the United States,' " the court dismissed the indictment. Id. at 829.
13
Rippee's reliance on York and Grewe is misplaced. The defendants in York and Grewe were outside the reach of section 912 not because they benefitted in their personal capacity from their pretense but because they had not pretended to be employees "acting under the authority of the United States." Correctly construed, the reasoning in York and Grewe could apply if Rippee's indictment alleged that Rippee stated he was on his way to a picnic and mentioned that his employer was the United States Marshals Service in the hopes that this would influence the National City police officer. Rippee's indictment, however, alleged that he "did falsely assume and pretend to be an officer and employee of the United States acting under the authority thereof." As factual support of this allegation, the indictment stated that Rippee "told National City Illinois police officers that he was a Deputy United States Marshal on his way to assist in the breakup of a fight in progress at Fannies' Night Club...." Therefore, the indictment alleged that Rippee violated section 912 by falsely representing not only that he was an employee of the United States but also that he was acting under the authority of his position at the time he was stopped. Whether or not a United States Marshal's responsibilities actually include breaking up fights does not matter. The indictment alleges that Rippee pretended to be breaking up the fight in his capacity as a Marshal. That is enough to state a violation of the statute. Since Rippee appeals the sufficiency of the indictment but not the sufficiency of the evidence at trial, we do not need to address whether the government produced support for its allegations on the record.1
III. Conclusion
14
Since Rippee's indictment alleged that he obtained forbearance from the National City police officers by impersonating an officer acting under the authority of the United States, the indictment sufficiently stated a violation of 18 U.S.C. § 912. Accordingly, we AFFIRM the defendant's conviction.
1
Furthermore, we note that the record on appeal does not contain a transcript of the trial but only a transcript of the closing arguments. Rippee has limited us to examination of the indictment and precluded our examination of the evidence produced at trial | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1596004/ | 399 So.2d 1111 (1981)
James B. MALONEY, et Ux., Appellants,
v.
ATLANTIQUE CONDOMINIUM COMPLEX, INC., and Keith L. Hudkins, Appellees.
No. 80-556.
District Court of Appeal of Florida, Fifth District.
June 24, 1981.
*1112 Stephannie L. DaCosta, Cocoa Beach, for appellants.
William C. Irwin, Cocoa Beach, for appellee Hudkins.
William E. Weller, Cocoa Beach, for appellee Atlantique.
COWART, Judge.
This case involves the exercise of a condominium association member's preemptive right to buy units offered for sale to non-members by other members.
The Declaration of Atlantique Condominium Complex, Inc., provides in part:
Prior to the sale of any interest in any unit, the owner of said unit, except co-owners selling to each other, shall notify the Board of Directors, in writing, of the name, address, business, occupation or employment of the offeror, accompanied with an executed copy of the bona fide offer as hereinafter defined. Members shall have the first right over non-members to accept such sale at the bona fide price and on the terms contained in the notice, provided they so notify the Secretary of the Corporation in writing of acceptance at least ten (10) days after the date of notice, which information the Corporation shall promptly forward to the owner.... (emphasis added)
"Subject to condominium by-laws" the Neals, as owners of a unit, entered into a contract of sale and purchase wherein the Neals agreed to sell their unit to the Maloneys, who were non-owners and non-members. For the purposes of this case this document constitutes a bona fide offer of the Neals to sell. Written notice of the sales contract (offer) was given by the Neals by hand delivery to the secretary of the condominium association on November 27, 1978, and copies were mailed by the association to all members. On December 4, 1978, appellee Hudkins, a non-resident owner-member, mailed an acceptance of the offer to the condominium association's president. On December 7, 1978, the Neals and the Maloneys closed the contracted transaction and the Neals conveyed title to the unit to the Maloneys. On December 8, 1978, appellee Hudkins' letter of "acceptance," exercising his preemptive right to buy under the condominium declaration, was received by the association president and that day delivered to the association secretary. The condominium association, appellee herein, brought suit for a declaratory judgment against the Neals, the Maloneys and the appellee Hudkins and others to have the court construe the condominium declaration and declare that the sale to the Maloneys was void and that Hudkins was entitled to purchase the unit. The parties stipulated that the phrase "at least ten (10) days" in the condominium declaration means "within ten (10) days." The trial court in effect held that Hudkins was entitled to purchase the unit, and the Maloneys appeal.
Within ten days of November 27, 1978, means by the 7th day of December, 1978. If Hudkins' letter of "acceptance" was effective when it was mailed on December 4, 1978, it was timely and he was entitled to buy, the sale to the Maloneys was ineffective and the trial court was correct. However, if Hudkins' letter was effective or operative only as of December 8, 1978, when it was received, it did not constitute a timely acceptance of the Neals' offer to sell nor a timely exercise of Hudkins' preemptive right of first refusal and the judgment below should be reversed. The question is *1113 presented as to whether the so-called "deposit acceptance rule" (under which an acceptance is deemed effective as of the date of deposit in the mail of the acceptance of an offer), applies in this case.
The appellees claim broadly that Florida has adopted the "deposit acceptance rule," citing Morrison v. Thoelke, 155 So.2d 889 (Fla.2d DCA 1963), Green v. Sesac, Inc., 177 So.2d 752 (Fla. 1st DCA 1965), quashed, 189 So.2d 612 (Fla. 1966), Kendel v. Pontious, 244 So.2d 543 (Fla.3d DCA 1971), cert. dismissed, 261 So.2d 167 (Fla. 1972), and Kendel v. Pontious, 261 So.2d 167 (Fla. 1972).
In Morrison, a resident of Florida desiring to buy Florida land from the Thoelkes, who lived in Texas, signed a contract and mailed it to the Thoelkes, who signed the contract and placed it in the mail to Morrison's attorney in Florida. Before the contract was received by Morrison's attorney, the Thoelkes called Morrison's attorney and cancelled and repudiated their acceptance and the contract. However, the Morrisons recorded the contract when it was received and the Thoelkes brought a quiet title suit to have the contract declared void and cleared from their title. The trial court held that the Thoelkes' acceptance was effective only when received and that the contract was void because the Thoelkes had withdrawn their acceptance before it was received. The appellate court reversed, holding that the Thoelkes' acceptance was effective when their acceptance of the contract was placed in the mails. After concluding that there were advantages and disadvantages in applying or not applying the deposit acceptance rule, the Morrison court, in an exhaustive opinion reviewing the historical development of the rule and citing many authorities, including I Corbin on Contracts, § 78 (1950), applied the rule to the facts in that case. However in Morrison the court recognized the basic problem was that "In the formation of contracts inter absentes by post, delay in communication prevents concurrent knowledge of assents and some point must be chosen as legally significant." The court then found that the balance in Morrison tipped to the application of the "deposit acceptance rule" because (1) the offeror had chosen the medium of communication, (2) the offeror is seldom injured by the delay and uncertainty in not knowing whether or not his offer had been accepted; and (3) if any such delay or uncertainty is unacceptable to the offeror he can always expressly condition his offer as to time and to his actual receipt of an acceptance. Morrison makes clear that the logic of its decision related to contracts negotiated by mail and on the considerations detailed above.
In Green the appellate court in construing the application of a taxing statute merely referred to the fact that the trial judge, whose decision was reversed, relied on the deposit acceptance rule.
In Kendel v. Pontious, as in Morrison, a prospective purchaser signed a contract which was mailed to the owner who signed it but, unlike Morrison, the owner did not deposit the contract in the mail but handed it to the owner's attorney on January 17, 1969. The prospective purchaser revoked his offer on that same day and before the acceptance was placed in the mail. The trial court in Kendel, citing Morrison, held that the revocation was effective because, when an offer to purchase is transmitted to the seller by mail, if the offer or contract does not otherwise provide, it will be implied that acceptance will be made by mail. The district court of appeal affirmed and the Florida Supreme Court denied certiorari.
While the owner of a condominium unit in Atlantique can choose the medium by which he communicates his notice (offer) to the board of directors and can thereby prevent delay in commencing the running of the ten day notice, he has neither control over selection of the communication medium by which the association relays his offer to the other owners nor control over the selection by the other owners of their method of communication of notice of the exercise of their preemptive right. Delay and uncertainty impair marketability and are very important and undesirable, both to the unit owner desiring to sell his unit and to a *1114 prospective purchaser. The unit owner should be able to know if any other unit owner has exercised this "right of first refusal" or "preemptive right" within ten days after the date the owner has notified the board of directors of the association so that the unit owner may know with assurance that the restraint on his right to alienate his property is over and that he is free to close his sale pursuant to his conditional offer to (contract with) a third party. If the owner-offeror was required to assume the risk of the delays and miscarriages of the mail he would never know how long he had to wait, particularly where, as here, the option is subject to acceptance by any of many persons living anywhere they choose. If condominium owners who have such preemptive rights choose to live in areas distant from the condominium, which causes the problems that arise from the formation of contracts by mail, they should assume the disadvantages caused by their long distant, absentee ownership and those disadvantages should not be placed upon other owners who desire to sell. Here, since the option is created and controlled by the condominium declaration and the notification of other owners of the offer and the exercise of their option is made to and by the association, the owner-offeror lacks the normal freedom to expressly condition his offer as to time and the actual receipt of an acceptance.
Corbin on Contracts, one of the authorities relied upon in Morrison, in considering option contracts (IA Corbin on Contracts, § 264 (1963)), states:
Must notice of acceptance be received? When contracts are being made by correspondence, it is held in most cases that the contract is consummated at the time and place that the acceptance is mailed. But when, by the terms of an already consummated contract it is provided that one party shall have power to produce certain legal results by giving notice, it is usually held that this means notice received in fact and not merely notice mailed. A landlord's "notice to quit" must be received by the tenant. The power of termination of a contract of employment, or of any other continuing contract, can be effectively exercised only by bringing home notice to the other party, not by merely mailing it to him. In a contract to ship goods as ordered, there is no duty of immediate performance until an order is received. Of course, it is possible in any case for the parties to agree that the mere mailing of a notice shall be sufficient; it is a question of interpretation whether they have in fact so agreed.
If in an option contract the duty of the promisor is conditional on "notice within 30 days", does this mean notice received or notice properly mailed? It is believed that, in the absence of an expression of contrary intention, it should be held that the notice must be received. As above explained, the notice is in one aspect a notice of acceptance of an offer; but in another aspect it is a condition of the promisor's already existing contractual duty. It is more likely to be regarded in this latter aspect by the parties themselves. The rule that an acceptance by post is operative on mailing was itself subjected to severe criticism; and, even though it may now be regarded as settled, it should not be extended to notice of acceptance in already binding option contracts.
For all of these reasons, we find that the considerations found persuasive in Morrison for application of the "deposit acceptance rule" do not apply here and that the better rule, as expressed in Corbin, is that the rule that an acceptance by post is operative on mailing should not be extended to notice of the exercise of existing option contracts, or preemptive rights of first refusal, as is involved in this case. The benefit of this better rule inures to the benefit of all unit owners when they desire to sell. Accordingly, the judgment below is reversed with directions to enter up judgment in favor of the appellants.
REVERSED AND REMANDED.
DAUKSCH, C.J., and FRANK D. UPCHURCH, Jr., J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596007/ | 621 N.W.2d 410 (2001)
IBP, INC., Appellee,
v.
Linda HARPOLE, Appellant.
Perry Manor and Allied Mutual Insurance Company, Plaintiffs,
v.
Iowa District Court for Polk County, Defendant.
No. 99-0578.
Supreme Court of Iowa.
January 18, 2001.
*411 Thomas M. Werner, Des Moines, and Robert McKinney of McKinney Law Offices, P.C., Waukee, for appellant.
Christopher J. Godfrey of IBP, Inc., Dakota City, Nebraska, for appellee.
*412 Michael L. Mock and D. Brian Scieszinski of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for plaintiffs.
Considered en banc.
SNELL, Justice.
An injured employee, Linda Harpole sought disability benefits for injuries she suffered while employed by both IBP, Inc. and Perry Manor. Her individual claims against each business were consolidated for one agency hearing. Harpole appeals the district court's decision on judicial review which overturned her 40% permanent partial disability award against IBP. By writ, Perry Manor seeks a ruling that an individual judgment received in a consolidated case, appealed by no party, does not continue to be litigated by virtue of another consolidated party's appeal of its judgment. We reverse the judgment of the district court and remand for entry of judgment affirming the agency's ruling. We also sustain the writ.
I. Factual Background and Proceedings
Harpole was employed at IBP when her first knee injury occurred in October 1991. From this fall, she required knee surgery and thereafter, a knee brace. In May 1993, Harpole received a settlement of 20% permanent partial disability from IBP for her injury. Harpole exacerbated her injury on two more occasions while employed at IBP. One was on an icy sidewalk not connected with work in February 1993, and the other occurred in the IBP cafeteria in May 1993. Also, in April 1994, Harpole left work at IBP as a result of severe pain in her left knee. Harpole filed claims against IBP for the subsequent work-related fall and her pain-related work leave.
Harpole eventually left the employ of IBP and began work at Perry Manor. In 1996, she again injured her left knee while at work. She filed a disability claim against Perry Manor for this injury. Harpole also petitioned to re-open the settlement she had made with IBP for her first knee injury in 1991. Harpole claimed she now had additional injuries to both knees, her lower back, and hips tracing back to her initial 1991 fall. A description of her injuries is provided below.
1) October 11, 1991The first injury to Harpole's left knee occurred at IBP. Harpole was unable to return to her regular duties until February 5, 1993. She obtained a settlement award from IBP for this injury in May 1993.
2) December 1991Harpole underwent arthroscopic surgery by Dr. David Wirtz on her left knee.
3) April 1992Harpole received patellar realignment and Dr. Wirtz removed a screw from her left knee.
4) December 1992Dr. Wirtz removed Harpole's left patella. Dr. Wirtz also prescribed that Harpole wear a leg immobilizer on her left leg at home and at work. The immobilizer did not allow her to bend her left leg.
5) February 15, 1993Harpole slipped and fell outside a private business, re-injuring her left knee. She was wearing her immobilizer on her left knee at this time. She was unable to return to work until April 13, 1993.
6) February 1993Because Dr. Wirtz was out of town, Dr. Sinesio Misol performed left knee surgery on Harpole to repair a torn tendon due to her slip and fall.
7) May 20, 1993Harpole slipped and fell in the IBP cafeteria. X-rays did not show any new injury. However, Harpole did suffer increased pain. She was unable to return to work until August 20, 1993.
8) April 31, 1994Harpole left work because of extreme knee pain. No new injury occurred at this time. She was off work until June 15, 1994.
9) August 1994Harpole began working at Perry Manor.
*413 10) September 1, 1994Harpole injured her left knee again while working at Perry Manor. She returned to work on September 6, 1994, only to leave on September 11, 1994 with severe swelling. She has never returned to work after that day.
11) September 1994Harpole again underwent knee surgery, this time by orthopedic surgeon, Dr. David Tearse to repair scar tissue in her left knee.
12) December 1995Harpole developed right knee pain.
13) June 1996Harpole developed lower back and hip pain and was treated by her family physician, Dr. John Beattie, and neurosurgeon, Dr. Douglas Koontz.
In summary, by 1996, Harpole had four individual claims pending before the industrial board: two disability claims against IBP for her 1993 cafeteria fall and 1994 pain-related work leave; one disability claim against Perry Manor for her 1994 knee injury; and one petition to re-open the settlement she made with IBP for her 1991 injury. These claims were consolidated for hearing before the deputy industrial commissioner.
A. The Initial Ruling by the Deputy Industrial Commissioner
The deputy commissioner ordered IBP to pay permanent total disability to Harpole for her 1991 injury, instead of the previously agreed upon partial disability. IBP was also required to pay various healing period benefits for her cafeteria fall and pain-related work leave. Perry Manor was assessed one day of temporary total disability benefits to be paid in addition to the emergency room medical expenses Harpole incurred as a result of her fourth knee injury at Perry Manor.
B. The Ruling on Appeal to the Industrial Commissioner
IBP appealed the deputy's ruling to the industrial commissioner who affirmed in every area except for the assessment of permanent total disability. The commissioner reduced that award to 40% permanent partial disability or 200 weeks of disability. On this appeal, Perry Manor argued the commissioner had no authority to review the deputy's decision against Perry Manor because neither it nor Harpole appealed. The commissioner assumed authority and affirmed in full the deputy's award against Perry Manor.
C. The Ruling on Judicial Review to the District Court
IBP appealed to the district court. Harpole filed her own cross-appeal. Perry Manor did not appeal nor did any party question the validity of the judgment against Perry Manor. The district court reversed the award against IBP in its entirety. IBP was required to pay no additional disability to Harpole. The district court then remanded the case back to the industrial commissioner for a re-examination of Perry Manor's liability in conjunction with its assessed disability payments. Harpole appeals this decision. Perry Manor petitioned our court for a writ of certiorari. We granted this petition and now hear both arguments.
II. Scope and Standard of Review
A. Writ of Certiorari
This court restricts review of a decision on writ of certiorari for correction of errors at law. Halverson v. Iowa Dist. Ct., 532 N.W.2d 794, 797 (Iowa 1995). "A petition for a writ of certiorari is proper when the district court is alleged to have exceeded its jurisdiction or to have acted illegally." State Pub. Defender v. Iowa Dist. Ct., 594 N.W.2d 34, 36 (Iowa 1999). We will sustain the writ when the trial court has exceeded its authority. Iowa Dep't of Transp. v. Iowa Dist. Ct., 588 N.W.2d 102, 103 (Iowa 1998). If we decide that Perry Manor was not a party to the district court decision because no specific appeal had been taken, it is authorized to *414 seek review by writ. Shannon by Shannon v. Hansen, 469 N.W.2d 412, 414 (Iowa 1991). However, if we find the district court had authority and Perry Manor was a party in the district court suit, we will treat Perry Manor's case as a direct appeal. Iowa R.App. P. 304 ("If any case is brought by appeal, certiorari, or discretionary review, and the appellate court is of the opinion that another of these remedies was the proper one, the case shall not be dismissed, but shall proceed as though the proper form of review had been sought.").
B. Direct Appeal
Statutory law dictates how we review appeals from administrative actions. Iowa Code § 17A.19(8) (1999). "On review of agency actions, this court functions solely in an appellate capacity to correct errors of law on the part of the agency." Ahrendsen ex rel. Ahrendsen v. Iowa Dep't of Human Servs., 613 N.W.2d 674, 676 (Iowa 2000) (citing Glowacki v. State Bd. of Med. Exam'rs, 516 N.W.2d 881, 884 (Iowa 1994)).
The subsequent appeal of the district court's review of the agency decision "is limited to determining whether the district court correctly applied the law in exercising its section 17A.19(8) judicial review function." Id. However, the district court, as well as this court, is "bound by the commissioner's factual findings if they are supported by substantial evidence in the record." Bergen v. Iowa Veterans Home, 577 N.W.2d 629, 630 (Iowa 1998). The district court may reverse the agency finding if it is not supported by substantial evidence. Iowa Code § 17A.19(10)(f). Upon our review of the district court's reversal, "we apply the standards of section 17A.19(8) to the agency action to determine whether our conclusions are the same as those of the district court." IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 627 (Iowa 2000). We will affirm if the district court satisfied its standard of review.
III. Issues on Appeal
A. Writ of Certiorari
We are asked to consider whether the district court acquires authority to review awards against an employer in a consolidated disability claim when petitioned for judicial review by only one of the two employers, and the claimant does not seek review. This is an issue of first impression before this court.
It is clear that neither Perry Manor nor Harpole appealed the decision made by the deputy commissioner ordering Perry Manor to pay certain disability benefits. Because Harpole's case against Perry Manor was consolidated with Harpole's case against IBP, when IBP appealed, the reviewing industrial commissioner passed judgment on both awards even though no party argued the Perry Manor judgment was in error. The commissioner agreed that the Perry Manor judgment was proper and did not address any obstacles it may have hurdled to make such a finding.
Although not a captioned party, Perry Manor filed a brief in the district court proceeding and re-asserted its belief that its judgment should not be reviewed because no party was contesting it. The district court recognized that "Perry Manor [was] not named in the appeal or cross-appeal." Nevertheless, the district court considered the Perry Manor judgment and ordered the Perry Manor case back to the commissioner for re-evaluation.
We have addressed a similar question in Sioux City Brick & Tile Co. v. Employment Appeal Board, 449 N.W.2d 634 (Iowa 1989). Five different employees filed separate agency disability actions against the same employer. Sioux City Brick, 449 N.W.2d. at 636. These cases were consolidated at the time of hearing. Prior to consolidation, the cases had proceeded independently. See id. at 638. Following a favorable verdict for each employee, the employer sought judicial review with the district court in the applicable time period, naming only one party. After the time for *415 petitioning for judicial review had expired, the employer sought to amend the petition to include the other four claims. These four employees then argued that, although consolidated, each claim was still separate, and review should have been taken in a timely matter for each individually. Conversely, the employer argued that consolidation of the claims created only one claim. As such, its petition for one included review of all. The district court allowed the employer to amend the petition to include the other four claims.
On review, our court stated: "At the outset, we reject the employer's contention that this case involves review of only one, and not five, agency actions." Id. We were persuaded that each claim was filed separately, each was for a different amount, and each was assigned a separate hearing number. We found that "the claimants [were] not coparties to a single agency action; their contested cases [were] similar, but at the same time, separate." Id. Accordingly, "the district court exceeded its authority by granting the employer leave to amend its petition...." Id. at 639.
The courts of our state cannot expand their judicial review jurisdiction by allowing appeal of agency action in contested cases beyond the time limit specified for that purpose by the legislature. If a party's failure to timely appeal agency action in one case could be cured merely by amendment of a timely petition for judicial review of agency action in another caseeven though the cases turn on similar factsthen the jurisdictional time limits prescribed by the legislature would be rendered meaningless.
Id. at 638 (emphasis added).
We further recognized:
This case illustrates the distinction between "lack of subject matter jurisdiction" and "lack of authority to hear a particular case".... The district court has subject matter jurisdiction over appeals from agency action, but because that subject matter jurisdiction was not properly invoked by timely petition ..., the court lacks authority to exercise its jurisdiction over those cases.
Id. at 639 n.6. In the present case, Perry Manor was never named in the pleadings of the intra-agency appeal or the petition for judicial review to the district court, nor was the validity of this judgment challenged in any way. Although Perry Manor does not make this argument, we note that no timely petition including Perry Manor's judgment was received by the district court. We are persuaded that this is analogous to the above case.
Obviously, the circumstances of consolidation vary in our set of facts from those in Sioux City Brick. Harpole filed four claims against two different employers. Only one claim dealt with Perry Manor. The other three exclusively applied to IBP. But similar to Sioux City Brick, the present claims were only consolidated for hearing purposes. All prehearing procedures such as the pleadings, answers, discovery, and most depositions were conducted separately. Each claim was assigned a different hearing number and pertained to different injuries. This was also the case in Sioux City Brick. While the initial ruling by the deputy commissioner, and later the commissioner, included both the IBP judgment and the Perry Manor judgment, the ruling divided its holding into two parts and did not commingle its findings between the two. It is true that the employees in Sioux City Brick each received separate rulings, however, these were, for the most part, verbatim copies of the same ruling. See id. at 638.
In a more recent decision, we adopted the federal court's view of the effect of consolidation. Miller v. Lauridsen Foods, Inc., 525 N.W.2d 417, 419-20 (Iowa 1994) (citing Cole v. Schenley Indus., Inc., 563 F.2d 35, 38 (2d Cir.1977)). We stated: "Although cases may be consolidated for trial, the cases generally preserve their separate identity." Id. at 420. Because consolidation is a mere procedural device *416 used to promote judicial economy, "consolidation cannot effect a merger of the actions or the defenses of the separate parties." Cole, 563 F.2d at 38; see also 46 Am.Jur.2d Judgments § 63, at 420 (1994) ("The theory behind this position is that except for the consolidation of the cases for convenience of pretrial and trial procedure the cases maintain their separate identities throughout the litigation....").
We recognize that Harpole could have challenged both judgments in a single petition if she had specifically named both employers. See First Nat'l Bank v. Louisiana Tax Comm'n, 289 U.S. 60, 62, 53 S.Ct. 511, 512, 77 L.Ed. 1030, 1033 (1933). However, her appeal was limited to the commissioner's judgment against IBP. The crucial distinction to the First National rule is that the Perry Manor judgment was never challenged by either IBP or Harpole, nor included in their respective petitions for judicial review. Moreover, an exception to the general rule espoused in First National applies:
[A] court may construe a single notice of appeal to encompass two consolidated cases, even though the cases have not completely merged and technically require separate notices of appeal, if the appellant's intent to appeal both cases is apparent and there is no prejudice to the adverse parties. However, where the appellant notices the appeal of a specified judgment only, or a part thereof, rather than simply appealing from the entire judgment, only the specified issues may be raised on appeal. Under such circumstances, the court has no jurisdiction to review other judgments or issues which are not expressly referred to and which are not impliedly intended for appeal, because the intent to appeal is not apparent and because prejudice to the adverse party is likely to result if review is granted. Prejudice to the adverse party is especially likely to result where parts of a judgment are truly independent, as there is more likelihood that the designation of a specified judgment, or part thereof, in the notice of appeal will be construed as an intent to leave the unmentioned portions undisturbed. Similarly, where the appellant files a single notice of appeal from the second of two consolidated cases and where it is clear from the record that the appellant abandoned the claims in the initial consolidated case, the court may not construe the single notice of appeal to encompass both consolidated cases.
5 Am.Jur.2d Appellate Review § 335, at 106-07 (1995) (emphasis added).
IBP did not name Perry Manor as a party in its intra-agency appeal and neither IBP nor Harpole named Perry Manor in their petitions for judicial review. It is clear that Harpole abandoned any challenge of the Perry Manor award because she never argued it was wrong or improper in any subsequent forum. Similarly, IBP's appeal had nothing to do with Perry Manor's award. IBP did not argue Perry Manor should share some of the cost or that it was paying for a benefit rightfully charged to Perry Manor.
To treat the petition for judicial review as a challenge of the Perry Manor judgment imposes an extreme undue burden on Perry Manor because (1) Perry Manor agreed it owed the amount of judgment; (2) Harpole never argued Perry Manor should pay more; (3) The remand by the district court required Perry Manor to relitigate a judgment no party ever questioned; and (4) The sheer expense of litigation to Perry Manor looms large given that it is forced to spend money asking the court to affirm the judgment against it. Moreover, if Perry Manor's case had never been consolidated with IBP's, and Perry Manor had a judgment levied against it, when no appeal was taken, the decision would be final. For these reasons, we agree that consolidation does not have the effect of a complete merger into one indivisible case in these circumstances. The district court had no authority to hear *417 the agency's decision regarding Perry Manor. Therefore, we sustain the writ.
B. Direct Appeal
On direct appeal we are asked to determine whether the district court's decision to revoke all disability benefits ordered against IBP was proper. Specifically, we consider whether the commissioner's decision was supported by substantial causal evidence such that the district court erred in reversing it. Iowa Code section 17A.19 controls how the district court should review the agency decision. We will affirm the district court if the agency's decision was:
f. Based upon a determination of fact clearly vested by a provision of law in the discretion of the agency that is not supported by substantial evidence in the record before the court when that record is viewed as a whole. For purposes of this paragraph, the following terms have the following meanings:
(1) "Substantial evidence" means the quantity and quality of evidence that would be deemed sufficient by a neutral, detached, and reasonable person, to establish the fact at issue when the consequences resulting from the establishment of that fact are understood to be serious and of great importance.
....
(3) "When that record is viewed as a whole" means that the adequacy of the evidence in the record before the court to support a particular finding of fact must be judged in light of all the relevant evidence in the record cited by any party that detracts from that finding as well as all of the relevant evidence in the record cited by any party that supports it, including any determinations of veracity by the presiding officer who personally observed the demeanor of the witnesses and the agency's explanation of why the relevant evidence in the record supports its material findings of fact.
Iowa Code § 17A.19(10)(f)(1), (3).
The district court was persuaded that there was not substantial evidence to re-open the previous settlement between IBP and Harpole. The court found no substantial evidence to support an award for permanent partial disability because of the testimony concerning the effect the non-work-related fall had on Harpole's injury and ability to work. The district court felt the record did not adequately reflect causation. The relevant discussion and conclusion is provided below:
While Harpole's right lower extremity and back condition may have been aggravated by limitations in the function of Harpole's left knee, Dr. Wirtz specifically concluded that Harpole would have recovered from the [initial knee injury] and patellectomy with "no alteration of function."
... However, following the [non-work-related] slip and fall injury, Dr. Wirtz noted that Harpole had functional restrictions. The only rational conclusion that can be reached is that it was the restriction in function following the slip and fall injury that led to the development of Harpole's right leg and back conditions, not the IBP injury for which there was no alteration of function.
... In light of Harpole's subsequent injuries, and expert medical testimony in the record there is not substantial evidence for the Commissioner to conclude that Harpole proved by a preponderance of the evidence that the [first knee injury] at IBP was a proximate cause of Harpole's whole body industrial disability.
....
It was Harpole's burden to prove by a preponderance of the evidence that the alleged injury is a proximate cause of the disability upon which the claim is based. The same is true with regard to the healing period and medicals. For reasons stated above, Harpole has simply not met this burden.
It is clear the district court gave the most weight to the testimony of Dr. Wirtz and *418 determined the other contrary medical testimony was insufficient to provide causation to the "neutral, detached, and reasonable person." See id. § 17A.19(10)(f)(1).
On appeal, Harpole argues that the commissioner's decision should be upheld. Harpole takes issue with the district court's decision because she feels it impermissibly relied on its own findings of fact, replacing those found by the commissioner. Harpole is correct that "judgment calls are to be left to the agency." Burns v. Bd. of Nursing, 495 N.W.2d 698, 699 (Iowa 1993); see also Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824, 829 (Iowa 1992) ("[J]udgment calls are [the] province of administrative tribunal, not the court's." (citing Mercy Health Ctr. v. State Health Facilities, 360 N.W.2d 808, 809 (Iowa 1985))). "The [c]ommissioner is entitled to a substantial amount of latitude in making... inherently fact-based determination[s]." Oscar Mayer, 483 N.W.2d at 829. However, while discretion is left to the agency, Iowa Code section 17A.19 makes it clear that if the agency's findings of fact are not supported by substantial evidence, the district court is proper to reverse because "the person seeking judicial relief [has] been prejudiced" by this unsubstantiated decision. See Iowa Code § 17A.19(10).
Obviously this is an issue closely tied to the medical testimony and facts present. When the commissioner reviewed this information, she concluded that the first knee injury at IBP was the aggressor in the subsequent injuries, and was, for all practical purposes, "the real culprit" when the later injuries occurred. Thus, causation was evident and a disability award was necessary. Looking at those same facts, and weighing them differently, the district court concluded that the slip and fall caused the increased injury and the initial injury would have healed to its maximum extent had this second injury not occurred. Accordingly, causation could not be shown and any additional award was not justified.
"An agency's decision does not lack substantial evidence because inconsistent conclusions may be drawn from the same evidence." Second Injury Fund v. Shank, 516 N.W.2d 808, 812 (Iowa 1994). This statement is the hallmark of this case. Regardless that there is contradictory medical evidence present, "[i]n such a case we cannot interfere with the commissioner's findings of fact." Id. If a reasonable person could have concluded the initial injury exacerbated the later problems and, thereby, amounted to proximate cause, the district court erred by reversing the commissioner's ruling. Stated another way, because
[t]he review is for correction of errors at law, not de novo, ... the findings of the industrial commissioner have the effect of a jury verdict.... The possibility of drawing inconsistent conclusions from the same evidence does not mean an agency's decision lacks substantial support. In the case of conflict in the evidence we are not free to interfere with the commissioner's findings.
Kostelac v. Feldman's, Inc., 497 N.W.2d 853, 856 (Iowa 1993) (citations omitted).
First, it must be noted that only one doctor treated Harpole throughout her periods of injury, from the first injury to the last. This was Harpole's treating physician and orthopedic surgeon, Dr. Wirtz. Of the numerous medical opinions provided in the record, his most specifically analyzed Harpole's condition, considering each injury separately and discussing the effect of the non-work-related slip and fall. Dr. Wirtz concluded that any subsequent impairment Harpole suffered was a result of the slip and fall and not the initial left knee injury, although he also recognized that her first injury had something to do with her gait problem and her increased pain to her right knee and lower back. Dr. Wirtz's opinion was overwhelmingly relied upon by the district court. The other medical testimony espoused a different *419 view that the initial injury, while exacerbated by the slip and fall, was the real instigator of her recurring injury and pain.
1) Dr. WirtzHe maintained that the initial left knee injury resulted in a 20% permanent partial impairment of Harpole's left leg. Following her initial surgeries, Harpole was required to wear an immobilizer on her left leg. Regarding her non-work-related slip and fall, Dr. Wirtz concluded that this would be a "significant contributor to this [additional] loss of motion; therefore, would be the cause of the present restrictions." Dr. Wirtz concluded that had Harpole not fallen the second time, her recovery would have been complete to its maximum potential. After Harpole's third fall at IBP, Wirtz concluded this was a temporary aggravation of her 1993 slip and fall. When Harpole developed right knee pain in 1995, Wirtz found this was caused by a congenital defect in her right knee and only minimally by the added burden of Harpole favoring her right knee over her left knee because of her initial injury. Oddly, Wirtz concluded that the right knee and lower back pains were temporary soft tissue injuries even though he also felt that her right knee problems were genetic. The deputy commissioner recognized that in this regard, "Dr. Wirtz's opinion does not make much sense." The commissioner concurred.
2) Dr. MisolHe blamed Harpole's fall in the IBP cafeteria on the fact that the removal of her patella necessitated by her first knee injury caused balance and stability problems which were also present when she slipped and fell in the non-work-related setting. Moreover, the immobilizer she was wearing when she fell the second time likely had something to do with her fall. She was only wearing the immobilizer because of her first knee injury. His opinion was that the second fall was a factor in her increased injury, but the real force behind it was her initial knee injury at IBP.
3) Dr. TearseHe concluded that the exacerbation caused by Harpole's injury while working at Perry Manor was a result of the underlying worsened condition caused by the first left knee injury in 1991. He was also of the opinion that she had obtained maximum healing of her left knee, therefore he did not expect her other conditions to improve.
4) Dr. BeattieHe concluded that Harpole's right knee and lower back problems were chronic and would only worsen as time goes by. These injuries were caused by the gait problem resulting from the removal of Harpole's patella necessitated by her 1991 fall.
5) Dr. KoontzHe also concluded that Harpole would have permanent pain from her right knee and lower back equaling 5% permanent impairment caused by the removal of Harpole's patella. The commissioner found this opinion, coupled with Dr. Beattie's to be more persuasive than Dr. Wirtz's regarding these new injuries.
To summarize, only Dr. Wirtz posited that the second fall was the true cause of the later injuries. The other four doctors insisted that the first fall precipitated the later injuries, especially due to the removal of Harpole's patella. Each found that the subsequent pain and impairment were directly attributable to the first injury. The district court dismissed these latter opinions in favor of Dr. Wirtz's. Using just the Wirtz opinion, one could conclude that it was not reasonable to attribute the later injury to IBP. But considering every opinion together and giving them the same weight afforded by the commissioner, there was substantial evidence to affirm. Although the weight of the medical experts' testimony varied, we cannot say it was unsupportable for the commissioner to find a causal relationship given everything *420 in the record. When such is the assessment, the district court cannot reverse the commissioner's decision. We have said:
Whether an injury has a direct causal connection with the employment or arose independently thereof is essentially within the domain of expert testimony. The weight to be given such an opinion is for the finder of fact, in this case the commissioner....
... The commissioner as trier of fact has the duty to determine the credibility of the witnesses and to weigh the evidence....
Dunlavey v. Economy Fire & Cas. Co., 526 N.W.2d 845, 853 (Iowa 1995) (citations omitted).
"Ultimately, the question is not whether the evidence might support a different finding, but whether the evidence supports the findings actually made." Sherman v. Pella Corp., 576 N.W.2d 312, 320 (Iowa 1998). Even if "as fact finder, we might have found otherwise," we must affirm if there is enough evidence to support the finding. Id. The commissioner's decision is supported by substantial evidence. The district court erred in not so finding.
We reverse the decision of the district court and remand for entry of judgment affirming the agency decision. Costs in these consolidated cases are assessed against IBP, Inc.
REVERSED AND REMANDED ON APPEAL; WRIT SUSTAINED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596008/ | 399 So.2d 492 (1981)
Marion W. BOWERS, Appellant,
v.
Ruth Knust MOZINGO, Appellee.
No. 80-1185.
District Court of Appeal of Florida, Third District.
June 9, 1981.
*493 Herman T. Isis, Coral Gables, for appellant.
Robert E. Rutledge, Jr., South Miami, for appellee.
Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
BARKDULL, Judge.
The appellant seeks review of a final judgment in a declaratory judgment action, wherein the trial judge held that the defendant's (appellee herein) recorded judgment lien was imposed upon the interest of the appellant in certain real property and that, upon sale, the property would pass subject to the lien.
On appeal, it is the contention of the appellant that the trial court erred because the facts of the case clearly show he had a sufficient possessory interest in the subject property to entitle him to protection of the homestead exemption provisions of Article X, Section 1, Constitution of the State of Florida (1885)[1] prior to the appellee obtaining her judgment lien. On the other hand, the appellee relies on Article X, Section 7, Constitution of the State of Florida (1885)[2], pertaining to homestead for purposes of ad valorem taxation, and contends that the appellant did not file for homestead exemption for taxation until 1965, subsequent to the recordation of the judgment lien and, therefore, her judgment lien is paramount. Secondly, she contends that two people cannot claim the same homestead. We cannot agree with either position for the following reasons.
This case is governed by Article X, Section 1, Constitution of the State of Florida (1885), which exempts a homestead from forced sale and provides that no judgment or execution shall be a lien thereon. Clearly, this is a different thing than homestead exemption, as defined for tax purposes. Doing v. Riley, 176 F.2d 449 (5th Cir.1949). Therefore, the appellee's reliance on Article X, Section 7, Constitution of the State of Florida (1885) is misplaced.
*494 The facts[3] show that the appellant's father and mother owned the property in question and qualified for homestead under Article X, Section 1, Constitution of the State of Florida (1885). The appellant was running a store in Georgia in 1963. Illness overcame the father and a portion of the appellant's family moved in to take care of his parents. At this time, there can be no question that the appellant could not claim homestead as it was vested in his father as head of the household. Upon the death of the father, his homestead inured to the benefit of his wife and children, preventing the property being sold for his debts. Title then vested in the mother. Upon the death of the father, his right to homestead exemption, for tax purposes, ceased and did not pass by descent to the mother. Bendl v. Bendl, 246 So.2d 574 (Fla.3d DCA 1971); Menendez v. Rodriguez, 106 Fla. 214, 143 So. 223 (1932). The property did not become homestead property while titled in the mother, because she failed to meet one of the tests for claiming homestead under Article X, Section 1, Constitution of the State of Florida (1885), to wit: family headship. In re Estate of Wilder, 240 So.2d 514 (Fla. 1st DCA 1970). In March 1963, after he sold his business, the appellant joined his family in Florida and resided with his mother. The property was then (on May 12, 1964) transferred by the mother to herself and the son, setting up a tenancy in common with right of survivorship. Prior to this last transfer, the appellee obtained her judgment and recorded her judgment lien on September 18, 1963.
These facts clearly show that the appellant did not have ownership in the property prior to recordation of the judgment lien, which is necessary to acquisition of the homestead right. Hinson v. Booth, 39 Fla. 333, 22 So. 687 (1897). Thus, the appellant could not legally have a right of homestead based on a mere possessory interest and his argument must fail. The judgment lien could not attach to the property in question until it was owned by the appellant. First National Bank v. Peel, 107 Fla. 413, 145 So. 177 (1933); Cheves v. First National Bank, 79 Fla. 34, 83 So. 870 (1919). We thus find both the claimed homestead right (if proven) and the judgment lien would attach to the property simultaneously upon the appellant's acquiring ownership thereof. This being the case, the rule accords priority to the homestead right, where the homestead right and the lien attach simultaneously, as in the case of purchase or inheritance of land by a judgment debtor. Milton v. Milton, 63 Fla. 533, 58 So. 718 (1912); Pasco v. Harley, 73 Fla. 819, 75 So. 30 (1917); Quigley v. Kennedy & Ely Ins., Inc., 207 So.2d 431 (Fla. 1968); Aetna Insurance Company v. LaGasse, 223 So.2d 727 (Fla. 1969).
In the final judgment appealed herein, the trial judge did not make a determination as to whether or not the appellant was head of the family at the time he acquired ownership of the property. This issue must be resolved in order to settle priority of claims in the instant case.
Therefore, the order appealed is hereby reversed, and the cause remanded to the trial court for a determination as to whether or not the appellant met the necessary criteria to claim a homestead right under Article X, Section 1, Constitution of the State of Florida (1885) at the time he acquired ownership of the subject property.
Reversed and remanded, with directions.
NOTES
[1] "Section 1. Exemption of homestead; extent. A homestead to the extent of one hundred and sixty acres of land, or the half of one acre within the limits of any incorporated city or town, owned by the head of a family residing in this State, together with one thousand dollars worth of personal property, and the improvements on the real estate, shall be exempt from forced sale under process of any court, ... and no judgment or decree or execution shall be a lien upon exempted property except as provided in this Article."
[2] "Section 7. Exemption of homestead from taxation. Every person who has the legal title or beneficial title in equity to real property in this state and who resides thereon and in good faith makes the same his or her permanent home, or the permanent home of another or others legally or naturally dependent upon said person, shall be entitled to an exemption from all taxation, except for assessments for special benefits, up to the assessed valuation of five thousand dollars on said home and contiguous real property, as defined in Article X... . Said title may be held by the entireties, jointly, or in common with others, and said exemption may be apportioned among such of the owners as shall reside thereon, as their respective interests shall appear, but no such exemption of more than five thousand dollars shall be allowed to any one person or any one dwelling house, nor shall the amount of the exemption allowed any person exceed the proportionate assessed valuation, based on the interest owned by such person... ."
[3] DeLalio v. Food Palace, Inc., 330 So.2d 835 (Fla.3d DCA 1976); Cuna Mutual Insurance Society v. Adamides, 334 So.2d 75 (Fla.3d DCA 1976); Turner v. Lorber, 360 So.2d 101 (Fla.3d DCA 1978). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596157/ | 399 So.2d 65 (1981)
Harold K. WINDSOR, Appellant,
v.
Crescent A. MIGLIACCIO, Appellee.
No. 80-670.
District Court of Appeal of Florida, Fifth District.
May 27, 1981.
Macdonald J. Wiggins of Duckworth, Hobby, Allen & Pettis, P.A., Orlando, for appellant.
Christopher W. Wickersham of Becks, Becks & Wickersham, Daytona Beach, for appellee.
ORFINGER, Judge.
Appellant (defendant below) contends that the trial court erred in denying his motion to transfer venue from Volusia County to Orange County.[1] We agree and reverse.
In the action filed by plaintiff in Volusia County, he alleged essentially that (1) defendant had breached the exclusive licensing agreement between the parties by failing to proceed with diligence with the exploitation, manufacture, use and sale of a product invented by plaintiff; (2) that because earned royalties had not totalled one hundred dollars since the first year of the agreement, plaintiff had elected, pursuant to the terms thereof, to cancel the agreement. He then alleged doubt as to his *66 rights, remedies and responsibilities under said agreement, and asked for an order declaring it null and void.
Defendant resides in Orange County and no property is involved in the litigation. The parties agree that the venue question depends on "where the cause of action accrued."[2]
Appellant argues that if there was a breach of the agreement, it occurred in Orange County, where he resides, maintains his place of business and where he was obligated to perform the agreement. Appellee responds by citing the general rule that venue is proper for suits on contract in the county where payment should have been made, Sheffield Steel Products, Inc., v. Powell Brothers, Inc., 385 So.2d 161 (Fla. 5th DCA 1980), which would be Volusia County, where he resides.
A cause of action for venue purposes accrues in the county where the contract is breached. Speedling, Inc. v. Krig, 378 So.2d 57 (Fla.2d DCA 1979). If a plaintiff alleges breach of a covenant to pay money due or already earned under a contract, the cause of action accrues where performance of the act of payment was to occur. Croker v. Powell, 115 Fla. 733, 156 So. 146 (1934); M.A. Kite Co. v. A.C. Samford, Inc., 130 So.2d 99 (Fla. 1st DCA 1961). If the action is for breach of some other covenant, venue is proper in the county where that covenant was to be performed. American International Food Corp. v. Lesko, 358 So.2d 250 (Fla. 4th DCA 1978). Appellee in the instant case did not allege that appellant failed to make payments due or earned under the contract; rather, appellee alleges breach of a covenant to promote his invention. This cause of action accrued in Orange County, where the services were to be performed. Thomas Hardell & Associates, Inc. v. Nabers & Crane, etc., 382 So.2d 439 (Fla.2d DCA 1980). No cause of action accrued in Volusia County merely because payments were properly made there. American International Food Corp. v. Lesko; James A. Knowles, Inc. v. Imperial Lumber Co., 238 So.2d 487 (Fla.2d DCA 1970).
If appellee's option to cancel the agreement exists because the royalties did not total $100 in any year after the first year, the failure of the royalties to total $100 does not in itself constitute a "breach" of the agreement. A "cause of action" for venue purposes consists of an invasion of a legal right, and damage therefrom. Luckie v. McCall Mfg. Co., 153 So.2d 311 (Fla. 1st DCA 1963). A suit for declaratory relief does not itself constitute a "cause of action" for venue purposes; rather, some underlying justification for laying venue must be shown. George v. Gustinger, 350 So.2d 574 (Fla.3d DCA 1977). Thus, on this ground, venue would lie in the county of defendant's residence, since no invasion of plaintiff's legal rights are shown to have occurred in Volusia County.
The order denying appellant's motion to change venue is reversed, and the cause is remanded to the trial court with directions to enter an order transferring the cause to Orange County.
REVERSED and REMANDED.
DAUKSCH, C.J., and COWART, J., concur.
NOTES
[1] See Fla.R.App.P. 9.130(a)(3)(A).
[2] § 47.011, Florida Statutes (1979) provides, (in relevant part),
Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596161/ | 399 So.2d 73 (1981)
John H. PATTERSON, Appellant,
v.
Louise N. PATTERSON, Appellee.
No. 80-893.
District Court of Appeal of Florida, Fifth District.
May 27, 1981.
*74 William N. DeCarlis of Bates & DeCarlis, Gainesville, for appellant.
Steven H. Gray of Green, Simmons, Green, Hightower & Gray, P.A., Ocala, for appellee.
ORFINGER, Judge.
The order appealed from denied the appellant's petition to modify the final judgment of dissolution, granted the appellee's motion to hold appellant in contempt for wilful refusal to comply with the terms of the final judgment, and awarded the wife an attorney fee of $2600 plus costs of this proceeding. The former husband appeals and we affirm.
Appellant fails to demonstrate an abuse of the court's discretion in refusing to modify the final judgment or in adjudging him in contempt for wilful refusal to comply with its terms, and no useful purpose would be served by discussion of these issues. Appellant's contention that the wife did not show entitlement to an award of attorney fees deserves further consideration.
Statutory authority for the award of attorney fees in dissolution proceedings, including enforcement and modification, is found in section 61.16, Florida Statutes (1979).[1] The general rule is that the purpose in awarding attorney fees is to ensure that both parties will have the same opportunity to secure counsel. Deatherage v. Deatherage, 395 So.2d 1169 (Fla. 5th DCA, 1981); Mertz v. Mertz, 287 So.2d 691 (Fla.2d DCA 1973). Prior to Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980), it had been held that to be entitled to an attorney's fee, the requesting spouse must show, among other things, that he or she was unable to pay it. See, e.g., Patterson v. Patterson, 348 So.2d 592 (Fla. 1st DCA 1977).[2] This strict requirement was modified by the Supreme Court in Canakaris, where it was held:
It is not necessary that one spouse be completely unable to pay attorney's fees in order for the trial court to require the other spouse to pay these fees. Given the complexity of the cause and the time necessary to appropriately resolve the issues, the award of attorney's fees in this case was proper to avoid an inequitable diminution of the fiscal sums granted the wife in these proceedings.
382 So.2d at 1205.
We hold that where, as here, it is necessary for a spouse to seek enforcement of the final judgment because of wilful refusal of the other spouse to comply with its terms, the trial court may take into account the disregard by that other spouse of the court's order in considering a motion to assess attorney fees. Spencer v. Spencer, 305 So.2d 256 (Fla.3d DCA 1974), cert. denied, 351 So.2d 470 (Fla. 1975). We agree with that portion of the specially concurring opinion of Judge McCord in Patterson, *75 where, in discussing the effect of section 61.16, Florida Statutes (1979), in an enforcement proceeding he said:
This statute vests authority in the trial court to order a party to pay a reasonable amount for attorney's fees for the other party after considering the financial resources of both parties. I do not construe this to mean that the party requesting an award of attorney's fees must be unable to pay the fees in order to secure such an award. This is particularly true where a party has become delinquent in child support payments, and it becomes necessary for the other party to bring a contempt proceeding to require that the court's order be complied with. A party bringing such a proceeding should not have the burden of showing that he or she cannot pay the fee in order to secure an award of his or her attorney's fees which were necessitated by the other party's noncompliance with the court order.
348 So.2d at 596-97.
The order appealed from is AFFIRMED.
COBB and SHARP, JJ., concur.
NOTES
[1] § 61.16, Fla. Stat. (1979): The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney's fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.
[2] Not the same parties as the case sub judice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596172/ | 399 So.2d 515 (1981)
Karen S. WRIGHT, Appellant,
v.
Alice NIGH, Stephen Cutter, Ben Johnson, Reginald Boardman and Patricia Goodale, Appellees.
Stephen CUTTER and Ben Johnson, Appellants,
v.
Karen S. WRIGHT, Alice Nigh, Reginald Boardman and Patricia Goodale, Appellees.
Nos. 80-1394, 80-1441.
District Court of Appeal of Florida, Fourth District.
June 10, 1981.
Rehearing Denied July 7, 1981.
*516 Bruce W. Parrish, Jr. of O'Connell, Cooper, Parrish & McBane, P.A., West Palm Beach, for appellant Karen S. Wright (80-1394).
S. Carol McLean of Jones & Foster, P.A., West Palm Beach, for appellants Stephen Cutter and Ben Johnson (80-1441).
Mikel D. Greene and Douglas E. Thompson of Farish, Farish & Romani, West Palm Beach, for appellee Reginald Boardman.
DOWNEY, Judge.
These consolidated appeals involve a judgment on the pleadings which essentially found that appellants, Wright and Cutter and Johnson, could not maintain their respective claims for tortious interference with a contractual relationship.
The litigation commenced when appellant Karen Wright, as purchaser, sued appellee Alice Nigh, as seller, for specific performance of a contract to sell a parcel of real property in the Town of Palm Beach. Nigh filed a counterclaim against Wright, asserting that Wright, who herself was a real estate broker, breached her fiduciary duty in not reporting to Nigh an offer to purchase from one, Boardman. Nigh also filed a third party complaint against Cutter and Johnson, real estate brokers, who procured the Wright-Nigh contract in question. Eventually Boardman was made a party and plaintiff Wright and third party defendants Cutter and Johnson filed claims against Boardman for tortious interference with the contractual relationship between Wright and Nigh.
In her claim (inappropriately labeled "cross complaint") for tortious interference Wright asserted Boardman's intentional and malicious interference with Wright's contract to purchase the Nigh property resulted in Nigh's refusal to sell the property to Wright. Wright sought compensatory damages for increased interest rates, attorney's fees incurred in prosecuting the specific performance suit, loss of use of the property, and punitive damages. Cutter and Johnson in their action sought compensatory damages for loss of their commission, emotional distress, and punitive damages.
Just prior to trial on the specific performance aspect of the case Wright and Nigh settled their case and the court entered an order dismissing with prejudice Wright's complaint against Nigh for specific performance and Nigh's counterclaim against Wright. Nigh and Cutter and Johnson also stipulated to a dismissal with prejudice of their third party complaint and counterclaim.
After the foregoing orders of dismissal were entered Boardman moved for a judgment on the pleadings with regard to the claims against him for tortious interference with a contractual relationship. The thrust of Boardman's motion was that the voluntary dismissal of the specific performance and other claims between Wright and Cutter and Johnson on the one hand and Nigh on the other without any reservation of rights constituted a release or adjudication of the tort claim against Boardman. The trial court granted Boardman's motion and entered a final judgment dismissing all of the claims based upon tortious interference.
No question is raised on this appeal with regard to the procedural aspects of entering judgment on the pleadings in the present *517 posture of this litigation. Rather, the questions presented have only to do with the merits of the judgment in Boardman's favor. Thus, we will also treat only the merits of that judgment.
There is no question that a person can maintain an action for breach of contract and an action in tort for interference with that same contract. See, e.g., Bermil Corp. v. Sawyer, 353 So.2d 579 (Fla. 3rd DCA 1977). Although there is a division of authority on the question nationally, we think the preferred view is that the settlement of the contract action does not preclude further prosecution of the tort action for interference with the contract. However, settlement of the one may well have some effect on the elements of damage recoverable on the other. See Prosser, Law of Torts, § 129, p. 948 (4th Ed. 1971). In this litigation, settlement of the specific performance case and payment of the commission would eliminate such damages as the real estate brokerage commission and loss of the purchaser's bargain. However, as to other damages resulting from the tort, such as attorney's fees incurred in the specific performance suit and punitive damages, there is no reason to hold their recovery barred by elimination of the contract claim, unless of course the claimant has given a release of the tort claim. The mere settlement of the contract claim does not, without more, release the tort claim.
Wright and Cutter and Johnson have alleged damages in their claim for interference which were not involved in the specific performance suit, and thus they will support the tort claims.
Accordingly, the judgment appealed from is reversed, and the cause is remanded with directions to reinstate the claims for tortious interference with a contract.
MOORE and HERSEY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596223/ | 209 Mich. App. 96 (1995)
530 N.W.2d 121
GIANNETTI
v.
CORNILLIE
Docket No. 180247.
Michigan Court of Appeals.
Submitted November 16, 1994, at Lansing.
Decided February 22, 1995, at 9:35 A.M.
Lizza, Mulcahy, Casey & Lawson, P.C. (by John B. Lizza), for the plaintiffs.
Rupp, Ehrlich, Foley & Serwer, P.C. (by Joseph H. Ehrlich), for the defendants.
Before: TAYLOR, P.J., and HOOD and FITZGERALD, JJ.
ON REMAND
PER CURIAM.
Our prior opinion in this case, 204 Mich App 234; 514 NW2d 221 (1994), was reversed by an October 28, 1994, order of the Supreme Court. 447 Mich 897. That order reinstated the circuit court judgment in favor of plaintiffs, for the reasons stated by Judge TAYLOR in his dissent. We were ordered on remand to consider the issue of damages raised by plaintiffs in their cross appeal. The facts are set out in our prior opinion. We affirm in part, reverse in part, and remand.
Plaintiffs assert in their cross appeal that the trial court erred in its equitable accounting by (1) not awarding plaintiffs $63,500 for rent while at the same time holding plaintiffs' liable for *98 $15,535.40 in property taxes, (2) awarding defendants twelve percent interest under MCL 600.6013; MSA 27A.6013 on the $32,000 down payment, and (3) not awarding plaintiffs attorney fees of $18,500.
In granting specific performance, a trial court may award such additional or incidental relief as is necessary to adequately sort out the equities of the parties, and should endeavor to put the parties as nearly as possible in the position that they would have occupied had the conveyance of the real property occurred when required by the contract. Reinink v Van Loozenord, 370 Mich 121; 121 NW2d 689 (1963); Godwin v Lindbert, 101 Mich App 754, 758; 300 NW2d 514 (1980). Here, the trial court used October 12, 1986, as the first day that defendants failed to recognize the contract, and then allocated the equities between the parties. The property taxes on the Koerber property were charged to plaintiffs, but this was offset by the taxes plaintiffs paid on their existing residence. However, the trial court denied any award of the rental value of the Koerber property to plaintiffs because plaintiffs never introduced any credible evidence regarding their intent to rent out the subject property.
It has been held that a purchaser may be awarded compensation for any loss of the property during the delay in conveying the property in the form of the rental value or the net rents and profits for the period, subject to compensation to the seller for any loss of the use of the purchase money during the delay in the form of interest on that money for the period. The rationale for compensation for delay is that the contract is being awarded retrospectively and the equities adjusted accordingly. Frank v Coyle, 310 Mich 14; 16 NW2d 649 (1944); Meyering v Russell, 53 Mich App 695, *99 706; 220 NW2d 121 (1974), rev'd on other grounds 393 Mich 770 (1974).
A trial court may decide not to award rent where land was vacant and would have provided no income. Sloman v Rogers, 259 Mich 302; 143 NW 13 (1932). Authority in other jurisdictions also presents instances in which rent has been denied where there is no contractual provision for rent and no rents generated, but has been allowed when the damages are allowed in tort for the loss and enjoyment of a home rather than as part of an equitable accounting. See generally Bernardini v Stefanowicz Corp, 29 Md 508; 349 A2d 287 (1975). Rent has also been denied where the evidence of lost rent is speculative because of a failure to prove that property would have been rented for a specific price or time. Goldman v Bloom, 90 Wis 2d 466; 280 NW2d 170 (1979).
However, where injury to some degree is found, a court does not preclude recovery for lack of precise proof but must do the best it can with what it has by way of evidence. Godwin v Ace Iron & Metal Co, 376 Mich 360, 368; 137 NW2d 151 (1965). This rule particularly applies when it is the defendant's own conduct that has caused the imprecision. Id. In such situations, it is preferable to err on the side of overcompensating the plaintiff, rather than adopt a rule that in all probability will preclude the injured party from recovery for a large portion of the damage sustained. Id.; Troppi v Scarf, 31 Mich App 240, 261-262; 187 NW2d 511 (1971); Howard v City of Melvindale, 27 Mich App 227, 235; 183 NW2d 341 (1970).
The trial court in this case quite obviously attempted to sort out the equities of the parties, attempting to place them as nearly as possible in the position they would have occupied had the conveyance occurred when required by the contract *100 and considering the improvements defendant Henry Cornillie had made to the property.
The trial court denied plaintiffs' request for damages for the forty-seven months they did not have use of the property because plaintiffs did not intend to use the property as a rental property. In making this decision the trial court apparently misunderstood that the average fair rental value was introduced merely to help the court establish the amount of the loss. Fair rental value is an apt measure of damages in such a situation. See Lawrence C Young, Inc v Servair, Inc, 33 Mich App 643; 190 NW2d 316 (1971). A qualified witness' reasonable estimate of the value of the lost use of the property during the relevant time frame is competent evidence on which to base an award. See Andries v Everitt-Metzger-Flanders Co, 177 Mich 110; 142 NW 1067 (1913).
Under the circumstances, we believe that the most equitable course is to remand this matter for a determination of plaintiffs' damages, including consideration of the improvements made.
While plaintiffs also suggest that it is inequitable to deny rental compensation while at the same time charge them taxes for the Koerber property (less the taxes paid on their existing home), this claim must be rejected because the purchase agreement itself sets the date of closing as the date for prorating taxes. Thus, it was equitable to give defendants credit for the taxes they paid, which were occasioned by the delay in conveying the property. We find no error in the trial court's determination in this regard.
Next, plaintiffs challenge the trial court's determination that it
is the finding of this Court, pursuant to MCL 600.6013(5); MSA 27A.6013(5), defendants shall *101 receive interest on the $32,000.00 down payment. However, the Court finds defendants' assertions, as to interest on possible investment or money market earnings, speculative and beyond the thrust of Godwin.
Plaintiffs' claim regarding the above is that MCL 600.6013; MSA 27A.6013 does not apply, and that an appropriate rate of interest in equity would have been a bank savings rate of five percent. Plaintiffs' argument regarding the statute has merit, but we reject the suggested use of a five percent rate under the facts of this case.
While arriving at an appropriate interest factor is not always easy, it is clear to us that MCL 600.6013; MSA 27A.6013 does not apply to interest awarded in equity. Divorce cases are equitable, and we find the equitable principles discussed in divorce cases instructive. See Thomas v Thomas (On Remand), 176 Mich App 90, 92; 439 NW2d 270 (1989). See also Dep't of Treasury v Central Wayne Co Sanitation Authority, 186 Mich App 58, 61; 463 NW2d 120 (1990) (money judgment under the statute means adjudication of a sum of money as distinguished from an act to be done).
In this regard, the panel in Thomas, supra, noted that a minimum of five percent would be required pursuant to the lawful interest rate in MCL 438.31; MSA 19.15(1), although this may not always be adequate to compensate a party in equity. By comparison, the interest rate of twelve percent in MCL 600.6013(5); MSA 27A.6013(5), which was adopted by the trial court, is intended to apply to complaints filed after January 1, 1987, in which a money judgment is rendered on a written instrument. MCL 600.6013; MSA 27A.6013 is intended to provide compensation to a prevailing party for loss of use of funds awarded as a *102 money judgment and to offset the costs of bringing a court action. Old Orchard by the Bay Associates v Hamilton Mutual Ins Co, 434 Mich 244, 252; 454 NW2d 73 (1990).
In view of the above principles, we conclude that the trial court's use of MCL 600.6013; MSA 27A.6013 to determine interest was an abuse of discretion because this statute has no application to and does not comport with the equitable objective of interest in specific performance cases.
The issue then becomes whether the interest should be reduced to five percent as asserted by plaintiff or the case remanded to the trial court for further proceedings to determine a proper rate of interest. In this regard, the record shows that the trial court rejected defendants' interest proposal as being speculative. The minimum rate in the defendants' proposals appears to be about seven percent, although the proposals were combined to reach an average higher than seven percent. By comparison, plaintiffs' July 30, 1990, proposal reflects an interest rate of 6.35 percent.
In light of the trial court's rejection of defendants' proofs as speculative and plaintiffs' use of the 6.35 percent in its proposal, we find it appropriate to reduce the rate of interest to 6.35 percent, rather than remand for further proceedings to determine the interest rate. Plaintiffs' newly raised claim that a rate of five percent should be used is rejected because it was not presented to the trial court. As was noted in People v Murry, 106 Mich App 257, 262; 307 NW2d 464 (1981), a party cannot ask a trial court to take a certain action, and then argue on appeal that the action constitutes error.
Plaintiffs' final claim is that the trial court erred in failing to award attorney fees as part of the equitable accounting. The general rule is that no *103 attorney fees may be awarded as costs unless authorized by statute or court rule.
Although there are exceptions to this rule, plaintiffs have shown no statute, court rule, or equitable principle justifying an award of attorney fees in this case. They do assert that defendants' breach of the purchase agreement was intentional and that having defendants pay their attorney fees is necessary to return the "parties" to the place they would be had there been no breach, and they cite Kelynack v Yamaha Motor Corp, USA, 152 Mich App 105; 394 NW2d 17 (1986), as being sufficiently analogous to the instant case to justify attorney fees. We find this argument unpersuasive because the issue in Kelynack involved a trial court's ability to award attorney fees as an element of damages under the Uniform Commercial Code, MCL 440.2715; MSA 19.2715. Kelynack has no relevance to the specific performance and equitable accounting at issue in this case. Because plaintiffs have not shown the requisite inequitable result for an award of attorney fees, the trial court's decision to deny attorney fees is affirmed.
Remanded for recalculation of interest on defendants down payment at the rate of 6.35 percent advocated by plaintiffs in the trial court and for a determination of plaintiffs' damages. In all other respects, the judgment of the trial court is affirmed.
We do not retain jurisdiction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1025444/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-7584
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEWAYNE ANTHONY SHIFFLETT,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (5:05-cr-00007-sgw; 7:06-cv-00497-sgw)
Submitted: March 18, 2008 Decided: April 8, 2008
Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
DeWayne Anthony Shifflett, Appellant Pro Se. Ray Burton
Fitzgerald, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
DeWayne Anthony Shifflett seeks to appeal the district
court’s order accepting the recommendation of the magistrate judge
and denying relief on his 28 U.S.C. § 2255 (2000) motion. The
order is not appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). 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 Shifflett has
not made the requisite showing. Accordingly, we deny Shifflett’s
motion for a certificate of appealability, deny his pro se motion
for “Permission to file a writ of habeas corpus in the district
court and consolidate briefs upon completion,” and dismiss the
appeal. 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
- 2 - | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1025463/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1953
CONSOLIDATION COAL COMPANY,
Petitioner,
versus
VIOLA M. NECESSARY, widow of Alvin H.
Necessary, deceased; DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(05-223-BLA)
Argued: December 5, 2007 Decided: April 7, 2008
Before MICHAEL and GREGORY, Circuit Judges, and John Preston
BAILEY, Chief United States District Judge for the Northern
District of West Virginia, sitting by designation.
Petition denied by unpublished per curiam opinion.
ARGUED: Kathy Lynn Snyder, JACKSON & KELLY, P.L.L.C., Morgantown,
West Virginia, for Petitioner. Frederick K. Muth, HENSLEY, MUTH,
GARTON & HAYES, Bluefield, West Virginia; Barry H. Joyner, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondents. ON
BRIEF: Douglas A. Smoot, JACKSON & KELLY, P.L.L.C., Morgantown,
West Virginia, for Petitioner. Jonathan L. Snare, Acting Solicitor
of Labor, Patricia M. Nece, Counsel for Appellate Litigation,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal
Respondent.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Consolidation Coal Company (Consol) petitions for review
of an order of the Department of Labor’s Benefits Review Board
(BRB) affirming the decision of an administrative law judge (ALJ)
to award survivor’s black lung benefits to Viola Necessary (Mrs.
Necessary), the widow of Alvin Necessary (Mr. Necessary). Consol
argues that the ALJ erred by (1) crediting the opinion of the
pathologist who conducted the autopsy and (2) misapplying the Black
Lung Benefit Act’s evidence-limiting regulations. We affirm
because we conclude that (1) the ALJ’s benefits determination was
supported by substantial evidence in the record and (2) Consol
waived its arguments about the application of the regulations by
failing to raise them before the BRB.
I.
Mr. Necessary worked as a coal miner for twenty-four
years. During his lifetime he submitted three claims under the
Black Lung Benefits Act, 30 U.S.C. §§ 901-944 (the Act), each of
which was denied. Mr. Necessary died on February 3, 2001, at age
eighty. Eduardo T. Tolosa, M.D., Mr. Necessary’s treating
physician, completed his death certificate, identifying the cause
of death as acute bronchopneumonia as a consequence of coal
workers’ pneumoconiosis and emphysema. Mr. Necessary’s widow
3
submitted a timely application for survivor’s benefits under the
Act.
At the hearing before the ALJ, the parties stipulated
that Mr. Necessary suffered from coal workers’ pneumoconiosis
caused by coal mine employment and that Consol was the responsible
coal operator. The parties agreed that the remaining issue was
whether coal workers’ pneumoconiosis caused or hastened Mr.
Necessary’s death. During the hearing the ALJ allowed all of the
evidence from Mr. Necessary’s lifetime black lung claims to be
included in the record with no objection from either party. The
ALJ then excluded certain documentary evidence offered by Consol,
including two of its three reviews of autopsy tissue slides, as
exceeding the evidentiary limitations imposed by 20 C.F.R.
§ 725.414.
After reviewing the evidence, the ALJ determined that Mr.
Necessary’s death was hastened by his pneumoconiosis and awarded
Mrs. Necessary survivor’s benefits. In reaching this conclusion
the ALJ relied primarily on the opinion of Alex P. Racadag, M.D.,
the board certified pathologist who conducted an autopsy of Mr.
Necessary’s lungs. The ALJ also found support in Dr. Tolosa’s
deposition testimony, introduced into evidence by Consol. The ALJ
rejected other evidence offered by Consol, including the opinion of
Stephen T. Bush, M.D., who examined the autopsy slides and
4
concluded that pneumoconiosis had not hastened Mr. Necessary’s
death.
Consol appealed the decision to the BRB, arguing that (1)
the evidence-limiting regulations were invalid, or, alternatively,
Consol’s excluded evidence should have been admitted under the good
cause exception in the regulations, 20 C.F.R. § 725.956(b)(1), and
(2) the award was not supported because Dr. Racadag’s opinion was
equivocal and the ALJ automatically credited his opinion because he
was the autopsy prosector. The BRB rejected Consol’s evidentiary
arguments, but it remanded to the ALJ with instructions to provide
a more detailed explanation of his decision to credit the opinion
of Dr. Racadag. On remand the ALJ issued a new opinion further
explaining his rationale for crediting Dr. Racadag, and upon a
second appeal the BRB affirmed in a two to one vote. Consol then
petitioned to this court for review. The Director of the Office of
Workers’ Compensation Programs (the Director) and Mrs. Necessary
responded.
II.
To qualify for benefits under the Act, Mrs. Necessary
must demonstrate that (1) Mr. Necessary suffered from
pneumoconiosis, (2) the pneumoconiosis arose from coal mine
employment, and (3) the pneumoconiosis was a “substantially
contributing cause or factor leading to” his death. 20 C.F.R.
5
§ 718.205; see also Bill Branch Coal Corp. v. Sparks, 213 F.3d 186,
190 (4th Cir. 2000). A “substantially contributing cause” is
defined as a condition hastening the miner’s death. 20 C.F.R.
§ 718.205(c)(5). The claimant must prove each of these elements by
a preponderance of the evidence. Piney Mountain Coal Co. v. Mays,
176 F.3d 753, 757 (4th Cir. 1999) (citing 5 U.S.C. § 556(d)).
In making factual determinations, “the ALJ must explain
which evidence is relevant and why he credited the evidence he
did.” Perry v. Mynu Coals, Inc., 469 F.3d 360, 363 (4th Cir. 2006)
(citing Island Creek Coal Co. v. Compton, 211 F.3d 203, 208-09 (4th
Cir. 2000) and Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438,
439 (4th Cir. 1997)). We must uphold the ALJ’s factual
determinations if they are supported by substantial evidence in the
record. Id. Substantial evidence is of “sufficient quality and
quantity ‘as a reasonable mind might accept as adequate to support’
the finding under review.” Piney Mountain Coal Co., 176 F.3d at
756 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). We
review legal conclusions de novo. Perry, 469 F.3d at 363.
Consol raises two arguments on appeal. First, it argues
that the ALJ erred in crediting Dr. Racadag’s opinion. Second,
Consol contends that the ALJ erred in his application of the Act’s
evidence-limiting regulations. We discuss these contentions in
turn.
6
III.
A.
Consol first argues that the ALJ erred in crediting Dr.
Racadag’s opinion because the opinion was unreasoned and equivocal.
Consol relies on our decision in United States Steel Mining Co. v.
Director, Office of Workers’ Compensation Programs, 187 F.3d 384
(4th Cir. 1999). In that case the ALJ awarded survivor’s benefits
based on a doctor’s statement that “‘[i]t is possible that death
could have occurred as a consequence of [the miner’s] pneumonia
superimposed upon his . . . pneumoconiosis.’” Id. at 387. In his
report the doctor admitted that he did not have any information
concerning the circumstances of the miner’s death. Id. at 390. We
held that, given the “total absence of any medical evidence”
linking the miner’s pneumoconiosis with his death, the doctor’s
opinion was pure speculation and could not support the ALJ’s award.
Id. at 391.
While a doctor’s opinion must rely on medical evidence,
we also recognize that a doctor is under no obligation to parse
words. Medical judgments regarding cause of death will often
involve some degree of uncertainty, and it is proper -- and
commendable -- for a doctor to be candid about this reality. Thus,
in Piney Mountain Coal Co. v. Mays we affirmed an award of benefits
despite the doctor’s use of the conditional “could” in rendering
his opinion. 176 F.3d at 763-64. Like in U.S. Steel we recognized
7
that the doctor’s specific statements could not be viewed in
isolation, but instead must be understood in the context of the
information known to him and in light of his full report. Piney
Mountain Coal Co., 176 F.3d at 763. Similarly, in Perry v. Mynu
Coals, Inc. we held that an ALJ erred by summarily dismissing a
doctor’s opinion because the doctor admitted that he was not “one-
hundred percent sure” of his conclusion. 469 F.3d at 365-66. We
noted that “refusal to express a diagnosis in categorical terms is
candor, not equivocation, and we are of opinion that it enhances
rather than undermines [the doctor’s] credibility.” Id. at 366.
Mrs. Necessary submitted two items of evidence from Dr.
Racadag. First, she introduced his autopsy report, which described
the autopsy procedure, his observations, and his conclusion that
coal worker’s pneumoconiosis and other conditions contributed to
Mr. Necessary’s morbidity and demise. Second, she introduced Dr.
Racadag’s deposition testimony. Dr. Racadag testified that Mr.
Necessary had a “moderate” degree of simple coal workers’
pneumoconiosis with micronodules, which contributed to his death.
J.A. 197. During Dr. Racadag’s deposition the following exchange
took place:
Q: So in this case, when you say the coal workers’
pneumoconiosis contributed to his death, I mean, are you
speculating that?
A: Yes. It’s a speculation. That’s why I said
“probably contributed,” because I believe there is no 100
percent in medicine. . . . I think it’s an interplay of
several factors, rather than just one.
8
J.A. 210-11. Shortly thereafter Dr. Racadag affirmed that he had
been providing answers to “a reasonable degree of medical and
scientific certainty.” J.A. 212.
The ALJ’s decision to credit Dr. Racadag’s statements is
one that we review under the “substantial evidence” standard.
Piney Mountain Coal Co., 176 F.3d at 764. When we consider the
ambiguous statements highlighted by Consol in the context of Dr.
Racadag’s entire report and testimony, we are not persuaded that
“no ‘reasonable mind’ could have interpreted and credited the
doctor’s opinion as the ALJ did.” Id. Instead, as the ALJ found,
Dr. Racadag relied on his experience and his gross and microscopic
observations of the lungs in reaching his conclusion.
Dr. Racadag weighed the lungs, noting that the right lung
weighed 50 grams more than the left. He noted brown to black
coloration with black-gray mottling and black hilar lymph nodes
measuring up to one centimeter. Dr. Racadag also noticed pleural
adhesions, meaning that “some areas of the lung surface were
plastered against the thoracic wall.” J.A. 194. In his
microscopic examination, he described various “aggregates of black
pigmented macrophages some of which [were] associated with
fibrocollagenous reaction,” coal nodules with obvious fibrosis,
emphysematous changes, thickening of tissues, and scattered
inflamation. J.A. 157. In his deposition testimony Dr. Racadag
explained how these observations led him to his conclusions.
9
As the ALJ also noted, Dr. Racadag clarified that he was
giving his opinion to a reasonable degree of medical certainty.
Like in Perry, where the doctor also refused to state that he was
one-hundred percent certain, Dr. Racadag’s admission of the
uncertainty inherent in medical evaluation could certainly be
interpreted as a testament to his candor rather than a lack of
conviction, and it was well within the ALJ’s discretion to credit
his opinion.
B.
Consol also argues that the ALJ “mechanically credited
Dr. Racadag’s opinion because his role as a prosector allowed him
to view the lungs.” Pet’r’s Br. 18. This challenge is limited to
the ALJ’s decision to credit Dr. Racadag’s opinion that
pneumoconiosis affected ten to twenty percent of Mr. Necessary’s
lungs, rather than Dr. Bush’s opinion that pneumoconiosis affected
only five percent of the lungs at the time of death. While this is
a close case, we affirm the ALJ’s decision because his opinion was
carefully reasoned and based on evidence in the record.
We have held that an ALJ may not automatically credit the
opinions of an autopsy prosector solely because he “was the only
physician to examine the whole body near the time of death.” Bill
Branch Coal Corp., 213 F.3d at 192. We have counseled caution in
this area because automatic crediting of the autopsy prosector in
every case would foreclose an opposing party from the opportunity
10
to present its evidence. Our holding in Bill Branch follows the
uncontroversial rule that an ALJ’s opinion must be reasoned and
supported by the record. Id. at 190. In keeping with this rule,
we have also recognized that the ALJ may credit the autopsy
prosector’s opinion when such crediting is supported by the record
and adequately explained. See Perry, 469 F.3d at 366; Bill Branch
Coal Corp., 213 F.3d at 192 n.6. In a given case, for example, the
evidence may allow the ALJ to determine that the autopsy
prosector’s ability to conduct a gross examination of the miner’s
lungs places the prosector in a better position to assess the
extent to which the lung tissue had been affected by
pneumoconiosis.
In this case the ALJ restated the rule in Bill Branch and
noted that he was required to resolve the dispute created by Dr.
Bush’s and Dr. Racadag’s conflicting interpretations of the lungs’
impairment. The ALJ then determined that Dr. Racadag had a better
opportunity to assess the limited issue in the case -- the total
extent of pneumoconiosis in the lung -- because he was able to view
the gross anatomy of the lung and see the actual effects of the
disease, as well as examine the lung tissue microscopically. Dr.
Bush, on the other hand, only examined slides comprised of samples
taken from the lungs and did not examine the lung as a whole. In
reaching his conclusion, the ALJ relied on Dr. Racadag’s testimony
that the opportunity to conduct a gross examination as well as a
11
microscopic examination better enabled him to understand the extent
of the disease. The ALJ did not rely solely on Dr. Racadag’s role
as autopsy prosector; he also carefully considered the credibility
of Dr. Bush’s competing evaluation and concluded that it was
insufficiently documented and reasoned. As the ALJ noted, Dr. Bush
failed to explain the scientific basis for his determination that
the extent of pneumoconiosis was insufficient to hasten death, but
instead seemed to apply “a mechanical standard.” J.A. 372.
The ALJ’s decision to credit Dr. Racadag’s assessment of
the extent of Mr. Necessary’s pneumoconiosis over Dr. Bush’s
assessment was reasoned and supported by the evidence. The ALJ was
required to resolve the dispute created by the contradictory
medical opinions, and he evaluated the record to determine which
opinion was best supported by the evidence. Dr. Racadag testified
extensively about how his gross examination of the lungs aided him
in reaching his conclusions. In contrast, Dr. Bush made conclusory
statements that pneumoconiosis did not hasten Mr. Necessary’s
death. While this is a close case, as we have said, we may not
replace the ALJ’s assessments with our own.
We conclude that the ALJ’s decision to credit Dr.
Racadag’s opinion was supported by the evidence, and his opinion
supports the award of survivor’s benefits to Mrs. Necessary.
12
IV.
Consol also raises two challenges to the ALJ’s
evidentiary rulings. For the reasons discussed below, we agree
with the Director that Consol has waived these arguments because it
failed to raise them before the BRB.
A.
Consol first argues that the ALJ erred by considering
evidence from Mr. Necessary’s three lifetime claims. Consol relies
on a recent BRB decision holding that under 20 C.F.R. § 725.309(d)
evidence from the living miner’s claims should not be automatically
included in the record for a survivor’s claim. Keener v. Peerless
Eagle Coal Co., BRB No. 05-1008 BLA, 2007 WL 1644032, at *5-*6
(Jan. 26, 2007). When the case was before the BRB, Consol argued
that the ALJ erred by failing to consider the miner’s lifetime
evidence -- an argument opposite to the one it raises today.
Consol acknowledges that it did not argue to the BRB that the
lifetime claims evidence should have been excluded, but it contends
that the Keener decision created new law that should change the
outcome in this case. We disagree. Keener did not create new law;
instead, it interpreted a regulation that was in existence when the
case was before the BRB. See Betty B Coal Co. v. Dir., Office of
Workers’ Comp. Programs, 194 F.3d 491, 501 (4th Cir. 1999). Consol
thus had the opportunity to argue to the BRB that the ALJ erred by
considering the lifetime claims evidence. Instead, it choose to
13
advance the opposite argument. Because the argument Consol raises
now was not raised before the BRB, and the BRB did not have an
opportunity to consider it, we decline to consider it here.
See Armco, Inc. v. Martin, 277 F.3d 468, 476 (4th Cir. 2002).
B.
Consol also contends that the ALJ improperly excluded its
autopsy rebuttal evidence under 20 C.F.R. § 725.414(a)(3). Again,
Consol relies on recent court decisions in support of its argument.
See Elm Grove Coal Co. v. Dir., Office of Workers’ Comp. Programs,
480 F.3d 278, 297-99 (4th Cir. 2007); Keener, 2007 WL 1644032, at
*2-*4. Again, we conclude that Consol failed to make this argument
before the BRB and has therefore waived it.
In its first appeal to the BRB, Consol challenged the
ALJ’s application of the evidence-limiting regulations with respect
to the exclusion of several of its proffered items of evidence. At
that time Consol made two related arguments. First, Consol argued
that the evidence-limiting regulations were invalid under the Act,
the Administrative Procedures Act, and Supreme Court and Fourth
Circuit precedent. Second, Consol argued that the evidence was
relevant and probative, and thus should be admitted under the good
cause exception to the regulations, 20 C.F.R. § 725.456(b)(1). The
BRB rejected each of these arguments.
Before this court, Consol puts forth an alternative
argument for the first time, contending that the evidence should
14
have been admitted as rebuttal evidence under the evidence-limiting
regulations. Consol cites Keener’s holding that, under
§ 725.414(a)(3), the responsible operator may submit an autopsy
slide review as its affirmative evidence and also, in rebuttal, an
additional report interpreting the claimant’s autopsy report. 2007
WL 1644032, at *2-*4. Consol argues that Dr. Bush’s report should
have been admitted as its affirmative evidence and that Dr.
Oesterling’s report, which analyzed Mr. Necessary’s medical reports
and his autopsy slides, should have been admitted as its rebuttal
evidence. Consol concedes that it did not challenge the ALJ’s
application of § 725.414 before the BRB, but it contends that its
two arguments before the BRB somehow encompass its argument on
appeal. In essence, Consol argues that because our decision in Elm
Grove Coal Co. forecloses Consol’s challenges to the validity of
the regulations, it is now entitled to advance an alternative
argument regarding the application of those regulations.
While Consol did challenge the exclusion of Dr.
Oesterling’s report (and those of several other doctors) before the
BRB, it did so under substantively different arguments than the one
it raises before this court. The BRB carefully considered Consol’s
arguments under several federal statutes and the good cause
exception. But the BRB had no opportunity to consider Consol’s
contention here that the ALJ made a legal error in his application
of § 725.414(a)(3). It was Consol’s deliberate choice to focus on
15
the validity and breadth of the regulations, rather than raise the
alternative argument that the ALJ misapplied the evidence-limiting
regulation. As a result, we will not consider the argument that
Consol chose not to make before the BRB. See Armco, Inc., 277 F.3d
at 476.
* * *
For the foregoing reasons, Consol’s petition for review
is denied.
PETITION DENIED
16 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596467/ | 28 So. 3d 433 (2009)
STATE of Louisiana
v.
Jermaine E. FAVORS
No. 09-KA-413.
Court of Appeal of Louisiana, Fifth Circuit.
November 10, 2009.
*435 Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Michael D. Smith, Jr., Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
FREDERICKA HOMBERG WICKER, Judge.
Defendant/appellant Jermaine E. Favors timely appeals his conviction and sentence. He assigns as error insufficiency of the evidence to convict him. For the following reasons, we affirm the conviction and sentence and remand for the limited purpose of ordering correction of the commitment/minute entry.
The state charged the defendant by bill of information with violating La. R.S. 14:402(E),[1] introducing or possessing contraband; namely, Marijuana, into the parish jail. Originally, the state alleged that the offense occurred on or about November 12, 2008. On the date of trial, before jury selection, without objection, the state amended the bill to allege the date as on or about November 10, 2008.[2] The jury *436 found the defendant guilty as charged of violating La. R.S. 14:402(E) concerning Marijuana. The defendant filed a motion for new trial that was denied prior to sentencing on March 30, 2009. After denying the motion, the defendant waived the 24-hour delay afforded by La. C. Cr. P. art. 873 by stating his readiness for sentencing. The trial judge sentenced the defendant to three years at hard labor.
Facts
At trial, Sergeant Pierre Harris testified that on November 10, 2008 at approximately 7:30 AM, he discovered Marijuana in the defendant's cell at the Jefferson Parish Correctional Center. It is undisputed that the defendant had been the sole occupant of the cell in question in the Jefferson Parish Correctional Center for at least ten days before the discovery. The defendant, however, testified that the Marijuana did not belong to him. He believed that the Marijuana belonged to the inmate who had previously occupied the cell. He said that this inmate, Shawn Franklin, told the defendant that the Marijuana was Franklin's. Mr. Franklin, who was called outside the presence of the jury, testified that he intended to invoke his Fifth Amendment right and did not wish to testify.
Sergeant Harris, a Jefferson Parish Sheriffs supervisor, testified that he works in the Jefferson Parish Correctional Center. Around 7:30 AM on the date in question, Sergeant Hawkins placed a radio call to him asking for assistance at the defendant's cell. Sergeant Hawkins reported that while he was performing a security check, he smelled an odor.
When Sergeant Harris arrived, he smelled a Marijuana odor. He entered the cell and began searching it. He checked the mattress, and the cubbyhole. He discovered a rolled-up, orange-colored sock between the wall and the bed frame. Sergeant Harris testified that the sock was hidden from view. It was tightly rolled and folded up between the bed frame and the wall. He opened the sock and discovered a plastic bag inside the sock that contained a green substance. The substance was field tested at the correctional center. It tested positive for Marijuana.
During cross-examination Sergeant Harris testified that there are 13 cells in a pod. He said that the defendant was housed in the first cell that is encountered when a person walks into the pod. Sergeant Harris said approximately 15 individuals were inmates on that floor. Some cells have two bunks while others have one bunk.
Sergeant Harris testified that he has smelled Marijuana before in the correctional center and in other places. He did not check any of the other cells. When asked how he could tell if the odor came from cell number one, he testified that as he entered the cell, he smelled it and the odor was stronger coming from the first cell. He said that it was not coming from cell 12 or cell 13.
Sergeant Harris testified that he did not find matches, a pipe, or any other evidence of burning matter. He found no evidence of smoking. He did not see any evidence that the cigarette was stepped on or that there was a pipe nearby.
*437 Sergeant Harris stated that the defendant was already out of the cell when the sergeant arrived. Another sergeant had removed him in order to search the defendant. He stated that there was no way that sock could have been tossed into the cell by anyone else.
During redirect examination, when the state inquired about the fact that he did not find any lights, matches, or roaches, the state asked whether there was a working toilet in the defendant's cell. The officer replied affirmatively.
The defendant testified that around 7:00 AM to 7:30 AM, on the morning that the officers entered his cell, everyone was sleeping. Sergeant Hawkins told him to step out of the cell. The defendant complied. Sergeant Hawkins brought the defendant into the shower area and performed a strip search. Sergeant Hawkins did not find anything. Then, the sergeant started searching the defendant's cell. While the sergeant searched the cell, he told the defendant to stay on the wall with his hands up. Sergeant Hawkins called for assistance while he was in the defendant's cell searching it. After that, Sergeant Harris arrived to assist Sergeant Hawkins. Another person also arrived to assist in the search.
The defendant said that he was not the only person to have ever been in that cell. As far as he knew, there could have been 20 previous occupants. He said that when he first came on the floor, Mr. Franklin was his cell mate for approximately five days. Then, the defendant was alone.
During cross-examination, he testified that he did not see Sergeant Harris find the sock during the search of his cell. He stated that it had been approximately ten days before the incident at issue since anyone other than himself or a deputy had been in that cell. He testified that he did not smell Marijuana. But, he acknowledged that he was the only person who would have had any opportunity to smoke Marijuana in that cell.
During redirect examination, he testified that Mr. Franklin wrote him a letter after Mr. Franklin learned that the defendant was charged with this offense. In the letter, Mr. Franklin told the defendant that he did not want to see an innocent person be convicted and he let the defendant know that the Marijuana was Mr. Franklin's.
Sufficiency
The defendant argues on appeal that there was insufficient direct or circumstantial evidence to convict him for two reasons: (1) The state only proved that he was merely present in the cell where the Marijuana was found. (2) There was no evidence that he had actual knowledge of the Marijuana or that he exercised control and dominion over the substance. The state disagrees.
The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier-of-fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Cummings, 95-1377, p. 2 (La.2/28/96), 668 So. 2d 1132, 1133. In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the Jackson v. Virginia standard enunciated by the United States Supreme Court. State v. Kestle, 07-1573, p. 5 (La.12/2/08), 996 So. 2d 275, 278 citing State v. Captville, 448 So. 2d 676, 678 (La.1984). When the conviction is based on circumstantial evidence, such evidence must exclude every reasonable hypothesis of innocence. Id., *438 citing La. R.S. 15:438; State v. Camp, 446 So. 2d 1207, 1209 (La.1984); State v. Wright, 445 So. 2d 1198, 1201 (La.1984). However, La. R.S. 15:438 does not establish a stricter standard of review than the more general rational juror reasonable doubt formula. It is merely an evidentiary guide for the trier-of-fact when considering circumstantial evidence. Id., citing State v. Porretto, 468 So. 2d 1142, 1146 (La.1985). The trier-of-fact makes credibility determinations and may accept or reject the testimony of any witness. Id. (Citation omitted).
Circumstantial evidence involves, in addition to the assertion of witnesses as to what they have observed, a process of reasoning, or inference by which a conclusion is drawn. State v. Chism, 436 So. 2d 464, 469 (La.1983). The trier-of-fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised; and the weight and effect to be given to each permissible inference. Id.
The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So. 2d 78, 83.
Constitutional law does not require the reviewing court to determine whether it believes the witnesses or whether it believes that the evidence establishes guilt beyond a reasonable doubt. State v. Spears, 05-0964, p. 3 (La.4/4/06), 929 So. 2d 1219, 1222 citing State v. Mussall, 523 So. 2d 1305, 1309 (La.1988). Rather, the fact finder is given much discretion in determinations of credibility and evidence, and the reviewing court will only impinge on this discretion to the extent necessary to guarantee the fundamental protection of due process of law. Spears, supra, 05-0964 at 3, 929 So.2d at 1222-23 (Citations omitted).
It is not the function of the appellate court to assess the credibility of witnesses or to re-weigh the evidence. State v. Hooker, 05-251, p. 17 (La.App. 5 Cir. 1/17/06), 921 So. 2d 1066, 1076 citing State v. Marcantel, 00-1629, p. 9 (La.4/3/02), 815 So. 2d 50, 56. As the Louisiana Supreme Court stated, "the Jackson standard does not serve as a vehicle for a reviewing court to second guess the rational credibility determinations of the fact finder at trial." State v. Juluke, 98-341 (La.1/8/99), 725 So. 2d 1291, 1293 (per curiam) (Citation omitted). The trier-of-fact makes credibility determinations, and may, within the bounds of rationality, accept or reject the testimony of any witness. State v. Hampton, 98-0331, p. 13 (La.4/23/99), 750 So. 2d 867, 880, cert. denied, Hampton v. Louisiana, 528 U.S. 1007, 120 S. Ct. 504, 145 L. Ed. 2d 390 (1999) (Citations omitted).
In the present case, defendant was convicted of introducing into or possessing marijuana into the Jefferson Parish Correctional Center in violation of La. R.S. 14:402. La. R.S. 14:402 provides, in pertinent part, the following:
E. It shall be unlawful to possess or to introduce or attempt to introduce into or upon the premises of any municipal or parish prison or jail or to take or send or attempt to take or send therefrom, or to give or to attempt to give to an inmate of any municipal or parish prison or jail, any of the following articles which are hereby declared to be contraband for the purpose of this Section, to wit:
. . . .
*439 (5) Any narcotic or hypnotic or excitive drug or any drugs of whatever kind or nature, including nasal inhalators of any variety, sleeping pills or barbiturates of any variety that create or may create a hypnotic effect if taken internally, or any other controlled dangerous substance as defined in R.S. 40:961, et seq[.]
Testing confirmed that the substance found was Marijuana. Marijuana is a controlled dangerous substance. See La. R.S. 40:961(7); La. R.S. 40:964; La. R.S. 40:966.[3]
For purposes of La. R.S. 14:402, possession may be established by showing that the defendant exercised either actual or constructive possession of the substance. A person not in physical possession of a drug is considered to be in constructive possession of the drug, even though it is not in his physical custody, when the drug is under his dominion and control. State v. Decay, 07-966, p. 7 (La. App. 5 Cir. 6/19/08), 989 So. 2d 132, 138, writ denied, 08-1634 (La.4/13/09), 5 So. 3d 161.
Guilty knowledge is an essential component of any showing that a defendant has constructive possession of contraband, i.e., dominion and control over it although the contraband is not in his actual possession. State v. Pigford, 05-0477, p. 7 (La.2/22/06), 922 So. 2d 517, 521 (per curiam) (Citations omitted); State v. Frith, 08-52, p. 10 (La.App. 5 Cir. 4/29/08), 985 So. 2d 792, 798 (Citations omitted). Guilty knowledge may be inferred from the circumstances of the case. Frith, 08-52 at 10, 985 So.2d at 798 (Citations omitted).
Mere presence in an area where drugs are located or mere association with one possessing drugs does not constitute constructive possession. Frith, 08-52 at 10, 985 So.2d at 798 (Citations omitted).[4]
In the present case, the jury heard conflicting testimony and evidently rejected the defendant's testimony that the Marijuana was left in the cell by Mr. Franklin, the defendant's former cell mate.
The defendant argues that there was weak circumstantial evidence and therefore the evidence was insufficient in light of his alternative hypotheses of innocence. He raises the following to support his hypotheses of innocence: (1) The mere fact that the pod was permeated with Marijuana smoke does not sufficiently prove that he exercised dominion and control over the substance. According to the defendant, since his cell was at the entrance to the pod, the inference was that the Marijuana smell was not localized to his cell alone. (2) There was no evidence to suggest that he had consumed the Marijuana or had actual knowledge of the Marijuana. When he was not in his cell, anyone could have placed something there without his knowledge or consent. (3) There was no evidence to show that his cell had been searched prior to its assignment to him.
We are not required to determine whether another possible hypothesis of innocence *440 suggested by the defendant offers an exculpatory explanation of events. Rather, we must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So. 2d 78, 83 (Citation omitted).
In this case, the defendant was the sole occupant of the cell in which Sergeant Harris smelled the Marijuana odor. He had been the sole occupant of that cell for at least ten days. Mr. Franklin was no longer there at the time the odor was detected. Although no evidence of burning or consumption was discovered, Sergeant Harris did testify that the cell had a working toilet. Thus, the jury could have reasonably inferred from this testimony that such evidence could have been disposed of. Further, the fact that the Marijuana was hidden supports the defendant's guilty knowledge. Although the smell was present when entering the pod, Sergeant Harris testified that the odor was stronger from the defendant's cell. In addition, after explaining the location of where the sock was discovered, Sergeant Harris stated that the sock could not have been tossed into the defendant's cell by someone else. And the defendant acknowledged that he was the only person in the cell who would have had the opportunity to smoke Marijuana in the cell.
Based on the foregoing, the evidence, viewed in a light most favorable to the state, was sufficient to establish that the defendant was guilty of the charged offense.[5]
Accordingly, this assignment of error lacks merit.
Error Patent
The record was reviewed for errors patent, according to La. C. Cr. P. art. 920; State v. Oliveaux, 312 So. 2d 337 (La. 1975); State v. Weiland, 556 So. 2d 175 (La.App. 5 Cir.1990). A review of errors patent revealed that the specific section under which the defendant was charged with omitted. In this case the bill of information simply contained a charge under the general provisions of La. R.S. 14:402 without citing the pertinent section.
An accused has a constitutional right to be informed of the nature and cause of the accusation against him. La. Const. Art. I, § 13. That constitutional requirement is codified in La. C. Cr. P. art. 464, which provides:
The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.
The charge, however, specified that the defendant was charged with introducing into or possessing marijuana in the Jefferson *441 Parish Correctional Center. The reference to parish prison implicated Section E of the statute.
The time for testing the sufficiency of an indictment or bill of information is before trial by way of a motion to quash or an application for a bill of particulars. State v. Draughn, 05-1825, p. 60 (La.1/17/07), 950 So. 2d 583, 623, cert. denied, Draughn v. Louisiana, 552 U.S. 1012, 128 S. Ct. 537, 169 L. Ed. 2d 377 (2007) (Citation omitted). The defendant did not file a motion to quash the bill as defective. See: La. C. Cr. P. art. 532(2). He did, however, file a motion for a bill of particulars and was given discovery by the state.
Given the failure to file a motion to quash, the defendant arguably waived any claim based on the allegedly defective indictment. State v. Campbell, 06-0286, p. 94 (La.5/21/08), 983 So. 2d 810, 870, cert. denied, Campbell v. Louisiana, ___ U.S. ___, 129 S. Ct. 607, 172 L. Ed. 2d 471 (2008). Even so, in Campbell, the Louisiana Supreme Court addressed assigned errors regarding an alleged defective indictment based on the constitutional mandate that an accused has a constitutional right to be informed of the nature and cause of the accusation against him. Id.
The failure to cite the correct criminal statute number is a technical deficiency in the bill of information which is not grounds for reversal unless the defendant can show surprise or lack of notice which causes prejudice. State v. Sims, 426 So. 2d 148, 158 (La.1983) (Citations omitted). In this case, there is no showing of prejudice or surprise in that the wording of the bill of information is sufficiently clear to inform the defendant that he is charged with violating Section E of the statute. Thus, the misstatement in the bill of information is not ground for reversal of the conviction.
Our error patent review also revealed that the commitment/minute entry is inaccurate in two respects: First, the transcript reflects that the defendant was found guilty by a jury on January 21, 2009 while the commitment/minute entry reflects that defendant was convicted on January 27, 2009.
Second, the commitment is also inaccurate in that it indicates that the defendant was found guilty of 14:402, contraband in a correctional center. In fact, the defendant was convicted by a jury of La. R.S. 14:402(E), concerning contraband in a correctional center; namely, parish prison. Accordingly, we remand this matter to the trial court for the limited purpose of correcting the commitment/minute entry. We order the commitment/minute entry to be amended to reflect the correct statute and to show the correct date that the defendant was found guilty by a jury. Compare: State v. Stevenson, 02-769, p. 10 (La.App. 5 Cir. 1/28/03), 839 So. 2d 340, 346, writ denied, 03-0833 (La.10/31/03), 857 So. 2d 472 (remand for correction of date that charges were resolved); State v. Pomeroy, 97-1258, p. 9 (La.App. 5 Cir. 5/13/98), 713 So. 2d 642, 646 (remand to reflect the correct statute).
Further, we direct the district court to make the entries in the minutes reflecting these changes and direct the clerk of court to transmit the original of the minute entry to the officer in charge of the institution to which the defendant has been sentenced. See: La. C. Cr. P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So. 2d 846 (per curiam).
Conclusion
For the reasons stated herein, the defendant's conviction and sentence are hereby affirmed. The case is remanded to the trial court for the limited purpose of correcting the commitment as more fully discussed in this opinion.
*442 CONVICTION AND SENTENCE AFFIRMED; CASE REMANDED FOR LIMITED PURPOSE.
NOTES
[1] See error patent discussion infra.
[2] In the instant case, the actual date the offense is alleged to have occurred is not an essential element of the offense. La. R.S. 14:402(E). When the date of the alleged offense is not an essential element of the offense charged, a mistake respecting the date on which the offense occurred is only a defect of form which may be corrected at any time with leave of court. State v. McCoy, 337 So. 2d 192, 195 (La. 1976), citing in part La. C. Cr. P. arts. 468 and 487. In this case, there was testimony concerning only one alleged offense during that time.
[3] Marijuana (Marihuana) was formerly classified as a Schedule I drug by La. R.S. 40:964(C)(22), which was amended by La. Acts 2008, No. 67, § 1. Thereafter, La. R.S. 40:964(C)(19) included "Marihuana" as a Schedule I drug.
[4] There are several factors to consider in determining whether a defendant exercised sufficient control and dominion to establish constructive possession, including: (1) his knowledge that drugs were in the area; (2) his relationship with the person, if any, found to be in actual possession; (3) his access to the area where the drugs were found; (4) evidence of recent drug consumption; and (5) his physical proximity to drugs. State v. Major, 03-3522, pp. 7-8 (La.12/1/04), 888 So. 2d 798, 802 (Citation omitted).
[5] Compare: State v. Converse, 529 So. 2d 459, 463 (La.App. 1 Cir. 1988), writ denied, 533 So. 2d 355 (La.1988), in which the defendant argued the evidence was insufficient to sustain his conviction of possession of contraband in a penal institution. After viewing the evidence in the light most favorable to the state, the court found that any rational trier of fact could have found that the defendant had constructive possession of the items of contraband found in his cell, which he alone occupied. The Converse court also noted that any rational trier of fact could have inferred that the defendant concealed them because of guilty knowledge that institutional regulations prohibited him from having them in the cell. Id. at 464. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596479/ | 28 So. 3d 906 (2010)
John K. VREELAND, Administrator ad Litem for the Estate of Jose Martinez, and as Personal Representative of the Estate of Jose Martinez, Deceased, Appellant,
v.
Danny FERRER d/b/a Ferrer Aviation; Danny Ferrer; Aerolease of America, Inc., a corporation; Biometric Science Foundation, LLC; and Linda Palas, as Personal Representative of the Estate of Donald Palas, Deceased, Appellees.
No. 2D08-248.
District Court of Appeal of Florida, Second District.
January 6, 2010.
Rehearing Denied March 10, 2010.
*907 Joel D. Eaton of Podhurst Orseck, P.A., Miami, and Bill Wagner of Wagner *908 Vaughan & McLaughlin, P.A., Tampa, for Appellant.
Shelley H. Leinicke of Wicker, Smith, O'Hara, McCoy & Ford, P.A., Fort Lauderdale, for Appellee Aerolease of America, Inc.
No appearance for Appellees Danny Ferrer d/b/a Ferrer Aviation; Danny Ferrer; Biometric Science Foundation, LLC; and Linda Palas, as Personal Representative of the Estate of Donald Palas, deceased.
NORTHCUTT, Judge.
Jose Martinez was a passenger aboard a private airplane that crashed shortly after takeoff. Martinez and the pilot were killed. The administrator ad litem for and personal representative of Martinez's estate, John K. Vreeland, filed a wrongful death action against the owner of the plane, the company to which the owner had leased the plane, and the pilot's estate. This appeal involves only the claims against the owner, Aerolease of America, Inc. The circuit court granted Aerolease a summary judgment on the three counts asserted against it, thereby disposing of the entire case as to that defendant. See Fla. R.App. P. 9.110(k).
Vreeland challenges the summary judgment on two of the counts. The first alleged that, as the airplane's owner, Aerolease was vicariously liable for the pilot's negligent operation of the airplane, a dangerous instrumentality under Florida law. The second count contended that Aerolease negligently maintained and inspected the aircraft before leasing it and that this negligence was the cause of the accident. As discussed below, we affirm the summary judgment on the first count and reverse the summary judgment on the second count. Vreeland has not taken issue with the summary judgment on the third count, which asserted that Aerolease intentionally published false information about the condition of the aircraft in order to induce a lease. Accordingly, we affirm the summary judgment on that count without discussion.
Vicarious Liability
In Florida the owner of a "dangerous instrumentality" who has expressly or impliedly consented to its operation by another is vicariously liable for injuries or damages caused by its negligent operation. Orefice v. Albert, 237 So. 2d 142, 143-44 (Fla.1970). An airplane is a dangerous instrumentality. Id. As mentioned, Vreeland's first count against Aerolease sought to impose liability under this theory.
Aerolease successfully moved for summary judgment on the ground that a provision of the Federal Aviation Act, 49 U.S.C. § 44112, preempts Florida's dangerous instrumentality law as it relates to owners or lessors of civil aircraft. The pertinent part of that statute reads as follows:
(b) Liability.A lessor, owner, or secured party is liable for personal injury, death, or property loss or damage on land or water only when a civil aircraft, aircraft engine, or propeller is in the actual possession or control of the lessor, owner, or secured party, and the personal injury, death, or property loss or damage occurs because of
(1) the aircraft, engine, or propeller; or
(2) the flight of, or an object falling from, the aircraft, engine, or propeller.
Vreeland does not dispute that the airplane was not in Aerolease's possession or control at the time of the pilot's alleged negligence. But he maintains that the federal statute was not intended to preempt liability under state law theories such as Florida's dangerous instrumentality doctrine. Rather, he argues, the statute's purpose was to make clear that Congress had not intended the federal act to create a *909 cause of action based on vicarious liability. We disagree.
As other courts have recognized, any discussion of this topic must involve an examination of the statute's legislative history. The forerunner of the present statute was 49 U.S.C. § 1404, enacted in 1948.[1] House Report No. 80-2091 was issued in conjunction with the 1948 enactment. Contrary to Vreeland's argument, the Report confirmed that the statute was indeed directed to liability under state law. Specifically, the Report documented Congress's concern about a provision of the Uniform Aeronautics Act that had been adopted by a number of states.
Section 4 of the Uniform Aeronautics Act is in force in at least 10 States and Hawaii. That section reads, in part, as follows:
The owner of every aircraft which is operated over the lands or the waters of this State is absolutely liable for injuries to persons or property on the land or water beneath, caused by the ascent, descent, or flight of the aircraft, or the dropping or falling of any object therefrom, whether such owner was negligent or not, unless the injury is caused in whole or in part by the negligence of the person injured, or of the owner or bailee of the property injured. If the aircraft is leased at the time of the injury to persons or property, both owner and lessee shall be liable, and they may be sued jointly or either or both of them may be sued separately.
1948 U.S.C.C.A.N. 1836 (emphases supplied, footnote omitted). The House Report went on to observe that this provision, as adopted in various states, imposed absolute liability on owners of aircraft even if they held title only as lessors. The report continued:
An owner in possession or control of aircraft, either personally or through an agent, should be liable for damages caused. A security owner not in possession or control of the aircraft, however, should not be liable for such damages. This bill would make it clear that this generally accepted rule applies and assures the security owner or lessee (sic), that he would not be liable when he is not in possession or control of the aircraft.
Id. (emphasis supplied.) We believe these statements show that Congress intended 49 U.S.C. section 1404 to shield an owner or lessor of a civil aircraft from vicarious liability under state law when the aircraft was not in its possession or control.
The current statute was part of a broad recodification of the Federal Aviation Act in 1994. Pub. L. No. 103-272. Subsection 1.(a) of that public law states that "`[c]ertain general and permanent laws of the United States, related to transportation, are revised, codified and enacted by subsections *910 (c)-(e) of this section without substantive change ....'" "49 U.S.C. s. 44112 replaced 49 U.S.C. s. 1404 by virtue of Section 1.(e) of P.L. 103-272. Also, Section 6.(a) of P.L. 103-272 provides that Sections (1) through (4), including Section 1.(e), `restate, without substantive change, laws enacted before July 1, 1993, that were replaced by these sections. These sections may not be construed as making a substantive change in the laws replaced.'" Mangini v. Cessna Aircraft Co., 2005 WL 3624483 at *2, 40 Conn. L. Rptr. 470 (Conn.Super.Ct. Dec. 7, 2005) (not reported in A.2d) (quoting Pub. L. No. 103-272) (emphases supplied). Congress thus made clear that the substantive effect of 49 U.S.C. § 44112 is the same as its predecessor's.
Whether a federal statute preempts state law is a question of law. Federal preemption "may be either express or implied, and is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose." Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383, 112 S. Ct. 2031, 119 L. Ed. 2d 157 (1992) (quoting FMC Corp. v. Holliday, 498 U.S. 52, 56-57, 111 S. Ct. 403, 112 L. Ed. 2d 356 (1990)).
The federal statute at issue here does not expressly preempt state laws imposing vicarious liability on the owners or lessors of civil aircraft, hence the dispute before us. However, preemption is implied when there is a conflict between a federal law and a state law. Talbott v. Am. Isuzu Motors, Inc., 934 So. 2d 643, 645 (Fla. 2d DCA 2006). There is a conflict between federal and state law when the dictates of both sets of laws cannot be complied with or where dual compliance may be technically possible but the state law creates an obstacle to fulfilling the federal policy and goals. Id. As reflected both in the language of 49 U.S.C. § 44112 and in the House Report accompanying the enactment of the statute's predecessor, the policy and goal underlying the federal statute is to shield the owner or lessor of a civil aircraft from liability for the negligence of others committed when the aircraft was not in the owner's or lessor's possession or control. To apply Florida's dangerous instrumentality law so as to impose vicarious liability on such an owner or lessor in such circumstances would, to say the least, create an obstacle to fulfilling that policy and goal.
We recognize that the case authorities regarding the preemptive effect of this provision are far from consistent in either their conclusions or their reasoning. See Matei v. Cessna Aircraft Co., 35 F.3d 1142 (7th Cir.1994) (affirming unreported district court decision, 1990 WL 43351 (N.D.Ill. Mar. 30, 1990), and holding that liability under Illinois bailment law was preempted, but also discussing the fact that the state law would not have provided relief); Rogers v. Ray Gardner Flying Serv., Inc., 435 F.2d 1389 (5th Cir.1970) (noting that 49 U.S.C § 1404 "appears clearly and forthrightly to preempt any contrary state law which might subject holders of security interests to liability for injuries"); Esheva v. Siberia Airlines, 499 F. Supp. 2d 493, 499 n. 4 (S.D.N.Y.2007) (stating that a lessor of an aircraft is absolutely immune under 49 U.S.C. § 44112(b) from a claim based on vicarious liability); In re Lawrence W. Inlow Accident Litig., 2001 WL 331625 (S.D. Ind. Feb. 7, 2001) (unpublished decision) (finding preemption of state law on liability of lessors based on the language of 49 U.S.C. § 44112 itself, and on the congressional intent to preempt the Uniform Aeronautics Act as stated in House Report accompanying the enactment of 49 U.S.C. § 1404); Mangini v. Cessna Aircraft Co., 2005 WL 3624483, 40 *911 Conn. L. Rptr. 470 (Conn.Super.Ct. Dec. 7, 2005) (not reported in A.2d) (holding that 49 U.S.C. § 44112 applies to owners of aircraft and preempts state law that would hold owners vicariously liable in aircraft accidents); but see Coleman v. Windham Aviation, Inc., 2005 WL 1793907 (R.I.Super.Ct. Jul. 18, 2005) (unpublished decision) (holding that 49 U.S.C. § 44112 did not preempt state law imposing vicarious liability on an owner of an aircraft); Retzler v. Pratt & Whitney Co., 309 Ill.App.3d 906, 243 Ill. Dec. 313, 723 N.E.2d 345 (1999) (finding that the language of 49 U.S.C. § 1404 did not impliedly preempt state bailment law); Sexton v. Ryder Truck Rental, Inc., 413 Mich. 406, 320 N.W.2d 843 (1982); Storie v. Southfield Leasing, Inc., 90 Mich.App. 612, 282 N.W.2d 417 (1979), aff'd Sexton, 320 N.W.2d 843 (both determining that 49 U.S.C. § 1404 did not preempt the Michigan aircraft ownership liability statute for damages that occurred inside the aircraft).
We consider the cases finding preemption to be the better reasoned ones. We are not persuaded by the arguments against the preemptive force of 49 U.S.C. § 44112, nor do we find the cases so holding to be well reasoned. For example, in the Michigan cases cited above, the courts parsed the language in 49 U.S.C. § 1404, which shielded a lessor from liability for injury "on the surface of the earth," to hold that the statute did not preempt state law liability for injuries that occurred inside an aircraft. Storie, 282 N.W.2d at 421; see also Sexton, 320 N.W.2d at 847 n. 2 (adopting Storie). But those cases do not explain why an airplane crash does not cause an injury on the surface of the earth regardless of whether the injured person was in the airplane or standing on the ground.
The Rhode Island court in Coleman noted that the legislative history of 49 U.S.C. § 1404 indicates that the enactment was designed to facilitate the financing of aircraft, and the court posited that the statute was designed to protect owners and lessors only for security purposes. 2005 WL 1793907 at *5-*6 (quoting House Report 80-2091 for the proposition that "[t]he limitation with respect to leases of 30 days or more, in case of lessors of aircraft, was included for the purpose of confining the section to leases executed as a part of some arrangement for financing purchases of aircraft.").
But the statute actually at issue in Coleman was 49 U.S.C. § 44112, which, as shown by the previously-quoted portions of both statutes, is worded differently than 49 U.S.C. § 1404. The current statute plainly refers to "a lessor, owner, or secured party." The Coleman court's reason for ignoring that language was tortuous. Focusing on Congress's declaration that the 1994 recodification of the federal aviation law did not substantively change chapter 49, and finding no reference to owners in the legislative history of the predecessor statute, the Coleman court concluded that 49 U.S.C. § 44112 does not apply to owners of aircraft notwithstanding its express language.
The reasoning behind the Coleman court's interpretation of 49 U.S.C. § 44112 was faulty in two respects. First, as the Connecticut court pointed out in Mangini, section 49 U.S.C. § 1404 did in fact refer to owners: "no lessor of any such aircraft under a bona fide lease of thirty days or more, shall be liable by reason ... of his interest as lessor or owner of the aircraft...." 2005 WL 3624483 at *2. Moreover, the Mangini court perceived that, in light of Congress's admonition that the recodification of chapter 49 did not effect a substantive change in the law, the predecessor statute "was always designed to include the owners that 49 U.S.C. s. 44112 *912 so clearly and definitely describes." Id. at *4. We agree.
The Retzler court, in finding that 49 U.S.C. § 44112 did not preempt lessor liability, mistakenly focused on the general savings clause in the Aviation Act, 49 U.S.C. § 40120(c), which provides that "a remedy under this part is in addition to any other remedies provided by law." (Emphasis supplied.) Retzler relied on Abdullah v. American Airlines, 181 F.3d 363, 375 (3d Cir.1999), for the proposition that state remedies are foreclosed "where there is an irreconcilable conflict between the federal and state standards or where the imposition of a state standard in a damages action would frustrate the objectives of the federal law." Retzler, 243 Ill. Dec. 313, 723 N.E.2d at 352. Thus it ventured that the enactment of the savings clause demonstrated Congress's belief that state remedies were compatible with Federal aviation law and that federal law, in general, did not preempt state remedies. Id. We do not disagree with the general proposition that Congress could not have intended to broadly abolish state damage remedies for injury or death connected with aviation accidents. But that proposition is simply irrelevant to the purpose of 49 U.S.C. § 44112, which is to shield specific parties from liability in specific circumstances, i.e., where a lessor, owner, or secured party is not in actual possession or control of the aircraft when another's negligence causes injury. That purpose is in "irreconcilable conflict" with the Florida dangerous instrumentality doctrine, and as we previously discussed, results in an implied preemption of Florida state law in this circumstance.
For the foregoing reasons, we conclude that 49 U.S.C. § 44112 preempts Florida's dangerous instrumentality law insofar as that law would hold the owner or lessor of a civil aircraft liable for another's negligence committed when the owner or lessor was not in actual possession or control of the aircraft.
In reaching this conclusion, we distinguish Orefice, in which the Florida Supreme Court held that an airplane was a dangerous instrumentality and that the airplane's co-owner could be held vicariously liable for the craft's negligent operation. Although 49 U.S.C. § 1404 was in effect at that time, the Orefice court did not mention or discuss it. We can only surmise that the possible preemptive effect of the federal statute on the dangerous instrumentality law was not raised in either the supreme court or in the underlying case before the district court of appeal. See Orefice v. Albert, 226 So. 2d 15 (Fla. 3d DCA 1969). As such, the supreme court did not address the issue presented here.
Moreover, the Orefice court's ruling that the dangerous instrumentality law imposed vicarious liability on owners of aircraft was based in part on its observation that Chapter 330, Florida Statutes (1970), reflected "a specific policy by the State of Florida to license and otherwise see after aircraft safety." Orefice, 237 So.2d at 145. The Florida statutes addressing aircraft safety have since been repealed. Compare ch. 330, Fla. Stat. (1970), with ch. 330, Fla. Stat. (2004).
The circuit court correctly determined that, under 49 U.S.C. § 44112, Aerolease cannot be held vicariously liable for the negligence of others committed when the aircraft was not in Aerolease's possession or control. Accordingly, we affirm the partial summary judgment entered on that count of Vreeland's complaint.
Negligent Maintenance and Inspection
Vreeland's complaint also alleged that Aerolease negligently maintained and inspected the aircraft before it leased the plane. The partial summary judgment entered in Aerolease's favor on all counts, *913 including this one, referred only to the preemptive force of 49 U.S.C. § 44112.
As discussed above, however, the purpose of the federal statute is to shield an owner or lessor from liability for the negligence of others committed when the aircraft is not in the owner's or lessor's possession or control. We have found no basis for attributing to the statute an intention to shield a party from having to answer for its own active negligence when the party has possession or control of the aircraft. As such, the application of state negligence law in such circumstances would in no way hinder the fulfillment of the federal statute's purpose. For this reason, we conclude that 49 U.S.C. § 44112 does not preempt Florida negligence law insofar as Vreeland seeks to recover for Aerolease's active negligence in maintaining and inspecting the airplane while it was in Aerolease's possession or control. Therefore, we reverse the summary judgment on that count and remand for further proceedings.
Affirmed in part, reversed in part, and remanded.
VILLANTI, J., and FULMER, CAROLYN K., Senior Judge, Concur.
NOTES
[1] That statute, as amended in 1959, read:
No person having a security interest in, or security title to, any civil aircraft, aircraft engine, or propeller under contract of conditional sale, equipment trust, chattel, or corporate mortgage, or other instrument of similar nature, and no reason of such interest or title, or by reason of his interest as lessor or owner of the aircraft, aircraft engine, or propeller so leased, for any injury to or death of persons, or damage to or loss of property, on the surface of the earth (whether on land or water) caused by such aircraft, aircraft engine, or propeller, or by the ascent, descent, or flight of such aircraft, aircraft engine, or propeller or by the dropping or falling of an object therefrom, unless such aircraft, aircraft engine, or propeller is in the actual possession or control of such person at the time of such injury, death, damage, or loss.
49 U.S.C. § 1404 (1959). The 1959 amendment added aircraft propellers and engines to the original 1948 law, which only addressed the aircraft itself. See 1959 U.S.C.C.A.N. 1762. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304595/ | HOWELL, J.
In this case the plaintiff W. B. Ward sued the defendant C. E. Hickerson in the Circuit Court of Davidson County for breach of a contract whereby C. E. Hickerson sold to W. B. Ward, doing business as Ward Motor Company, a 1942 Model Ford Sedan, Motor No. 45288, for the sum of $1,015.00 paid in cash. Shortly after the purchase by Ward he sold the automobile to Thomas J. Hughes and wife of California and in a short while thereafter, the automobile was replevied from Hughes and wife by the Security Investment Company of Nashville, by reason of the fact that the Investment Company had a mortgage thereon which was in default. Hpon the trial of the replevin suit it was adjudged that title to the car was vested in the Investment Company at the time it was sold by Hickerson to Ward. Hughes and wife sued Ward and recovered the purchase price of the car and then this suit was filed by Ward against Hickerson.
The defendant filed a plea of not guilty and upon the hearing in the Circuit Court before a jury, a verdict was rendered against the defendant Hickerson for the purchase price of the car, $1,015.00, and the costs. The defendant has properly perfected an appeal in error to this Court and has assigned errors.
*267It is insisted for tlie defendant that the trial Conrt erred in not directing a verdict for the defendant as there was no evidence to support a verdict for the plaintiff.
There was ample competent evidence to justify the jury in finding for the plaintiff. The record discloses that on November 10, 1945, C. E. Hickerson sold this car to the plaintiff Ward, doing business as the Ward Motor Company, for $1,015.00 paid in cash. On that day the defendant Hickerson wrote a memorandum of sale in his own handwriting on a piece of scratch paper which is as follows:
“For & in consideration of $1,015.00 cash, receipt of which is hereby acknowledged I hereby sell transfer & convey to Ward Motor Co. one 1942 Ford Sedan M#-45288 Lie. 1-36629.
“This Nov. 10-45
“C. E. Hickerson”
About thirty days thereafter Ward sold this same automobile to Thomas J. Hughes of California, and thereafter it was replevied from Hughes by the Security Investment Company of Nashville, which company had a valid title thereto, and Hughes filed a bill' in the Chancery Court at Nashville and by a final decree entered in Minute Book 162 at page 466, on April 15, 1948, a judgment was entered in that case against Ward in favor of Thomas J. Hughes and wife for $1,163.11 and the costs. This judgment was paid. Certified copies of the decrees in that case were filed and are a part of the record in this case. A certified copy of the original Chattel Mortgage on this car to the Securities Investment Company, duly registered in the Register’s Office of Warren County, Tennessee, is also filed as an exhibit herein. •
*268It is also insisted for the defendant that he made no warranty as to the title of the automobile involved and therefore is not liable.' It is true that in the bill of sale there is no express warranty of title, but in a case of this kind the law will presume a warranty of title.
The defendant had the automobile in his possession as owner thereof and when he sold it for cash and delivered it to the plaintiff the law will import in the contract of sale a warranty of title by the seller. This subject is fully discussed in an opinion by Felts, Judge in the case of Bundle v. Capitol Chevrolet, Inc., reported in 23 Tenn. App. 151, 129 S. W. (2d) 217, 220. In that case after citing a number of cases this Court said:
“Where one in possession of goods sells them as owner, the law, in order to discourage dishonesty and fraud, will import into his contract of sale a warranty of title by him.”
The Court then said:
“Such was the common law of this State upon the subject of warranties of title by the vendor in sales of personalty when the Uniform Sales Act (Code, secs. 7194-7270) was enacted. This act we think, was but declaratory of the common law on this subject. It provides (sec. 7206):
“ ‘In a contract to sell or a sale, unless a contrary intention appears, there is
“ ‘(1) An implied warranty on the part of the seller that in case of a sale he has a light to sell the goods, and that in case of a contract to sell he will have a right to sell the goods at the time when the property is to pass.
“ ‘ (2) An implied warranty that the buyer shall have and enjoy quiet possession of the goods as against any lawful claims existing at the time of the sale.
*269“ ‘(3) An implied warranty that the goods shall be free at the time of the sale from any charge or encumbrance in favor of any third person, not declared or known to the buyer before or at the time when the contract or sale is made.
“ ‘(4) This section shall not, however, he held to render liable a sheriff, auctioneer, mortgagee, or other person professing to sell by virtue of authority in fact or law goods in which a third person has a legal or equitable interest.
‘ ‘ • ‘ These warranties by the vendor protect the vendee against liens or charges upon the goods. Johnson City v. Press, Inc., 171 Tenn. 80, 87, 100 S. W. (2d) 657.’ ”
It is also insisted for the defendant that the lien of the mortgage upon the car was not properly proven. Section 9747 of the Code of Tennessee is as follows:
“Certified copies of records. — Duly certified copies of all records and entries, official bonds, or other papers belonging to any public office, or, by authority of law, filed to be kept therein, are evidence in all cases.”
We find no reversible errors in the record. The plaintiff has suffered loss of more than the amount of the verdict awarded him and the verdict is fully justified by the law and the evidence.
The assignments of error are overruled and the judgment of the Circuit Court is affirmed.
A judgment will be entered here in favor of the plaintiff W. B. Ward and against the defendant C. E. Hicker-son for the sum of One Thousand and Fifteen Dollars ($1,015.00) with interest from March 9, 1950, and the costs of the case.
Affirmed.
Hiekerson, J., and Kizer, Sp. J., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1596509/ | 399 So. 2d 1021 (1981)
Sondra J. ANDERSON, Appellant,
v.
CANVASSING AND ELECTION BOARD OF GADSDEN COUNTY, FLORIDA as Constituted by J. Love Hutchinson, Forrest Davis and Richard Hood, Chairman; J. Love Hutchinson As Supervisor of Elections of Gadsden County; and Denny Hutchinson, Candidate for Supervisor of Elections for Gadsden County, Appellees.
No. YY-410.
District Court of Appeal of Florida, First District.
May 29, 1981.
Rehearing Denied July 7, 1981.
Marlow V. White, Jr. of Busch & White, Tallahassee, for appellant.
John Shaw Curry and Joann G. Slay of Johnson, Harnett, Curry & Slay, Quincy, for *1022 Canvassing and Election Board, and James O. Shelfer of Gardner, Shelfer, Mendelson, Duggar & Thompson, Quincy, for Denny Hutchinson, appellees.
PER CURIAM.
Anderson appeals the judgment of the trial court which affirmed the Gadsden County Canvassing Board's (Canvassing Board) rejection of certain absentee ballots. We affirm.
Anderson was the unsuccessful candidate for the Democratic nomination for Supervisor of Elections of Gadsden County. Subsequent to the Canvassing Board's certification of defendant Denny Hutchinson as the Democratic nominee for this office, Anderson timely filed an election contest with the circuit court pursuant to Section 102.168, Florida Statutes (1979). In her complaint, Anderson alleged that the Canvassing Board improperly rejected at least 81 absentee ballots which if accepted would have affected the results of the election. Of these ballots the complaint alleged that the Canvassing Board improperly rejected 30 ballots because the electors had registered with a script signature but voted with an X; 10 ballots because the electors had registered with an X but voted with a script signature; 25 ballots because the signatures were of dubious authenticity; 8 ballots because the electors' names did not appear in the registration book; four ballots because the electors voted twice due to confused procedures of the incumbent Supervisor of Elections; two ballots because the electors' names were spelled differently on the ballot than in the registration book; one ballot because the elector printed his name to register but used a script signature to vote; four ballots because the electors cast two absentee ballots due to misinformation from the Supervisor of Election's office; one ballot because it was not properly witnessed.
On defendant's motion to dismiss, the court reviewed the complaint and ruled that the Canvassing Board had acted within its discretion as to the majority of ballots but determined that those rejected because of the differences in spelling, and the script versus printing should have been received because the discrepancies were insubstantial and in those instances where the voters mistakenly voted twice, one of their votes should have been counted. Since the number of votes improperly rejected would not have changed the results, the motion to dismiss was granted with prejudice.
On appeal, appellant urges that even in the absence of allegations of fraud or wrongdoing the trial court should have held an evidentiary hearing to allow appellant to present evidence on the validity of the contested ballots. Certainly, allegations of fraud or other wrongdoing are not necessary in order for the trial court to hold an evidentiary hearing, see e.g. Barber v. Moody, 229 So. 2d 284 (Fla. 1st DCA 1969), Boardman v. Esteva, 323 So. 2d 259 (Fla. 1979), however, under the circumstances of this case, a full hearing was not required.
The complaint set out with specificity each category of ballots rejected and the basis for that rejection. The trial judge reviewed each of these allegations in view of the criteria set out in Boardman,[1] and determined that the rejected ballots were either patently illegal or were found to be illegal by the Canvassing Board within the latitude of discretion conferred upon it.
In Boardman, at 268, fn.5 the Supreme Court agreed with the trial judge that:
The canvassing of returns, including absentee ballots, is vested in canvassing boards in the respective counties who make judgments on the validity of the ballots. Those judgments are entitled to be regarded by the courts as presumptively correct and if rational and not *1023 clearly outside legal requirements should be upheld rather than substituted by the impression a particular judge or panel of judges might deem more appropriate. It is certainly the intent of the constitution and the legislature that the results of elections are to be efficiently, honestly and promptly ascertained by election officials to whom some latitude of judgment is accorded, and that courts are to overturn such determinations only for compelling reasons when there are clear, substantial departures from essential requirements of law.
We reject appellant's argument that the Canvassing Board is not to compare the signatures on the absentee ballots with those in the registration book. While Section 101.68, Florida Statutes (1979) does not specifically state that signatures are included in the information the Canvassing Board is to compare, considering the nature of the absentee voting process the comparison of signatures would appear to be the most expeditious way of carrying out the Canvassing Board's duty of insuring that only those qualified and registered to vote are allowed to do so. See Boardman, at 267.
We must also reject appellant's argument that the outer envelope of the absentee ballot is equivalent to the affidavit an elector challenged at the polls must sign pursuant to Section 101.49, Florida Statutes (1979). As Justice Terrell noted in State ex rel. Whitley v. Rinehart, 140 Fla. 645, 192 So. 819, 823 (1939), "[P]urity of the ballot is more difficult to preserve when voting absent than when voting in person." The challenge to an elector at the polls involves a face-to-face confrontation between the elector and the election officials. Obviously, no such opportunity is available with absentee voters. Additionally, unlike the right to vote, which is secured to every citizen by the United States Constitution, and the various state constitutions, the ability to vote in absentia is a privilege, Rinehart; Spradley v. Bailey, 292 So. 2d 27 (Fla. 1st DCA 1974). The Florida legislature created this privilege by enacting statutory provisions separate from those applicable to voting at the polls and specified different procedures for challenging absentee ballots. By establishing separate and distinct procedures for the two situations, the legislature has evidenced an intent that belies appellant's argument.
Upon examining appellant's third point urged for reversal, we find it to be without merit and we therefore affirm.
AFFIRMED.
SHAW and WENTWORTH, JJ., and LILES, WOODIE A. (Retired), Associate Judge, concur.
NOTES
[1] Boardman at 269 established criteria by which irregularities in absentee ballots are to be judged:
(a) The presence or absence of fraud, gross negligence, or intentional wrongdoing;
(b) Whether there has been substantial compliance with the essential requirements of the absentee voting law; and
(c) Whether the irregularities complained of adversely affect the sanctity of the ballot and the integrity of the election. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1974832/ | 487 Pa. 137 (1979)
409 A.2d 2
Rita FYE, Appellant,
v.
CENTRAL TRANSPORTATION INC., Appellee.
Supreme Court of Pennsylvania.
Submitted September 26, 1979.
Decided December 21, 1979.
*138 Robert E. Thomas, Kaminsky, Kelly & Wharton, Johnstown, for appellant.
Richard T. Williams, Sr., Windber, for appellee.
Before EAGEN, C.J., and O'BRIEN, ROBERTS, NIX, MANDERINO, LARSEN and FLAHERTY, JJ.
OPINION OF THE COURT
NIX, Justice.
Appellant filed a complaint in the Court of Common Pleas of Cambria County, sounding in equity and alleging a violation of the Pennsylvania Human Relations Act[1] in that she was unlawfully discriminated against, based on her sex, by her former employer. In response to the complaint, appellee filed preliminary objections raising inter alia, the jurisdiction *139 of the court. On May 26, 1978, the learned Chancellor sustained the objections and dismissed the complaint. The instant appeal to this Court from the May 26, 1978 order was taken pursuant to former Appellate Court Jurisdiction Act of 1970, section 202(4); Act 1970, July 31, P.L. 673, No. 223, art. II, § 202(4); 17 P.S. 211.202(4) (Supp. 1978-79).[2]
The issue in this appeal is a very narrow one. The question is whether appellant's initial election to seek redress under the Pennsylvania Human Relations Act (PHRA),[3] divested jurisdiction of a court in equity to entertain the complaint subsequently filed by appellant. The learned Chancellor answered this question in the affirmative. We agree and now affirm the decree of the court below.
In her complaint, appellant asserts that while she was employed as a school bus driver she became pregnant and, because of complications, she was ordered by her doctor to stop work until after the birth of the child. When she notified her company that she was physically able to return to work, she was refused employment. She contends that her treatment was contrary to situations where male employees, serving in the same or a similar capacity, returned after a protracted illness. It was admitted by appellant that before instituting the instant complaint, she had filed a complaint with the Pennsylvania Human Relations Commission (PHRC). The action before the PHRC was terminated after an investigation at appellant's request in deference to *140 a proceeding before the Equal Opportunity Employment Commission,[4] also initiated by appellant.
The basis for the jurisdictional challenge raised by appellee in the preliminary objections to the complaint was section 12 of the PHRA, 43 P.S. § 962 (Supp. 1978-79). Section 12(b) in pertinent part provides:
. . ., but as to acts declared unlawful by section five of this act the procedure herein provided shall, when invoked, be exclusive and the final determination therein shall exclude any other action, civil or criminal, based on the same grievance of the complainant concerned. If such complainant institutes any action based on such grievance without resorting to the procedure provided in this act, [she] may not subsequently resort to the procedure herein.
The General Assembly, recognizing the invidiousness and the pervasiveness of the practice of discrimination,[5] attempted by the PHRA to create a procedure and an agency specially designed and equipped to attack this persisting problem and to provide relief to citizens who have been unjustly injured thereby. Although attempting to fashion a special remedy to meet this illusive and deceptive evil, the General Assembly did not withdraw the other remedies that might be available depending upon the nature of the injury sustained. The legislature recognizing that the effectiveness of the procedure it had created would be enhanced by the exclusivity of the provisions of the Act, and the undesirability of allowing the person aggrieved to commence several different actions for relief, Daly v. School Dist. of Darby Tp., 434 Pa. 286, 252 A.2d 638 (1969), provided an election for the complaining person to opt for relief under the provisions *141 of PHRA or the right to seek redress by other remedies that might be available. Thus, PHRA provides that when the statutory procedure is invoked, it is exclusive. Com. Penna. Human Relations Commission v. Feeser, 469 Pa. 173, 364 A.2d 1324 (1976). Likewise, where the complaining party initially seeks relief without resorting to the provisions of the PHRA, he or she is barred from subsequently doing so. See Daly v. School Dist. of Darby Tp., supra.
Appellant acknowledges the general principle of the exclusivity of the PHRA remedy but argues that the present case falls within the limited exceptions provided for under the act. Specifically, appellant argues that section 12(c) should be construed to permit recourse to the courts of common pleas under the facts of this case. Prior to 1974, a complainant invoking the procedure of this act was barred from seeking any other remedy for redress of the asserted grievance. And this rule was without exception. By the 1974 amendment to section 12, a narrow exception was carved in the rule of exclusivity. Section 12(c) provides that the rights of a complainant invoking the procedures under the PHRA shall not be foreclosed from resort to the courts, "if within (1) year after filing of a complaint with the Commission, the Commission dismisses the complaint or has not entered into a conciliation agreement to which the complainant is a party, . . ." Here appellant's file with the PHRC was closed at her request, therefore neither of the conditions provided by section 12(c) have been met.
Appellant urges that since the role of the agency was carried out, albeit not by the designated agency but by the Equal Opportunity Employment Commission, we should recognize substantial compliance with the statutory scheme and allow the court of common pleas to take jurisdiction under the circumstances.[6] To support this position, appellant cites *142 the language of section 12(a) to the effect, "[t]he provisions of this act shall be construed liberally for the accomplishment of the purposes thereof . . . ." In response we note that this language appeared in the section before there was an exception to the rule of exclusivity. A liberal construction for the accomplishment of the purposes of the act is not synonymous with a relaxation of the rule of exclusivity for the benefit of a complainant. It is clear from the legislation that the General Assembly was of the view that the procedures provided by the act represented the most effective approach to the problem of discrimination. Thus, the language relied upon by appellant cannot properly be construed as authorizing a broad reading of the exception to the rule of exclusivity.
The learned Chancellor wisely perceived appellant's position as an invitation to the courts to "extend legislative social policy" under the "guise of judicial interpretation." If the General Assembly wished to permit the substitution of agencies in its legislative scheme, it could easily have provided for that result. It declined to do so and it is beyond our powers to ignore that judgment absent some showing of a constitutional infringement. Obviously, the rule of exclusivity was of high priority in the legislative scheme; as first promulgated, the act provided for no exception to the rule, after a number of years of experience the General Assembly was willing only to provide two carefully defined situations. This history provides no basis for a judicial finding of an implicit legislative intent to extend the expressly unambiguous perimeters of the terms of the 12(c) exceptions.
Decree affirmed. Costs to be borne by each party.
MANDERINO, J., did not participate in the decision of this case.
NOTES
[1] Act of October 27, 1955, P.L. 744, § 1 et seq., as amended; 43 P.S. § 951 et seq.
[2] This appeal has been erroneously filed in this Court. The decree appealed from was after July 1, 1976, thus section 202(4) had been suspended absolutely by R.A.P. 5105(a) and the appeal was governed by R.A.P. 702(b) (directing that appeals in equity matters of this type are to the Superior Court). However, since there has been no objection by the appellee to the jurisdiction of this Court and the record is presently before us, judicial economy and a desire for expeditious dispositions prompts us to decide the merits. See R.A.P. 741(a).
[3] Act of October 27, 1955, P.L. 744, § 1 et seq., as amended; 43 P.S. § 951.
[4] 42 U.S.C.A. § 2000e-4 (1972).
[5] The findings and declaration of policy set forth in the first section of the Act states in part:
The practice or policy of discrimination against individuals or groups . . . is a matter of concern of the Commonwealth. Such discrimination foments domestic strife and unrest, threatens the rights and privileges of the inhabitants of the Commonwealth, and undermines the foundations of a free democratic state. 43 P.S. § 952 [Supp. 1978-79]
[6] Appellant asserts in her brief that the Equal Employment Opportunity Commission found reasonable cause for her complaint and gave notice of its failure to conciliate. Although we find no support for this assertion in the record, we will for the purposes of this decision accept its accuracy since we conclude that these facts are not determinative of the question. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596180/ | 28 So. 3d 40 (2008)
EX PARTE DAVID STOUDEMIRE.
No. 1070324 (CR-06-1087).
Supreme Court of Alabama.
February 15, 2008.
Decision of the Supreme Court of Alabama Without Published Opinion Certiorari denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596183/ | 399 So. 2d 1044 (1981)
Herschel SHEPARD, Appellant,
v.
CITY OF PALATKA and Joseph Rothenberg and United States Fidelity & Guaranty Company, Appellees.
No. 80-974.
District Court of Appeal of Florida, Fifth District.
June 10, 1981.
Carl D. Dawson of Dawson, Galant, Maddox, Sulik & Nichols, P.A., Jacksonville, for appellant.
No appearance for appellees.
FRANK D. UPCHURCH, Jr., Judge.
Herschel Shepard appeals from a summary final judgment entered against him. Appellee, the City of Palatka, retained Shepard as its architect for the repairing and remodeling of the Bronson-Mulholland House in Palatka. Appellee, Joseph Rothenberg, was the contractor selected to do the work. Appellee, United States Fidelity and Guaranty was Rothenberg's surety.
After completion of the work, veneer plaster began to peel away from the plaster wallboards because a special type of wallboard necessary to assure adhesion had not been installed. The city contended that the special type of wallboard (one-half inch Imperial Plaster Base, Type X, paragraph 9F-3C) was mandated by the job specifications. The contractor, in his deposition, acknowledged that he had not used this board but instead used a finishing board, fire resistive, type X, throughout. He contends that the specifications permitted either to be used and that the fire resistant board was approved on the job.
The city sued Shepard claiming he was negligent in the preparation of plans and specifications and also charged that he failed to make timely and proper inspection of Rothenberg's work. The city also sued Rothenberg and his surety for negligent failure to follow the plans and specifications. Shepard cross-claimed against Rothenberg for indemnification. Summary judgment was granted to the city against all three defendants on the issue of liability.
The city, as the party moving for summary judgment, was required to show that there exists no genuine issue of material fact and that it was entitled to judgment as a matter of law. Every reasonable inference was required to be drawn in favor of Shepard. Wills v. Sears Roebuck & Co., 351 So. 2d 29 (Fla. 1977); Holl v. Talcott, 191 So. 2d 40 (Fla. 1966).
In Palm Bay Towers Corp. v. Crain & Crouse, Inc., 303 So. 2d 380, 383 (Fla. 3d DCA 1974), the court enunciated the standard of care owed by an architect to his employer:
As a general rule, an engineer, like an architect, owes his employer a duty to exercise and apply his professional skill, ability and judgment in a manner which is reasonable and without neglect.
As to the question of whether there was a failure to make timely and proper inspection *1045 of Rothenberg's work, it is necessary to consider the duty of the architect as specified in the contract which provided:
The Architect shall make periodic visits to the site to familiarize himself generally with the progress and quality of the work and to determine in general if the Work is proceeding in accordance with the Contract Documents. On the basis of his on-site observations as an architect he shall endeavor to guard the Owner against defects and deficiencies in the work of the Contractor. The Architect shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. The Architect shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, and he shall not be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents.
The Architect shall not be responsible for the acts or omissions of the Contractor, or any Subcontractors, or any of the Contractor's of the Subcontractors' agents or employees, or any other persons performing any of the Work.
In a proper factual situation, where it is demonstrated that the architect ignored his contractual duty to make periodic visits to the site, liability could possibly lie regardless of such exonerating language. Such was not the case here, however. The architect's deposition reflected that he had made inspections. While he admitted that he had not discovered the misuse of the wallboard, the contract clearly protected him because it imposed no duty upon him to discover the omission of the contractor and clearly absolved him of liability if there were, in fact, such omissions.
The other question was whether the architect was negligent in the preparation of plans and specifications.
Shepard, in his cross-claim against the contractor, Rothenberg, alleged that Rothenberg had failed to follow the plans and specifications. Rothenberg denied and alleged that he had followed the plans and specifications.
The court did not determine liability as between Shepard and Rothenberg. If it is ultimately determined that Rothenberg did follow the plans and specifications, the conclusion is inescapable that Shepard was negligent in their preparation and would be liable to the city. On the other hand, if it is determined that Rothenberg did not follow the plans and specifications then Rothenberg would be liable to the city but Shepard would not. The jury could also find each liable to some extent under a comparative negligence theory. Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973).
We conclude, therefore, that the entry of summary judgment, even though limited to the issue of liability was erroneous. There is an issue of fact as to whether the architect was negligent in the preparation of the plans and specifications. There is also an issue of fact as to whether the contractor complied with the plans and specifications. Whether either the contractor or architect or both are liable to the city cannot be determined as a matter of law at this stage of the case. We must REVERSE.
SHARP and COWART, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596190/ | 399 So. 2d 744 (1981)
Robert HODGE, Plaintiff and Appellant,
v.
LAFAYETTE GENERAL HOSPITAL et al., Defendants and Appellees.
No. 8124.
Court of Appeal of Louisiana, Third Circuit.
May 27, 1981.
Shelton & Lagendre, Thomas F. Porter, IV, Lafayette, for plaintiff-appellant.
Simon & Woodruff, Diana P. Simon, Onebane, Donohue, Bernard, Torian, Diaz, McNamara & Abell, P. A., Timothy J. McNamara, Lafayette, for defendants-appellees.
Voorhies & Labbe, Marc W. Judice, Lafayette, Gracella Simmins, Baton Rouge, for defendant-appellee.
Before CULPEPPER, DOMENGEAUX and LABORDE, JJ.
*745 CULPEPPER, Judge.
This is a medical malpractice action. The plaintiff, Robert R. Hodge, seeks damages for personal injuries resulting from a surgical operation on his left knee. Named as defendants are the surgeon, Dr. J. Lee Leonard, and his insurer, Hartford Accident and Indemnity Company and Lafayette General Hospital and its insurer, Continental Insurance Company. The defendant hospital and its insurer filed an exception of prematurity. The physician and his insurer filed exceptions of lack of jurisdiction and improper venue. The trial court treated the physician's exceptions as one of prematurity and sustained the exceptions as to all defendants on the grounds that the plaintiff's actions are premature because the plaintiff has not complied with the medical review panel requirements of the Louisiana Medical Malpractice Act, LSA-R.S. 40:1299.47 et seq. Plaintiff appealed. We affirm.
The substantial issue on appeal is whether lack of informed consent is a battery or an intentional tort, not subject to the provisions of the Medical Malpractice Act requiring review by a medical panel prior to filing suit.
The facts are that on August 16, 1977, while plaintiff was employed by Frontier Kemper Construction Company as a carpenter and welder at the Weeks Island Salt Mine, he was struck on his left knee by a falling beam. As a result of this injury, plaintiff consulted the defendant, Dr. J. Lee Leonard. This physician performed surgery on the plaintiff's knee on October 17, 1978 at Lafayette General Hospital. Subsequently, complications developed which give rise to this suit. Plaintiff's petition alleges the surgical procedure was performed without his prior "informed consent". He admits his claims were not reviewed by a medical panel before suit.
The pertinent statutory provisions are as follows: LSA-R.S. 40:1299.47 requires all malpractice claims, regardless of their nature, to be submitted before a medical review panel. It states in pertinent part:
"§ 1299.47. Medical review panel
"A. All malpractice claims against health care providers covered by this Part, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a medical review panel established as hereinafter provided in this Section.
* * * * * *
"B. No action, against a health care provider covered by this Part, or his insurer, may be commenced in any court of this state before the claimant's proposed complaint has been presented to a medical review panel established pursuant to this Section and an opinion is rendered by the panel. By agreement of both parties, the use of the medical review panel may be waived."
The terms "tort" and "Malpractice" are defined by R.S. 40:1299.41(7) and (8) as:
"(7) `Tort' means any breach of duty or any negligent act or omission proximately causing injury or damage to another. The standard of care required of every health care provider, except a hospital, in rendering professional services or health care to a patient, shall be to exercise that degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill.
"(8) `Malpractice' means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, and also includes all legal responsibility of a health care provider arising from defects in blood, tissue, transplants, drugs and medicines, or from defects in or failures of prosthetic devices, implanted in or used on or in the person of a patient." (Emphasis supplied)
Plaintiff first contends he need not submit his claim to a medical review panel under LSA-R.S. 40:1299.47 because a cause of action based on lack of "informed consent" is not "malpractice" under the above *746 quoted statutory definitions. Plaintiff quotes from Beck v. Lowell, 361 So. 2d 245 (La.App. 1st Cir. 1978) as supporting his contention that in medical malpractice cases there is a distinction between unintentional negligence and intentional torts:
"A surgeon who performs an operation without the consent of a patient, or some authorized person, commits a trespass on the body of the patient, in the nature of a battery, and subjects himself to liability for damages."
In Percle v. St. Paul Fire & Marine Insurance Company, 349 So. 2d 1289 (La.App. 1st Cir. 1977), writ denied 350 So. 2d 1218 (La. 1977), plaintiff contended his lack of informed consent rendered the physician liable, as having committed a battery on plaintiff's person, irrespective of negligence. The court discussed the two legal theories, negligence and battery, used to find liability based on lack of informed consent. The opinion states that although some courts have applied the battery theory, the majority view considers failure to inform the patient as constituting negligence, principally because of the absence of the physician's intent to injure his patient. The court quotes at length from Trogun v. Fruchtman, 58 Wis. 2d 569, 207 N.W.2d 297 (1973), which gives several reasons for the inadequacy of the battery theory of liability in informed consent cases. First, lack of informed consent does not fit the traditional concepts of battery, i. e., an intentional touching or striking another person. Second, the failure to inform a patient is not, in the usual case, an intentional tort, because there is no intent to injury nor substantial certainty that injury is likely to result. Third, the lack of informed consent is not compatible with the traditional idea of "contact" or "touching", because the physician is performing surgery or other treatment in an effort to cure the patient. Fourth, a question may arise as to whether a physician's malpractice insurance covers liability for battery, a criminal act, or for an intentional tort. For these reasons, the Wisconsin court concluded it is preferable to treat lack of informed consent as negligence arising out of breach of duty to inform the patient of all known risks.
In Percle, the Court of Appeal, Fourth Circuit, accepted the reasoning of the Wisconsin court in Trogun, and treated lack of informed consent as negligence, rather than battery. We also think the reasoning of these courts is sound and must be accepted.
We conclude that lack of "informed consent" is unintentional negligence, not an intentional tort, and therefore is covered by the provisions of the Louisiana Medical Malpractice Act.
Plaintiff argues next that the adoption of the "UNIFORM CONSENT LAW", LSA-R.S. 40:1299.40, separate from the "MEDICAL MALPRACTICE ACT", LSA-R.S. 40:1299.41 et seq., shows a legislative intent that actions based on lack of informed consent not be subject to the provisions of the Medical Malpractice Act. The Uniform Consent Law, which was adopted at the same time as the Medical Malpractice Act, sets forth the definition of "Consent to Medical Treatment" and the requirements therefor.
Plaintiff contends the issue of informed consent is a fact question for the judge or jury without the necessity of expert medical testimony, and that therefore the issue need not be submitted to a medical review panel. We disagree, in most cases, expert medical opinion is necessary to determine whether the patient has been informed of all "known risks".
Moreover, LSA-R.S. 40:1299.47 requires all medical malpractice actions to be submitted to a medical review panel. We have already determined that this is a medical malpractice action. We note also that the opinion of the medical review panel may contain the conclusion that there is a "material issue of fact, not requiring expert medical opinion, bearing on liability for consideration by the court." LSA-R.S. 40:1299.47(G)(3). This supports our conclusion.
Plaintiff also contends the provision of the Louisiana Medical Malpractice Act that bars the commencement of a suit *747 against a health care provider until an opinion is rendered by the medical review panel is unconstitutional as this violates his right to due process and equal protection. The constitutionality of LSA-R.S. 40:1299.47(A) and (B) has been upheld by the Supreme Court in Everett v. Goldman, 359 So. 2d 1256 (La.1978) as being "reasonably related to the guarantee of continued health care for our citizens at reasonable cost." See also: Casho v. Baton Rouge General Hospital, 378 So. 2d 182 (La.App. 1st Cir. 1979) and Knepper v. State, Department of Health & Human Resources, 359 So. 2d 1127 (La.App. 3rd Cir. 1978).
For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596167/ | 399 So.2d 527 (1981)
STATE of Florida, Petitioner,
v.
Joseph RUSH, Respondent.
No. 81-546.
District Court of Appeal of Florida, Second District.
June 10, 1981.
*528 Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for petitioner.
Fred Pflaum of Ginsburg, Byrd, Jones & Pflaum, P.A., Sarasota, for respondent.
CAMPBELL, Judge.
The state petitions for a writ of common law certiorari seeking this court's review of a pretrial ruling which granted respondent's motion in limine.
The state filed an information against respondent charging him in Count I with lewd and lascivious assaults upon his step-daughter, and in Count II with the same offense against a babysitter. Both girls were under the age of fourteen and both offenses took place within the respondent's home. The alleged offenses against the stepdaughter occurred over a period of several years and involved a greater degree of sexual molestation than did the incident involving the babysitter. The alleged single incident involving the babysitter occurred when the respondent attempted to fondle the babysitter's breasts while she was holding his one-year-old child.
Respondent's motion was based on the lack of sufficient similarities in the incidents involving the two minor girls so as to bring them within the application of the rule of admissibility laid down in Williams v. State, 110 So.2d 654 (Fla. 1959), and codified in the Florida Evidence Code, section 90.404(2), Florida Statutes (1979).
The trial court was confronted with the decision of this court in Duncan v., State, 291 So.2d 241 (Fla.2d DCA 1974), and the divergent opinion of the First District in Cotita v. State, 381 So.2d 1146 (Fla. 1st DCA 1980), both of which construed the Williams Rule concerning admissibility of similar fact evidence in cases involving child sexual offenders. Notably, both cases were decided prior to the effective date of the Florida Evidence Code. The trial court, though it preferred the rationale of Cotita, felt bound by this court's decision in Duncan. Because the trial judge properly followed the rule of law announced by this court in Duncan and as codified in the Florida Evidence Code, we cannot find that he departed from the essential requirements of law as it existed when he made his ruling. Accordingly, since we cannot make such a finding, we cannot grant certiorari. However, we do not feel that a simple denial of certiorari is adequate in this case and feel compelled to comment further.
The trial court in this case felt compelled by Duncan to grant the motion in limine and also to sever the two counts and require them to be tried separately. Section 90.404(2), which codifies Williams and Duncan, also dictates the ruling entered by the trial court. However, the trial judge was deeply troubled by his ruling and expressed his concern as follows:
I think it's an anachronism, and nowhere present in any other phase of the law except sexual offenses, which portrays, ... an insensitivity of appellate judges relative to the pragmatics of the administration of justice at the trial level and at the community level, ... [W]hich means that some old man can molest twelve kids in his home and not be able to be charged with more than one at a time under existing law, ... which is absurd... .
... .
... I hope that you [state] will appeal both, so that they will have both of these absurdities for their consideration, and I hope they will change their minds, which means that I'm going to grant your motion in limine... .
We are sympathetic to the frustrations of the trial judge and the public regarding the state of the law with respect to admissibility of similar fact evidence in child sexual molestation cases. We, too, feel a time for change has come. However, since the adoption of the Florida Evidence Code, any change must now come from the legislature and not from the courts.
The issue that concerned the trial judge and that troubles the public is the prohibition *529 by the Williams Rule and section 90.404(2) of the use of similar fact evidence to prove propensity in child sex molestation cases.
By their very nature, child sexual molestation cases occur, more often than not, in seclusion without other witnesses present. It is suspected that an in-depth study of such incidents would demonstrate that the actions of the aggressor constitute a pattern of conduct rather than an isolated incident. The public and trial judges have long been outraged by a pattern of conduct in child molestation cases that start out with minor incidents of sexual assault, if there are such, and culminate in the death of the frightened child victim who is killed to ensure silence. See generally Comment, Defining Standards For Determining The Admissibility of Evidence of Other Sex Offenses, 25 U.C.L.A.L.Rev. 261 (1978).
The Williams Rule was created by the supreme court to clear the air and resolve the confusion that existed in this area of the law. The court analyzed all of the divergent opinions and announced the rule that similar fact evidence is admissible even though it points to the commission of another crime as long as the sole relevancy of the evidence does not show the character or propensity of the accused. In doing so, it recognized the admissibility of similar fact evidence in the state's case-in-chief where "[i]t was relevant to meet the anticipated defense of consent." Williams v. State, 110 So.2d at 663. Using such a standard of relevance we could broaden admissibility to rebut not only the anticipated defense of consent but also to prove absence of mistake or accident as the Florida Evidence Code has provided. However, to carve out such further exceptions or extensions of the Williams Rule or to try to fit such evidence within the enumerated relevant factors specified in the Florida Evidence Code is to beg the question. In Cotita, the majority approved the admission of the similar fact evidence on the grounds that it "was relevant to the alibi defense and in addition to establish `a pattern of criminality', a category of admissibility recognized by the Florida Supreme Court in The Williams Case... ." Cotita v. State, 381 So.2d at 1147.
In his dissent in Cotita, Judge Robert P. Smith, Jr. asserted that the theme of the majority opinion was "that other-crimes evidence is now relevant for precisely those qualities, its showing of bad character and criminal sexual propensities, which for 150 years have been the cause for restricting its use." 381 So.2d at 1151-52. Judge Smith concludes his dissent by saying:
I confess I am not at all sure that Williams' unyielding bar of other-crimes evidence, proving propensity alone, should stand in prosecutions like this, not involving identity issues, for sex offenses against children. It may be that the nature of the offense and the usual difficulties of proving it can justify propensity evidence against the long-honored policy excluding it. (citations omitted)
Id. at 1153-54.
We concur with that statement by Judge Smith and would suggest that it is now time for the legislature to clear the air and recognize that a change in the rule of admissibility of similar fact evidence in child sexual molestation cases is warranted and badly needed. As alluded to before, we believe that it is likely that there are available statistics to show that those who commit child sex offenses have a propensity to commit that peculiar type of offense, that it is inherent in the nature of the crime itself, and being so inherent the propensity itself becomes a relevant factor.
It must be apparent from this opinion that had this cause come to this court following a conviction of the defendant after the similar fact evidence was admitted, absent the Florida Evidence Code we would probably have overruled Duncan and affirmed. Since that is not the posture of this case and in view of section 90.404(2), we cannot say that the trial court departed from the essential requirements of law.
The petition is accordingly denied.
SCHEB, C.J., and GRIMES, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596168/ | 28 So.3d 287 (2009)
Claudia W. WASHINGTON
v.
CONSOLIDATED WATER WORKS DISTRICT NO. 1 OF the PARISH OF JEFFERSON and Consolidated Sewerage District No. 1 of the Parish of Jefferson.
No. 09-CA-357.
Court of Appeal of Louisiana, Fifth Circuit.
October 27, 2009.
*289 Joy G. Cressend, Attorney at Law, Harvey, Louisiana, for Plaintiff/Appellee.
Claudia Washington, In Proper Person, Harvey, Louisiana, Plaintiff/Appellee.
Michael F. Nolan, Attorney at Law, Metairie, Louisiana, for Defendant/Appellant.
Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
WALTER J. ROTHSCHILD, Judge.
Following a bench trial in this slip and fall case, the trial court rendered judgment in favor of plaintiff, Claudia Washington and against Consolidated Water Works District No. 1 of the Parish of Jefferson. Both parties now appeal. We affirm.
Facts and Procedural History
On August 29, 2002, Claudia Washington filed the instant petition for damages against Consolidated Water Works District No. 1 of the Parish of Jefferson ("Water Works") and Consolidated Sewerage District No. 1 of the Parish of Jefferson ("Sewerage") alleging that on September 15, 2001 she slipped in standing water and fell while attempting to place mail into her mailbox. She alleges that the accumulated water was a longstanding problem and that she reported it to the Sewerage and Water Board several times in the six week period before her injury but nothing was done to remedy the situation. She alleges that defendants were negligent in creating the hazard and in failing to correct it. Defendants answered the petition, alleging that they had no notice of the alleged defect and that the accident was a result of plaintiff's own negligence.
Trial of this matter was held on September 30, 2008 and the parties stipulated to the photographs of the accident area, plaintiff's medical bills and the work orders from the Sewerage and Water Board. Plaintiff testified at trial that on September 15, 2001, she walked to the mailbox in front of her house and fell into a hole containing muddy water which was in front of the mailbox. She testified that the water had been accumulating in this area since July of 2001, and that she could not get to her mailbox without encountering it. She stated that she tried to avoid it by waiting for the mailman to hand him mail *290 directly, but on this particular day she missed him and needed to walk to the box.
Plaintiff testified that she called the Sewerage and Water Board several times using the number located on her bill to report this problem. She stated that she called once or twice a week and was told she was placed on a waiting list. Her son also called to report the problem. At some point, a workman from the sewerage department inspected the site and determined that it was a broken water pipe for which the sewerage department was not responsible. Approximately six weeks later, and after her fall, the water department came out and repaired the problem.
Plaintiff testified that on the day of this incident, she fell into a split, and a friend called for an ambulance. She did not go to the hospital at that time because she was wet and muddy and also dizzy. She went inside to bed, and continued to have pain during the night. She went to the hospital emergency room the following day.
Plaintiff testified that after she left the hospital, she saw Dr. Volek, a chiropractor and was treated over the course of two years with heat therapy, traction and simulation. Plaintiff did not feel her condition was improving and she continued to go to the emergency room for pain. In December of 2001 she saw Dr. Kessler, who prescribed an MRI and physical therapy. Plaintiff testified that she told Dr. Kessler that she was injured in a fall, and that although she previously had back pain, the pain she experienced following the fall was constant and much worse. She stated that Dr. Kessler referred her to a neurologist, but she was unable to afford these charges and instead saw a physician at Charity Hospital. She had a second MRI and a nerve conduction test at Charity, and was given a prescription for a motorized wheelchair. At the time of trial, plaintiff continued to receive treatment within the Charity system.
Plaintiff testified that there were many activities she could not perform after the fall, including gardening and housecleaning. Plaintiff admitted that she had problems with her back prior to this fall, but she was no longer having any symptoms at the time of the fall in this case. She explained that the previous back problems were due to an issue with her bladder, rather than an orthopedic injury.
Plaintiff also submitted the testimony of Randy Shuler, the director of the Jefferson Parish Water Board, who identified a work order for plaintiff's property dated September 4, 2001. The Sewerage Department determined on that date that the problem involved the Water Department, and the work order was referred to Water on September 5, 2001. No barriers were placed around the mailbox at this time. The Water Board records indicate that the problem was repaired on September 24, 2001.
During the presentation of their case, defendant also presented Mr. Shuler's testimony. Mr. Shuler testified that due to a severe drought, the Sewerage and Water Board received a much larger volume of reports of broken water lines during the summer of 2001. They made the decision to prioritize and repair the most dangerous problems first. Mr. Shuler confirmed that the work order for plaintiff's property was completed within a 20 day period, which he believed to be reasonable under the busy conditions. He stated that based on the amount of work orders received during the time period, it would not have been reasonable for plaintiff's repair to be completed within 11 days, or from the date the order was received until the date of plaintiff's fall. He stated that the department could not have repaired the problem any sooner than it did.
*291 Defendant also submitted the video deposition of Dr. Melvin Parnell who performed an IME on plaintiff. Defendant moved for an involuntary dismissal of defendant Consolidated Sewerage District No. 1 of the Parish of Jefferson, as there was no evidence of negligence on the part of this defendant. The trial court granted this motion and took the matter against Water Works under advisement.
On December 1, 2008, the trial court rendered judgment in favor of plaintiff and against Consolidated Water Works Dist. No. 1 in the amount of $39,000.00 in general damages and $10,557.11 in special damages. The trial court also issued reasons for judgment finding that defendant had a reasonable opportunity to remedy the problem prior to plaintiff's injury, and was negligent in failing to do so. Defendant suspensively appeals from this judgment on the basis of several assignments of error. Plaintiff, in proper person, also filed an appeal from this judgment and her trial attorney has filed an amicus brief in this matter.
By its appeal, defendant contends that the trial court erred in finding the area of the fall presented an unreasonably dangerous condition and that defendant had a reasonable opportunity to repair this condition prior to the fall. Further, defendant contends that the trial court erred in failing to assess comparative fault to plaintiff in this matter and in awarding excessive damages to plaintiff.
Plaintiff's claims fall under either a theory of negligence pursuant to La. C.C. art. 2315 or strict liability pursuant to La. C.C. art. 2317. At all pertinent times herein, La. C.C. art. 2317.1 provided:
The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.
In Leonard v. Parish of Jefferson, 05-32, p. 4 (La.App. 5th Cir.4/26/05), 902 So.2d 502, 504 we noted this article effectively turns strict liability into negligence claims, citing Reitzell v. Pecanland Mall Associates, Ltd., 37,524, p. 3 (La.App. 2nd Cir.8/20/03), 852 So.2d 1229, 1232.
Thus, to prevail on a claim against a public entity for negligence or strict liability, a plaintiff must establish: (1) the entity's custody or ownership of the defective thing; (2) the defect created an unreasonable risk of harm; (3) the entity's actual or constructive notice of the defect; and (4) causation. Butkiewicz v. Evans, 06-236, pp. 5-6 (La.App. 5 Cir. 9/26/06), 943 So.2d 509, 512. See also, Oster v. Dep't of Transp. & Dev., State of La., 582 So.2d 1285, 1288 (La.1991); La. R.S. 9:2800; Joseph v. City of New Orleans, 02-1996, p. 3 (La.App. 4th Cir.3/5/03), 842 So.2d 420, 423.
The manifest error standard of review applies to the trial court's finding of whether a defect creates an unreasonable risk of harm. Reed v. Wal-Mart Stores, Inc., 97-1174, p. 5 (La.3/4/98), 708 So.2d 362, 365; Joseph, 02-1996 at p. 4, 842 So.2d at 423.
In determining whether a defect creates an unreasonable risk of harm, the courts use a risk-utility balancing test in which the gravity and risk of harm is balanced against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair. *292 Leonard, 05-32 at p. 5, 902 So.2d at 504; Joseph, 02-1996 at p. 4, 842 So.2d at 423, citing Reitzell, 37,524 at pp. 3-4, 852 So.2d at 1232. See also, Boyle v. Board of Supervisors, Louisiana State University, 96-1158, p. 5 (La.1/14/97), 685 So.2d 1080, 1083.
In the present case, plaintiff gave descriptive testimony of the area surrounding her mailbox. She stated that there was "messy water" 3-4 feet around the mailbox for a period of several months, and there was no way to access the box without encountering it. She also described it as slippery and that when she fell she felt as if she had roller skates on. She also introduced photographs of the area which confirm her description. Plaintiff further stated that she attempted to avoid the area by waiting on her porch for the mailman to arrive, but she did not see him on the day of the incident. Although plaintiff stated she was aware of the severity of the condition, she stated it was necessary to go to the mailbox on the date of her fall to mail bills.
Defendant contends that while standing water may be deemed to be a defect, the record fails to prove the condition rose to the level of being unreasonably dangerous. Generally a defendant has no duty to protect against an open and obvious hazard. If the facts of a particular case show that the complained of condition should be obvious to all, the condition may not be unreasonably dangerous and the defendant may owe no duty to the plaintiff. In a slip and fall case, a pedestrian has a duty to see that which should be seen and is bound to observe whether the pathway is clear. Jeansonne v. South Cent. Bell Telephone Co., 08-568, p. 9 (La.App. 5 Cir. 1/13/09), 8 So.3d 613, 619.
In the present case, plaintiff admitted that she was aware of the obvious condition of the area and normally tried to avoid it, but found it necessary to access her mailbox on the date in question. She testified that she attempted to walk on the dry area, but that her feet slipped very quickly causing her to fall. Further, the photographs of the area depict an unreasonably dangerous condition, i.e., one which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Under the circumstances presented here, we find no manifest error of the trial court's determination that the area presented an unreasonable risk of harm that defendant had a duty to repair.
We likewise find no manifest error in the trial court's failure to assess comparative fault to the plaintiff. Plaintiff testified that she tried to avoid walking near the mailbox due to the condition surrounding it, and that she tried to avoid stepping in the water on the day of the accident. The record indicates that plaintiff proceeded carefully and as an ordinary prudent person on the date of the accident, and the record does not support a finding of comparative fault on her part.
Defendant next argues that the trial court erred in finding that defendant had a reasonable opportunity to remedy this defect prior to plaintiff's fall. Defendant cites La. R.S. 9:2800(C) which requires plaintiff to prove the public entity had a reasonable opportunity to remedy the defect but failed to do so. In support of its argument, defendant relies on the work order generated by plaintiff's complaint dated September 4, 2001 and the evidence that the problem was repaired on September 24, 2001, approximately 20 days later. Defendant also relies on the testimony of Randy Shuler regarding the especially high volume of calls regarding water pipe problems during the period in question.
*293 The trial court in this case made a factual determination that defendant had a reasonable opportunity to repair the defect prior to plaintiff's fall. The trial court relied on Louisiana case law presented by plaintiff which supported a finding that 20 days is more than a reasonable amount of time for a defect to be repaired by a public entity. The trial court also noted that defendant failed to present any case law that supported its position that there was no reasonable opportunity to remedy the defect. Apparently, the trial court failed to credit the testimony of Mr. Shuler that the Parish needed additional time due to an increased work load at the time. These factual findings are within the discretion of the trial court and will not be disturbed absent manifest error.
With regard to damages, we find no merit in defendant's argument that the damage award was excessive or that plaintiff was awarded medical expenses for treatment that was unrelated to the accident in this case. Although the trial court found that plaintiff had a pre-existing back problem, the court found that these problems were exacerbated by the fall in this case The trial court also found plaintiff received treatment for this injury for a period of approximately 18 months. This finding is supported by the medical evidence presented at trial. All of the medical experts, including defendant's expert, opined that plaintiff's fall could have exacerbated her pre-existing back problems. In fact, Dr. Macaluso, plaintiff's general practitioner, found evidence of nerve irritation in plaintiff's back which was not present prior to the fall.
Thus, although defendant argues that plaintiff's credibility with regard to her previous injuries was called into doubt, the trial court took her previous injuries into consideration when rendering the award of damages. Further, the medical evidence supports the court's findings that plaintiff's condition was worsened by the fall, and we find that the court's findings regarding the length of treatment is reasonably supported by the record.
Further, defendant contends the general damage award is excessive when compared to similar awards for soft tissue injuries. However, the record in this case indicates that plaintiff suffered nerve irritation and disc involvement which were medically related to the fall in this case. Under these circumstances, we fail to find that the trial court's award of $39,000.00 in general damages is an abuse of the trial court's much discretion.
Finally, although the record shows that plaintiff has devolutively appealed from the court's judgment, a review of the briefs filed in this Court fail to articulate the error on which her appeal is based. Absent a statement of an assignment of error or a brief of same, we are unable to consider plaintiff's appeal from the trial court's ruling.
Accordingly, for the reasons assigned herein, the judgment of the trial court is affirmed. Defendant is to bear all costs of this appeal.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596213/ | 399 So.2d 433 (1981)
In re the Marriage of Laurel J. Ising MARSH, Appellant,
v.
Arthur Wayne MARSH, Appellee.
No. 80-451.
District Court of Appeal of Florida, Fifth District.
June 3, 1981.
*434 Ed Leinster, Orlando, for appellant.
Robert J. Buonauro, Orlando, for appellee.
DAUKSCH, Chief Judge.
This is an appeal from a final judgment of dissolution of marriage. The appellant raised three points on appeal. We find merit in the first point raised and reverse.
The trial judge denied the wife a special equity in the marital home on the following facts. The marriage involved was of short duration, four months, and no children were born of the marriage. The wife owned the marital home before the parties were married. After having been married two months, the wife had the home put into her name and the husband's name. The wife alleges, and the evidence supports the allegation, that this was done so that her children from a previous marriage would have a home if something happened to her; however, in case of a divorce, the property was to be transferred back to her. The husband claimed it was a gift. The trial court found that the wife gave the home as a gift to the husband and ordered the home partitioned and sold. We find the trial court erred in failing to award the marital domicile to the wife because of her special equity.
Prior to Ball v. Ball, 335 So.2d 5 (Fla. 1976), a conveyance from a husband to a wife was presumed to be a gift as was a conveyance from a wife to a husband. Steinhauer v. Steinhauer, 252 So.2d 825 (Fla. 4th DCA 1971). The effect of the Ball decision was to raise another presumption: the presumption that a special equity is created by an unrebutted showing that all the consideration for property held as tenants by the entirety was supplied by one spouse from a source clearly unconnected with the marital relationship. "Now the burden is on the grantee to establish, by `contradictory' evidence, that a gift was intended. In sum, the grantee must overcome the presumption of the special equity." Wright v. Wright, 388 So.2d 1319, 1321 (Fla. 5th DCA 1980).
The evidence clearly showed that the wife entered the present marriage owning the house in her name, she paid all of the mortgage payments and property taxes. The husband testified that the wife had intended a gift to him. As was held in Merrill v. Merrill, 357 So.2d 792, 793 (Fla. 1st DCA 1978), the Ball decision should not be read "as holding that a word or two of testimony by the recipient spouse, to the effect that the other intended a gift, obliterates the special equity resulting from an unrebutted showing that the grantor spouse acquired the property from sources entirely independent of the marriage." Although donative intent is a question for the trial court, the trial court's ruling is not binding on an appellate court where as here there is no credible evidence of such an intent below. Bickerstaff v. Bickerstaff, 358 So.2d 590 (Fla. 1st DCA 1978). We are bound to determine that the wife has a special equity in the marital domicile as there was no credible evidence to support the trial court's ruling that the wife intended a gift.
Accordingly, that portion of the final judgment of dissolution of marriage ordering the marital home partitioned and sold is reversed.
REVERSED IN PART.
COBB, J., concurs.
COWART, J., dissents with opinion.
COWART, Judge, dissenting:
A person who owns separate property[1] conveys that property during marriage *435 jointly to themselves and their spouse. Later at dissolution of the marriage that person wants the whole property back. Are they entitled to a return of it? In failing to provide a definitive answer to this question, Florida law fails to provide a rule of law leading to a reasonably predictable result which would permit legal counsel to advise clients and trial and appellate courts to assure that equality of application of law to cases to which the public is entitled.
Ball v. Ball, 335 So.2d 5 (Fla. 1976), in effect holds that, in making a division of property in a dissolution proceeding, where all the consideration for property held as tenants by the entireties is supplied by one spouse from a source clearly unconnected with the marital relationship,[2] that spouse has a "special equity" in the property and is entitled to its return, "in the absence of contradictory evidence that a gift was intended." Wright[3] observes that Ball has troubled trial judges. The trouble is that Ball contains latent conceptual incongruities which promote vexatious litigation by subtle suggestions that (1) evidence of a gift is contradictory to evidence that the property was originally separate property; (2) a deed of conveyance of separate property to oneself and one's spouse does not constitute sufficient evidence of a gift to the spouse; and (3) evidence is admissible to vary, contradict, or add to, the unambiguous term of an unqualified deed of gift. Since separate property is the only type of property which can be the subject of a true gift as between married persons,[4] evidence that the property was previously separate property and that an interest in it was conveyed as a gift is entirely consistent. However, as a result of the language in Ball, parties often litigate these two concepts as if they were contradictory: the donor seeks to prove that the property was originally the donor's separate property (or that all the funds used to purchase it came from the donor's separate property) while the donee attempts to prove that the property was the subject of a gift. Some cases are resolved on this level of controversy. Sometimes the trial court (or later the appellate court)[5] either finds that the donor did not furnish all of the consideration from separate funds or finds the donor intended a gift and the donee prevails. Other times trial courts find that all the consideration was from the "donor" and that a gift was not intended and therefore hold for the donor. Commonly however, the trial judge and counsel instinctively realize that these questions are not really at issue so Ball is erroneously[6] read to suggest that the issue to be tried is the donor's subjective intent in making the gift with the donor contending that the conveyance was made solely to create a tenancy by the entireties for survivorship purposes during coverture[7] and the donee contending that the conveyance was an unqualified gift. Since every gift by one spouse to both creates a tenancy by the entireties, one of the incidents of which is that each has a right of survivorship, the trial judge often perceives the ultimate issue must be whether, at the time the gift conveyance was made, the donor intended it to be absolute in quality or conditioned on the continuance of the marriage. Since a standard unconditional deed is normally effective to make a gift of an interest in *436 land,[8] a proper application of the parol evidence rule would appear to preclude this inquiry; but the rule is disregarded because, in the usual case of a gift by formal deed, its application would make Ball meaningless so testimony is taken. Since a married person making a beneficial gift to a mate is not normally then contemplating dissolution of marriage, the donor's strained[9] testimony impeaching the clear terms of his unqualified gift deed naturally raises a question as to the donor's credibility. A donee who would normally win at the first level of resolution merely by introducing the deed in evidence as proof of a gift loses at this level of dispute because of the inability to refute the donor's testimony as to a subjective intent to make only a qualified gift. The result is that cases involving the same simple question and the same essential facts are decided differently from case to case after extensive litigation with the result depending on the particular trial and appellate court's understanding of Ball, perceptions as to the credibility of the parties and the weight of the evidence, and various ancillary factors including whether the donor appears, in hindsight, to be able to financially afford to make the gift, the time between the gift and the dissolution, the length of the marriage[10] and the length of the chancellor's foot.
It should be recognized that while such gifts are made for various purposes and motives (usually to acquire, enhance, or restore wedded bliss),[11] they are, in form unqualified gift conveyances and are intended as such when made although they are sorely regretted later. A determinative rule of law, good for all time,[12] should be fashioned accordingly. The rule should be that unless it contains an express condition or qualification within itself, a deed or other conveyance absolute in form constitutes an executed gift and can be rescinded only for fraud or other grounds sufficient to set aside similar gifts as between unmarried parties. The mere regular and usual application of the parol evidence rule and the law relating to rescissions alone would attain this result.[13] On the other hand, if those who can implement philosophy by the creation of legal concepts, feel that public policy dictates that such gifts be subject to rescission on dissolution, as Ball implies, then the rule ought to forthrightly state that all such gifts are impliedly in contemplation *437 of, and conditional, upon, a continuation of the marital relationship.[14] Such a rule would not only be consistent with public policy considerations for the preservation of marriages but would promote and facilitate a resolution of the question in a more uniform and predictable manner. Another resolution would be to treat such gift cases similar to cases where one party supplies some but not all of the consideration for the jointly held property from proceeds of separate property and uphold the gift but, at least under certain specified circumstances, find a special equity in favor of the donor for the amount of the contribution from the separate property with the remainder, if any, equally divided. This would ameliorate the harshness of the "all or nothing at all" result of the Ball doctrine and while it would have no more or less basis in legal principle than Ball, it would do justice in more cases. This is, in effect, what is suggested as to Mr. West's $30,000 special equity in the majority opinion in West v. West, 399 So.2d 428 (Fla. 5th DCA 1981).
The cases since Ball are in complete disorder. In some cases the trial court followed Ball, found no gift and was affirmed on appeal.[15] Other times the trial judge followed Ball, found no gift but was reversed on appeal.[16] In other cases the trial court found a gift and was upheld on appeal,[17] while on other cases the trial court similarly found a gift but was reversed on appeal.[18] Because of the erratic and often harsh consequences of the application of Ball, many of the appellate decisions reversing trial courts have admittedly reached a far better result than did the trial courts. However, the trial judge may dislike his conclusion quite as much as the appellate panel which later criticizes and reverses him. Under law a trial judge, faithfully following a binding but faulty rule of law should not be reversed on the merits; the rule should be changed. A sound rule of law would eliminate obvious disparities resulting from the interposition of the philosophies of appellate panels for those of trial judges. A definitive guideline would also eliminate or reduce judge shopping and allow attorneys to more accurately advise clients and settle cases based on mutual agreement as to the predictable outcome of litigation. So until Ball is revisited by the supreme court and a better rule is promulgated for the guidance of trial courts, I cannot conscientiously reverse trial judges' decisions based upon findings of fact which are in turn based upon determinations of credibility and the *438 weight of evidence, by merely finding no evidence, or no "credible" evidence supporting the trial judge's conclusion, whether or not it makes for a result which appears to me more just. A formal deed of gift itself is always evidence of intent to make a gift. The unqualified terms of the usual deed from one spouse to both is always evidence of intent to make an outright, absolute, unconditional gift of a moiety to be held with a right of survivorship during marriage and, by statute,[19] as a tenant in common thereafter. The donor's testimony as to his donative intent, even if wrongfully admitted to vary, contradict, or add to, his writing,[20] is always a matter of credibility sufficient to sustain the trial court's finding or not finding that a gift was intended under Ball.[21] Accordingly, although I agree with the fairness of their result, I cannot concur with the action of the majority in reversing the trial judge in this case.
NOTES
[1] Separate property is property acquired from "a source clearly unconnected with the marital relationship." Ball v. Ball, 335 So.2d 5, 7 (Fla. 1976). This is the same concept used to describe certain property of a wife in Article 11, Section 1 of the Florida Constitution of 1885 (prior to the 1968 constitutional revision) and means property owned before marriage or acquired afterward by gift, devise, bequest, descent or purchased with funds from such sources.
[2] See note 1 supra.
[3] Wright v. Wright, 388 So.2d 1319 (Fla. 5th DCA 1980).
[4] As Judge Upchurch in Wright v. Wright explains, "To make a valid gift, a donor or grantor must have an unqualified right to the property he transfers ... Before a gift can be make the donor must first own the subject of the gift." 388 So.2d at 1321.
[5] See Sudholt v. Sudholt, 389 So.2d 301 (Fla. 5th DCA 1980).
[6] Ball only says that "the property should be awarded to that spouse [the donor], as if the tenancy were created solely for survivorship purposes during coverture... ." [emphasis added] 335 So.2d at 7.
[7] Coverture refers only to the condition, state, status or disability of a wife arising from the marriage relationship so the use of that word in Ball appears to have been improvident and it is taken to mean "during marriage."
[8] As in Ball, only land is here involved. The donee of a gift of personalty, the conveyance of which may or may not be accomplished by a formal written document, may have a different problem with proof.
[9] Typically the donor's counsel asks the donor, "When you made that deed did you intend to make an outright gift?" After a negative answer counsel then asks, "Well then, why did you make that deed?" "To create an estate by the entirety solely for survivorship purposes during coverture" or words of similar import (insofar as they can be remembered and pronounced) is the usual answer since Ball. The donor may view this as only an opportunity to express what his intent would have been if, at the time of the gift, he had been queried as to the result he desired for the gifted property in the event of a subsequent dissolution.
[10] Peculiarily the length of the marriage in Ball is not mentioned but a long marriage is conspicuously mentioned in most of the reported cases upholding a gift or reversing a contrary finding.
[11] Later the reasons given are anything except to make an outright gift. Normal reasons given are to avoid probate expenses, to provide security for the wife, for survivorship reasons, because someone told them to, etc.
[12] Cases such as Parramore v. Parramore, 368 So.2d 1308 (Fla. 1st DCA 1978), cert. denied, 376 So.2d 74 (Fla. 1979), Hart v. Hart, 377 So.2d 51 (Fla. 2d DCA 1979), and Wright v. Wright, 388 So.2d 1319 (Fla. 5th DCA 1980), avoided a harsh result under Ball by straining the retroactive language in Ball to make it inapplicable to the conveyance in that particular case. However if the rule in Ball does not lead to a good result in cases involving conveyances antedating it, then the rule will not obtain a better result in cases to which it applies because in this matter the public does not act in response to law cases. The appropriate rule of law should fit together human nature, common sense, and policy for the greatest public good so as to, if possible, use objective facts as proof to achieve a just result in the vast majority of the cases to which it applies.
[13] See e.g., Florida Moss Products Co. v. City of Leesburg, 93 Fla. 656, 112 So. 572 (1927). See also Englishmans Bay Co. v. Jackson, 340 A.2d 198 (Me. 1975).
[14] An analogy can be made to the rule involving gifts, such as engagement rings, made in contemplation of marriage. See Gill v. Shively, 320 So.2d 415 (Fla. 4th DCA 1975). The right to rescind the gift could either be absolute upon dissolution for any reason or, perhaps only if the dissolution is by, or with the consent of, the donee.
[15] See, e.g., Kaylor v. Kaylor, 390 So.2d 752 (Fla. 4th DCA 1980) [1980 F.L.W. 2034] (stock); Weiss v. Weiss, 390 So.2d 1236 (Fla. 4th DCA 1980); Pepper v. Pepper, 388 So.2d 1342 (Fla. 3d DCA 1980); Mitchell v. Mitchell, 368 So.2d 628 (Fla. 4th DCA 1979) (certificate of deposit); Merrill v. Merrill, 357 So.2d 792 (Fla. 1st DCA 1978) (real property and common stock treated identically); Malkemes v. Malkemes, 357 So.2d 223 (Fla. 2d DCA 1978).
[16] See, e.g., Leonard v. Leonard, 389 So.2d 256 (Fla. 3d DCA 1980) (houseboat); Holbrook v. Holbrook, 383 So.2d 981 (Fla. 4th DCA 1980); Hart v. Hart, 377 So.2d 51 (Fla. 2d DCA 1979); Laws v. Laws, 364 So.2d 798 (Fla. 4th DCA 1978); Sanders v. Sanders, 362 So.2d 284 (Fla. 1st DCA 1978).
[17] See, e.g., Wright v. Wright, 388 So.2d 1319 (Fla. 5th DCA 1980); Smith v. Smith, 382 So.2d 1242 (Fla. 2d DCA 1980); Marti v. Marti, 377 So.2d 1005 (Fla. 3d DCA 1979), dismissed, 383 So.2d 1198 (Fla. 1980) (savings account); Snider v. Snider, 371 So.2d 1056 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1202 (Fla. 1980) (notes and mortgages); Parramore v. Parramore, 368 So.2d 1308 (Fla. 1st DCA 1978), cert. denied, 376 So.2d 74 (Fla. 1979).
[18] See, e.g., Nusbaum v. Nusbaum, 386 So.2d 1294 (Fla. 4th DCA 1980) (certificate of deposit); Verace v. Verace, 383 So.2d 995 (Fla. 5th DCA 1980) (certificate of deposit); Behrman v. Behrman, 376 So.2d 294 (Fla. 2d DCA 1979) (certificate of deposit); Griffin v. Griffin, 375 So.2d 1086 (Fla. 1st DCA 1979); Evers v. Evers, 374 So.2d 1117 (Fla. 2d DCA 1979); Lawless v. Lawless, 362 So.2d 302 (Fla.2d DCA 1978); Bickerstaff v. Bickerstaff, 358 So.2d 590 (Fla. 1st DCA), cert. denied, 365 So.2d 709 (Fla. 1978).
[19] § 689.15, Fla. Stat. (1979).
[20] See § 90.103(3), Fla. Stat. (1979).
[21] In Parramore v. Parramore, 368 So.2d 1308 (Fla. 1st DCA 1978), cert. denied, 376 So.2d 74 (Fla. 1979), it is said, "Weighing of the evidence and determining the credibility of witnesses is uniquely within the province of the trier of the fact." Id. at 1310. See also Wise v. Wise, 335 So.2d 610 (Fla. 1st DCA 1976). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1550241/ | 97 F.2d 1 (1938)
CARTER
v.
LIQUID CARBONIC PACIFIC CORPORATION, Limited.
No. 8646.
Circuit Court of Appeals, Ninth Circuit.
May 20, 1938.
*2 James W. Morris, Asst. Atty. Gen., Sewall Key, Norman D. Keller, Maurice J. Mahoney, and George H. Zeutzius, Sp. Assts. to Atty. Gen., and Benjamin Harrison, U. S. Atty., E. H. Mitchell, Asst. U. S. Atty., and Eugene Harpole, Sp. Atty., Bureau of Internal Revenue, all of Los Angeles, Cal., for appellant.
Dana Latham, of Los Angeles, Cal., and W. Parker Jones, of Washington, D. C., for appellee.
Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.
STEPHENS, Circuit Judge.
This is an appeal from a judgment of the District Court. It involves seven claims for the refund of an aggregate sum of $3,811.60 paid as manufacturer's excise taxes to appellant's decedent, as Collector of Internal Revenue, upon carbonic acid gas manufactured and sold by appellee during 1933 and 1934. On August 11, 1934, appellee filed seven separate claims for the refund of the taxes so assessed and collected. Each claim was identical, except as to amounts, and contained only the following grounds:
"The tax in question was assessed on carbonic acid gas sold by the claimant to brewers for use in manufacturing legal beer that is, beer containing more than one-half per cent alcohol by volume and made legal by the Beer Act of 1933. The claimant contends that such beer is not a `carbonated beverage' or a `soft drink' within the meaning of section 615(a) (7), of the Revenue Act of 1932 and that carbonic acid gas sold for use in the manufacture of such beer is not taxable under the 1932 Act."
*3 The commissioner rejected all claims and duly notified appellee. Whereupon this action was commenced.
The case was tried by the court without a jury, the same being waived and, on April 26, 1937, judgment was entered for appellee for the principal sum of $3,811.60. Interest was allowed at the rate of 6 per cent per annum calculated separately as to each of the seven items making up the total sum from the date of their respective payments.
The question presented is whether sales of carbonic acid gas to brewers of beer containing one-half of one percentum or more of alcohol by volume, but not more than 3.2 percentum of alcohol by weight were sales to "a manufacturer of any carbonated beverage" within the meaning of section 615 of the Revenue Act of 1932, 47 Stat. 169, 264, 265, under which section the tax was assessed and collected.
Section 615 provided in pertinent part as follows:
"(a) There is hereby imposed * * *
"(7) Upon all carbonic acid gas sold by the manufacturer, producer, or importer, or by a dealer in such gas, to a manufacturer of any carbonated beverages, or to any person conducting a soda fountain, ice cream parlor, or other similar place of business, and upon all carbonic acid gas used by the manufacturer, producer, or importer thereof in the preparation of soft drinks, a tax of 4 cents per pound."
It was stipulated that the carbonic acid gas was sold to brewers for use by them in the manufacture of so-called 3.2 beer (containing one-half of one per cent or more of alcohol by volume, but not more than 3.2 per cent of alcohol by weight).
It was further stipulated that such beer contains carbonic acid gas in quantity substantially equal to that contained in certain other drinks properly classified as carbonated beverages. And plaintiff's own witnesses gave testimony to the effect that carbonic acid must be added to all beer to complete the process of its manufacture either by adding green beer thus creating an after fermentation or by artificially forcing carbonic acid gas into the beer. Webster's New International Dictionary, 2d ed., 1927 defines "carbonated" as impregnated with carbonic acid or carbonic dioxide. And "beverage" is defined as "something to be drunk." Burnstein v. U.S. 9 Cir., 1932, 55 F.2d 599. Consequently, it follows that 3.2 beer is within the general meaning of the words "carbonated beverage."
But in the construction of a statute the duty of the Courts is to ascertain the legislative intent "not by taking the word or clause in question from its setting and viewing it apart, but by considering it in connection with the context, the general purposes of the statute in which it is found, the occasion and circumstances of its use, and other appropriate tests for the ascertainment of the legislative will." Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 93, 55 S. Ct. 50, 54, 79 L. Ed. 211. The application of the foregoing rule of interpretation to the statute before us leads to the conclusion that 3.2 beer is not a "carbonated beverage" within the meaning of the section.
At the trial the appellee produced five witnesses, all of whom were qualified as experienced either in the manufacture of beer or of soft drinks. These witnesses testified that the word "beer" has a definite meaning in the beverage trade as does the term "carbonated beverages"; that the term "carbonated beverages" in trade usage does not include "beer." No evidence contradictory to that just summarized was introduced.
Since we are dealing with a tax which is directed at a particular industry, this definite proof of a trade usage as to the term "carbonated beverages" calls into application the familiar rule that commercial and trade terms having a uniform and definite meaning in commerce and trade will be interpreted accordingly. As said in O'Hara v. Luckenback S. S. Co., 269 U.S. 364, 371, 46 S. Ct. 157, 160, 70 L. Ed. 313:
". . . if the act is one passed with reference to a particular trade, business, or transaction, and words are used which everybody conversant with that trade, business, or transaction, knows and understands to have a particular meaning in it, then the words are to be construed as having that particular meaning, though it may differ from the common or ordinary meaning of the words."
This rule does not become inapplicable because the term in question has a general meaning, as understood by society at large as well as a special trade significance. Hedden v. Richard, 149 U.S. 346, 13 S. Ct. 891, 892, 37 L. Ed. 763; Cadwalader v. Zeh, 151 U.S. 171, 176, 14 S. Ct. 288, 38 L. Ed. 115.
*4 Appellant argues that no trade usage could have arisen prior to March 22, 1933, so as to give a trade classification to 3.2 beer because on that date 3.2 beer first became authorized (Act March 22, 1933, 48 Stat. 16) and known as a lawful beverage (prohibited by the National Prohibition Act, 41 Stat. 305, 27 U.S.C.A. § 1 et seq.) and that consequently Congress could not have intended to use the phrase in its trade sense in 1932. But the fact that the article was not legally in commerce at the time of the passage of the act does not make the rule inapplicable to this case. Pickhardt v. Merritt, 132 U.S. 252, 10 S. Ct. 80, 33 L. Ed. 353; Newman v. Arthur, 109 U.S. 132, 3 S. Ct. 88, 27 L. Ed. 883.
Appellant argues that in the act itself Congress indicated its intention to class beer as a carbonated beverage, since in section 615(a) (1), 47 Stat. 264, a tax is imposed: "Upon all beverages derived wholly or in part from cereals or substitutes therefor, containing less than one-half of 1 per centum of alcohol by volume, * * *" and in section 615(a) (3), 47 Stat. 265, a tax is imposed: "* * * upon all carbonated beverages, commonly known as soft drinks (except those described in paragraph (1) * * *."
The contention is that the beverages defined in paragraph (1) include by such definition beer containing less than one half of one percentum of alcohol by volume and that the quoted exception of paragraph (3) is thus indicative that Congress considered beer a carbonated beverage. The conclusion does not follow from the premise the exception is only of the carbonated beverages described in paragraph (1) since beverages other than "near" beer are comprehended by the language of such paragraph, it does not follow that near beer is included in the expression "a carbonated beverage." The exemption is not of all the beverages described in paragraph (1) but only of such thereof as are "carbonated."
Entirely independent of the testimony to the effect that beer is not a carbonated beverage within the meaning of that term in trade we believe that the trial court properly reached the conclusion that the sales in question were not taxable as contended by the government. We believe that properly construed the tax applies only to sales to manufacturers of carbonated "soft drinks" and that 3.2 beer, even if assumed to be a carbonated beverage, is not a carbonated "soft drink."
The tax is imposed upon sales of carbonic acid gas to a manufacturer of "any carbonated beverages" a term broad enough when standing alone to include "all" carbonated beverages. But we think it should be more narrowly interpreted. Section 615 is one of the numerous sections imposing "Manufacturers' Excise Taxes" which are grouped together under title IV of the Revenue Act of 1932. The section is headed: "Tax on soft drinks." The same designation is given the section in the "Table of Contents" which immediately follows the enacting clause of the act. Other sections under title IV are headed: "Tax on furs"; "Tax on sporting goods"; "Tax on cameras"; "Tax on matches"; "Tax on candy"; "Tax on chewing gum"; etc. Section 604 et seq., 26 U.S.C.A. § 1420 et seq. note. In these circumstances the section heading should be taken as strong indication that Congress intended, in enacting section 615, to levy a tax which would affect only soft drinks. Appellant argues that the title of an Act may be resorted to as an aid in its interpretation only if the words of the Act are doubtful or ambiguous. Cornell v. Coyne, 192 U.S. 418, 430, 24 S. Ct. 383, 48 L. Ed. 504. We do not think that the rule contended for is applicable. The heading here considered is part of the context of the statute to ignore it in the construction of section 615 would be to ignore language of the Act itself. Since "the title is no part of an act" (Cornell v. Coyne, supra, page 430, 24 S. Ct. 383), a logical reason exists for limiting its use in statutory construction. But since the heading here is a part of the Act itself, the same reasoning does not apply.
We do not think that 3.2 beer can properly be classified as a "soft drink." Webster's New International Dictionary, 2d Ed., 1937, defines a soft drink as one not spirituous or alcoholic. Though "near" beer is probably not taken out of the soft drink classification by reason of the fact that it may contain up to one-half of one percentum of alcohol by volume, where a beverage contains as high as 3.2 percentum of alcohol, by weight, it is certainly "alcoholic" and thus not a "soft drink," whatever may be said as to its character as an intoxicant. Appellant's statement that Congress by the Act of March 22, 1933, 48 Stat. 16, legalizing 3.2 beer gave it a character as a non-intoxicant is irrelevant, for non-intoxicating *5 or not it is an alcoholic beverage and thus not a "soft drink."
A further fact tending to show that Congress did not intend by section 615(a) (7) to tax sales of carbonic acid gas to brewers for use in the manufacture of beer is that at the time of the enactment of the section beer, although a prohibited article of commerce, was heavily taxed. Section 608, Revenue Act of 1918, 40 Stat. 1057, 1109, 26 U.S.C.A. § 1330(a), increased to $6.00 a barrel, the tax "On all beer, lager beer, ale, porter, and other similar fermented liquor, containing one-half of 1 percentum, or more, of alcohol."
Title 2 of the Prohibition Enforcement Act, 41 Stat. 317, 27 U.S.C.A. § 52, provided that: "This Act [chapter] shall not relieve anyone from paying any taxes or other charges imposed upon the manufacture or traffic in such liquor [liquor containing more than one-half of 1 percentum of alcohol by volume]."
Section 701, of the Revenue Act of 1926, 44 Stat. 9, 95, 26 U.S.C.A. § 1395, imposed a special excise tax of $1,000 upon every person conducting a brewery.
In view of the fact that the foregoing heavy taxes relating to the brewing industry were in existence at the time of the enactment of the Revenue Act of 1932, we think it a fair assumption that had Congress intended the tax in question to apply to sales of carbonic acid to brewers definite language to that effect would have been inserted in the act.
We conclude that the taxes in question were illegally assessed and collected and that the trial court correctly entered judgment in favor of the taxpayer for the amount thereof. The allowance of interest on each of the seven tax payments from the date of their respective payment was proper. Judicial Code, § 177, as amended by Act of June 22, 1936, c. 690, § 808, 49 Stat. 1746, 28 U.S.C.A. § 284. The provision of section 621(c) of the Revenue Act of 1932, 26 U.S.C.A. § 1420 et seq. note, that, "In no case shall interest be allowed with respect to any amount of tax under this title credited or refunded," has no application where, as here, a claim for refund has been rejected and the taxpayer brings suit for the amount of taxes illegally collected and recovers judgment therefor.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596220/ | 399 So.2d 559 (1981)
James DORRY
v.
Goldman LAFLEUR.
No. 80-C-2440.
Supreme Court of Louisiana.
May 18, 1981.
Rehearing Denied July 2, 1981.
*560 Steven Broussard, Lake Charles, for plaintiff-applicant.
Jack Rogers, Lake Charles, for defendant-respondent.
FEDOROFF, Justice Ad Hoc.
This action for damages was brought by a patron of defendant's skating rink, for personal injury sustained in a fall caused by water leaking through a defective roof. The district court, finding plaintiff had assumed the risk and was contributorily negligent, dismissed the suit. The court of appeal affirmed (La.App., 387 So.2d 690), finding that plaintiff had assumed the risk of injury.
If ordinary contributory negligence[1] is a viable defense to plaintiff's claim based on C.C. Art. 2322[2], we could not say the dismissal of plaintiff's action here was clearly wrong. If, on the other hand, contributory negligence is not a defense under the facts of this case, the plaintiff here must recover since the record does not support the conclusion that plaintiff voluntarily assumed the risk of injury. The threshold issue posed by this appeal, therefore, is whether the "victim fault" identified in Loescher v. Parr[3] as a defense in a strict liability case, may include ordinary contributory negligence.
The facts of the case at hand are not in dispute. On the evening of the accident, plaintiff had taken his wife, his three sons, ages ten, nine and five, with some of their friends to defendant's roller skating rink, to celebrate the birthday of one of the sons. Soon after they arrived, it began to rain heavily and two large puddles developed on the south side of the rink opposite the entrance. Despite continuing efforts by the management to remove the water, the puddles spread and merged into an area of twenty or twenty-five feet by six feet. Plaintiff was aware of the wet areas and managed to skate around them safely for approximately one hour. However, there was a third leak at the northeast corner of the rink, which produced a small puddle about eighteen inches in diameter, which plaintiff did not notice until he fell in it.
In Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971), we suggested that in no case of strict liability would ordinary contributory negligence be a defense. The rejection of contributory negligence as a defense to Langlois's claim based on Allied's ultrahazardous activity was undoubtedly correct, but our suggestion that contributory negligence may never be a defense to a strict liability case was overbroad.
Where a plaintiff's negligence contributes to his own damage, there is no reason to ignore his fault in every case simply because the defendant's liability is based on some legal fault other than negligence. Quite to the contrary, the plaintiff's negligence should carry more, not less, consequence when the defendant is strictly liable, but less culpable than the plaintiff.
The idea that contributory negligence is not a defense in a strict liability case was borrowed from the common law. Prosser, *561 Law of Torts, 4th, page 522 attempts a justification:
"It frequently is said that the contributory negligence of the plaintiff is not a defense in cases of strict liability. This involves the seemingly illogical position that the fault of the plaintiff will relieve the defendant of liability when he is negligent, but not when he is innocent. The explanation must lie in part in the element of wilful creation of an unreasonable risk to others by abnormal conduct which is inherent in most of the strict liability cases; and in part in the policy which places the absolute responsibility for preventing the harm upon the defendant, whether his conduct is regarded as fundamentally anti-social, or he is considered merely to be in a better position to transfer the loss to the community."
Such is not the case in Louisiana. As we have interpreted the code, strict liability has been found in circumstances or conduct apparently innocuous. Buckley's[4] pet dog, Bucher's[5] bicycle riding child, and Parr's[6] magnolia tree were neither ultrahazardous nor unnatural to the locality, and produced no income to the defendant. There is no policy reason to deny to these strictly liable defendants the defense of contributory negligence.
Under what circumstances a plaintiff's contributory negligence should bar his recovery in a strict liability case should be developed on a case by case basis. Because the "ruined" building here housed a commercial enterprise to which plaintiff had paid the price of admission, we hold that in this case plaintiff's contributory negligence is not a defense to his claim.
If, however, plaintiff can be said to have voluntarily assumed the risk of injury, his claim must be denied. As used here, assumption of risk does not merely bar plaintiff from recovery; rather it says in effect that because of a relationship voluntarily engaged by plaintiff, as to him the defendant has done nothing wrong. Professor Stone explains:[7]
"The establishment of the defense of voluntary assumption of known risk (which as a pleading is not limited to actions based on negligence) means juridically that no tort was committed by the defendant and for that reason the plaintiff's action against him fails. The rationale is that the plaintiff, having been free to assume or not to assume a known risk, chose to assume it and now cannot be heard to complain of damage caused by that risk."
While the court of appeal was correct in applying the defense of voluntary assumption of risk to the case, in so doing it erroneously incorporated in the defense an objective element foreign to the doctrine. The crux of the court of appeal's holding in this case and the error which compelled this writ is contained in this sentence:
"Although he testified that he did not see the puddle which ultimately caused his fall, Dorry knew or should have known that there was a good possibility that water would be present in areas other than the area which he avoided while skating."
In finding that plaintiff "should have known there was a good possibility that (additional) water would be present......," the court of appeal imputed knowledge to plaintiff that he did not actually possess, and thereby expanded the risk that plaintiff had himself knowingly assumed. This was error. Plaintiff knowingly assumed only the risk of the large puddle he actually observed and successfully avoided. The courts below were not free to enlarge the scope of his volition by adding to that which he actually saw, that which he should have seen.
The error was induced by language used by this court in the two cases cited by the court of appeal in the case at hand.
*562 In Prestenbach v. Sentry Insurance Co., 340 So.2d 1331 (La.1976), we had said:
"Recovery is denied if the plaintiff knew or should have known of the risk involved. The defendant argues, and court of appeal also held, that Prestenbach should have known of the driver's condition simply since he had spent most of the evening with him.
"However, for purposes of knowing assumption of risk, we impute knowledge to a plaintiff, not because he was in a position to make certain observations, but only when he actually makes those observations, and from them, should reasonably have known that a risk was involved."
Again in Bass v. Aetna Ins. Co., 370 So.2d 511 (La.1979), we repeated:
"Knowledge is the mainstay of this assumption of the risk defense, and this court will impute knowledge to a plaintiff, not because he was in a position to make certain observations, but only when the plaintiff actually made those observations and from those observations should reasonably have known that a risk was involved."
To these should be added Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La. 1978), (a strict liability products case):
"If Chappuis knew, or should have known of the danger, and chose, nevertheless, to use the dangerous instrument, he would have shared the fault of the manufacturer, and could not recover. Since he did not know, and could not reasonably have been expected to know, he did not share the fault for the accident."
As was noted in LeBouef v. Goodyear Tire & Rubber Co., 623 F.2d 985 (5th Circ. 1980), at page 991:
"The Louisiana Supreme Court in Chappuis v. Sears, Roebuck & Co., 358 So.2d at 930, indicated that a victim would not be allowed recovery in an action for manufacturer's failure to warn, where he "knew or should have known of the danger, and chose, nevertheless, to use the dangerous instrument." Although this departs from the traditional formulation of voluntary assumption of the risk by objectifying the element of the victim's knowledge ("should have known"), it in no way indicates an intention on the part of the Louisiana Supreme Court to expand available defenses to include all forms of contributory negligence."
The "should have known" phrase was indeed a departure from the usual formulation of the doctrine. The Restatement, Second, Torts, Section 496 D provides:
"Except where he expressly so agrees, a plaintiff does not assume a risk of harm arising from the defendant's conduct unless he then knows of the existence of the risk and appreciates its unreasonable character."
Comment b explains:
"The basis of assumption of risk is the plaintiff's consent to accept the risk and look out for himself. Therefore, he will not be found, in the absence of an express agreement which is clearly so to be construed, to assume any risk unless he has knowledge of its existence. This means that he must not only be aware of the facts which create the danger, but must also appreciate the danger itself and the nature, character and extent which make it unreasonable. Thus the condition of premises upon which he may enter may be quite apparent to him, but the danger arising from the condition may be neither known nor apparent, or if known or apparent at all, it may appear to him to be so slight as to be negligible. In such a case the plaintiff does not assume the risk. His failure to exercise due care either to discover or understand the danger is not properly a matter of assumption of risk, but of the defense of contributory negligence."
Also in 57 Am.Jur.2d "negligence" Sect. 281, we find:
"The defense of assumption of risk presupposes (1) that the plaintiff had some knowledge of the danger; (2) that he understood and appreciated the risk therefrom, and (3) that he voluntarily *563 exposed himself to such risk. Therefore, except where he expressly so agrees, a plaintiff does not assume a risk of harm arising from the defendant's conduct unless he then knows of the existence of the risk and appreciates its unreasonable character, including the magnitude thereof, and voluntarily accepts the risk."
Chappuis, Prestenbach and Bass each held the plaintiff had not assumed the risk, even applying the objective notion inherent in the phrase "should have known." Since the imposition on plaintiff of an objective standard did not defeat his case, the imposition of the more onerous standard might be considered dicta. Furthermore, the variation from the usual expression of assumption of risk was unexplained, and probably unintentional. In any event, we now subscribe to the formulation expressed in the Restatement.
This is not to say that the plaintiff's disclaimer of knowledge or appreciation must be taken at face value. This is a fact question. And there are some risks that every man must be held to appreciate, (see Restatement, supra, comment d). There is a plain difference, however, between what one must have known (a finding of actual knowledge) and what one should have known (the imposition of an objective standard of care).
The trial court did not find that plaintiff must have been aware of the puddle which caused his fall. It found only that he should have been aware of it. But such a negligent failure to know is not a defense in a case where contributory negligence does not bar plaintiff's recovery.
The question of damages was not addressed by the courts below and the case will be remanded to the court of appeal for an assessment of quantum. Chappuis v. Sears, Roebuck & Co., supra. Holland v. Buckley, 305 So.2d 113 (La.1974).
Reversed and remanded to the Court of Appeal, Third Circuit.
DENNIS, J., concurs.
DIXON, C. J., concurs in the result only.
WATSON, J., concurs in the result.
MARCUS, J., dissents and assigns reasons.
MARCUS, Justice (dissenting).
Whether or not contributory negligence is a valid defense to a claim of strict liability under La.Civ.Code art. 2322, I am unable to say that the trial judge was clearly wrong in finding that plaintiff assumed the risk of injury. It is fundamental that, in order to assume a risk, one must knowingly and voluntarily encounter a risk which caused him harm. Plaintiff must understand and appreciate the risk involved and must accept the risk as well as the inherent possibility of danger because of the risk. McInnis v. Fireman's Fund Insurance Co., 322 So.2d 155 (La.1975). Knowledge is the mainstay of this defense, and this court will impute knowledge to a plaintiff not because he was in a position to make certain observations, but only when the plaintiff actually made those observations and from those observations should reasonably have known that a risk was involved. Bass v. Aetna Insurance Company, 370 So.2d 511 (La. 1979); Prestenbach v. Sentry Insurance Co., 340 So.2d 1331 (La.1976).
In the instant case, plaintiff testified that he observed puddles of water which had been forming on the rink floor for approximately one hour before he fell and had been skating around them. I consider that from these observations, plaintiff should have known that the rink was dangerous due to puddles on the floor caused by a defective roof. Nevertheless, he voluntarily and knowingly exposed himself to any risks resulting from skating in the rink including skating and falling in the puddle which ultimately caused his injury. Accordingly, I respectfully dissent.
NOTES
[1] "Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection..... The standard of conduct to which the plaintiff must conform for his own protection is that of a reasonable man under the circumstances." Smolinski v. Taulli, 276 So.2d 286, 290 (La. 1973).
[2] "The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction."
[3] 324 So.2d 441 (La. 1975).
[4] Holland v. Buckley, 305 So.2d 113 (La. 1974)
[5] Turner v. Bucher, 308 So.2d 270 (La. 1975)
[6] Loescher v. Parr, 324 So.2d 441 (La. 1975)
[7] 12 Louisiana Civil Law Treatise: Tort Doctrine, Sect. 51(A) Pg. 72. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/514092/ | 861 F.2d 264Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.David Rhodes HOSKINS, Petitioner-Appellee,v.Larry HUFFMAN, Warden, Attorney General of the State ofVirginia, Respondents- Appellants.
No. 87-7761.
United States Court of Appeals, Fourth Circuit.
Argued June 7, 1988.Decided Sept. 22, 1988.Rehearing and Rehearing In Banc Denied Dec. 21, 1988.
Linwood Theodore Wells, Jr., Assistant Attorney General (Mary Sue Terry, Attorney General on brief) for appellant.
Gerald Thomas Zerkin (Gerald T. Zerkin & Associates on brief) for appellee.
Before WIDENER, MURNAGHAN, and SPROUSE, Circuit Judges.
SPROUSE, Circuit Judge.
1
Larry Huffman, the warden of the Staunton Correctional Center in Staunton, Virginia, appeals from a judgment of a United States Magistrate1 granting David R. Hoskins' petition for a writ of habeas corpus and requiring that he be released from custody unless prosecuted again by the State of Virginia within a specified time. The magistrate granted the writ based on his finding that Hoskins' conviction was tainted by the admission of statements Hoskins made during a custodial interrogation in which his sixth amendment right to counsel was violated.2 Huffman contends that the magistrate erred in finding that Hoskins had requested an attorney prior to talking with arresting officers or, alternatively, in failing to find that Hoskins waived his right to have an attorney present during the conversation. He also challenges the denial of his motion to dismiss the petition as an abuse of the writ. Agreeing that Hoskins waived his right to an attorney before making the admission to the officers that was used against him at trial, we reverse.
2
Hoskins was convicted in 1982, after a state jury trial in Virginia, of the attempted murder of Mae Lang, a state magistrate of Warren County, Virginia. The evidence at trial established that Hoskins previously had made a threatening remark to Magistrate Lang after she refused to reduce his bond when he appeared before her in connection with a state prosecution. Lang's residence was situated near the top of a very steep hill with a tortuous descent. One night, the front brake lines of both of Lang's passenger vehicles were cut and the brakes made inoperative. Fortunately, she discovered the sabotage before attempting to drive down the hill. Investigators later found Hoskins' fingerprints on the front fender of one of the vehicles. After his arrest, Hoskins wrote Lang two letters denying culpability, but offering to pay for the damage to the cars. In one of the letters, he admitted having been on Lang's property, but stated that he was looking for his lost cat. He also made this admission at trial, but maintained his story that he had been searching for his lost cat.
3
Shortly after his arrest but before he spoke with an attorney, Hoskins discussed the charges against him with the arresting officers. He denied to the two arresting officers that he had sabotaged the Lang vehicles and expressed surprise at his arrest, but admitted having been on the Lang property. The officers testified to those statements at Hoskins' trial, and their testimony repeating Hoskins' admission of having been on the Lang property forms the basis for Hoskins' petition for a writ of habeas corpus. Hoskins asserts that he made the statements during custodial interrogation after he had expressed his desire to speak with an attorney but before he had been permitted to do so. He asserts that the admission of the statements against him violated his rights guaranteed by the sixth amendment to the United States Constitution.
4
In response to Huffman's motion, the magistrate initially conducted an evidentiary hearing solely on the issue whether the petition was an abuse of the writ under 28 U.S.C. Sec. 2254 rule 9(b). The magistrate heard testimony from Hoskins and from his previous attorney and determined that this third petition was not an abuse of the writ. He went on to consider the petition on the merits.3
5
Hoskins previously had raised his sixth amendment claim in a suppression motion prior to his state trial. The state court held an evidentiary hearing before denying the petition. The parties agreed that the record of the state proceeding contained the relevant evidence, and the magistrate evaluated Hoskins' petition on the basis of that record without hearing additional evidence.
6
The facts are largely uncontroverted. Sheriff Armentrout and County Investigator Chapman arrested Hoskins in his home following the issuance of a felony indictment by a Warren County grand jury. While the officers transported Hoskins to the sheriff's office and during the time required to process his arrest, Hoskins bombarded the officers with questions concerning the charges against him. Investigator Chapman testified at the suppression hearing:
7
During the whole time I was processing Mr. Hoskins, he kept demanding to know the circumstances surrounding this case, the charges. He kept demanding to know how many witnesses I had, what physical evidence I had. And, I explained to him that as soon as I finished processing him, that I would sit down and talk with him.
He went on to state:
8
Mr. Hoskins was very talkative. He demanded to know, during the whole time, from when we placed him under arrest, demanded to know did I have any eye witnesses and what physical evidence I had against him. How many eye witnesses I had. He made statements that I dreamed up this charge and that this would kill his family.
9
He made the statement that he would take a polygraph test. He was very talkative, during the whole time.
10
The detectives responded to Hoskins' repeated inquiries by informing him that they would be willing to discuss the circumstances of his arrest only after they completed processing the necessary paperwork. Sheriff Armentrout testified:
11
Through the whole discussion and prior to coming to the office and at the office, he was told that we would discuss the thing after we do the processing and get all the paperwork out of the way. We wouldn't bring anything out to him until we had finished the processing.
12
At some point during the processing, Hoskins said, "I think I want to call an attorney." The officers did not permit Hoskins to contact an attorney at the time he made the request. Instead, Investigator Chapman replied "We want to finish this processing before we do anything else."
13
The conversation in which Hoskins made the admissions occurred approximately one hour after the officers arrested him at his residence. Uncontested testimony established that during that relatively short time Hoskins was read his Miranda rights, got his clothing together, secured his trailer (turning off lights and appliances and locking the doors), walked with the officers to his own car to lock it, then walked down a hill to where the sheriff's car was parked, and was transported to the sheriff's office. The sheriff estimated that the trip from the mobile home to the sheriff's office took from 20 to 30 minutes. Once he arrived at the sheriff's office, he was fingerprinted and formal booking information was recorded before the conversations resulting in the admission took place.
14
After the officers finished processing Hoskins' arrest, the conversation in controversy ensued. The officers asked Hoskins if he understood the rights that they had read to him earlier, and he responded, "Yes, I definitely understand my rights." The officers did not ask Hoskins whether he wanted to speak to an attorney before speaking with them. Investigator Chapman then started to respond to the inquiries Hoskins had been making since his arrest. He began his explanation, stating, "Okay. You want to know that is going on. The reason we are getting ... have brought these charges is...." At this point, Chapman apparently tried to focus the nature of the complaint against Hoskins. Chapman's precise language cannot be discerned from the testimony. As related by Sheriff Armentrout, however, Chapman either asked, "Do you know where Magistrate Lang lives?" or stated, "At Magistrate Lang's home, her two vehicles were tampered with and an attempt was made on her life." Chapman then continued to describe the nature of the charges. Hoskins responded to some of Chapman's statements and a conversation resulted. Armentrout testified that
15
in that conversation, he would bring out statements that he was at that house ... Mainly, it was a discussion rather than any question and answering. Chapman advised him, basically, what we could advise him of what we had. And then, he started making statements about why he was there and when he was there.
16
During the conversation, Hoskins made some comments in response to statements by the officers and others in response to direct questions. Whether the challenged admissions were made in response to a question or gratuitously is not clear from the record.
17
Hoskins argues that admission of statements he made during this exchange with the officers violated his sixth amendment rights because the discussion took place after he had asked for an attorney but before he was permitted to speak with one. He relies on Edwards v. Arizona in which the Supreme Court held that, once a person in custody has requested an attorney, all interrogation must cease until counsel is provided. 451 U.S. 477, 485 (1981). The Supreme Court also indicated in Edwards, however, that the prohibition against questioning of an accused who invokes his right to counsel only remains in effect "unless the accused himself initiates further communication, exchanges, or conversations with the police." Id. The prosecution bears "a heavy burden ... to demonstrate that the defendant knowingly and intelligently waived ..." his right to retained or appointed counsel. North Carolina v. Butler, 441 U.S. 369, 372-73 (1979) (quoting Miranda v. Arizona, 384 U.S. 436, 475 (1966)). In our view, the state met that burden in this case. We agree with the magistrate that Hoskins' statement that he wanted to speak with an attorney was sufficient under Edwards to invoke the protection of the sixth amendment. We are persuaded, however, that Hoskins surrendered the right to be free from questioning by initiating later conversation with the officers.
18
In Oregon v. Bradshaw, the Supreme Court held police questioning after the defendant had invoked his right to counsel was permissible because the defendant had initiated conversation by asking, "Well, what is going to happen to me now?" 462 U.S. 1039, 1045 (1983). The Court stated that "the respondent's question ... evinced a willingness and a desire for a generalized discussion about the investigation." Id. at 1045-46. Hoskins' behavior is a far more apparent instance of an accused initiating conversation. Sheriff Armentrout testified that Hoskins' processing only took approximately fifteen minutes. It is uncontroverted that during this time Hoskins continually chattered, probed, and professed surprise and chagrin at his arrest and asked to be apprised of the attendant circumstances. The officers maintained silence during the entire harangue until after processing was completed and then told Hoskins, in effect, that they were ready to answer his questions. Hoskins "evinced a willingness and a desire"--indeed demanded--to discuss his case with the officers, and any statements he made during the ensuing discussion, whether or not they were in response to questions asked by the officers, were properly admissible.
19
In view of the above, the judgment of the magistrate is reversed, and the case remanded with instructions to dismiss the habeas corpus petition.
20
REVERSED AND REMANDED, WITH INSTRUCTIONS.
MURNAGHAN, Circuit Judge, dissenting:
21
Arizona v. Roberson, 108 S.Ct. 2093 (1988), decided after we heard oral argument in the present case, is the Supreme Court's latest pronouncement on the law as it regards the admissibility of uncounseled statements made following invocation of the right to counsel. While Roberson involved a facet of that law different from the case at bar, it provided a compendium of the law in the area. For purposes of the present case, Roberson made clear that Edwards v. Arizona, 451 U.S. 477 (1981), established a bright-line, prophylactic rule, viz., "after a person in custody has expressed his desire to deal with the police only through counsel, he 'is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.' " Roberson, 108 S.Ct. at 2098 (quoting Edwards, 451 U.S. at 484-85). The holding of Roberson clarified that the bright-line rule applies to conversations regarding crimes other than those from which the custody arose. When those conversations are not "initiated" by the person in custody, the sixth amendment of the Constitution is violated and the prophylactic rule of Miranda v. Arizona, 384 U.S. 436 (1966), requires that statements so obtained be suppressed. Roberson, 108 S.Ct. at 2100-01.
22
Thus, in the present case, unless Hoskins initiated the relevant conversations their admission into evidence at his trial was error. Judge Sprouse's opinion concludes that Hoskins initiated them. I disagree.
23
While the Supreme Court has stated a desire for their not to develop a "superstructure of legal refinements around the word 'initiation' in this context," Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983) (Rehnquist, J., plurality opinion), such a superstructure necessarily will develop given the contours of the sixth amendment right described by Edwards, Bradshaw, and Roberson. Once a suspect invokes a right to counsel and uncounseled statements subsequently follow, the issue of "initiation" becomes paramount given the per se rule of Edwards and its progeny. The issue of "initiation" is the principal one of the present case.
24
The magistrate concluded that the conversation and conduct occurring after Hoskins was processed were police initiated. The magistrate reached his conclusion following a review of the state court record. Judge Sprouse's opinion apparently makes a de novo review of the magistrate's decision as to who initiated the conversation, rather than employing a more deferential standard of review. Determination of who initiated a conversation for these purposes is a mixed question of law and fact, much like the determination of voluntariness as it regards confessions. See Miller v. Fenton, 474 U.S. 104, 116-17 (1985).1 Because determination of who "initiated" a conversation is a mixed question and because in the present case the magistrate took no testimony regarding the issue, I agree that a de novo review is proper. However, I would conclude that Hoskins did not initiate the conversations in issue. My view coincides with that of the magistrate and I adopt his conclusion as mine:
25
To this court, what occurred after processing had all the trappings of what experience teaches was an interrogation. It is true that petitioner wished to be told of the evidence against him, a natural reaction on the part of an accused especially one whose arrest could, and did, trigger a parole violation. However, that is a far cry from the question-answer style of investigation that typifies police interrogation. On that point, the record is repleat [sic] with references to questions being asked by the arresting officers beginning with the very point when processing ended. There appears to have been no break in time between processing and "interview." Chapman's unequivocal responses to defense counsel's examination convinces this court that the arresting officers seized upon an opportunity to conduct an investigation by interrogation, even though counsel had been requested by petitioner and promised by Chapman. Whether those officers thought they were treading on constitutionally safe waters or whether they were taking a calculated risk in seizing the opportunity to garner evidence from petitioner before counsel entered the scene, the court need not determine. Neither the motives of the arresting officers, whether subjectively or objectively assessed, nor other factors such as the seriousness of the crime with which the petitioner was charged or the impact this court's decision has in his conviction thereof, play a role in the Edwards, per se, analysis.
26
I would also add that I find significant the facts: (1) that a significant lapse occurred between Hoskins' asking and the officers' answering the questions, (2) that Hoskins requested counsel sometime during that lapse, (3) that after the request for counsel, Chapman told Hoskins that "when I finished processing him, I would let him make a phone call and he could talk to his attorney," (4) that the officers did not, after processing, reference their earlier statement regarding calling a lawyer, or ask Hoskins whether he wanted to speak to an attorney before they "answered" his questions.
27
Much of the Supreme Court's purpose in this area of law has been to provide guidance to law enforcement officers. Roberson, 108 S.Ct. at 2097 (quoting Miranda v. Arizona, 384 U.S. at 441-42). The majority opinion appears to teach law enforcement officers the following lesson. Have the accused ask a question. Do not answer it then. Wait for an opportune time, perhaps when the "inherent pressures of custodial interrogation," Roberson, 108 S.Ct. at 2100, are at their maximum, then respond to the earlier asked question. That allows the investigating officer to save a putative defendant's question and use it as a wild card to convert the officer's initiation of a conversation into the putative defendant's initiation.
28
That, in my view, eviscerates the rule of Edwards and I dissent. I would rule that Edwards requires that the statements obtained from Hoskins not be admitted. Because I would grant Hoskins' petition for habeas corpus on the merits, I would consider whether the magistrate erred when he held that the petition was not an abuse of the writ. I would hold that there was not an abuse of the writ. Miller v. Bordenkircher, 764 F.2d 245, 248 (4th Cir.1985), indicates that a trial court's decision regarding abuse of the writ is an exercise of discretion. I find no abuse of discretion here and consequently find no abuse of the writ. I would affirm the magistrate's grant of the great writ.
29
I find one additional fault with the majority opinion. It concludes that Hoskins initiated the conversation and therefore reverses the grant of the writ. The majority glides too swiftly over a necessary step.
30
A conclusion that Hoskins initiated the conversations does not mean that ipso facto the statements were properly admitted. That conclusion simply means that the Edwards per se rule does not apply. The prosecution next assumes the burden of showing that Hoskins knowingly and intelligently waived the right to counsel that he invoked. Bradshaw, 462 U.S. at 1048 (Powell, J., concurring); McFadden v. Garraghty, 820 F.2d 654, 661 (4th Cir.1987). The majority simply indicates that the state met the burden. See supra at 8. However, the majority must realize that it is in this habeas case making the inquiry of the knowing and intelligent waiver of the right to counsel in the first instance. The magistrate concluded that Edwards applied and did not reach the waiver of counsel issue.
1
This habeas corpus proceeding was determined by the magistrate pursuant to 28 U.S.C. Sec. 636(c)
2
This is the third time we have heard an appeal on habeas corpus petitions submitted by Hoskins. District courts denied relief on Hoskins' first two petitions, and we affirmed those judgments. Neither of those cases, however, involved the alleged denial of sixth amendment right to counsel
3
Because we reject Hoskins' petition for habeas corpus on the merits, it is unnecessary for us to consider whether the magistrate erred in holding that the petition was not an abuse of the writ
1
Since determination of who initiated a conversation is a mixed question of law and fact, the presumption, under 28 U.S.C. Sec. 2254(d), that a state court's factual findings are presumed correct when a federal court considers a petition for habeas corpus does not apply. Townsend v. Sain, 372 U.S. 293, 309 n. 6 (1963). In the present case, the state court judge had ruled at a suppression hearing held prior to the criminal trial that Hoskins' statements were initiated by him so that no sixth amendment violation occurred | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1596164/ | 399 So.2d 727 (1981)
Danny Ray GUNTER
v.
Herbert K. PLAUCHE, M.D., et al.
No. 14197.
Court of Appeal of Louisiana, First Circuit.
May 26, 1981.
*728 Robert W. Stratton, Baker, for plaintiff-appellant Danny Ray Gunter.
Donald T. W. Phelps, Baton Rouge, for defendant-appellee Herbert K. Plauche, M.D., and St. Paul Fire and Marine Ins. Co.
Before ELLIS, COLE and WATKINS, JJ.
WATKINS, Judge.
This is an action for medical malpractice brought by Danny Ray Gunter against Dr. Herbert K. Plauche, an orthopedic surgeon, and his medical malpractice insurer, St. Paul Fire and Marine Insurance Company. The case was tried before a jury. After plaintiff's presentation of his case in chief, plaintiff moved for a directed verdict, which was denied. Defendants then moved for a directed verdict, which was granted. Plaintiff appeals both rulings.
On or about June 14, 1976, Gunter injured his knee while entering his employer's truck to close a window when it started to rain. The company physician referred him to Dr. Plauche, who after a short period of non-surgical treatment, recommended surgery. On July 1, 1976, Dr. Plauche performed surgery on the knee. The surgery was unsuccessful, and Gunter was forced to undergo corrective surgery on the knee which was performed by Dr. Plauche on September 16, 1976. The second operation was also unsuccessful. After consultation with an attorney, Gunter saw Dr. John J. Watermeier, who after several visits by Gunter performed a third operation on the knee on or about September 7, 1978. Plaintiff still has restricted use of the knee and suffers pain in the area of the knee.
The trial court clearly acted correctly in denying plaintiff's motion for a directed verdict after plaintiff's presentation of his case in chief. LSA-C.C.P. art. 1810(A) provides, in paraphrase, that in a case tried before a jury a party may move for a directed verdict at the close of the evidence offered by an opponent. It offends the Codal provision and all notions of justice to permit a plaintiff to obtain a directed verdict upon conclusion of his case in chief, without even permitting defendant to present a defense. There can be no question that plaintiff was correctly denied a directed verdict.
However, it is clear defendants were not entitled to a directed verdict. In a case tried before a jury, a jury is the trier of fact, and a directed verdict for defendant may be granted only if reasonable men, all inferences resolved in favor of the non-mover, could not possibly arrive at a verdict for the non-mover. Campbell v. Mouton, 373 So.2d 237 (La.App. 3d Cir. 1979).
In the present case, Dr. Plauche testified at the trial that he warned Gunter of several possible risks attendant upon the operation, but that he failed to warn Gunter of the possibility that there might be damage to the tendons of the leg and ligaments within the knee, which in fact the operation either caused or failed to correct. Yet, the clear implication of the testimony of two disinterested experts, Dr. Watermeier and Dr. Bernard Manale, was that there was a distinct possibility the initial operation would fail because of such an outcome. Furthermore, in an attempt to impeach Dr. Plauche's testimony at the trial, plaintiff showed that in deposition Dr. Plauche had testified that he did not inform Gunter of any risks. That testimony is consistent with Gunter's, who testified that Dr. Plauche told him that he needed surgery because of a torn cartilage and assured him there would be no problems.
It is thus possible for reasonable men to conclude that Gunter was denied a right to "implied consent", which we have held is a right which cannot be denied a patient except in cases of emergency. Percle v. St. Paul Fire & Marine Ins. Co., 349 So.2d 1289 (La.App. 1st Cir. 1977); Beck v. Lovell, 361 So.2d 245 (La.App. 1st Cir. 1978), writ denied 362 So.2d 802 (La.1978). The following quotation from Percle is pertinent:
"We begin by finding it incumbent upon the patient to show that the physician violated the duty to disclose information allegedly withheld. The doctrine of `implied consent' has been resorted to by *729 the courts with increasing frequency in support of the theory of recovery in malpractice cases. The doctrine is based on the principle that a physician owes the patient the duty to disclose adequately the proposed diagnostic, therapeutic or surgical procedure contemplated, the material risks involved; and the alternatives available, if any, in order that a patient of ordinary understanding, confronted with such disclosures and faced with a choice of undergoing the proposed treatment, or selecting an alternative process, or preferring refusal of all medical relief may in reaching his decision, intelligently exercise his judgment by balancing the probable risks against probable benefits."
Defendant properly notes that Percle is questioned in Hanks v. Drs. Ranson, Swan & Burch, Ltd., 359 So.2d 1089 (La.App. 3d Cir. 1978), writ refused 360 So.2d 1178 (La. 1978) for its assertionnot quotedthat the question of materiality of the risk is a question which should be left to the trier of fact. In the view of Hanks, there must be expert testimony as to whether the risk is rare, remote, or could reasonably be anticipated. Even if we were to adopt the Third Circuit's view as set forth in Hanks, there is implicit in the testimony of Drs. Watermeier and Manale the view that the possibility of failure of the initial operation on Gunter could reasonably be anticipated, and indeed such failure was not an uncommon occurrence.
A further test for absence of "implied consent" is imposed by Percle, that is, whether, assuming the risks were material, a reasonable man would not undergo the operation. Some medical conditions are accompanied with such great danger, discomfort, or disability that a reasonable man, knowing of the risk, would undergo the operation anyway. The existence of cancer, as was the case of Percle, is one such condition. However, clearly, a painful, weak, and stiff knee is not necessarily such a condition, especially if the risk is that of continuing to have a painful, weak, and stiff knee after the operation. Thus, applying the "objective test" set forth in Percle, we see that the jury could conclude a reasonable patient would, knowing the risks, refuse to undergo the operation.
Reasonable men could conclude that Gunter was denied adequate disclosure of the material risks involved in the operation and the alternatives, if any, available, and that under the "objective test" a reasonable patient knowing those material risks to exist, would not undergo the operation. Hence, we hold that Gunter could have been denied the right of "implied consent", and that the jury could find such consent to have been lacking. Thus, the directed verdict for defendants was improperly granted.
We reverse the action of the trial court in granting defendants a directed verdict, and remand the case for further proceedings consistent with this opinion, all costs of this appeal to be paid by defendants.
REVERSED AND REMANDED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596241/ | 28 So.3d 50 (2010)
JOHNSON
v.
STATE.
No. 1D08-2056.
District Court of Appeal of Florida, First District.
February 11, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596265/ | 399 So.2d 545 (1980)
Malcolm Y. BRIAN et al.,
v.
Robert E. BOWLUS et al.
No. 67728.
Supreme Court of Louisiana.
December 15, 1980.
On Rehearing May 29, 1981.
J. Glenn Dupree, Jeff Hughes, Adcock, Dupree & Shows, Baton Rouge, for defendants-applicants.
Robert L. Kleinpeter, Kleinpeter, Kleinpeter & Kleinpeter, Baton Rouge, for plaintiffs-respondents.
Mack E. Barham, Barham & Churchill, New Orleans, for appellants.
MARCUS, Justice.
Malcolm Y. Brian and his wife, Helena S. Brian, together with their son, David Brian, instituted this action for a declaratory judgment against Robert E. Bowlus, Ann M. Bowlus Trust, and William M. Bowlus Trust seeking recognition of the relocation of a servitude in accordance with an Act of Revocation and Relocation of Servitude executed by the plaintiffs on May 30, 1978.
The trial judge rendered judgment in favor of plaintiffs and against defendants recognizing the revocation and relocation of the servitude. Defendants appealed. The court of appeal affirmed, finding as did the trial judge that the act of sale by which Malcolm and Helena Brian sold to Robert Bowlus a certain enclosed parcel of land with a "servitude of way and passage" across the Brian property to a public road established a legal servitude and that the relocation of the servitude was proper.[1] On defendants' application, we granted certiorari to review the correctness of that judgment.[2]
At trial, the case was submitted by the parties on a stipulation of fact and evidence. By act of sale dated December 22, 1966, Malcolm Y. Brian and Helena S. Brian sold to Robert E. Bowlus a certain enclosed parcel of land with a "servitude of way and passage" across the Brian property to a *546 public road. The parcel sold, as well as the servitude, was described with particularity in the act of sale. No specific consideration was mentioned for the servitude. By letter to Malcolm Brian dated the same day as the act of sale, Bowlus agreed that the servitude of passage would continue only until he was able to connect the property purchased to an access road through lands owned by a third party so that the Brian estate would be relieved of the servitude granted in the act of sale. However, he stated that he could not guarantee success in obtaining the "other contemplated access."
Subsequently, on May 2, 1973, Bowlus transferred both the parcel of land and the servitude to the Ann M. Bowlus Trust and the William M. Bowlus Trust. Early in 1978, Malcolm and Helena Brian attempted to negotiate a relocation of the servitude on their property with defendants but were without success. On May 30, 1978, Mr. and Mrs. Brian unilaterally executed an Act of Revocation and Relocation of Servitude and forwarded notice to defendants. A new right-of-way was constructed at plaintiffs' cost. On July 18, 1978, Mr. and Mrs. Brian sold their son David a certain parcel of land which included a portion of the original and relocated servitudes. David Brian subsequently built a personal residence over the original servitude. Plaintiffs filed this action on October 12, 1978.
The principal issue for our determination is whether the right of passage established in the act of sale was a legal or conventional servitude under the then-applicable articles of the civil code.[3] This determination will govern the right of the owner of the servient estate to relocate the servitude.
La.Civ.Code art. 701 then provided:[4]
It is not always the owner of the land which affords the shortest passage who is obliged to suffer the right of passage; for if the estate, for which the right of passage is claimed, has become inclosed by means of sale, exchange or partition, the vendor coparcener or other owner of the land reserved, and upon which the right of passage was before exercised, is bound to furnish the purchaser or owner of the land inclosed with a passage gratuitously, and even when it has not been sold or transferred with the rights of servitude.
Since art. 701 makes the vendor of an enclosed estate bound to furnish the purchaser with a right of passage across his land on which the right had been before exercised, we consider that the plaintiffs simply delineated and located the boundaries of the right of passage on their property by describing it in the act of sale. There is no indication that the servitude was bargained for or that any consideration was paid for it. The very language of art. 701 presupposes that the right of passage be delineated in the act of sale, as the last clause of the article provides that the vendor must furnish the purchaser of an enclosed estate with a passage gratuitously "and even when it has not been sold or transferred with the rights of servitude." (Emphasis added.) Moreover, it is reasonable to infer from Bowlus' letter dated the same day as the act of sale that the servitude was gratuitous in nature in that no part of the purchase price was contemplated to be returned to Bowlus when and if he could obtain another access to his property. The letter also reflected that Bowlus was not *547 concerned with the particular location of the servitude as long as he had access to his property. Under these circumstances, we consider the parties intended to locate the servitude imposed by law by describing it in the act of sale. Hence, the servitude was legal and not conventional. Picard v. Shaubhut, 324 So.2d 517 (La.App. 1st Cir. 1975), writ not considered, 326 So.2d 380 (La. 1976); see Arcuri v. Cali, 244 So.2d 309 (La.App. 4th Cir. 1971).
Having determined that the right of passage established in the act of sale was a legal servitude, we must next consider whether plaintiffs' action in relocating the servitude was proper under La.Civ.Code art. 695[5] which provides:
The owner of the enclosed estate has no right to the relocation of this servitude after it is fixed. The owner of the servient estate has the right to demand relocation of the servitude to a more convenient place at his own expense provided that it affords the same facility to the owner of the enclosed estate.
The above article permits the owner of the servient estate to relocate the servitude to a more convenient place at his own expense provided that it affords the same facility to the owner of the enclosed estate. It is clear here that the relocation of the servitude was to a more convenient place as it allowed Mr. and Mrs. Brian to best utilize and develop their property in furnishing a homesite for their son. Based upon our view of the evidence as to the location, configuration and elevation of the new right-of-way constructed at plaintiffs' expense, we conclude, as did the courts below, that the servitude affords the "same facility" to defendants as the original servitude.
DECREE
For the reasons assigned, the judgment of the court of appeal is affirmed.
DIXON, C. J., and CALOGERO, J., dissent.
BLANCHE, J., recused.
ON REHEARING
WATSON, Justice.[*]
This is a suit for a declaratory judgment approving the relocation of a predial servitude of passage. A rehearing was granted to consider the contentions that the servitude is conventional rather than legal and that the judgment recognizing the relocation by the owner of the servient estate is erroneous.
FACTS
On December 22, 1966, Malcolm Y. and Helena S. Brian sold Robert E. Bowlus an enclosed parcel of land with a servitude of passage across the Brian property to a public road. In a letter, Bowlus stipulated that he would use his best efforts to secure another access and relieve the Brian estate of the servitude. Brian wanted the servitude relocated to enable his son to construct a residence. The parties' attorneys conferred about the matter, but no agreement was reached. On May 30, 1978, the Brians filed a unilateral act revoking and relocating the servitude. The Brians sold their son, David Brian, a portion of their tract on July 18, 1978. A road was constructed at the Brians' expense at the new location and it was allegedly used by the Bowlus interests[1]*548 for access to their property. An affidavit by a Gulf States' line foreman establishes that the new road can be and was utilized by large trucks. David Brian built a home in the path of the initial servitude. Malcolm Y., Helena S., and David Brian filed this suit for declaratory judgment on October 12, 1978, to have the new servitude location judicially approved.
The trial court gave judgment for plaintiffs, finding that the new location affords "the same facility" to the Bowlus interests. (Tr. 40) The Court of Appeal, First Circuit, affirmed.[2] A writ was granted.[3] On original hearing, the judgment was affirmed. The servitude was described as legal rather than conventional. The opinion therefore relied on former Civil Code article 703 and new article 695 to conclude that the relocation was more convenient to the Brians and offered the same facility to defendants.
ISSUES
The issues on rehearing are: (1) whether the servitude established in 1966 was legal or conventional; (2) whether the new location is "equally convenient"[4]; and (3) whether the judgment recognizing the relocation is correct.
CONCLUSION
On reconsideration, it appears that the servitude is conventional rather than legal.[5] As pointed out by Professor A. N. Yiannopoulos[6] in an article on Enclosed Estates at 23 Loyola L.Rev. 343: "..., a servitude established in favor of lands sold, exchanged, or partitioned, whether voluntarily to prevent an enclavement or by judgment under article 701, ought to be classified as a conventional servitude."[7] The article distinguishes between the right to demand the legal servitude of passage and the conventional servitude which is reflected in a contractthe latter, even if given because of a legal right, has been established by title and is a conventional servitude.
Picard v. Shaubhut[8] held that the servitude granted in an act of partition was not a conventional servitude but merely a recognition of a legal servitude owed by one partitioned estate to the other. This is erroneous. When a servitude is established in a sale, exchange or partition, it has received the mutual assent of the parties. Their agreement establishes a conventional servitude.
*549 DeFelice Land Corp. v. Citrus Lands of Louisiana, Inc.[9] correctly held that a servitude of passage owed to an enclosed estate, when established by title, is governed by Civil Code articles 777, 779 and 780, articles relating to conventional servitudes.
The right to relocate a conventional servitude of passage was given by former Civil Code article 777, which stated that the owner of the servient estate, if the servitude becomes "more burdensome", can offer to the owner of the dominant estate "a place equally convenient", and the latter "can not refuse it". The present article, effective January 1, 1978, is Civil Code article 748 which states that the owner of the servient estate, if he finds the location "more burdensome", may provide another "equally convenient" location which the owner of the dominant estate is "bound to accept". Present article 748 is based on former article 777. Both provide that a servitude that has become "more burdensome" can be moved to an "equally convenient" location. There is no question that this servitude became "more burdensome" to the Brians. Moreover, construction of the son's home would constitute "advantageous repairs" and "useful improvements" to the servient estate. The trial court made a factual finding that the new location affords the "same facility" to the Bowlus interests. The exhibits support that conclusion. There is no significant difference between a servitude which affords "the same facility" and one which is "equally convenient." Both phrases imply a location which is as suitable to the purpose as its predecessor.[10] The servitude location established by the Brians meets this test. The Bowlus interests introduced no evidence that the new location discommodes them.[11]
The Bowlus interests complain about the Brians unilaterally relocating the servitude after attempts to agree on the new location failed. However, when suit was filed for declaratory judgment, that complaint was moot. As the Court of Appeal pointed out, the Brians took the risk that the court would reject the new location. The fact that a servitude has been unilaterally established at a certain place does not require that the situs be either approved or disapproved by the courts. See Morgan v. Culpepper.[12] The Brian suit alleged that the Bowlus interests had refused to agree to the relocation and asked that it be judicially approved. The only evidence indicates that the location is "equally convenient". The Bowlus interests did not allege or prove in what respect the relocation is inconvenient and therefore are bound to accept it. The trial and appellate courts correctly decided that the Brians are entitled to have the servitude fixed at the new location.
For the reasons assigned, the result reached in the original opinion is correct. The judgment of the Court of Appeal is affirmed.
AFFIRMED.
MARCUS, J., concurs and assigns reasons.
GARVEY, J., concurs for reasons assigned by MARCUS, J.
LEMMON, J., concurs in part and dissents in part and assigns reasons.
DENNIS, J., dissents with reasons.
CALOGERO, J., dissents.
*550 MARCUS, Justice (concurring).
I disagree with the majority's finding that the servitude in question is conventional. Rather, I consider that the parties simply delineated and located the boundaries of the right of passage on the servient estate by describing it in the act of sale. There is no indication that the servitude was bargained for or that any consideration was paid for it. The very language of the then article 701 of the Civil Code[1] presupposes that the right of passage be delineated in the act of sale, as the last clause of the article provides that the vendor must furnish the purchaser of an enclosed estate with a passage gratuitously "and even when it has not been sold or transferred with the rights of servitude." (Emphasis added.) Moreover, as stated in the original opinion, it is reasonable to infer from Bowlus' letter dated the same day as the act of sale that the servitude was gratuitous in nature in that no part of the purchase price was contemplated to be returned to Bowlus when and if he could obtain another access to his property. The letter also reflected that Bowlus was not concerned with the particular location of the servitude as long as he had access to his property. Under these circumstances, I consider that the parties intended to locate the servitude imposed by law by describing it in the act of sale. In other words, the servitude in question was legal and not conventional. However, I concur in the result reached by the majority. Accordingly, I respectfully concur.
LEMMON, Justice, concurring in part and dissenting in part.
When the owner of the servient estate desires to relocate a servitude, he must either obtain consent from the owner of the dominant estate or have the relocation approved and the new location fixed by the court. In the judicial proceeding the owner of the servient estate has the burden of proving (a) that the existing servitude has become more burdensome to him or that the servitude prevents him from making useful improvements on his estate and (b) that the new location is equally convenient to the owner of the dominant estate.
I agree that the stipulated evidence in the judicial proceeding supports the trial court's approval of the relocation of the servitude to the new position on the servient estate. I disagree, however, that the filing of the judicial proceeding rendered moot the issue of the propriety of plaintiff's previous actions in unilaterally and extrajudicially relocating the servitude against the will of the owner of the dominant estate, depriving him of his right to use the servitude established in the contract. Nevertheless, since the majority opinion does not pass on the propriety of plaintiffs' actions prior to the filing of this suit, any damages to defendants resulting from those improper actions can be determined in supplemental proceedings in this matter or in another suit.
DENNIS, Justice, dissenting.
I respectfully dissent.
The owner of the servient estate is afforded a right to relocate the servitude if he can prove that (1) the servitude has become "more burdensome" to the servient estate since its original location, or (2) the servitude prevents the construction of "useful improvements" on his estate, and (3) he can provide another equally convenient location for the exercise of the servitude. La.C.C. art. 748 (La.Acts 1977, No. 514, § 1); La.C.C. art. 777 (before amended in 1977); Ogden v. Bankston, 398 So.2d 1037 (La.1981).
Plaintiff's evidence consists principally of exhibits and a brief stipulation. The stipulation *551 does little more than identify the exhibits. The majority opinion, the court of appeal opinion and the trial court reasons for judgment do not explain how this documentary evidence proves that the servitude had become more burdensome since its original location, or that it prevented the construction of useful improvements, and that the servient estate owner has provided another equally convenient location. In my opinion, the evidence does not prove these essential prerequisites for relocation of a servitude.
NOTES
[1] 386 So.2d 662 (La.App. 1st Cir. 1980).
[2] 387 So.2d 597 (La.1980).
[3] Title IV of Book II of the Louisiana Civil Code, Predial Servitudes, previously consisting of arts. 646 to 822, was amended and reenacted by Acts 1977, No. 514, § 1, eff. Jan. 1, 1978, to consist of arts. 646 to 774. Hence, the prior articles which were in effect at the time of the creation of the servitude herein are applicable in the determination of this issue.
[4] La.Civ.Code art. 694 replaced art. 701 but only reproduced the substance of the prior article and did not change the law. The wording of the new article is somewhat clearer on the point in question:
When in the case of partition, or a voluntary alienation of an estate or of a part thereof, property alienated or partitioned becomes enclosed, passage shall be furnished gratuitously by the owner of the land on which the passage was previously exercised, even if it is not the shortest route to the public road, and even if the act of alienation or partition does not mention a servitude of passage.
[5] Article 695 replaces former art. 703 which provided:
When the place for the passage is once fixed, he to whom this servitude has been granted can not change it, but he who owes this servitude may change it from one place to another, in order that it may be less inconvenient to him, provided that it afford the same facility to the owner of the servitude.
Plaintiffs' action in relocating the servitude occurred after the effective date of art. 695. The comment under art. 695 states that "[t]his provision reproduces the substance of Article 703.... It changes the law as it makes relocation of the passage more burdensome for the owner of the servient estate." Since we hereinafter conclude that plaintiffs met the more burdensome standard provided for in art. 695, we need not concern ourselves with the possible retroactive effect of the article.
[*] Honorable Richard Garvey participated in this decision as Associate Justice Ad Hoc in place of Blanche, J., recused.
[1] On June 21, 1979, Mr. and Mrs. Bowlus transferred the property they had purchased from the Brians to the Ann M. Bowlus and William M. Bowlus trusts.
[2] 386 So.2d 662 (La.App. 1 Cir. 1980).
[3] 387 So.2d 597 (La.1980).
[4] LSA-C.C. art. 777 provided:
"The owner of the estate which owes the servitude can do nothing tending to diminish its use, or to make it more inconvenient.
"Thus he can not change the condition of the premises, nor transfer the exercise of the servitude to a place different from that on which it was assigned in the first instance.
"Yet if this primitive assignment has become more burdensome to the owner of the estate which owes the servitude, or if he is thereby prevented from making advantageous repairs on his estate, he may offer to the owner of the other estate a place equally convenient for the exercise of his rights, and the owner of the estate to which the servitude is due can not refuse it."
LSA-C.C. art. 748 provides:
"The owner of the servient estate may do nothing tending to diminish or make more inconvenient the use of the servitude.
"If the original location has become more burdensome for the owner of the servient estate, or if it prevents him from making useful improvements on his estate, he may provide another equally convenient location for the exercise of the servitude which the owner of the dominant estate is bound to accept. All expenses of relocation are borne by the owner of the servient estate."
[5] Since the servitude is conventional rather than legal, LSA-C.C. art. 695 does not apply. The argument by counsel for the Bowlus' interests, which relies on the word "demand" in that article, is therefore irrelevant.
[6] W. R. Irby Professor of Law, Tulane University.
[7] 23 Loyola L.Rev. 374.
[8] 324 So.2d 517 (La.App. 1 Cir. 1975) writ refused 326 So.2d 380 (1976).
[9] 330 So.2d 631 (La.App. 4 Cir. 1976).
[10] "Insofar as the owner of the servient estate is concerned, this article [LSA-C.C. art. 703] gives him a right that he might also claim under the terms of article 777." 23 Loyola Law Review 343 at 377.
[11] They have taken no action at any time to protect or maintain the former location. Compare Burgas v. Stoutz, 174 La. 586, 141 So. 67 (1932) where the owner of the dominant estate filed suit to enjoin construction of a fence across his servitude. Also see Nelson v. Warren, 157 So.2d 762 (La.App. 2 Cir. 1963); McLure v. Alexandria Golf & Country Club, Inc., 344 So.2d 1080 (La.App. 3 Cir. 1977); and Ogden v. Bankston, 398 So.2d 1037 (La., 1981).
[12] 324 So.2d 598 (La.App. 2 Cir. 1975) writ denied 326 So.2d 377, 378 (1976).
[1] La.Civ.Code art. 701 then provided:
It is not always the owner of the land which affords the shortest passage who is obliged to suffer the right of passage; for if the estate, for which the right of passage is claimed, has become inclosed by means of sale, exchange or partition, the vendor, coparcener or other owner of the land reserved, and upon which the right of passage was before exercised, is bound to furnish the purchaser or owner of the land inclosed with a passage gratuitously, and even when it has not been sold or transferred with the rights of servitude. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596284/ | 399 So. 2d 611 (1981)
Calvin LA POINT et al.
v.
Phillip P. BREAUX et al.
Elmer E. HOWARD et al.
v.
Phillip P. BREAUX et al.
No. 81-C-0867.
Supreme Court of Louisiana.
April 27, 1981.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596280/ | 399 So. 2d 70 (1981)
Wayne Clarence SMITH, Appellant,
v.
STATE of Florida, Appellee.
No. 80-851.
District Court of Appeal of Florida, Fifth District.
May 27, 1981.
Robert R. Perry and Joe Miller, Palatka, for appellant.
Jim Smith, Atty. Gen., Tallahassee, Richard W. Prospect, and James Dickson Crock, Asst. Attys. Gen., Daytona Beach, for appellee.
COBB, Judge.
The defendant, Wayne Clarence Smith, as the result of a fracas that occurred at his mobile home on the evening of January 30, 1980, in Putnam County, was charged in a three-count information with: (1) battery of a law enforcement officer, Michael Burnette; (2) aggravated assault upon Jerry Vaughn, who was also an officer; and (3) resisting arrest with violence directed toward arresting officers Vaughn and Mike Fazio. The defendant was acquitted of the first two counts. It is only the third count, for which the jury convicted of the lesser included offense of resisting without violence, which concerns us on this appeal.
*71 The incident arose when deputy Burnette responded to a family disturbance dispatch, and was told that Smith was beating his wife inside their trailer. Burnette heard crying inside the trailer and a female voice asking for help. Burnette knocked on the door, and Smith warned him not to come in. This was repeated several times, and finally Burnette entered and found Smith holding his wife down on the floor. When Burnette attempted to intercede, a struggle ensued with the result that Smith struck the officer several times with the latter's flash-light. During the struggle, Smith's brother-in-law, one Frank Shrowder, came into the trailer and rendered some assistance to the officer. However, Burnette was unable to handcuff both of Smith's hands. Thereupon, the officer left the trailer to radio for assistance. As Burnette exited the trailer, Officers Vaughn and Fazio arrived on the scene and talked with Burnette outside the trailer. They examined his injuries, and learned that Shrowder was still inside the trailer with Smith. Vaughn and Fazio then went into the trailer, followed by Burnette. Ultimately, Smith was subdued and handcuffed after another struggle involving all three officers.
Prior to trial the defense filed a motion to suppress, based on the argument that the original entry into the trailer by Burnette without a warrant was an unreasonable entry violative of the United States and Florida Constitutions, and of section 901.19(1), Florida Statutes (1979).[1] The trial court ruled, and properly so, that Burnette's entry was justified under the "exigency rule" exception to the general rule requiring a warrant. Johnson v. State, 386 So. 2d 302 (Fla. 5th DCA 1980); Moreno v. State, 277 So. 2d 81 (Fla. 3d DCA 1973); Webster v. State, 201 So. 2d 789 (Fla. 4th DCA 1967).
At trial of the cause, during cross-examination of the second witness for the state, Officer Vaughn, while defense counsel was exploring facts relating to the justification for the entries into the trailer, the trial court interceded sua sponte and held a conference outside the presence of the jury. As a result of that conference, the trial judge made an in limine determination that Officers Vaughn and Fazio had legally entered the trailer residence. The following colloquy occurred:
THE COURT: As to the count of resisting with violence, the Court has ruled that the deputies had a legal right to be there at that time. The question is whether or not the officer communicated to the Defendant the intention to effect an arrest and whether the Defendant knew that it was the intention of the arresting officer to then and there arrest him.
Once the State has met that burden, the Court is not going to allow any corollary questions to become Jury issues in this proceeding, as to whether the Jury has a right to determine the status or legal standing of the officers to be there at that time.
The Court therefore rules in limine that no issues may be raised before the Jury and no inquiry may be made of the witnesses as to the right of the officers to be there in that place at that time.
MR. PERRY [defense counsel]: Your Honor, so that I may be very clear in the matter, is the Court ruling with regard to Count Three that Deputies Vaughn and Fazio were in fact in the lawful execution of a legal duty?
THE COURT: That is correct.
MR. PERRY: You're taking that issue away from the jury?
THE COURT: That is correct.
The only question that, the Defense issues that can be inquired into on that point include of course the use of force.
An essential element of the offense under Count Three was that the arresting *72 officers were engaged "in the execution of legal process or in the lawful execution of any legal duty." See § 843.01, Fla. Stat. (1979). The lawful duty requirement was an essential element to be shown by the prosecution and subject to jury determination, applying the reasonable doubt criterion. Licata v. State, 156 Fla. 692, 24 So. 2d 98 (1945); Lee v. State, 368 So. 2d 395 (Fla. 3d DCA 1979), cert. denied, 378 So. 2d 349 (Fla. 1979).
The trial court, by reason of its in limine ruling and subsequent jury instructions, deprived the jury of the right to pass on the issue of the legality of the arrest.[2] If the arrest were illegal, it could be lawfully resisted without violence. Davis v. State, 381 So. 2d 285 (Fla. 1st DCA 1980); Lowery v. State, 356 So. 2d 1325 (Fla. 4th DCA 1978). In effect, the trial court directed a verdict on this issue during the course of trial. This was error.
Accordingly, we reverse and remand for a new trial on Count Three of the information, as reduced to the charge of resisting arrest without violence.
SHARP, and COWART, JJ., concur.
NOTES
[1] Section 901.19, Florida Statutes (1979), states in pertinent part:
(1) If a peace officer fails to gain admittance after he has announced his authority and purpose in order to make an arrest either by a warrant or when authorized to make an arrest for a felony without a warrant, he may use all necessary and reasonable force to enter any building or property where the person to be arrested is or is reasonably believed to be.
[2] This jury determination should be made pursuant to an appropriate instruction on section 901.15, Florida Statutes (1979). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596295/ | 28 So. 3d 60 (2006)
Sabir Abdul-Haqq YASIR, Petitioner,
v.
James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
No. 1D05-2123.
District Court of Appeal of Florida, First District.
May 25, 2006.
Rehearing Denied July 6, 2006.
Sabir Abdul-Haqq Yasir, pro se, Petitioner.
Connie Lynn Beach, Assistant General Counsel, Department of Corrections, Tallahassee, for Respondent.
HAWKES, J.
Sabir Abdul-Haqq Yasir (Petitioner), an inmate in the custody of the Department of Corrections (DOC), raises two issues in this petition for a writ of certiorari. The first issue challenges the order denying his petition for a writ of mandamus. The second issue challenges the order placing a lien on his inmate trust account to recover the filing fee for the mandamus petition. We deny certiorari review on the first issue without discussion and grant review of the second.
Petitioner was assigned to "inside grounds" as his work assignment for the last three days of June 2004. This was his only work assignment that month, because he was in disciplinary confinement the previous part of the month. DOC rated Petitioner satisfactory on his June performance evaluation and consequently awarded him 10 days of incentive gain-time.
Discontented with his satisfactory rating and 10-day gain-time award, Petitioner argued to DOC that he should have been given an above-satisfactory rating and awarded at least two more days of gain-time. As he exhausted his administrative remedies, he was repeatedly told he was not entitled to an above-satisfactory rating. Still not content, Petitioner filed a petition for a writ of mandamus making the same argument to the circuit court. The circuit court properly denied the petition.
To recover the cost of Petitioner's filing fee for his mandamus petition, the circuit court issued an order placing a lien on Petitioner's inmate trust account pursuant *61 to section 57.085, Florida Statutes (2004). Petitioner filed a motion arguing his petition was exempt from the lien, because it qualified as a "collateral criminal proceeding" under the logic of Schmidt v. Crusoe, 878 So. 2d 361 (Fla.2003) (holding cases "where a prisoner challenges the loss of gain-time, are collateral criminal proceedings and exempt from section 57.085"). The circuit court denied the motion finding Petitioner's claim was not a "collateral criminal proceeding." The court observed, unlike the claim in Schmidt, which challenged DOC's forfeiture of already-earned gain-time, Petitioner's claim was merely challenging DOC's failure to award unearned, incentive gain-time.
Section 57.085 enables the trial court to place a lien on an inmate's trust account for civil filing fees. However, the statute does not apply to "collateral criminal proceedings." See § 57.085(10), Fla. Stat. In Schmidt, the Florida Supreme Court defined a "collateral criminal proceeding" as including any action that results in an inmate's prison time being "directly affected." 878 So.2d at 366.
Despite the overwhelming lack of merit to Petitioner's argument in his mandamus petition, if he had been successful in challenging DOC's failure to award him an above-satisfactory performance rating for June 2004, he would have been eligible to receive up to six more days of incentive gain-time. Since it was technically possible that his sentence could have been shortened and thus "directly affected," we are compelled to conclude Petitioner's mandamus petition was a "collateral criminal proceeding" pursuant to Schmidt. See Cox v. Crosby, 27 So. 2d 45 (Fla. 1st DCA 2006) (holding an inmate's challenge of the constitutionality of the statute precluding him from receiving basic gain-time was a "collateral criminal proceeding," and thus exempt from the section 57.085 filing fee lien).
Accordingly, we DENY Petitioner's petition for a writ of certiorari in part (without discussion), GRANT it in part, and QUASH the order imposing a lien on Petitioner's inmate trust account. Because of what we perceive to be the logical implications of Schmidt as illustrated by cases such as this, we certify the following question to the Florida Supreme Court, as we did in Cox, which we believe to be of great public importance:
DOES THE HOLDING IN SCHMIDT V. CRUSOE, 878 So. 2d 361 (Fla.2003), EXTEND TO ALL ACTIONS, REGARDLESS OF THEIR NATURE, IN WHICH, IF SUCCESSFUL, THE COMPLAINING PARTY'S CLAIM WOULD DIRECTLY AFFECT HIS OR HER TIME IN PRISON, SO TO PRECLUDE IMPOSITION OF A LIEN ON THE INMATE'S TRUST ACCOUNT TO RECOVER APPLICABLE FILING FEES?
ERVIN and PADOVANO, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596299/ | 399 So. 2d 1083 (1981)
Marsha Clare BROWN, Appellant,
v.
Kermit Marlin BROWN, Appellee.
No. XX-65.
District Court of Appeal of Florida, First District.
June 22, 1981.
*1084 John Paul Howard, Jacksonville, for appellant.
Robert I. Scanlan, Tallahassee, for appellee.
ROBERT P. SMITH, Judge.
We find no error in the circuit court's rulings on appellant's "petition for judgment of contempt and motion for modification of final judgment of divorce." The facts of the case are as stated in Judge Wentworth's concurring and dissenting opinion, although we should note that appellant made no application to reduce the alleged arrearages to judgment except by an order of contempt, which the full panel agrees the circuit court properly denied. If the record contained a proper demand for a judgment of arrearages, we should be obliged to sustain the circuit court's denial of that relief because of the undisputed testimony that appellant bargained for and agreed to the termination of child support payments, during the period in question, in exchange for appellee's agreement to "stop calling and stop bothering her about seeing the child." See Phillips v. Adams, 339 So. 2d 665 (Fla. 4th DCA 1976). Nor do we think the court can be held to have erred in granting appellee's motion to dismiss the petition for modification and increase of the resumed child support payments, after appellant rested her case on that issue without any effort to prove the child's increased need and appellee's increased ability to pay. Section 61.14(1), Florida Statutes (1979). The trial court was required to rule on the issues as they were presented by counsel; and, having correctly ruled that the evidence in support of modification was insufficient at the close of appellant's case, the court cannot be held in error for declining to reopen that issue based on evidence later received on the contempt issue.
AFFIRMED.
MILLS, C.J., concurs.
WENTWORTH, J., concurs and dissents, with opinion.
WENTWORTH, Judge, concurring in part, dissenting in part.
While I recognize the great discretion vested in trial judges in matters of this nature, I would conclude in the circumstances of this case that the court abused its discretion in denying payment of delinquent child support based on alleged agreement of the appellant mother, and in rejecting reconsideration of the modification motion without regard to evidence submitted on the contempt petition heard simultaneously.
When the parties were divorced in 1971, Mr. Brown's income was about $500.00 per month and he was ordered to pay $70.00 per month for child support. In 1980, Ms. Brown filed a motion for modification and a petition for judgment of contempt, requesting an increase in the child support and alleging that Mr. Brown was in arrears $5,690.00. At the hearing on these motions she introduced into evidence her current financial affidavit and a printout from the sheriff's office showing the arrearage, then rested. At that point the court granted Mr. Brown's motion to dismiss the modification claim but decided to hear further evidence on the petition for contempt. Mr. Brown testified that shortly after the divorce, Ms. Brown agreed he could stop the support payments if he would give up visitation. In 1973 Ms. Brown moved to Texas, and from 1973 through 1978 Mr. Brown made only three payments of support on the specific request of Ms. Brown. He resumed regular payments in 1978 after Ms. Brown filed a URESA action against him.
During his testimony, Mr. Brown referred to his financial affidavit and it was introduced in evidence on motion of Ms. Brown, without objection. The affidavit *1085 showed a substantial increase in Brown's income: from $500 to $1,028.71 a month. When Mr. Brown rested, Ms. Brown asked for reconsideration of the ruling on modification. The court refused, denied the motion for modification, denied the petition for contempt and denied Ms. Brown's request for attorney's fees.
The court may modify a support order or agreement if "the circumstances or the financial ability of either party has changed." (e.s.) § 61.14(1), Florida Statutes (1979). A showing that the paying parent has had a substantial increase in income is sufficient to justify an increase in the amount of child support. Lamar v. Lamar, 266 So. 2d 376 (Fla.4th DCA 1972); Sherman v. Sherman, 279 So. 2d 887 (Fla.3d DCA 1973); Meltzer v. Meltzer, 356 So. 2d 1263 (Fla.3d DCA 1978); Lenton v. Lenton, 370 So. 2d 30 (Fla.2d DCA 1979). Clearly such a showing was made here by introduction of Mr. Brown's financial affidavit and his testimony as to his prior earnings. This evidence was brought before the court immediately after it had dismissed the motion for modification, and the request for reconsideration based on all the evidence should have been granted to prevent elevation of form over substance in light of the statutory prescription that the court shall "make orders as equity requires, with due regard to the changed ... financial ability... ." § 61.14(1), supra.
Although I agree with the majority that the record supports the ruling on contempt, the alleged agreement between the parties does not in my opinion permit denial of an order for payment of the arrearage.
On a motion for contempt, our courts have not required a specific plea for reduction to judgment or for enforcement by other means. Taylor v. Taylor, 97 So. 2d 35 (Fla.2d DCA 1957). Feder v. Feder, 291 So. 2d 641 (Fla.2d DCA 1974), involved a petition "seeking to have the husband held in contempt for alleged failure to comply with the judgment's requirement... ." In reversing the lower court's failure to order payment, the appellate court stated:
While it was within the discretion of the judge to refrain from holding the husband in contempt therefor, the wife is entitled to enforcement of payment of the same by legal process and by such equitable remedies as the trial court may determine to be appropriate or necessary to that end.
Id. at 642-43. See also Ginsberg v. Ginsberg, 123 So. 2d 57 (Fla.3d DCA 1960), and Williams v. Williams, 277 So. 2d 542 (Fla.2d DCA 1973). I would accordingly conclude that the trial court abused its discretion by failing to order payment of arrearage which was adequately proven.
Clearly a parent may not contract away the right of a child to receive support. Gammon v. Cobb, 335 So. 2d 261 (Fla. 1976); Lang v. Lang, 252 So. 2d 809 (Fla.4th DCA 1971); Armour v. Allen, 377 So. 2d 798 (Fla. 1st DCA 1979); Melvin v. Melvin, 391 So. 2d 691, (Fla. 1st DCA 1980). Unpaid installments of child support constitute a vested property right, Smithwick v. Smithwick, 343 So. 2d 945 (Fla.3d DCA 1977), and the cause of action for enforcing this right is not barred by the statute of limitations since these are equitable proceedings. Armour v. Allen. Although laches or other exceptional circumstances may bar such claims, I find no predicate for that doctrine in this case. Compare Mendel v. Mendel, 257 So. 2d 293 (Fla.3d DCA 1972); Patterson v. Patterson, 348 So. 2d 592 (Fla. 1st DCA 1977) with Craig v. Craig, 157 Fla. 710, 26 So. 2d 881 (1946), and Brown v. Brown, 108 So. 2d 492 (Fla.2d DCA 1959). In order to invoke laches, prejudice must, of course, have resulted from the delay. Bethea v. Langford, 45 So. 2d 496 (Fla. 1949). The only prejudice alleged by Mr. Brown is that for the time in question he gave up his right to visit his child. The result would appear to be economic benefit instead of detriment, and no evidence was presented of other prejudicial effect. I would conclude that temporary voluntary relinquishment of parental visits in these circumstances does not support an inference of the character of prejudice contemplated by the doctrine of laches. See Bethea v. Langford.
*1086 Phillips v. Adams, cited by the majority, holds only that on a rule to show cause, the husband must be allowed to present any legal defenses he has. In Phillips the husband alleged that the wife had denied him visitation with the parties' minor child, had acquiesced in the nonpayment of child support and was guilty of laches so as to bar the contempt proceedings. The court ruled that the husband should have been allowed to present evidence in support of the defenses of "appellee's refusal to allow visitation privileges and her laches in instituting the contempt proceedings." In discussing laches, the court noted that such a defense is predicated upon the father showing that the mother's delay under all of the circumstances resulted in injury or prejudice to him. Significantly, the court failed to acknowledge the agreement as a defense. While such an agreement may be part of the circumstances giving rise to laches, I find no authority or persuasive rationale for concluding the agreement alleged here was effective to nullify the child's previously adjudicated right to support payments.
I would reverse because the appellant wife was entitled to reconsideration of modification based on all evidence and to judgment for the arrearage, and the court should have enforced its prior order by whatever equitable remedies it deemed appropriate. Feder v. Feder, supra.
The record indicates that the trial court did not abuse its discretion in denying an award of attorney's fees to Ms. Brown. Patterson v. Patterson, 348 So. 2d 592 (Fla. 1st DCA 1977). I therefore concur in this portion of the majority's ruling as well as that relating to contempt. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596499/ | 399 So. 2d 723 (1981)
H. R. "Buddy, VERNON d/b/a Buddy's Promotional Advertising
v.
Barbara Gail SEITZ and Office of Employment Security of the Department of Labor of the State of Louisiana.
No. 14196.
Court of Appeal of Louisiana, First Circuit.
May 26, 1981.
*724 William C. Shockey, Baton Rouge, for plaintiff-appellant H. R. "Buddy" Vernon d/b/a Buddy's Promotional Advertising.
Phil Breaux, St. Gabriel, for defendant-appellee Barbara Gail Seitz.
James A. McGraw and Willie D. Maynor, Baton Rouge, for defendant-appellee Louisiana Department of Labor, Office of Employment Security.
Before ELLIS, COLE and WATKINS, JJ.
WATKINS, Judge.
Barbara Gail Seitz was employed by plaintiff, H. R. "Buddy" Vernon, d/b/a Buddy's Promotional Advertising. On October 18, 1979, this employment was terminated when Ms. Seitz submitted her resignation upon plaintiff's request. Ms. Seitz applied for unemployment compensation benefits, and the Office of Employment Security of the Louisiana Department of Labor (OES) determined that she was disqualified because she was guilty of misconduct on the job. She appealed that decision to the appeals referee for OES, who reversed the previous determination and found Ms. Seitz was entitled to benefits. Plaintiff appealed the referee's decision to the Board of Review for OES.
On February 1, 1980, the board rendered a unanimous decision denying plaintiff's appeal, the decision having the effect of upholding the referee's ruling that Ms. Seitz was entitled to benefits. The board's decision *725 specifically states that it reviewed the record in the case. On February 14, 1980, plaintiff filed this action in district court seeking judicial review of the board's decision. On February 29, 1980, the board issued a second decision. The board therein specifically stated that it affirmed the referee's ruling, but noted that its first decision failed to reflect one dissenting vote, and it contained a brief dissent of the dissenting board member.
The suit filed by plaintiff in district court alleges that the board failed to consider the record of the hearing before the referee. This allegation was made despite the board's affirmative statement in its first decision that it reviewed the record. Plaintiff asked that the case be remanded to the board for the purpose of taking additional evidence. The petition included an order to set the matter for hearing. However, the district court noted on the order that plaintiff did not yet wish the hearing date to be fixed.
Eventually, a rule to show cause why the case should not be remanded was set for hearing. However, the matter was continued upon plaintiff's own request. The district court reset the matter for hearing, but the minute entry for the date of the second setting reflects only that the matter was passed without date. The record contains no other mention of the rule to show cause, except its denial in the judgment and reasons therefor.
Meanwhile, OES filed with the district court the complete administrative record on the case, including documentation and the complete transcript of the hearing before the referee. The transcript was certified as correct on March 25, 1980, a date subsequent to the board's decision.[1]
Almost two months after plaintiff's rule was passed without date, the district court rendered judgment with detailed reasons therefor, referring frequently to testimony adduced before the appeals referee. The district court found that the record contained sufficient evidence to support the board's decision and dismissed plaintiff's action. Also, the district court denied plaintiff's motion to remand the case to take additional evidence, stating that a remand "would be a vain and useless gesture." The district court noted that plaintiff did not specify any new evidence which could be offered, and that it appeared any such evidence would be merely cumulative.
On appeal, plaintiff does not attack the district court's findings on the merits. He contends only that the district court erred in denying him the opportunity to introduce evidence to show that the board did not consider the transcript or the tape recordings and documentation presented at the referee's hearing. Plaintiff asserts that he is prejudiced by this error because the court is bound on review by the board's findings, but that the board issued no findings because it did not review the record.
First, we note that the record does not reflect that the district court refused to allow plaintiff an opportunity to introduce evidence showing that the board did not review the complete record.[2] Upon the filing of the petition, plaintiff requested that the matter not yet be set for hearing. Subsequently, the matter was set for hearing twice. The first setting was upset at plaintiff's request. The second setting resulted in the rule being passed without date.
Despite the statutory mandate of LSA-R.S. 23:1634, requiring that such matters be given preference over other civil actions, nearly two months elapsed between the second setting and rendition of judgment. Yet the record is devoid of any motion to reset the rule for hearing. We do not believe that plaintiff should now be heard to complain of a missed opportunity that resulted from a lack of diligence in pursuing the matter.
Moreover, even assuming arguendo that plaintiff was denied an opportunity to *726 present such evidence, we find that plaintiff has not been prejudiced as he claims. Plaintiff asserts prejudice only in that (1) the board did not review the transcript of testimony, as the transcript of testimony was certified as correct only after the second decision, which contained the dissent, was signed, and (2) the board issued no findings of fact to serve as the basis for judicial review under LSA-R.S. 23:1634.
With regard to the first contention, we see that the board of review is permitted, not required, to review the transcript; it may deny the appeal and not review the transcript in its entirety, as will appear from the following discussion. Furthermore, the dissent of the member of the board of review mentions a review of the record, and seeks support by reference to the record. Thus, we feel confident there was a review of the record taken before the referee, through listening to tape recordings or otherwise.
With regard to the second contention, LSA-R.S. 23:1634 provides, inter alia, that the findings of the board shall be conclusive if supported by sufficient evidence and in the absence of fraud. However, LSA-R.S. 23:1630 states, in pertinent part:
"[U]pon denial by the board of review of an application for appeal from the decision of an appeal tribunal, the decision of the appeal tribunal shall be deemed to be a decision of the board of review within the meaning of this Section for purposes of judicial review and shall be subject to judicial review within the time and in the manner provided for with respect to the decision of the board of review...."
The board in the instant case denied plaintiff's appeal and upheld the decision of the referee. Hence, the decision and findings of fact made by the referee are deemed to be those of the board for purposes of judicial review. LSA-R.S. 23:1630. Not only is plaintiff not prejudiced by the failure of the board to issue independent findings of fact, but the failure to do so is expressly provided for by statute.
In any event, our own review of the complete record convinces us that the judgment of the trial court is correct on the merits. Ms. Seitz had been employed as a secretary and to perform general office duties by plaintiff for approximately seven months at the time of the termination of her employment. During this period, she occasionally was required to leave work to take her son to the doctor. Additionally, she was late for work on several occasions and failed in some instances to record customer information adequately. Also, on one occasion, it was shown that Ms. Seitz substituted a sheet from her employer's daily call book in order falsely to show that she had been present on that date. However, this incident occurred more than three months prior to the time her employment was terminated, and she apparently was never reprimanded therefor.
Ms. Seitz, on the other hand, denied most of the allegations made by plaintiff. She was able to establish that she did not violate any express company policy. Apparently, the policies of her employer were often changed without sufficient notice to employees.
It was also established at the referee's hearing that Ms. Seitz never received a written reprimand and was verbally corrected by plaintiff only on two or three occasions. Additionally, Ms. Seitz proved that plaintiff voluntarily reimbursed her for a portion of her employment agency fee and that plaintiff gave her two cash bonuses during her tenure. The last bonus was given to Ms. Seitz only two weeks prior to the termination of her employment. Moreover, Ms. Seitz stated that plaintiff complimented her for her work on several occasions.
LSA-R.S. 23:1601 provides, inter alia:
"An individual shall be disqualified for benefits:
. . . .
(2) If the administrator finds that he has been discharged for misconduct connected with his employment...."
In Atkins v. Doyal, 274 So. 2d 438, 440 (La.App. 1st Cir. 1973), we stated:
*727 "Misconduct sufficient to disqualify a claimant from receiving unemployment compensation has been consistently defined to mean an act of willful or wanton disregard of the employer's interest; a deliberate violation of the employer's rules; a disregard of standards of behavior which the employer has the right to expect of his employee; or negligence in such degree or recurrence as to manifest culpability, wrongful interest, or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer. Horns v. Brown, 243 La. 936, 148 So. 2d 607, 609 (1963); Payne v. Antoines Restaurant, 217 So. 2d 514 (4th La.App.1969); Heard v. Doyal, 259 So. 2d 412 (2nd La.App.1972)."
In determining whether or not an employee has committed acts of misconduct sufficient to disqualify him from unemployment compensation benefits, the statute must be construed liberally in favor of finding that the employee is entitled to benefits. Parker v. Gerace, 354 So. 2d 1022 (La. 1978). We determine that, under the facts of this case, Ms. Seitz is entitled to receive unemployment compensation benefits. While her actions were not always those of the model employee, we do not find that she was guilty of acts of misconduct sufficient to disqualify her. Hence, we find the trial court's judgment on the merits to be correct.
For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are to be borne by plaintiff.
AFFIRMED.
NOTES
[1] The tape recording of an administrative hearing need not be transcribed unless further review is initiated. LSA-R.S. 23:1631.
[2] We note that under LSA-R.S. 23:1634 the court is not permitted to receive evidence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596559/ | 399 So. 2d 103 (1981)
Neil JENKINS, Appellant,
v.
STATE BOARD OF EDUCATION, Appellee.
No. UU-191.
District Court of Appeal of Florida, First District.
May 29, 1981.
Leslie King O'Neal of Graham, Markel, Scott, Marlowe, Appleton & McDonough, P.A., Orlando, for appellant.
Gene T. Sellers, Tallahassee, for appellee.
ROBERT P. SMITH, Jr., Judge.
Jenkins, holder of a Florida teaching certificate in the areas of music, education, and junior college, appeals from an order of the Governor and Cabinet, sitting as the State Board of Education, suspending his certificate for two years. The stated basis for the suspension is that Jenkins violated Fla. Admin. Code R. 6B-1.02(2)(c), a rule of the State Board of Education, in that he "did not `make reasonable effort to protect [a certain student] from conditions harmful to learning or to health and safety.'" We reverse the Board's order.
The Board entered its order to this effect on findings of fact adopted from the recommended order of a DOAH hearing officer, who heard the testimony and recommended dismissal of this petition by the Professional Practices Council for the revocation or suspension of Jenkins's license. Sections 231.09, .28, Fla. Stat.(1979). At the time of the incident complained of, Jenkins was employed by the Osceola County School Board as a high school music teacher. The hearing officer's findings of fact that were the stated basis for the State Board's order *104 were that Jenkins and a 16-year-old female student were driving back at night to St. Cloud from Cocoa, where they and other students had attended a church drama program;
They stopped at Burger King to get some food, and then began to drive back to St. Cloud; the student later complained of stomach cramps and got into the back seat of Respondent's car; some time later, the student asked the Respondent to stop the car because she was feeling worse; Respondent pulled off the road into a dirt side road and backed his car into a cattlegap entrance way with his car facing toward the side road... .
When police officers approached to investigate the parked car, Jenkins was in the back seat of the car with the student. There was evidence before the hearing officer, not alluded to either in the hearing officer's findings or in the State Board's order, that Jenkins was clad only in trousers and socks when the police approached, though the temperature on that March night was in the "high 30's to low 40's."
Little imagination is required to raise suspicions that this teacher was engaged in sexual misconduct toward and with his student. That in effect was the formal charge against Jenkins that he "was guilty of improper conduct toward a female student," otherwise described as "conduct which is improper and a poor example for students and personal conduct which seriously reduces his effectiveness as an employee of the school board." Section 231.28 provides that the Department may suspend or revoke a teaching certificate if the teacher is
(1) ... found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board... .
With an exaggerated sense of delicacy, the formal charge against Jenkins alluded only to "improper conduct toward a female student" and left the rest to imagination, but the Professional Practices Council made clear before the hearing officer, by argument and by its proposed recommended order, that the "improper conduct" was of a sexual nature. The Council's presentation to the Governor and Cabinet was freighted with the same implications. In the briefs and oral argument before us, counsel for the State Board made the same suggestion.
The trouble with this view of the record is that the DOAH hearing officer explicitly rejected it as a matter of fact, and the Governor and Cabinet expressly adopted the hearing officer's findings of fact. The recommended order stated at length:
Several students testified that Respondent and the subject student were often together, but the overwhelming weight of the evidence is that relationship was not improper or any different from Respondent's relationship with other students.
James Heberlin and Bruce DeBoard, both Osceola School Board Members, testified that they would vote to rehire Respondent as an employee of the School Board. Mr. DeBoard also testified that he received several letters from citizens supportive of Respondent and had received no letters opposing him.
Mrs. Ramona Norman, mother of the female student involved in the subject incident, testified that she trusted Respondent as a teacher with her daughter and did not believe that any improper conduct occurred during the subject incident or at any other time. Mrs. Norman also testified that her daughter had been treated medically before and after the March 11, 1979, incident for stomach and adolescent emotional problems.
Reverend Myra James, former minister at Respondent's church, testified that Respondent was very active in church activities, particularly with youth groups. She added that he was very conscientious, dedicated and interacted extremely well with youth. Based on her familiarity with Respondent, Reverend James could not perceive the Respondent engaging in any untoward conduct with a student as alleged.
The student involved in the subject incident testified respecting the alleged incident. She confirmed Respondent's testimony that Respondent pulled over to a side road in an effort to comfort her and *105 that nothing improper occurred then, or ever, between Respondent and herself.
There was no evidence offered to support the allegation that the Respondent's effectiveness as a teacher was reduced because of the alleged incident. See Boyette v. Professional Practices Council, 346 So. 2d 598, 600 (Fla.1st DCA 1977). To the contrary, two School Board Members as well as other students testified that the Respondent continued to enjoy a good reputation in the community as a teacher and that the subject incident has had no adverse effects on his ability to function as a teacher.
By adopting the hearing officer's recommended finding that Jenkins's relationship with the student "was not improper or any different from Respondent's relationship with other students," and that "nothing improper occurred then, or ever," the State Board effectively rejected and dismissed as unfounded all implications and innuendos of sexual misconduct. The State Board had hardly any choice in the matter: the only satisfactory ground for rejecting the hearing officer's findings of fact on an issue such as this would have been that the findings "were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law." Section 120.57(1)(b)9; McDonald v. Dept. of Banking and Finance, 346 So. 2d 569, 579 (Fla.1st DCA 1977).
By adopting the hearing officer's recommended finding that Jenkins's effectiveness as a teacher has in no way been reduced, the State Board rendered impossible any finding that Jenkins, as charged, was guilty of "personal conduct which seriously reduces his effectiveness as an employee of the school board." Section 231.28(1).
What, then, is Jenkins now found guilty of, and for what cause shall his teaching certificate be suspended for two years?
The State Board's conclusion, substituted for the charge that Jenkins "was guilty of improper conduct toward a female student" that "seriously reduces his effectiveness" as a teacher, is that Jenkins "did not `make reasonable effort to protect the student from conditions harmful to learning or to health and safety' as required by [Rule] 6B-1.02(2)(c)," which provides:
(2) In fulfilling his obligations to the student, the educator ... (c) shall make reasonable effort to protect the student from conditions harmful to learning or to health and safety.
The State Board's order does not tell us its reasons for considering that the student was threatened with "conditions harmful to learning or to health and safety" and that Jenkins failed to make reasonable efforts to protect the student from those conditions. Since the sexual overtones have been eliminated from the case, we can only speculate that the Board's finding of "conditions harmful to ... health and safety" referred to the girl's stomach cramp, and that the Board faulted Jenkins, to the extent of a two-year suspension, for stopping "in an effort to comfort" the girl rather than driving on for medical attention. This speculation on our part is of course no proper substitute for an agency's elucidation of nonrule policy deduced from a statute or rule. General Development Corp. v. Division of State Planning, 353 So. 2d 1199, 1210 (Fla.1st DCA 1977).
But that deficiency is inconsequential in this case.
Even if we were inclined to defer to the State Board's reading of Rule 6B-1.02(2)(c) into the circumstances of this case and that is a most attenuated and vulnerable reading of the rule, we think a reversal of this suspension order would nevertheless be required, for the reason that it is not a statutory ground for suspension that the teacher simply "did not" that being the State Board's only finding supply the degree of student protection contemplated by the rule, or by the Board. More than simple failure to comply must be shown; more than negligence must be shown. What must be shown, if license suspension or revocation is to be the penalty, is that the teacher refused to comply with a rule. Section 231.28 provides:
*106 The Department of Education shall have authority to suspend the teaching certificate of any person for a period of time not to exceed 3 years, ... provided: [¶] (1) It can be shown that such person ... has refused to comply with the regulations of the State Board of Education or the school board in the district in which he is employed. (emphasis added)
There is no finding in the State Board's order that Jenkins "refused to comply" with Rule 6B-1.02(2)(c) as interpreted by the State Board. Nor is there any evidence in the record that Jenkins "refused to comply," which implies knowledge of an explicit requirement and a conscious decision not to comply. Nothing approaching that has been shown concerning Jenkins's asserted failure to make a "reasonable effort to protect the student from conditions harmful to learning or to health and safety."
The order suspending Jenkins's teaching certificate is REVERSED and the proceedings against him are DISMISSED.
SHAW, J., concurs.
CAWTHON, VICTOR M., Associate Judge, dissents, without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/767873/ | 205 F.3d 445 (1st Cir. 2000)
BEVERLY C. DAGGETT, ELAINE FULLER, CHRISTOPHER M. HARTE, MARK T. CENCI, JEFFREY I. WEINSTEIN, SHAWN LEVASSEUR, AND LIBERTARIAN PARTY OF MAINE, Plaintiffs, Appellants,ROLLIN STEARNS, NATIONAL RIGHT TO LIFE POLITICAL ACTION COMMITTEE STATE FUND, AND MAINE RIGHT TO LIFE COMMITTEE POLITICAL ACTION COMMITTEE STATE CANDIDATE FUND, Plaintiffs,v.COMMISSION ON GOVERNMENTAL ETHICS AND ELECTION PRACTICES,PETER B. WEBSTER, LINDA W. CRONKITE, HARRIET P. HENRY,G. CALVIN MACKENZIE, MERLE R. NELSON, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE COMMISSION ON GOVERNMENTAL ETHICS AND ELECTIONS PRACTICES OF THE STATE OF MAINE,SECRETARY OF STATE OF MAINE, AND ATTORNEY GENERAL OF MAINE, Defendants, Appellees.BEVERLY C. DAGGETT, ELAINE FULLER, CHRISTOPHER M. HARTE, MARK T. CENCI, JEFFREY I. WEINSTEIN, SHAWN LEVASSEUR, AND LIBERTARIAN PARTY OF MAINE, Plaintiffs,ROLLIN STEARNS, MAINE RIGHT TO LIFE COMMITTEE POLITICAL ACTION COMMITTEE STATE FUND, AND NATIONAL RIGHT TO LIFE POLITICAL ACTION COMMITTEE STATE FUND, Plaintiffs, Appellants,v.COMMISSION ON GOVERNMENTAL ETHICS AND ELECTION PRACTICES, PETER B. WEBSTER, LINDA W. CRONKITE, HARRIET P. HENRY, G. CALVIN MACKENZIE, MERLE R. NELSON, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE COMMISSION ON GOVERNMENTAL ETHICS AND ELECTIONS PRACTICES OF THE STATE OF MAINE, SECRETARY OF STATE OF MAINE, AND ATTORNEY GENERAL OF MAINE, Defendants, Appellees.BEVERLY C. DAGGETT, ELAINE FULLER, CHRISTOPHER M. HARTE, MARK T. CENCI, JEFFREY I. WEINSTEIN, SHAWN LEVASSEUR, AND LIBERTARIAN PARTY OF MAINE, Plaintiffs, Appellants,ROLLIN STEARNS, NATIONAL RIGHT TO LIFE POLITICAL ACTION COMMITTEE STATE FUND, AND MAINE RIGHT TO LIFE COMMITTEE POLITICAL ACTION COMMITTEE STATE CANDIDATE FUND, Plaintiffs,v.COMMISSION ON GOVERNMENTAL ETHICS AND ELECTION PRACTICES, PETER B. WEBSTER, LINDA W. CRONKITE, HARRIET P. HENRY, G. CALVIN MACKENZIE, MERLE R. NELSON, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE COMMISSION ON GOVERNMENTAL ETHICS AND ELECTIONS PRACTICES OF THE STATE OF MAINE, SECRETARY OF STATE OF MAINE, AND ATTORNEY GENERAL OF MAINE, Defendants, Appellees.BEVERLY C. DAGGETT, ELAINE FULLER, CHRISTOPHER M. HARTE, MARK T. CENCI,JEFFREY I. WEINSTEIN, SHAWN LEVASSEUR, AND LIBERTARIAN PARTY OF MAINE, Plaintiffs,ROLLIN STEARNS, MAINE RIGHT TO LIFE COMMITTEE POLITICAL ACTION COMMITTEE STATE CANDIDATE FUND, AND NATIONAL RIGHT TO LIFE POLITICAL ACTION COMMITTEE STATE FUND, Plaintiffs, Appellants,v.COMMISSION ON GOVERNMENTAL ETHICS AND ELECTION PRACTICES, PETER B. WEBSTER, LINDA W. CRONKITE, HARRIET P. HENRY, G. CALVIN MACKENZIE, MERLE R. NELSON, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE COMMISSION ON GOVERNMENTAL ETHICS AND ELECTIONS PRACTICES OF THE STATE OF MAINE, SECRETARY OF STATE OF MAINE, ANDATTORNEY GENERAL OF MAINE, Defendants, Appellees.
Nos. 99-2243, 99-2274, 00-1061 and 00-1066
United States Court of Appeals for the First Circuit
Heard January 5, 2000Order Reheard February 15, 2000Decided February 18, 2000Opinion Decided March 7, 2000
[Copyrighted Material Omitted][Copyrighted Material Omitted]
Mark Lopez with whom Nat Rosenblatt was on brief for appellant Daggett.
James Bopp, Jr., with whom Eric C. Bohnet, Daniel M. Snow, and James R. Mason, III, were on brief for appellants Stearns, Maine Right to Life Committee Political Action Committee State Candidate Fund, and National Right to Life Political Action Committee State Fund.
Phyllis Gardner and Andrew Hagler, Assistant Attorney Generals, with whom Andrew Ketterer, Attorney General, and Paul Stern, Deputy Attorney General, were on brief for appellees.
Glenn J. Moramarco and John R. Brautigam, with whom Arn Pearson and Gillian E. Metzger, were on brief for amici curiae Betheda Edmonds, Kathleen McGee, Linda McKee, Peggy Pendleton, and Elizabeth Watson.
Brenda Wright and John Bonifaz on brief for amicus curiae Maine People's Alliance.
Before Selya, Circuit Judge, Coffin and Campbell, Senior Circuit Judges.
ORDER OF COURT
1
Mindful of the imminent March 16, 2000, deadline for candidates for the Maine legislature who wish to seek qualification for public campaign funding, having made our best efforts to expedite these consolidated appeals, and having had the benefit of multiple briefings and two sets of oral presentations, we believe, in fairness to the litigants and others similarly situated, that we should announce our ultimate conclusions immediately, a full opinion setting forth our reasoning to follow in the near future.
2
We therefore announce our determination to affirm the judgments of the district court. We have concluded that the limits on contributions to candidates for Maine's legislature, 21-A M.R.S.A. 1015(1) & (2), 1056(1), are constitutional and that the Maine Clean Election Act, 21-A M.R.S.A. 1121-1128, to the extent challenged in these appeals, also passes constitutional muster. Further, we conclude that the challenge to the limits on contributions to gubernatorial candidates was appropriately dismissed.
3
To avoid any confusion as to the dates for seeking rehearing or certiorari, we announce this determination now but will not enter judgment until the opinion is issued.
4
It is so ordered.
OPINION
March 7, 2000
5
COFFIN, Senior Circuit Judge.
6
This case involves a challenge to Maine's attempt to reconcile the state's interest in curbing the power of money in politics with the sweeping strictures of the First Amendment. In 1996, Maine voters passed via referendum An Act to Reform Campaign Finance, creating the Maine Clean Election Act, 21-A M.R.S.A. §§ 1121-1128, which introduced a public funding alternative to private fundraising for candidates for elective offices, and lowering the ceiling on campaign contributions, see id. §§ 1015(1) & (2), 1056(1).
7
Plaintiffs-appellants - legislative candidates, campaign contributors, political action committees (PACs), and the Maine Libertarian Party - challenged both the Act, asserting that the public funding mechanism unconstitutionally coerced candidates to participate, and the contribution limits, arguing that they infringed on the First Amendment rights of candidates as well as donors. The district court upheld the constitutionality of the public funding system and the contribution limits. Under the principles set forth by the United States Supreme Court in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), as recently applied in Nixon v. Shrink Missouri Government PAC, 120 S. Ct. 897 (2000), we conclude that the statutes are constitutionally sound. We therefore affirm.
I. Factual Background
8
Maine voters, pursuant to their authority under Part First, § 1, and Part Third, § 18, of Article IV of the Maine Constitution enacted the Maine Clean Election Act (MCEA) in November 1996 to take effect on January 1, 1999.1 The Act creates a system of optional public funding for qualifying candidates in state legislative and gubernatorial campaigns, both in primaries and the general election. See 21-A M.R.S.A. §§ 1121-1128.2 It establishes public funding beginning with the 2000 elections, see id. § 1123, and requires candidates to complete qualifying actions by March 16, 2000, see id. § 1122(8).
9
In order to qualify for public funding, a candidate must fulfill several requirements during the qualifying period. The candidate must file a declaration of intent that he is seeking certification. See id. § 1125(1). The candidate must seek "seed money contributions" in amounts not greater than $100, limited to an aggregate amount that varies depending on the office sought: gubernatorial candidates are limited to $50,000, Senate candidates to $1,500, and House of Representatives candidates to $500. See id. §§ 1122(9) & 1125(2). With that seed money, candidates seek out "qualifying contributions," $5 donations in the form of a check or money order payable to the Maine Clean Election Fund ("Fund") in support of their candidacy from registered voters in their district. See id. §§ 1122(7) & 1125(3). Again, the requisite number of qualifying contributions depends on the type of seat sought: gubernatorial candidates must collect 2,500 contributions, Senate candidates 150 contributions, and House candidates 50 contributions. See id. § 1125(3).
10
Once certified as a "participating candidate" by the Maine Commission on Governmental Ethics and Election Practices, a candidate must agree not to accept any private contributions and not to make expenditures except from disbursements made to him from the Fund. See id. § 1125(6). The candidate transfers all unspent seed money to the Fund and receives an initial disbursement from the Fund. See id. § 1125(5) & (7).
11
The amount of the initial distribution is the average amount of campaign expenditures in the prior two election cycles for the particular office, although for the 2000 elections that amount has been discounted by 25% in order to ensure the availability of adequate funds. See id. § 1125(8); State of Maine Commission on Governmental Ethics and Election Practices, A Candidate's Guide to the Maine Clean Election Act (1999) [hereinafter Candidate's Guide].3 For the 2000 elections, participating Senate candidates will receive an initial distribution of $4,334 for the primary ($1,785 if uncontested) and $12,910 for the general election; House candidates will receive $1,141 for the primary ($511 if uncontested) and $3,252 for the general election. See Candidate's Guide (Table: Maine Clean Election Fund Distributions for State Senators and Representatives).4 Participating candidates face both civil and criminal penalties for violation of the participation rules. See 21-A M.R.S.A. § 1127.
12
In addition to the initial disbursement, a participating candidate receives a dollar-for-dollar match of any monies raised by a non-participating opponent after the opponent raises more than the initial disbursement allotted to the participating candidate. See id. § 1125(9). Matching funds are also provided to correspond to "independent expenditures," outlays made by an independent entity endorsing the participant's defeat or the non-participating opponent's election. See id. Once the participating candidate has received double the initial distribution in matching funds, however, the matching funds cease. See id. No matter how much additional fundraising the participant's non-participating opponent undertakes, the participant's matching funding is capped at two times the initial distribution.
13
Reduced limits on contributions by individuals and groups to political candidates were enacted simultaneously with the Act by the voter referendum and effectively apply only to non-participating candidates. The limit on contributions made by an individual to a candidate in an election was reduced to $500 for gubernatorial candidates and $250 for all other candidates, see id. § 1015(1); the limit on contributions to a candidate by a political committee, other committee, corporation, or association in a single election was reduced to $500 for gubernatorial candidates and $250 for all other candidates, see id. §§ 1015(2) & 1056(1). In addition, a pre-existing disclosure statute requiring reporting of independent expenditures aggregating more than $50 in any election was adapted to conform to the Act. See id. § 1019.
14
The Daggett appellants are candidates who sought legislative office in 1998 and plan to seek office again in 2000, the Libertarian Party of Maine, and an individual campaign contributor. Their major complaint about the public funding system is that as a whole it is coercive in its efforts to encourage candidates to become publicly funded and therefore unconstitutionally burdens the First Amendment rights of candidates. The Stearns appellants are an individual and two political action committees, the Maine Right to Life Committee Political Action Committee State Candidate Fund and the National Right to Life Political Action Committee State Fund, which have made contributions to and expenditures on behalf of political candidates. They challenge in particular the constitutionality of providing matching funds for independent expenditures, arguing that it violates their political speech and associational rights. Both sets of appellants contest the constitutionality of the reduced contribution limits. The defendants are the Maine Commission on Governmental Ethics and Election Practices, responsible for implementing the statutes, Maine's Attorney General, and its Secretary of State.5
15
The district court held that the Clean Election Act viewed in its entirety was not sufficiently coercive as to make participation involuntary and that the matching funds provision, in particular, withstood appellants' challenge. See Daggett v. Webster, 74 F. Supp. 2d 53, 55 (D. Me. 1999). The court retained the issue of whether the contribution limits were per se constitutional and entered partial final judgment on the remainder of appellants' claims pursuant to Fed. R. Civ. P. 54(b). Briefs were filed and oral arguments heard on the interlocutory appeal of this order. The district court subsequently upheld the independent constitutionality of the contribution limits for House and Senate candidates and dismissed the challenge to the limits on contributions by political parties due to lack of standing and the limits for gubernatorial candidates due to lack of both ripeness and standing. See Daggett v. Webster, 81 F. Supp. 2d 128 (D.Me. 2000). Appellants appealed that decision as well.
16
We allowed appellants' motions to consolidate the appeals, expedited the briefing schedule, and shortly after oral argument issued an order announcing our conclusions in order to allow the parties and others to proceed in the face of imminent statutory deadlines. We now explain those conclusions and address all aspects of the consolidated appeals.6 First we address the independent challenges to the contribution ceilings and the matching funds provision, as it relates to the independent expenditures of non-candidates, and then we consider the contention that the public funding system, as a whole, is unconstitutionally coercive.
II. Contribution Limits
17
Both sets of appellants challenge the per se constitutionality of the limits on contributions. They allege that the limits violate their First Amendment free speech and associational rights.
18
The district court, without the benefit of the recently decided Supreme Court decision in Shrink Missouri PAC, held that the contribution limits are not unconstitutional because they do not burden the First Amendment rights of candidates or donors. The court invoked the principles set forth in the Supreme Court's landmark political speech case of Buckley, in which the Court upheld a $1,000 limit on contributions by individuals or groups to federal office candidates and a $5,000 limit on donations from "political committees." In Shrink Missouri PAC, the Court reaffirmed the principles enunciated in Buckley and applied them to validate a $1,075 limit on contributions to certain candidates for offices in Missouri. See Shrink Missouri PAC, 120 S. Ct. at 903-10.
19
Political speech, including commentary on the qualifications of a political candidate, has long been recognized as "integral to the operation of the system of government established by our Constitution." Buckley, 424 U.S. at 14. Speech has historically been protected "to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Roth v. United States, 354 U.S. 476, 484 (1957); see also New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (restating the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open"). The protection afforded by the First Amendment is incorporated into the Fourteenth Amendment and thus it applies to this action by a state. See New York Times, 376 U.S. at 276-77.
20
An indirect restriction on political speech, in the form of a limitation on contributions to candidates, was evaluated and upheld by the Court in Buckley. The Court identified three areas of potential First Amendment implication: the contributor's free speech, the candidate's free speech, and the freedom of association. First, regarding a contributor's right to free speech, the Court discounted the effect of contribution ceilings:
21
[A] limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor's ability to engage in free communication. A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing. At most, the size of the contribution provides a very rough index of the intensity of the contributor's support for the candidate. A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor's freedom to discuss candidates and issues. While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor.
22
Buckley, 424 U.S. at 20-21 (footnote omitted).
23
Second, with respect to candidates' free speech rights, the Court indicated that contribution limits are constitutional if they do not prevent candidates from "amassing the resources necessary for effective advocacy." See id. at 21. The Court concluded that there was "no indication . . . that the contribution limitations imposed by the [Federal Clean Election] Act would have any dramatic adverse effect on the funding of campaigns and political associations." Id. In Shrink Missouri PAC, the Court explained that in Buckley, "We asked, in other words, whether the contribution limitation was so radical in effect as to render political association ineffective, drive the sound of a candidate's voice below the level of notice, and render contributions pointless." Shrink Missouri PAC, 120 S. Ct. at 909.
24
Third, the Court identified the major constitutional issue invoked by contribution limits: "[T]he primary First Amendment problem raised by the Act's contribution limitations is their restriction of one aspect of the contributor's freedom of political association." Buckley, 424 U.S. at 24-25. The Court pronounced that "[m]aking a contribution, like joining a political party, serves to affiliate a person with a candidate." Id. at 22. Freedom of political association is a "'basic constitutional freedom,'" restrictions on which are subject to the "'closest scrutiny.'" See id. at 25 (citations omitted). Yet the right is not absolute and even a "significant interference" may be sustained if the state demonstrates a "sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms." Id. (internal quotations and citations omitted).
25
The Court in Shrink Missouri PAC, while applying the principles of Buckley, supplied a clarification of approach that represents a checkrein on the enhancement of the state's burden implicit in some lower court cases subsequent to Buckley. See Shrink Missouri PAC, 120 S. Ct. at 909. Acknowledging that "[p]recision about the relative rigor of the standard to review contribution limits was not a pretense of the Buckley per curiam opinion," the Court referred to the general reliance on "'exacting scrutiny'" and elaborated: "under Buckley's standard of scrutiny, a contribution limit involving 'significant interference' with associational rights . . . could survive if the Government demonstrated that the contribution regulation was 'closely drawn' to match a 'sufficiently important interest,' . . . though the dollar amount of the limit need not be 'fine tun[ed].'" Id. at 903-04 (quoting Buckley, 424 U.S. at 25, 30).7
26
It then invoked Buckley's identification of the actuality and appearance of corruption as the justification of contribution limits, see Buckley, 424 U.S. at 26-27, adding: "In speaking of 'improper influence' and 'opportunities for abuse' in addition to 'quid pro quo arrangements,' we recognized a concern not confined to bribery of public officials, but extending to the broader threat from politicians too compliant with the wishes of large contributors." Shrink Missouri PAC, 120 S. Ct. at 905.
27
The Court in Shrink Missouri PAC also spoke to several related issues. It observed that although the quantum of evidence of corruption or its appearance in Buckley "exemplifies a sufficient justification for contribution limits, it does not speak to what may be necessary as a minimum." Id. at 906. It also made clear that an argument based on adjusting the Buckley-approved $1,000 ceiling for subsequent loss of purchasing power to establish the maximum limit was the product of misunderstanding. See id. at 909. And it was unmoved by the argument that contribution limits necessarily favor incumbents over challengers. See id. at 905 n.4. Finally, the Court was apparently unimpressed that following the imposition of the contribution limits, total spending for five statewide offices affected by the $1,075 contribution limit declined by more than half, a fact pointed out in Justice Thomas's dissent. See id. at 925 n.10 (Thomas, J., dissenting). In Buckley, the Court was faced with the more benign statistic, agreed to by the parties, that only about 5% of the funding raised by all federal congressional candidates in the prior election would not have been allowed by the limits. See Buckley, 424 U.S. at 21 n.23.8
28
Given this framework of principles, we first consider whether there is sufficient evidentiary support of the threat of corruption or its appearance to warrant the potential infringement on the freedom of association by the contribution ceilings, because if this infringement is constitutional, any limits on free speech rights would necessarily pass muster. Following that, we will consider whether the limits prevent candidates from amassing the necessary resources, thus eclipsing their free speech rights.
29
Generally, factual findings of the district court are reviewed only for clear error. See Fed. R. Civ. P. 52(a). An appellate court's review of a First Amendment claim sometimes, however, "carries with it a constitutional duty to conduct an independent examination of the record as a whole, without deference to the trial court." Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 567 (1995) (citing Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984)). In a case like this, "'a conclusion of law as to a Federal right and a finding of fact are so intermingled as to make it necessary, in order to pass upon the Federal question, to analyze the facts.'" Id. (quoting Fiske v. Kansas, 274 U.S. 380, 385-86 (1927)). Our decision must be based largely on legislative, as opposed to adjudicative, facts. See Daggett, 81 Supp.2d at 128-30 Daggett v. Commission on Gov't Ethics and Election Practices, 172 F.3d 104, 112 (lst Cir. 1999) ("[S]o-called 'legislative facts,' which go to the justification for a statute, usually are not proved through trial evidence but rather by material set forth in the briefs, the ordinary limits on judicial notice having no application to legislative facts." (citing Fed. R. Evid. 201 advisory committee's note)).9
30
A. Evidence of Corruption and its Appearance
31
We now inquire whether, under the guidelines of Shrink Missouri PAC, the evidentiary showing of corruption or its appearance is sufficient to establish Maine's interest. There, the Court found that the evidence in support of Missouri's statute was more than sufficient to sustain the state's evidentiary obligation. See Shrink Missouri PAC, 120 S. Ct. at 907-08 ("[T]his case does not present a close call requiring further definition of whatever the State's evidentiary obligation may be. . . . There might, of course, be need for a more extensive evidentiary documentation if petitioners had made any showing of their own to cast doubt on the apparent implications of Buckley's evidence and the record here."); see also Buckley, 424 U.S. at 27 (because corruption can "never be reliably ascertained," all that is required is that the threat not be "illusory"). Although the evidence did not show that the Missouri legislature relied on the findings accepted in Buckley, a state senator, the co-chair of the legislature's Interim Joint Committee on Campaign Finance Reform, stated that large contributions had the "'real potential to buy votes.'" See Shrink Missouri PAC, 120 S. Ct. at 907. There were also several newspaper accounts recounting large contributions that supported inferences of impropriety. See id. Finally, the evidence established that "'74 percent of [those who voted on a referendum to impose contribution limits in] Missouri determined that contribution limits are necessary to combat corruption and the appearance thereof.'" Id. at 908 (citation omitted).
32
In this case, the State contends that Maine voters as well as legislators and those intimately involved in the political process have valid concerns about corruption and the appearance thereof caused by large contributions. Under the prior contribution limits of $1,000 per election for an individual and $5,000 for a PAC, a single political action committee could fund the average 1998 House campaign twice over and could provide over half of the average 1998 Senate campaign by making the maximum primary and general election donations. An individual, again making the maximum contributions, could provide nearly one-half of the average House race funding and over one-tenth of the average Senate campaign funding.
33
Further, the opportunity to make such large contributions translated into a perception among Maine voters that corruption was a reality in the State House. Statements similar to the one relied upon in Shrink Missouri PAC were offered here. One representative attested to the belief of many of his constituents that legislators are "beholden" to large contributors: Representative David Shiah, currently the House Assistant Majority Leader, attested that, "Based upon extensive conversations with voters in my district, it is my opinion that voters believe that there is too much money in politics today and that most politicians are beholden, or give special access, to those who give large amounts to their campaigns." Senator Chellie Pingree related instances in which she and other legislators were pressured to change their position on an issue or risk the loss of contributors' support. On one occasion, for example, she was admonished by lobbyists for a certain interest that if she continued to sponsor a bill in opposition to that interest, Democratic legislators would lose significant campaign contributions; after Pingree and Democratic leaders forged ahead with the legislation, the special interests did not, in fact, donate to Democratic leadership PACs the following year, despite their history of doing so.
34
An abundant file of press clippings includes both news stories and editorial comment covering the years 1995-1999. The following sampling suggests that large contributions have occurred in Maine and that Maine citizens are concerned about their impact on lawmakers. Indeed, the evidence to this effect is far greater than that cited in Shrink Missouri PAC.
35
One story states that "[r]anking lawmakers and their committees pulled in close to $400,000 in big gifts from special interests, almost all of which lobby the Legislature." Paul Carrier, Contributions Give Special Interests Political 'Box Seats,' Maine Sunday Telegram, Jan. 3, 1999, at 1A. One column declared, "There is nothing illegal about tobacco companies bankrolling political campaigns - only suspicious. We can debate the influence of campaign contributions till the cows come home, but one fact remains: The money is given on the expectation that it will influence policy." Editorial, Taking the Money, Maine Times, May 15, 1997. This sentiment has been oft-repeated: "A group with a certain point of view can buy influence during a political campaign with a campaign donation. Politicians routinely deny that influence is being bought; evidence is often to the contrary." Editorial, A Stain-Guard for State Government, Lewiston Sun-J., May 7, 1997. Not only are Maine's citizens concerned, but so are its political leaders; Governor Angus King, who self-imposed a contribution limit of $250 in his 1998 reelection campaign, stated on a national news program that "the problem is we've got this situation where you either have to have your own money or you have to be beholden." Newshour with Jim Lehrer, (National Public Radio broadcast, Mar. 26, 1997).
36
The fundraising practices of Maine legislators have drawn much criticism. One article reported negatively on a fundraising breakfast that an organization hosted for legislators who served on a committee handling bills affecting the organization, emphasizing the absence of average citizens. See Bill Nemitz, Dough Rises for Political Pancakes, Portland Press Herald, Mar. 8, 1996, at 1B. Another questioned the propriety of an industry hosting a fundraiser for a legislator the day before a hearing on an important bill affecting the industry. See Editorial, Gravel Industry Didn't Expect Anything for Lord Fund-Raiser?, Portland Press Herald, Mar. 26, 1996, at 6A. An editorial criticizing such fundraisers commented, "The whiff of too-close connections between influential lawmakers and interests with big money on the line added an acrid aroma to legislating in both the House and the Senate this session." Nancy Grape, Let's Change the Pockets Instead of Pocketing the Change, Portland Press Herald, Apr. 7, 1996, at 5C.10
37
In addition, a survey of Maine residents showed that over 70% of respondents believed that large campaign contributions were a major source of political corruption, that large donors received special treatment from legislators, that the new contribution limits would renew currently lagging faith in the integrity of the process among the electorate, and that the new limits would help decrease the potential for undue influence.11
38
Finally, we take note, as did the Court in Shrink Missouri PAC, of the fact that Maine voters approved the referendum imposing reduced contribution limits as indicative of their perception of corruption. The body of evidence here clearly surpasses the quantum of evidence offered and accepted as sufficient in Shrink Missouri PAC and would meet an even higher standard if one were applicable.
39
Moreover, the limits are sufficiently closely drawn by the standards set forth in Buckley, as applied in Shrink Missouri PAC. In Buckley, the Court concluded that the $1,000 limit on contributions to federal office seekers was closely drawn because it focused on "the narrow aspect of political association where the actuality and potential for corruption have been identified - while leaving persons free to engage in independent political expression, to associate actively through volunteering their services, and to assist to a limited but nonetheless substantial extent in supporting candidates and committees with financial resources." Buckley, 424 U.S. at 28. The statute here also leaves these avenues open and confronts only those making the largest donations, touching only 3.7% of donors to House campaigns and 7.1% of donors to Senate campaigns in 1998.12
40
Appellants assert that the statute is overbroad, reminiscent of the challengers' contentions in Buckley. They allege that the State's only compelling interest is in preventing corruption arising from large contributions and that $250 and $500 contributions are not sizeable enough to allow the fruition or create the appearance of corruption.
41
The Court in Buckley concluded that the statute was not overbroad because it was important for the government to safeguard against even the appearance of potential corruption; the Court's role was not to determine whether a higher limit would have been as effective, and a contribution limit was not invalid merely because of a legislative "failure to engage in . . . fine tuning." See id. at 30. The Court in Shrink Missouri PAC added that "the public interest in countering [the perception of corruption] was, indeed, the entire answer to the overbreadth claim raised in the Buckley case." Shrink Missouri PAC, 120 S. Ct. at 906. Cases referenced by Shrink Missouri PAC display the reluctance of the Court to second-guess legislative determinations, especially when corruption is the harm to be prevented. See, e.g., Federal Election Comm'n v. National Conservative Political Action Comm., 470 U.S. 480, 500 (1985) (recognizing the "proper deference to a congressional determination of the need for a prophylactic rule where the evil of potential corruption had long been recognized"); Federal Election Comm'n v. National Right to Work Comm., 459 U.S. 197, 210 (1982) ("Nor will we second-guess a legislative determination as to the need for prophylactic measures where corruption is the evil feared.").
42
Further, we cannot determine whether the limits would better serve their purpose if set at some other monetary level; "'[i]f it is satisfied that some limit on contributions is necessary, a court has no scalpel to probe, whether, say, a $2,000 ceiling might not serve as well as $1,000.'" Buckley, 424 U.S. at 30 (quoting court of appeals opinion, Buckley v. Valeo, 519 F.2d 821, 842 (D.C. Cir. 1975)). "Such distinctions in degree become significant only when they can be said to amount to differences in kind." Id. In Shrink Missouri PAC, the Court rejected a claim that the limitations at issue were "different in kind" from those allowed in Buckley. See Shrink Missouri PAC, 120 S. Ct. at 909.
43
The Court in Shrink Missouri PAC validated the constitutionality of a $1,075 limit for state-wide offices and any office representing more than 250,000 constituents, see id. at 903-10; in Maine, there are 35 Senate districts comprised of approximately 34,000 constituents and 151 House districts comprised of roughly 8,000 constituents. Moreover, campaigns are inexpensive compared to most other states.13 As the district court stated, "If contribution limits are permissible, differences in their level from state to state should reflect democratic choices, not court decisions." Daggett, 81 F. Supp. 2d at 139 (footnote omitted).
44
We cannot say that the limits here are different in kind from those upheld in Buckley and Shrink Missouri PAC. Thus, we conclude that Maine's contribution limits of $250 do not unconstitutionally infringe upon candidates' and donors' free association rights because they are supported by a sufficiently important governmental interest to which the ceilings are closely tailored. Now we turn to consider the final question regarding contribution limits, whether they disallow candidates from gathering enough financial support to efficiently advocate their views.
45
B. Ability of Candidates to Amass Sufficient Resources
46
Here we confront an extraordinary statistical battle between the parties. Both sides rely on data collected by the Commission through election reports as well as a database, compiled by the Edmonds amici, categorizing and summarizing the Commission data.
47
Appellants strongly urge that the contribution limits will cripple the campaigns of legislative candidates, assailing us with distressing statistics and dire predictions from their experts. The Daggett appellants marshal the statistics to support their argument that donations to legislative candidates would be greatly decreased and to emphasize particular categories of "losers," who they identify as challengers, those seeking traditionally expensive seats, and candidates unenrolled in one of the two parties recognized in Maine, who cannot collect contributions for a primary election. They argue that if even one candidate's ability to amass sufficient resources is affected, the limits are unconstitutional.
48
The statistics they provide are wide-ranging, and depict, for example, that in 1998 contributions to all House candidates would have declined by 16% and all Senate candidates by 33%;14 donations to Senate incumbents would have declined by 25.7% and to Senate challengers would have decreased by 39%.15 The Stearns appellants make similar baleful forecasts, calculating that 39% of the total funds contributed to Senate candidates and 21% of funds contributed to House candidates in 1998 would have been lost.16 They also highlight the worst-hit challengers, one of whom would have lost almost 73% of her funding.17
49
The State responds with its own statistics and the conclusion of its expert that the contribution ceilings will not have a significant effect on campaign fundraising. The State's expert, Professor Anthony Corrado, concluded that the average 1998 House candidate would have experienced a spending reduction of 14.7%, or $778, and the average Senate candidate 29.0%, or $5,694.18 Corrado concluded that in 1998, almost half of House candidates would have experienced no loss at all and nearly two-thirds would have lost less than 10%, or $318; approximately one-quarter of Senate candidates would have suffered no loss and almost one-half would have lost less than 10% of their funds, or $495.
50
The district court eschewed reliance on any of the statistics proffered by the parties and instead relied on the only concrete facts regarding the impact of the limits - information provided by the one election conducted since the limits took effect, a 1999 special election for the City of Lewiston's seat in the House. In that seven-week campaign, one candidate raised $10,892 and her opponent, without party support, raised $5,409; both were well above the 1998 expenditure average.
51
Although it was somewhat unique because by definition it was the only race occurring at that time and thus the candidates were not in competition for donors' dollars with candidates in other races, we agree that the Lewiston special election provides useful information. The only other concrete information available to us is that Governor Angus King succeeded in his reelection bid in 1998 under a self-imposed contribution limit of $250.19 These two pieces of information, in conjunction with other factors we have considered, suggest to us that the effects on campaign funding are not so significant as appellants predict.
52
The official records of the Commission state that in 1998 the average Senate candidate incurred expenses of $18,445 and the average House candidate $4,725. Beyond that, as evinced by the parties' calculations, there are a variety of approaches to analyzing the statistics in order to exaggerate or downplay the results. At present, only "worst-case" scenario statistics, which consider the historical funding pattern and discount any contribution made over the limit, are available. These statistics, however, do not account for adaptations in human behavior and the likelihood that patterns will change to recoup whatever may be lost. Thus, the only picture that we can create by utilizing past statistics is one which likely overpredicts the resultant loss of contributions. Indeed, with such a bellwether, the flock would never go anywhere.
53
For example, a donor who wishes to give $500 to a legislative candidate may choose to make a $250 donation to the primary campaign and another $250 donation for the general election, fully in compliance with the limits. Because some candidates will opt for public funding, there will be fewer candidates competing for donors' dollars. Furthermore, candidates will seek out additional supporters if necessary, as contemplated in Buckley:
54
The overall effect of the [contribution limits] is merely to require candidates and political committees to raise funds from a greater number of persons and to compel people who would otherwise contribute amounts greater than the statutory limits to expend such funds on direct political expression, rather than to reduce the total amount of money potentially available to promote political expression.
55
Buckley, 424 U.S. at 21-22; see id. at 26 n.27 ("Presumably, some or all of the contributions in excess of $1,000 could have been replaced through efforts to raise additional contributions from persons giving less than $1,000."). Candidates may, as some have predicted, resort to additional kinds of low-level fundraising events.
56
Moreover, there exists, as appellants' expert acknowledged, the obvious opportunity for more members of a family, or officers and employees of a company, to make individual contributions. And there is the open-ended possibility for new PACs to form in support of a candidate, a group of candidates, or a legislative objective.
57
With regard to particularly affected groups, we reiterate that our role is not to probe the intricacies of the limit. See id. at 30. Even if we were to consider the effects on individual groups, we would not find enough to deem the limits facially unconstitutional.
58
For example, incumbents are inherently benefitted by our political establishment and the limits do not make that advantage significantly more powerful. See, e.g., Shrink Missouri PAC, 120 S. Ct. at 905 n.4. (stating that in Buckley, "We found no support for the proposition that an incumbent's advantages were leveraged into something significantly more powerful by contribution limitations applicable to all candidates, whether veterans or upstarts").20 Further, the argument that candidates unenrolled in parties are unfairly prejudiced was rejected as a basis for overturning contribution limits in Buckley. See Buckley, 424 U.S. at 31, 33-34 (elaborating that "the record provides no basis for concluding that the [Federal Election Campaign] Act invidiously disadvantages such candidates" because "the Act on its face treats all candidates equally with regard to contribution limitations"). Finally, we cannot accept appellants' argument that if even one candidate is affected the limit is unconstitutional; "a showing of one affected individual does not point up a system of suppressed political advocacy that would be unconstitutional under Buckley." Shrink Missouri PAC, 120 S. Ct. at 909.
59
In sum, under Maine's contribution limits, any person who wishes to contribute to a candidate or engage in independent speech may do so; candidates are free to solicit from any individual they wish; 96.3% of House candidate donors and 92.9% of Senate candidate donors can continue to contribute at the level they did in the last election,21 and the average House candidate would lose only approximately $778 and Senate candidate $5,694. We cannot say, in the language of Shrink Missouri PAC, that the limits on contributions to Maine's legislative candidates are"so radical in effect as to render political association ineffective, drive the sound of a candidate's voice below the level of notice, and render contributions pointless." Id.
60
We add one observation to what has been an effort to assess the likely impact of contribution limits under ever-changing conditions by a branch of government singularly removed from the realities of political processes. It is the statistics distilled from experience that, far more than worst-case scenarios, should inform decisions as to proper contribution limits.
61
We note that our discussion applies to the limits on contributions from individuals, see 21-A M.R.S.A. § 1015(1), as well as those from groups and associations, see id. §§ 1015(2), 1056(1). As the Supreme Court explained in Buckley, limitations on contributions from groups are a necessary adjunct if limits on individual contributions are to be effective. See Buckley, 424 U.S. at 35-36.
62
Although the district court dismissed, due to lack of standing, the challenge on contributions from political parties, we see no reason to parse political parties from the more general "association" and "committee" referenced by the statute. See 21-A M.R.S.A. § 1052(2) & (5). In Maine, a political party's fundraising committee must register as a political committee the same way that a political action committee does.22 Here we have appellants who clearly have standing to challenge the group contribution limitation and our holding as to their claims necessarily applies to all groups. That is not to say, however, that political parties might not later mount a challenge to the limits once the effect of their application to parties becomes clear. See, e.g., Brown v. Socialist Workers '74 Campaign Comm., 459 U.S. 87, 91-98 (1982) (considering effect of state campaign expense reporting requirements on minor parties).
63
C. Contributions Limits for Gubernatorial Candidates
64
The district court also dismissed without prejudice appellants' challenge to the limits on contributions to gubernatorial candidates on the ground that none of the parties had standing to challenge this particular limit. In order to have standing, a party must exhibit an actual or threatened injury that is traceable to the defendant's action and that will be redressed by a favorable decision. See Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 36 (lst Cir. 1993) (citing Riverside v. McLaughlin, 500 U.S. 44, 51 (1991)). None of the appellant candidates claims to be a candidate for governor in 2002, and none of the appellant donors claim that they would give more than $500 to an identifiable gubernatorial candidate but for the contribution limits. The Daggett appellants hold out Christopher Harte, a long-time donor to various campaigns, as someone with a sufficiently real or threatened injury to challenge the limits, alleging that he also has "listener standing," because he is an interested individual who will hear less campaign speech under the new limits.
65
The concept of "listener standing," as briefly sketched by appellants, does not find support in the jurisprudence of this court, which has emphasized the importance of a real or threatened injury. See, e.g., Adams v. Watson, 10 F.3d 915, 919 (lst Cir. 1993) ("The injury-in-fact inquiry 'serves to distinguish a person with a direct stake in the outcome of a litigation - even though small - from a person with a mere interest in the problem.'" (quoting United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 690 n.14 (1973))). Even if the Supreme Court cases relied on by appellants, principally Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), stood for the proposition that a mere listener to campaign speech has standing to assert a challenge to a statute that he alleges will diminish such speech, which we doubt, in the case before us, there is no specific speech that appellants can point to that is being compromised. See id. at 756 (remarking that in that case a definite speaker existed who attested that but for the statute at issue he would advertise certain information).
66
Further, although the Stearns appellants have made gubernatorial contributions over $500 in the past, that is not sufficient. See O'Shea v. Littleton, 414 U.S. 488, 494 (1974) ("It must be alleged that the plaintiff 'has sustained or is immediately in danger of sustaining some direct injury' as the result of the challenged statute or official conduct." (quoting Massachusetts v. Melon, 262 U.S. 447, 488 (1923)). Finally, none of appellants' affidavits provide enough specificity about future plans for contributions to display a real or even a threatened injury.23 See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (injury may not be "conjectural" or "hypothetical" (internal quotations and citations omitted)). Therefore, we affirm the district court's dismissal without prejudice of the challenge to the gubernatorial campaign limits.
67
The district court also indicated that the issue was not ripe because the next election for governor in Maine will not occur until 2002.24 Ripeness is an issue that often overlaps with standing; "[j]usticiability concerns not only the standing of litigants to assert particular claims, but also the appropriate timing of judicial intervention." Renne v. Geary, 501 U.S. 312, 320 (1991); see also Rhode Island Ass'n of Realtors v. Whitehouse, 199 F.3d 26, 33 (lst Cir. 1999) ("[S]tanding and ripeness may substantially overlap."). Whether or not the issue is technically ripe, the clock is certainly ticking. Although apparently no one has officially declared candidacy for the governorship yet, potential candidates may very well be testing the waters and could begin seeking contributions at any time. We hope that the current situation, in which unforeseeable delay has caused both the parties and the court to face imminent statutory deadlines, will be avoided in the next phase of litigation, if there is one.
68
III. The Maine Clean Election Act: Matching Funds for Independent Expenditures
A. Matching Funds
69
The Stearns appellants challenge the per se constitutionality of that part of the matching funds provision, also known as a "trigger," that grants funds to participating candidates based on independent expenditures made either against their candidacy or on behalf of their non-participating opponent. Appellants contend that this practice violates the First Amendment rights of non-participating candidates and those who wish to make independent expenditures by chilling as well as penalizing their speech. Essentially, their argument boils down to a claim of a First Amendment right to outraise and outspend an opponent, a right that they complain is burdened by the matching funds clause.
70
Appellants further argue that independent expenditures should not be treated as campaign contributions by the statute because independent expenditures have traditionally been afforded broader protection. See, e.g., Shrink Missouri PAC, 120 S. Ct. at 904 (expenditure restrictions are a direct restraint on speech while contribution limits are only marginal restrictions on speech (citing Buckley, 424 U.S. at 20-21) (footnote omitted)); National Conservative PAC, 470 U.S. at 497 (noting the "fundamental constitutional difference between money spent to advertise one's views independent of the candidate's campaign and money contributed to the candidate to be spent on his campaign"). Appellants also maintain that their freedom of association is eclipsed by this provision because it forces them to be associated with candidates they oppose by in effect facilitating their speech. They urge that even if the Act is found constitutional on whole, this particular provision should be struck.
71
We review the challenged provision of the statute to determine whether it burdens First Amendment rights, and if it does, whether it is narrowly tailored to serve a compelling state interest. See, e.g., National Conservative PAC, 470 U.S. at 496 (determining that there was no "sufficiently strong governmental interest" to support a limit on independent political committee expenditures); Iowa Right to Life Comm., Inc. v. Williams, 187 F.3d 963, 967 (8th Cir. 1999) (stating that restrictions on independent expenditures are content-based and therefore subject to "most exacting scrutiny" (internal quotations and citations omitted)).
72
Direct limitations on independent expenditures have been found impermissibly to burden constitutional rights of free expression. See Buckley, 424 U.S. at 44; New Hampshire Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 18-19 (lst Cir. 1996) (invalidating New Hampshire statute limiting independent expenditures to $1,000 per election). Such cases are of limited application, however, because they involve direct monetary restrictions on independent expenditures, which inherently burden such speech, while the Maine statute creates no direct restriction.
73
Moreover, the provision of matching funds does not indirectly burden donors' speech and associational rights. Appellants misconstrue the meaning of the First Amendment's protection of their speech. They have no right to speak free from response - the purpose of the First Amendment is to "'secure the "widest possible dissemination of information from diverse and antagonistic sources."'" Buckley, 424 U.S. at 49 (citations omitted); see Pacific Gas & Elec. Co. v. Public Utils. Comm'n, 475 U.S. 1, 14 (1986) (there exists no right to speak "free from vigorous debate"). The public funding system in no way limits the quantity of speech one can engage in or the amount of money one can spend engaging in political speech, nor does it threaten censure or penalty for such expenditures. These facts allow us comfortably to conclude that the provision of matching funds based on independent expenditures does not create a burden on speakers' First Amendment rights.
74
Appellants rely heavily on Day v. Holahan, 34 F.3d 1356 (8th Cir. 1994), in which the Eighth Circuit invalidated Minnesota's campaign finance statute, which increased a participating candidate's expenditure limit based on independent expenditures made against her or for her major party opponent and under some circumstances matched such independent expenditures. See id. at 1359-62.25 The court held that "[t]o the extent that a candidate's campaign is enhanced by the operation of the statute, the political speech of the individual or group who made the independent expenditure 'against' her (or in favor of her opponent) is impaired." Id. at 1360. We cannot adopt the logic of Day, which equates responsive speech with an impairment to the initial speaker.26
75
Further, merely because the Fund provides funds to match both campaign donations and independent expenditures made on behalf of the candidate does not mean that the statute equates the two.27 Finally, appellants' freedom of association is not burdened because their names and messages are not associated - in any way indicative of support - with the candidate they oppose.
B. Reporting Requirements
76
The Daggett appellants, and notably not the Stearns appellants, challenge the twenty-plus-year-old requirement that independent expenditures aggregating more than $50 for a single election be reported, see 21-A M.R.S.A. § 1019. They contend that the reporting requirement, which was modified slightly by the voter referendum, is overly cumbersome and will have a chilling effect on independent speakers in violation of the First Amendment.
77
A disclosure statute requiring revelation of contributions in the political arena is subject to exacting scrutiny and survives only if: "(1) the statute as a whole . . . serve[s] a compelling governmental interest, and (2) a substantial nexus . . . exist[s] between the served interest and the information to be revealed." Vote Choice, 4 F.3d at 32. In other words, there must be a "'relevant correlation' or 'substantial relation' between the governmental interest and the information required to be disclosed." Buckley, 424 U.S. at 65 (footnotes omitted).
78
In Buckley, the Supreme Court upheld a reporting requirement for independent expenditures in excess of $100 in a calendar year, identifying three "sufficiently important" governmental interests: providing the electorate with information as to who supports a candidate and where political funding comes from, deterring corruption and the appearance thereof by "exposing large contributions and expenditures to the light of publicity," and gathering data essential to detect violations of contribution limits. See id. at 66-68. In Vote Choice, we explained that the state has a "compelling interest in keeping the electorate informed about which constituencies may command a candidate's loyalties." Vote Choice, 4 F.3d at 32.
79
The challenged statute requires reporting of expenditures totaling more than $50 in an election, to include the date and purpose of each expenditure and the name of each payee or creditor (if total expenditures exceed $500), an explanation of whether the expenditure was in support of or opposition to a candidate, and a statement under oath or affirmation as to whether the expenditure was made in concert with, or with the coordination or suggestion of, any candidate. See 21-A M.R.S.A. § 1019.
80
The Daggett appellants contend that no government interest is served by the reporting requirement in this case, because the threshold amount is too low and the State's interest in deterring corruption, in particular, is not met because expenditures of only $50 could not possibly lead to corruption. We find, however, that the interests defined in Buckley and Vote Choice are present to support Maine's statute. The reporting requirement allows voters access to information about who supports a candidate financially and it allows the Commission to effectively administer the matching funds provision of the Act. Further, it deters corruption and its appearance. Whether a $100 threshold would be equally effective, we cannot say; as we explained in Vote Choice, such determinations are "best left to legislative discretion" and will be deferred to unless "'wholly without rationality.'" See Vote Choice, 4 F.3d at 32 (quoting Buckley, 424 U.S. at 83). Moreover, the reporting requirements have a "relevant correlation" or a "substantial relation" to the government interests; the modest amount of information requested is not unduly burdensome and ties directly and closely to the relevant government interests. We remain unconvinced, as was the district court, that, if $100 was an appropriate threshold for requiring the reporting of independent expenditures in federal elections in Buckley, $50 is an illegitimate threshold for Maine elections.
IV. Public Financing System
81
Throughout this litigation, the Daggett appellants' overarching argument has been that the public funding scheme embodied in the Maine Clean Election Act is unconstitutional because it is impermissibly coercive - that is, it provides so many incentives to participate and so many detriments to foregoing participation that it leaves a candidate with no reasonable alternative but to seek qualification as a publicly funded candidate. We have already addressed the independent constitutionality of contribution limits and matching funds for independent expenditures, and now turn to consider whether the elements of the system, considered as a whole, create a situation where it is so beneficial to join up and so detrimental to eschew public funding that it creates coercion and renders a candidate's choice to pursue public funding essentially involuntary. Because the parties present only issues of law, we review the district court's judgment de novo. See Vote Choice, 4 F.3d at 31, 38 (citing LeBlanc v. B.G.T. Corp., 992 F.2d 394, 396 (lst Cir. 1993)).
82
The Supreme Court established conclusively in Buckley that "Congress may engage in public financing of election campaigns and may condition acceptance of public funds on an agreement by the candidate to abide by specific expenditure limitations." Buckley, 454 U.S. at 57 n.65 (determining that public financing scheme for federal elective offices was not inconsistent with the First Amendment).
83
Although public financing is not inherently unconstitutional, it may be so if it "burdens the exercise of political speech" but is not "narrowly tailored to serve a compelling state interest." See Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 657 (1990) (considering restrictions on corporate political expenditures, citing Buckley, 424 U.S. at 44-45); Vote Choice, 4 F.3d at 39 (suggesting that the court first considers whether First Amendment rights are burdened, and if so, determines whether the burdening statute is narrowly tailored to support a compelling governmental interest). Thus, we determine in the first instance whether appellants' First Amendment rights are burdened.
84
In Vote Choice, this court's primary public funding case, we indicated that the appropriate benchmark of whether candidates' First Amendment rights are burdened by a public funding system is whether the system allows candidates to make a "voluntary" choice about whether to pursue public funding. See Vote Choice, 4 F.3d at 38 ("[V]oluntariness has proven to be an important factor in judicial ratification of government-sponsored campaign financing schemes." (citing Buckley, 424 U.S. at 95; Republican Nat'l Comm. v. Federal Election Comm'n, 487 F. Supp. 280, 285 (S.D.N.Y.), aff'd mem., 445 U.S. 955 (1980)); see also Rosenstiel v. Rodriguez, 101 F.3d 1544, 1552-53 (8th Cir. 1996) (upholding public funding system when it did not impose a burden on candidates because it was not coercive). We explained that the government may create incentives for candidates to participate in a public funding system in exchange for their agreement not to rely on private contributions. See Vote Choice, 4 F.3d at 38-39.
85
A law providing public funding for political campaigns is valid if it achieves "a rough proportionality between the advantages available to complying candidates . . . and the restrictions that such candidates must accept to receive these advantages." Id. at 39 ("Put another way, the state exacts a fair price from complying candidates in exchange for receipt of the challenged benefits."). "[A]s long as the candidate remains free to engage in unlimited private funding and spending instead of limited public funding, the law does not violate the First Amendment rights of the candidate or supporters." Republican Nat'l Comm., 487 F. Supp. at 284.
86
Appellants argue that Maine's public financing system is involuntary because it not only deprives non-participants of the benefits of participation, but also penalizes them for not participating. They contend that the balance is weighted too heavily in favor of encouraging participation, and that, in practice, it provides no meaningful choice. Appellants highlight the matching funds provision and the potential labeling of participating candidates as "clean" by the Commission as particular elements of the public funding scheme that are too beneficial for publicly funded candidates.28 Appellants also argue that the funding formula will leave participating candidates with funding that is woefully inadequate, stating that it is "barely sufficient to run an unsuccessful - much less competitive - campaign in the great majority of cases." They assail us with statistics as to the average amount spent by various gubernatorial and legislative candidates over the last decade, in comparison with what they claim are the paltry sums disbursed to participating candidates. This line of reasoning, however, cuts strongly against appellants' argument that the statute is coercive because if the sums are unreasonably low, they will not attract, much less coerce, participation. We look at the provisions highlighted as problematic by appellants first, then evaluate the statute as a whole.
A. Matching Funds
87
We have already addressed the specific argument that providing matching funds to correspond to independent expenditures unfairly burdens a speaker's First Amendment speech and association rights. We now address appellants' claim that the matching funds provision penalizes non-participating candidates for raising money beyond that amount initially distributed to their participating opponents and allows participants to effectively bypass the spending limitation which is the only significant burden of participation.
88
Appellants argue that the matching funds provision is intended to thwart attempts by non-participating candidates to outspend their participating opponents. Appellants contend that non-participating candidates are unlikely to receive as many direct contributions because donors will not wish to give, knowing that their donations could result in additional funding for the participating opponent. They also complain about the fact that matching funds are allocated based on contributions to, as opposed to expenditures by, the non-participating opponent. They suggest that this is illegitimate for several reasons, all reflective of the fact that a non-participating candidate might spend contributions on something other than her campaign or create a reserve and the matching funds allegedly remove flexibility in the use of surplus funds.
89
Appellants also claim that, in the context of the scheme as a whole, allocating matching funds to correspond to independent expenditures is unfair because the participating candidate, by receiving funds to correspond to expenditures over which the non-participating opponent has no control, effectively procures a larger pool of funds to work with than the non-participating opponent. They allege that this provision will result in fewer independent expenditures on behalf of non-participating opponents.29
90
We cannot say, however, that the matching funds create an exceptional benefit for the participating candidate. Maine's Act does not provide an unlimited release of the expenditure ceiling - it allocates matching funds for the participating candidate of only two times the initial disbursement. Thus, a non-participating candidate retains the ability to outraise and outspend her participating opponent with abandon after that limit is reached. Further, the non-participating candidate holds the key as to how much and at what time the participant receives matching funds.
91
The appellants' expert on campaign strategy, Jay Hibbard, revealed a downside of the matching funds bonus. He attested that "[c]ontributions and spending can be easily timed to avoid the effective release of matching funds, and therefore, thwart the objectives of the MCEA." Indeed, he added, heavy expenditures take place in the last ten days of a campaign. This is when attack ads occur and direct mail is timed to preclude a response before election. Moreover, the participating candidate, not having any way of foreseeing the timing or amounts of any matching funds, is unable to budget, to commit time for radio or television, or to plan, produce, or distribute printed material. Although we may deem an overstatement Hibbard's opinion that "the matching fund mechanism has been rendered meaningless," we can acknowledge the diminished utility of a belated trigger. Finally, in view of the initial moderate allowance, without the matching funds, even though they are limited in amount, candidates would be much less likely to participate because of the obvious likelihood of massive outspending by a non-participating opponent. As the state explained, the matching funds provision allows it to effectively dispense limited resources while allowing participating candidates to respond in races where the most debate is generated.30
92
Although no two public funding schemes are identical, and thus no two evaluations of such systems are alike, we derive at least general support from other courts' evaluations of trigger provisions. In Gable v. Patton, 142 F.3d 940 (6th Cir. 1998), the Sixth Circuit upheld a Kentucky statute that was clearly more beneficial than Maine's - participating candidates received a two-for-one match for private contributions raised, without any limitation. See id. at 947-49. Moreover, the Kentucky statute released a slate of publicly financed gubernatorial candidates from both expenditure limitations and a ban on accepting contributions within twenty-eight days of an election if non-participating opponents raised more than the initial expenditure limit for the participating candidates. See id. at 944. Even though the trigger provision provided a "substantial advantage" for publicly funded candidates, the court concluded that it did not rise to the level of coerciveness. See id. at 948-49 ("Absent a clearer form of coercion, we decline to find that the incentives inherent in the Trigger provision are different in kind from clearly constitutional incentives.").31
93
Other systems include trigger provisions that waive a participating candidate's expenditure limit once her non-participating opponent reaches a given threshold of contributions or expenditures, but allow the candidate to seek private funding rather than disbursing additional public funding. In Rosenstiel, the Eighth Circuit characterized the waiver of the expenditure limit in Minnesota's campaign finance law as "simply an attempt by the State to avert a powerful disincentive for participation in its public financing scheme: namely, a concern of being grossly outspent by a privately financed opponent with no expenditure limit." Rosenstiel, 101 F.3d at 1551. The court determined that the trigger provision was not coercive because it allowed a non-participating candidate to control his participating opponent's funding in a sense because it enabled him to raise funds up to a certain level before the matching funds were triggered. See id. In Wilkinson v. Jones, 876 F. Supp. 916 (W.D. Ky. 1995), a district court denied a request for an injunction against Kentucky's election financing statute that contained a similar waiver provision. See id. at 926-28 (assuming for the purpose of argument that the trigger provision chilled speech to some degree, the court found that the statutes were narrowly tailored to a compelling state interest).
94
With regard to matching funds corresponding to independent expenditures, we think that this contributes to any alleged coerciveness in only a minuscule way - that is, it will not play a measurable role in a candidate's decision to seek public funding because it is of such minimal proportion to the other aspects of the system. Further, if the state structured public funding with a blind eye to independent expenditures, such expenditures would be capable of defeating the state's goal of distributing roughly proportionate funding, albeit with a limit, to publicly funded candidates.
B. Labeling
95
Next, appellants prophesy that the Commission will label participating candidates as "clean," thereby creating an impermissible government endorsement that skews electoral dialogue by violating a principle of neutrality. They argue that the plain language of the statute requires the Commission to certify a candidate as a "Maine Clean Election Act candidate," and they declare that the labeling of participating candidates as "clean" is the most "ominous" aspect of the system.
96
Our review of the statute clarifies that it does not require the Commission, or anyone else, to classify candidates as "clean," and in fact, it refers to candidates as "participating" and "non-participating." See, e.g., 21-A M.R.S.A. § 1122(5) & (6) (defining "nonparticipating candidate" and "participating candidate"). The statute merely requires that a candidate be "certified," presumably either as a "Maine Clean Election Act candidate" or a "participating candidate," see id. § 1125(5), and further, the Commission has attested that it does not intend to tout participating candidates as "clean."32 Others may use pejorative labels for non-participating candidates, and they may just as easily use derogatory terms for participating candidates; on the other hand, participating candidates might call themselves "clean candidates." Be that as it may, such labeling is not required or sanctioned by the statute nor within the authority of the statute to control. For these reasons, any labeling performed by the Commission will not serve as a substantial benefit to participating candidates.
C. Cumulative Effect: Coerciveness
97
We now step back and look at the Maine public funding/matching funds/contribution limits system as a whole to see if the cumulative effect can be said to be impermissibly coercive. We have previously expressed that a "state need not be completely neutral on the matter of public financing of elections" and that a public funding scheme need not achieve an "exact balance" between benefits and detriments. See Vote Choice, 4 F.3d at 39 ("[W]e suspect that very few campaign financing schemes ever achieve perfect equipoise."). In fact, "a voluntary campaign finance scheme must rely on incentives for participation, which, by definition, means structuring the scheme so that participation is usually the rational choice." Gable, 142 F.3d at 949. Nevertheless, "there is a point at which regulatory incentives stray beyond the pale, creating disparities so profound that they become impermissibly coercive." Vote Choice, 4 F.3d at 38, 39 ("Coerced compliance with any fundraising caps and other eligibility requirements would raise serious, perhaps fatal, objections to a system . . . ."). The question before us is whether the "tilt" rises to the level of a coercive penalty.
98
In determining whether the net advantage to a participating candidate is so great as to be impermissibly coercive, we look both to cases where coerciveness has been found and those where the funding and contribution limits system has been upheld. In Wilkinson, a district court enjoined the enforcement of contribution limits that were lower, by a ratio of five-to-one, for non-participating candidates than participating candidates because the limits were so low for non-participating candidates that they constituted an unacceptable penalty for foregoing public financing. See Wilkinson, 876 F. Supp. at 929.33 In Shrink Missouri Government PAC v. Maupin, 71 F.3d 1422 (8th Cir. 1995), the Eighth Circuit held that a ban on contributions from political action committees and other organizations to privately funded candidates was unconstitutional because it prevented privately funded candidates from gaining access to funding sources to which they would be entitled but for the choice to eschew public funding and its expenditure limitations. See id. at 1425-26. The statutes at issue in both of these cases, however, created much harsher repercussions for non-participating candidates than the MCEA.
99
On the other hand, statutes creating an array of benefits even more enticing to candidates than the MCEA have been upheld. In Vote Choice, Rhode Island's public funding system was upheld when it disbursed matching funds for private donations up to a given ceiling, it waived the expenditure ceiling to the extent that a non-participating candidate exceeded it, it allowed a participant to raise donations in increments double that allowed for a non-participant, and it granted a participant free air time on community television stations. See Vote Choice, 4 F.3d at 38-40. In Gable, the court upheld Kentucky's arrangement, which granted participants a two-to-one match for all private dollars raised up to a certain expenditure limit and released the limit and continued to match funds at the two-to-one ratio after non-participating opponents collected more than the expenditure limit. See Gable, 142 F.3d at 947-49. In Rosenstiel, the Eighth Circuit upheld Minnesota's public funding system, which disbursed public subsidies for up to half of the expenditure ceiling, allowed taxpayer refunds of up to $50 for donations to participating candidates but not for donations to non-participating candidates, and completely released participants from expenditure limits after a non-participating opponent raised more than a certain percentage of the limit. See Rosenstiel, 101 F.2d at 1546-57.
100
Turning to Maine's system, we first observe that the benefits for a participating candidate are accompanied by significant burdens. The benefits to the candidate include the release from the rigors of fundraising, the assurance that contributors will not have an opportunity to seek special access, and the avoidance of any appearance of corruption. More peripheral benefits include the ability to bypass a small number of additional reporting requirements, see 21-A M.R.S.A. § 1017(3-B), and the opportunity to be free of the reduced contribution limits imposed on private contributions.
101
In order to gain these benefits, however, the candidate must go through the paces of demonstrating public support by obtaining seed money contributions as well as a substantial number of $5 qualifying contributions. Additional detriments include the limited amount of public funding granted in the initial disbursement; the uncertainty of whether and when additional funds will be received based on an opponent's fundraising; the ultimate cap on matching funds; and the foreclosure of the option of pursuing any private campaign funding or spending any monies above those disbursed by the Commission.
102
With regard to the contribution limits, we do not believe that they serve as a coercive penalty for non-participating candidates. Until the privately funded candidate reaches the funding level equivalent to the initial disbursement granted to his participating opponent, the contribution limits may serve to the disadvantage of the privately funded candidate. Nevertheless, once the privately funded candidate exceeds that initial disbursement level of his opponent and until he reaches the level at which his opponent's matching funds run out, the contribution limits work to the detriment of both candidates because the less the privately funded candidate raises the less his participating opponent receives in matching funds.
103
In conclusion, the incentives for a Maine candidate, as the district court characterized them, are "hardly overwhelming." Despite appellants' contention that a participating candidate cedes nothing in exchange for public funding, there are in fact significant encumbrances on participating candidates. The constraints on a publicly funded candidate, we think, would give significant pause to a candidate considering his options. In fact, appellant Representative Elaine Fuller has attested that she will not seek certification and appellant Senator Beverly Daggett has not yet decided. We also take note of the Commission figures that, as of February 8, halfway through the qualifying period, 27.5% of 142 legislative candidates have filed declarations of intent to seek public funding; on the other hand, at least 38, or roughly 26.7%, of the candidates have received contributions or made expenditures in excess of seed money limitations, signaling a desire not to seek certification. Thus, we hold that Maine's public financing scheme provides a roughly proportionate mix of benefits and detriments to candidates seeking public funding, such that it does not burden the First Amendment rights of candidates or contributors.
104
We add a final call for vigilant monitoring. In this case we necessarily regard appellants' claims as facial challenges to the public funding system and contribution limits. Although we indicate no opinion as to the success that an as-applied challenge would meet in the future, that door remains open. See Citizens for Responsible Gov't State Political Action Comm. v. Buckley, 60 F. Supp. 2d 1066, 1073 (D. Colo. 1999) ("An 'as applied' challenge . . . asserts that the statute is unconstitutional as applied to a particular plaintiff's speech activity, even though the statute may be valid as applied to other parties."). Experience, after all, will be our best teacher.
V. Conclusion
105
We conclude, first, that contribution limits for House and Senate candidates in Maine are constitutional and matching funds corresponding to independent expenditures are independently constitutional aspects of Maine's public financing scheme. Further, we decide that the challenge to the limits on contributions to Maine's gubernatorial candidates was properly dismissed without prejudice due to appellants' lack of standing. Finally, we hold that Maine's public funding scheme for candidates seeking state office, embodied principally in the Maine Clean Election Act, does not violate the First Amendment rights of candidates or campaign contributors.
106
Affirmed.
Notes:
1
Several appellants challenged the Act shortly after the referendum was adopted, but their complaints were dismissed on ripeness and standing grounds. See Daggett v. Devine, 973 F. Supp. 203 (D. Me. 1997).
2
Maine is apparently the first state in the nation to implement full, as opposed to partial, public funding, meaning that after certification a publicly funded candidate seeks no private contributions. See Michael E. Campion, Note, The Maine Clean Election Act: The Future of Campaign Finance Reform, 66 Fordham L. Rev. 2391, 2395 (1998); Molly Peterson, Note, Reexamining Compelling Interests and Radical State Campaign Finance Reforms: So Goes the Nation?, 25 Hastings Const. L.Q. 421, 425 (1998).
3
The distribution amounts will be recalculated by the Commission at least every four years. See 21-A M.R.S.A. § 1125(8).
4
We realize that the district court's recitation of distribution amounts stated that Senate candidates would receive $2,100, as opposed to $1,785, for an uncontested primary. The district court's numbers were derived from a deposition. We utilize the Candidate's Guide references because they are both more recent and more reliable. Because there is no gubernatorial election in Maine in 2000, the funding amounts for future gubernatorial candidates remain in draft format. For uncontested general elections, no funds will be distributed. See 21-A M.R.S.A. § 1125(8)(D).
5
We recognize the contributions of amici to the case before us. The considerable input of both sets of amici, a group of individuals who plan to seek election in 2000 as publicly funded candidates and the Maine People's Alliance, was of great assistance to the district court as well as this court in our contemplation of the important issues presented.
6
Prior to consolidation, we asked the district court, via an order for clarification on a limited remand, to address particularly whether the reduced contribution limits, in conjunction with the other aspects of the system, created coercion. We also allowed the parties additional briefing on this issue. As a result of our decision to allow consolidation, we here address two sets of briefs, an additional group of limited briefs, and two sessions of oral arguments.
7
The Court addressed only the government's corruption interest when reviewing the contribution limits. Nevertheless, in its discussion of candidate expenditure limitations, it rejected as insufficient government interests in equalizing the relative voice of citizens, see Buckley, 424 U.S. at 48-49 ("[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment."), and suppressing the cost of campaigns, see id. at 57 ("[T]he mere growth in the cost of federal election campaigns in and of itself provides no basis for governmental restrictions on the quantity of campaign spending and the resulting limitation on the scope of federal campaigns.").
8
We, like the district court, have confined ourselves to Buckley and Shrink Missouri PAC principles rather than lower court cases on contribution limits. What was prophesy on the part of the district court has been confirmed by the teachings of Shrink Missouri PAC, which renders much of the post-Buckley case law of little value to us. Of the cases cited to us by appellants and decided by circuit courts of appeal, we have the following comments. Service Employees International Union v. Fair Political Processes Commission, 955 F.2d 1312 (9th Cir. 1992), did not involve an assault on limits per se; the court held, rather, that the imposition of limits based on annual contributions impermissibly favored incumbents. See id. at 1321. In California ProLife Council Political Action Committee v. Scully, 164 F.3d 1189 (9th Cir. 1999), the court merely affirmed a grant of a preliminary injunction without addressing the merits of any contribution limits. See id. at 1190 (explaining that "on this appeal, we do not consider whether the court applied the law properly" and ordering the district court to proceed to the merits of the case expeditiously). In both Carver v. Nixon, 72 F.3d 633 (9th Cir. 1995), and Russell v. Burris, 146 F.3d 563 (8th Cir. 1998), the Eighth Circuit engaged in reasoning disavowed by Shrink Missouri PAC, evaluating the limits in comparison to an inflation-adjusted $1,000 limit upheld in Buckley. See Carver, 72 F.3d at 641; Russell, 146 F.3d at 570. Moreover, in Russell, the court required evidence of actual corruption. See Russell, 146 F.3d at 569.
9
The Rules of Evidence state that the court may take judicial notice of legislative facts whether requested or not. See Fed. R. Evid. 201(c). A "legislative fact" is defined as "one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b).
10
See also Liz Chapman, Blue Cross Debate Potential Powder Keg, Lewiston Sun-J., Mar. 2, 1996, at 1A (Blue Cross insurance company held fundraising breakfast for committee co-chair two days after hearing on conversion of Blue Cross to for-profit company); Evan Halper, Money May Not Buy Access, But MBNA Sure is Trying Hard, Maine Times, Oct. 26, 1995 (contributions of a large credit card company, MBNA, to top federal and state officials); Editorial, Follow the Bouncing Dollars, Capital Weekly, Sept. 30, 1995 (receipt of checks by large group of legislators from Monsanto chemical company in same year that Maine Legislature voted to lift ban against one of its products).
11
See Lake Sosin Snell Perry & Associates, Inc., Public Attitudes on Campaign Financing in Maine: Findings from a Survey of Maine Citizens 3-5 (June 1997). Appellants highlight the fact that three-quarters of respondents did not believe that a $250 donation was "large." See id. at 5. Respondents also agreed, however, at a rate of 83%, that limits on contributions to legislative candidates should be $250 or higher. See Lake Sosin Snell Perry & Associates, Inc., Campaign Finance Issues: Banners from a Survey of 400 Residents of the State of Maine 7 (June 19-22, 1997). Our review does not require us to define "large" but rather to determine whether the contribution ceilings prevent candidates from "amassing the resources necessary for effective advocacy." See infra Section II.B. In making this determination, we remind ourselves of Justice Breyer's admonition that courts are not the "absolute arbiter of a difficult question best left, in the main, to the political branches." Shrink Missouri PAC, 120 S. Ct. at 911 (Breyer, J., concurring).
12
These statistics appear in the district court opinion, see Daggett, 81 F. Supp. 2d at 130-31, and are derived from the report of the State's expert, Anthony Corrado, Associate Professor of Government at Colby College in Waterville, Maine. Corrado, in turn, computed these statistics from information contained in election reports collected by the Commission, as complied and categorized by the Edmonds amici.
13
The State cites an article in which fourteen states, selected to represent a full range of possibilities, were surveyed and the average cost of a competitive House race in 1994 ranged from a high of $430,994 in California to a low of $4,449 in Maine.
14
Certified public accountant Dennis Mowry computed these statistics at the request of the Daggett appellants from data collected by the Commission, specifically data in all election reports except for six-day preliminary reports, counting each contribution over $250 as if it were only $250. Among the other statistics offered by appellants, derived from the Corrado report, is one for "competitive" races, defined as races in which the winner received more than 40% but less than 60% of the vote. In 1998 competitive Senate races, receipts for incumbents would have declined by 30% and for challengers by 44%. Further, appellants suggest that in open-seat races receipts of winning candidates would have declined by 47.2% while those of losing candidates would have decreased by 55.5%.
15
These statistics were derived from the amici database and computed by factoring out a candidate's own contributions to his campaign and the first $250 of any contributions over $250.
16
The Stearns appellants explained that these statistics were computed by dividing the fall-off in receipts, as recorded in the amici database, by total expenditures, as computed by the State's expert. We note that these figures emphasize the decrease by using total expenditures, as opposed to the often higher number of total contributions, as the denominator.
17
These numbers were culled directly from the amici database.
18
Corrado compiled his figures from data in the amici database, adjusting for personal contributions, unitemized contributions, and any surplus in a candidate's campaign funds.
19
Alan Caron, a communications and political consultant, attested that Governor King raised $450,000 under the self-imposed limit.
20
We observe that the State's expert predicts that all categories of candidates will be "fairly evenly" affected, citing statistics, for example, that in the 1998 House elections, 78.4% of challengers and 82.9% of incumbents would have experienced a spending reduction of 20% or less.
21
In Shrink Missouri PAC, the Court noted that the donations of 97.62% of contributors in the election prior to the implementation of the limits to the office sought by the plaintiff were under $2,000. See Shrink Missouri PAC, 120 S. Ct. at 909.
22
21-A M.R.S.A. § 1052(5)(A)(1) defines "political action committee" as including, among other things, "[a]ny separate or segregated fund established by any corporation, membership organization, cooperative or labor organization whose purpose is to influence the outcome of an election, including a candidate or question."
23
Harte's declaration states:
I have contributed to both federal and state candidates in the past in amounts up to the applicable limits. In 1998, I contributed $2,000 to Congressman Tom Allen, $1,000 to a U.S. Senate candidate from Colorado, $500 to Maine State Senator Beverly Daggett, and took out a radio advertisement urging the re-election of Governor King. In 1994, I also contributed $1,000 to Governor King. I anticipate supporting candidates in the future with financial assistance.
The Stearns appellants' complaint states that Maine Right to Life Committee PAC and National Right to Life PAC "intend, in the future, . . . to make . . . contributions in support of the candidacy of a single candidate for the office of Governor in the State of Maine which aggregate more than $500 in a single election."
24
The district court stated: "The election for governor . . . is three years away, and no plaintiff in this lawsuit purports to be a candidate for governor. I DISMISS WITHOUT PREJUDICE any challenge to the new gubernatorial contribution limit ($500) as premature." Daggett, 81 F. Supp. 2d at 129 We interpret this to mean that the court was concerned about both ripeness and standing.
25
The State, as well as amici, assert that Day was called into question by the Eighth Circuit's subsequent decision in Rosenstiel v. Rodriguez, 101 F.3d 1544 (8th Cir. 1996), which held that a provision waiving the expenditure ceiling for a participating candidate once a non-participating opponent reached a certain threshold did not burden the non-participant's First Amendment rights. See id. at 1553. Although Day involved independent expenditures while Rosenstiel regarded candidate expenditures, the logic of the two cases is somewhat inconsistent. In Rosenstiel, the fact that a candidate's expenditure triggers the release of his opponent's spending limitation did not burden his First Amendment rights; yet in Day, the fact that a non-candidate's spending triggered matching funds burdened the speaker's First Amendment rights. We recognize that there may be a difference between expenditures by a candidate and those by a non-candidate, but nonetheless agree that the continuing vitality of Day is open to question.
26
The district court, while recognizing that its holding could be construed as contrary to Day, distinguished Day on the basis that the court there rejected Minnesota's asserted rationale of encouraging participation even though participation rates soared near 100% before independent expenditures were matched. See Daggett, 74 F. Supp. 2d at 61 n.8. Were we to reach this step in the analysis, determining whether the statute is supported by a compelling state interest, we would note that Maine has just begun the process of encouraging candidate participation and did not enact the independent expenditure match under a pretext of encouraging participation.
27
Schemes that do equate the two types of speech - for example, the challenged statute in Iowa Right to Life, 187 F.3d at 966 n.3, which deemed an independent expenditure to be coordinated with the candidate unless the candidate specifically disavowed it - are much more likely to infringe on freedom of association.
28
Before the district court, appellants also complained of the Act's allocation of funding for primary elections, see 21-A M.R.S.A. § 1125(7)(A) & (B), and various reporting requirements, see id. § 1017(3-B), but they do not pursue these avenues on appeal. Appellants do, however, complain that the amount of the subsidy for a participating candidate does not reflect his popularity. It is not a requirement of public funding, however, that it be equated to "popularity." Correspondingly, the amount of speech undertaken by a privately funded candidate is not reflective of her popularity. Campaign contributions are symbolic of support, see Buckley, 424 U.S. at 20-21, but do not correspond dollar-for-dollar with popularity level, and large contributions as well as the candidate's use of personal funds skew the speech-equals-popularity equation.
29
Although appellants contend that it is inequitable not to deduct independent expenditures made on behalf of the participating candidate from the initial disbursement, the regulations require that the sum of independent expenditures made expressly advocating the defeat of the non-participating opponent or the election of the certified candidate be deducted from the participating candidate's disbursement of matching funds. See Commission on Governmental Ethics and Election Practices, Regulations Regarding Maine Clean Election Act and Related Provisions, ch. 3, § 6.3.B(2). Although independent expenditures made on behalf of a participating candidate or against his opponent are not counted against him until his opponent raises funds in excess of his initial disbursement, this is necessary to prevent a participating candidate's already modest initial disbursement from being substantially diminished or even obliterated by independent expenditures.
30
This is also the response to appellants' subsidiary complaint that the matching funds should be keyed to expenditures rather than contributions.
31
In Vote Choice, we upheld Rhode Island's public funding scheme, which contained a trigger provision allowing matching funds corresponding to privately raised contributions up to $750,000 for participating gubernatorial candidates, although the trigger provision was not specifically challenged. See Vote Choice, 4 F.3d at 28-30, 36-43.
32
We take note of the fact that in the Commission's explanatory publication for candidates it uses the terms "participants" and "non-participants." See Candidate's Guide.
33
The court remarked that, in application, the $100/$500 disparity between the contribution limits for participating and non-participating candidates translated into a 15-to-1 ratio between participants and non-participants because participants received a 2-to-1 match for every dollar raised; in other words, a participant would raise the same amount with 1,200 donors giving the maximum that a non-participant would with 18,000 donors. See Wilkinson, 876 F. Supp. at 929. | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/4210588/ | 18a0223
Court of Appeals
of the State of Georgia
ATLANTA,____________________
October 03, 2017
The Court of Appeals hereby passes the following order:
A18A0223. HEDGEPETH, HEREDIA & RIEDER, LLC v. MICHELE
LORENZO.
The plaintiff Hedgepeth, Heredia & Rieder, LLC filed suit against Michele
Lorenzo, asserting breach of contract. On August 29, 2016, following a jury trial, the
court entered judgment in favor of the plaintiff in the amount of $1.00. The plaintiff
filed a timely motion for new trial, which was denied, and then filed a timely notice
of appeal. We, however, lack jurisdiction.
Where a money judgment in an action for damages totals $10,000.00 or less,
a party must follow the discretionary appeal procedures to obtain appellate review.
See OCGA § 5-6-35 (a) (6). The plaintiff’s failure to follow the required procedure
deprives us of jurisdiction to consider this appeal. See Jennings v. Moss, 235 Ga.
App. 357, 357 (509 SE2d 655) (1998). Accordingly, this appeal is hereby
DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
10/03/2017
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk. | 01-03-2023 | 10-11-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/2749762/ | IN THE
TENTH COURT OF APPEALS
No. 10-14-00011-CV
VICKI MCPHERSON AND TIMOTHY MCPHERSON,
Appellants
v.
TEXAS FOREST SERVICE,
Appellee
From the 85th District Court
Brazos County, Texas
Trial Court No. 13-001728-CV-85
ORDER
This appeal was referred to mediation on July 31, 2014. We have received notice
from the mediator that although the parties did not settle on the day of mediation, they
agreed to entertain a proposal by the mediator. The parties were given three weeks to
respond to the mediator’s proposal.
Accordingly, the Court extends the time to conduct mediation to 28 days from
the date of this order.
The parties are again reminded that all other provisions of the order referring the
appeal to mediation, dated July 31, 2014, remain in effect.
PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Mediation extended
Order issued and filed October 30, 2014
McPherson v. Texas Forest Service Page 2 | 01-03-2023 | 11-08-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2441064/ | 966 N.E.2d 615 (2008)
381 Ill. App. 3d 1162
359 Ill. Dec. 294
PEOPLE
v.
KENT.
No. 4-06-0635.
Appellate Court of Illinois, Fourth District.
June 30, 2008.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596565/ | 28 So. 3d 61 (2006)
Johnny B. JACKSON, Appellant,
v.
James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
No. 1D05-4527.
District Court of Appeal of Florida, First District.
September 5, 2006.
*62 Johnny B. Jackson, pro se, Appellant.
Charlie Crist, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Appellee.
VAN NORTWICK, J.
Johnny B. Jackson, an inmate in the custody of the Department of Corrections (DOC), appeals an order denying his request to be relieved of a lien imposed against inmate trust account for costs incurred in the filing of a mandamus petition. We reverse on the authority of Cox v. Crosby, 27 So. 3d 45 (Fla. 1st DCA 2006), and Yasir v. McDonough, 28 So. 3d 60, 31 Fla. L. Weekly D1459, 2006 WL 1419271 (Fla. 1st DCA May 25, 2006), cases decided after the entry of the order on appeal, and certify a question of great public importance.
Jackson filed a petition for a writ of mandamus in the circuit court by which he challenged a disciplinary proceeding. Jackson had been charged with an unauthorized absence, and a disciplinary hearing team found Jackson was guilty of the infraction; Jackson was sentenced to 15 days of disciplinary confinement. During this period, Jackson was unable to earn gain-time.
The trial court denied mandamus relief. Further, the trial court entered an order directing the DOC to place a lien against Jackson's prison trust account for the court costs associated with the filing of the mandamus petition. Jackson thereafter moved to be relieved of this order on the authority of Schmidt v. Crusoe, 878 So. 2d 361 (Fla.2003), and Cason v. Crosby, 892 So. 2d 536 (Fla. 1st DCA 2005). The trial court denied relief, finding Schmidt to be distinguishable since that case considered the loss of earned gain-time, whereas Jackson had not lost any earned gain-time as a result of the disciplinary action taken against him. The trial court did not address Cason.
*63 Pursuant to the Florida Prisoner Indigency Statute, section 57.085, Florida Statutes (2005), an inmate who brings a civil action may be subject to the placement of a lien on his or her trust account for the court costs accrued by the filing of the action. The Prisoner Indigency Statute, however, specifically exempts "criminal" and "collateral criminal" proceedings from its provisions. The term "collateral criminal proceedings" is not defined in the statute.
In Schmidt, the Florida Supreme Court examined the legislative history of the statute and determined that, while the purpose of section 57.085 is to discourage the filing of frivolous civil lawsuits, the statute is not intended to prevent the filing of claims contesting a criminal sentence. The prisoner in Schmidt had challenged a disciplinary action by the DOC which resulted in the loss of gain time thereby lengthening the prisoner's sentence. Therefore, the court concluded that the proceeding challenging such a disciplinary action was a "collateral criminal proceeding" for the purposes of section 57.085. Schmidt, 878 So.2d at 367. The Court explained that "a gain time challenge is analogous to a collateral challenge to a sentence in a criminal proceeding because the end result is the samethe inmate's time in prison is directly affected." Id.
In Cox v. Crosby, 27 So. 3d 45, 31 Fla. L. Weekly D310, 2006 WL 176681 (Fla. 1st DCA Jan. 26, 2006), an inmate challenged, by a petition for a writ of mandamus, a statute which precluded the inmate from earning basic gain-time. The inmate was denied mandamus relief and was assessed court costs pursuant to section 57.085. This court reversed the assessment of court costs on the authority of Schmidt. The Cox panel observed that, if the inmate's challenge had been successful, then his sentence would be "directly affected" and thus, court costs could not be assessed under the reasoning of Schmidt. The Cox court, though, certified as a matter of great public importance the question of whether the Schmidt holding extends to all actions which, if successful, would directly affect the time spent in prison by the party bringing the action. The supreme court has accepted review of Cox. McDonough v. Cox, 924 So. 2d 809 (Fla.2006).
In Yasir v. McDonough, 28 So. 3d 60, 31 Fla. L. Weekly D1459, 2006 WL 1419271 (Fla. 1st DCA May 25, 2006), this court quashed an order imposing a lien on an inmate trust account for filing fees incurred in the filing of a petition for a writ of mandamus. By this petition, the inmate had challenged a "satisfactory" work evaluation, contending that he should have received an "above-satisfactory" rating. He alleged that, had he received an "above-satisfactory" rating, he would have received more gain-time. The Yasir panel observed that the inmate's sentence would have been shortened by several days and, thus, his sentence would have been "directly affected" had he been successful in his challenge of the work evaluation. As in Cox, this court held that a mandamus petition was a collateral criminal proceeding which was not subject to the imposition of a lien for filing costs under section 57.085. Id. The Yasir court also certified the question certified in Cox.
Based upon the authority of Cox and Yasir, we hold that the imposition of a lien in the instant case was error. Had Jackson been successful in his challenge of disciplinary confinement, he would have had the ability to have earned additional gain-time. Thus, as we found in Yasir, his sentence would have been "directly affected." We note that the trial court did not have the advantage of our Cox and Yasir decisions, because the trial court entered *64 the order on appeal before those cases were decided.
Accordingly, the order denying relief from the order directing the imposition of a lien on Jackson's inmate trust account is VACATED, and the cause is REMANDED for entry of an order directing the reimbursement of Jackson of those funds withdrawn from his account pursuant to the lien.
As we did in Cox and Yasir, we certify the following question as one of great public importance:
DOES THE HOLDING IN SCHMIDT V. CRUSOE, 878 So. 2d 361 (Fla.2003), EXTEND TO ALL ACTIONS, REGARDLESS OF THEIR NATURE, IN WHICH, IF SUCCESSFUL, THE COMPLAINING PARTY'S CLAIM WOULD DIRECTLY AFFECT HIS OR HER TIME IN PRISON, SO TO PRECLUDE IMPOSITION OF A LIEN ON THE INMATE'S TRUST ACCOUNT TO RECOVER APPLICABLE FILING FEES?
BARFIELD and LEWIS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596323/ | 399 So.2d 486 (1981)
The ESTATE OF Encarnacion Luaces De GARCIA, Deceased, Appellant,
v.
Carlos GARCIA, the Surviving Spouse of the Decedent, Encarnacion Luaces De Garcia, Appellee.
No. 80-1043.
District Court of Appeal of Florida, Third District.
June 9, 1981.
*487 Gars, Dixon & Shapiro and Irwin S. Gars, Miami, for appellant.
Bradford, Williams, McKay, Kimbrell, Hamann, Jennings & Kniskern and R. Benjamin Reid, Miami, for appellee.
Before HENDRY, BASKIN and PEARSON, DANIEL, S., JJ.
BASKIN, Judge.
In this appeal from an action by the wife's estate against the husband challenging the trial court's entry of summary judgment and its grant to the husband of an elective share, two issues require resolution. First, we must consider the question raised by the estate in its direct appeal, that is, whether the husband waived, by the execution of an antenuptial agreement in 1956, rights created by the legislature in 1976, including the right to an elective share. Second, we review the question raised by the husband in his cross-appeal, that is, whether by executing the antenuptial agreement he waived his right to homestead. We hold that the husband's waiver of rights to his wife's assets included rights later created by the legislature. We reverse the summary judgment insofar as it permitted the husband to obtain an elective share and affirm the trial court's decision insofar as it ruled that the husband effectively waived his homestead rights.
A few days before their 1956 marriage, Encarnacion Luaces and Carlos Garcia executed an antenuptial agreement which provided:
The Parties hereto expressly agree and covenant that, in the event of the death of the Second Party, the First Party shall not have, and will not assert any claim, interest, estate or title under the laws of any state or of any foreign nation because of such survivorship in or to the property, real, personal or mixed, or life insurance of which such deceased party may die seized or possessed, except as hereinafter provided. The Party of the First Part, for himself and his heirs, hereby relinquishes to the heirs, devisees, administrators, executors and assigns of the Second Party any and all of his claim, distributive share, interest, estate or title that he would be entitled to as surviving husband; and he further agrees, upon demand, to make, execute and deliver to the heirs, devisees, administrators, executors and assigns of the Second Party any and all such claim, interest, estate, right, or title; and, on demand, to make, execute and deliver to the heirs, devisees, administrators, executors and assigns of such deceased party, any and all assignments, assurances, deeds, instruments and receipts that may be necessary and required to efectually [sic] carry out and make effective the agreements herein contained. In the event that either party shall die testate, nothing herein contained shall be a bar to the survivor from claiming, under said last will and testament, in the event that said survivor is a beneficiary thereunder.
The agreement also stated:
That all properties of any name or nature, real, personal or mixed wherever *488... found, which belong to [Encarnacion] prior to the contemplated marriage between the parties, shall be and remain forever the personal Estate of [Encarnacion]... .
All property belonging to [Encarnacion] at the commencement of the marriage, or acquired by, or coming to her during the marriage, shall be held and enjoyed by her, and be subject to her disposition as her separate property, in the same manner as if this proposed marriage had never been celebrated... .
The wife executed a will in 1973 leaving Carlos Garcia a life estate in her home and, a few days later, added a codicil providing him $14,000 a year derived from interest on bonds.
In 1973 the legislature amended the dower laws and extended dower to husbands. Ch. 73-107, Laws of Fla. (1973). Subsequently, the legislature enacted the Florida Probate Code, effective January 1, 1976, and replaced dower with the right to an elective share.[1] On February 21, 1979, Encarnacion Luaces de Garcia died. Her husband filed for an elective share, but the estate resisted the claim. Upon motion, the trial court entered Summary Final Judgment finding:
1. That all rights of husband Carlos Garcia, except that of elective share were waived by the Ante-Nuptial Agreement by virtue of F.S. 732.702;
2. That said statute controls, although it was enacted after execution of the agreement, since by said statute the legislature established the public policy regarding such agreements and how they should be construed.
3. That Carlos Garcia, by laches, cannot now attack the agreement twentythree years after its execution and after the death of his wife, during which time he admittedly learned early that she was a wealthy woman.
4. That despite all of the above, Carlos Garcia did not waive his elective share, since it was unknown to him at that time, and as a matter of fact only came into existence many years later by enactment of law by the legislature. One cannot waive that which is not known or in existence at the time, nor contemplated in the future;
5. That furthermore, although the language of the agreement is extremely strong to the effect that the wife's property shall be entirely and forever hers under all circumstances, it would be inequitable to deprive Mr. Garcia of rights by virtue of a statute enacted after the execution of the agreement (F.S. 732.702) while at the same time deprive him of the benefits of a statute likewise enacted after such execution (F.S. 732.201); wherefore, it is,
ORDERED AND ADJUDGED as follows:
That Estate's Motion for Summary Judgment is GRANTED as to all claims of Carlos Garcia except that of Elective Share, upon which said Motion is DENIED.
First, we review the 1976 legislation according the husband an elective share and consider the question concerning whether he may be held by a 1956 agreement to have waived rights which did not arise until 1976.
We are guided in our endeavor by established principles, among them that statutes operate prospectively unless a contrary intent is clearly expressed. Dewberry v. Auto-Owners Insurance, Co., 363 So.2d 1077 (Fla. 1978). Because the Florida Probate Code, effective 1976, does not contain clear language evidencing a contrary intent, Haney v. Holmes, 364 So.2d 81 (Fla.2d DCA 1978), appeal dismissed, 367 So.2d 1124 (Fla. 1979), the principle prevails. Section 731.011, Florida Statutes (1977), the Florida Probate Code, tells us that procedural *489 rights under the Probate Code apply prospectively whereas vested substantive rights remain unaffected and are determined by the law in effect at the time of death. See also In re Estate of Reed, 354 So.2d 864 (Fla. 1978); In re Estate of Rincon, 327 So.2d 224 (Fla. 1976); In re Estate of Geringer, 300 So.2d 710 (Fla.3d DCA 1974), cert. denied, 311 So.2d 114 (Fla. 1975); In re Roger's Estate, 171 So.2d 428 (Fla.2d DCA 1965). Encarnacion Luaces de Garcia died on February 21, 1979; thus the law in effect at the time of her death, the 1976 Florida Probate Code, governs this proceeding.
Section 732.702 provides that a right of election may be waived:
(1) The right of election of a surviving spouse, the rights of the surviving spouse as intestate successor or as a pretermitted spouse, and the rights of the surviving spouse to homestead, exempt property, and family allowance, or any of them, may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party. Unless it provides to the contrary, a waiver of "all rights," or equivalent language, in the property or estate of a present or prospective spouse, or a complete property settlement entered into after, or in anticipation of, separation, dissolution of marriage, or divorce, is a waiver of all rights to elective share, intestate share, pretermitted share, homestead property, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to either from the other by intestate succession or by the provisions of any will executed before the waiver or property settlement.
(2) Each spouse shall make a fair disclosure to the other of his or her estate if the agreement, contract, or waiver is executed after marriage. No disclosure shall be required for an agreement, contract, or waiver executed before marriage.
(3) No consideration other than the execution of the agreement, contract, or waiver shall be necessary to its validity, whether executed before or after marriage.
§ 732.702, Fla. Stat. (1977).
Appellee maintains that his waiver in the antenuptial agreement did not relinquish his claim to "after-acquired rights", and, he argues, he may therefore assert a claim to rights first created by law in 1976 despite his waiver. We disagree for reasons based on logic as well as law. It is obvious that at the time the husband relinquished his rights he could not predict the condition or size his wife's estate would attain twenty years later. He was, in effect, surrendering rights to unknown or undetermined assets, not only because the future is unforeseeable, but also because under section 732.702, Florida Statutes (1977), disclosure in antenuptial agreements is unnecessary.
While it is generally true that a waiver is the intentional relinquishment of known rights, Gulf Life Insurance Co. v. Green, 80 So.2d 321 (Fla. 1955), by a party in possession of all material facts, Fireman's Fund Insurance Co. v. Vogel, 195 So.2d 20 (Fla.2d DCA 1967), a waiver of rights in an antenuptial agreement is a different matter. See generally Hockenberry v. Donovan, 170 Mich. 370, 136 N.W. 389 (1912); In re McGlones Will, 17 N.Y.S.2d 316, 258 App. Div. 596, rev'd on other grounds, 284 N.Y. 527, 32 N.E.2d 539 (1940), aff'd Irving Trust Co. v. Day, 314 U.S. 556, 62 S.Ct. 398, 86 L.Ed. 452 (1942). The absence of a statutory disclosure requirement for antenuptial agreements[2] helps to persuade us that a spouse may waive a right to unknown assets.
We therefore hold that Carlos Garcia relinquished his right to an elective share of his wife's estate, a right created by the legislature subsequent to the execution of the antenuptial agreement in which he waived claims to her assets. The waiver provisions of the statute in effect at the *490 time of her death, section 732.702, Florida Statutes (1977), apply.[3] The antenuptial agreement was a written agreement signed by the husband as required by the statute. Thus, the husband's waiver of "any claim" waived his right to an elective share.
Turning to the cross-appeal, we find no error in the trial court's decision denying homestead. Carlos Garcia waived all claims, including his right to homestead, in the antenuptial agreement. The parties clearly stated their intent in the opening portions of their antenuptial agreement. Courts are not free to interfere. Potter v. Collin, 321 So.2d 128 (Fla.4th DCA 1975), cert. denied, 336 So.2d 1180 (Fla. 1976).
For these reasons, we reverse the summary judgment entered by the trial court insofar as it granted Carlos Garcia an elective share.
Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.
NOTES
[1] Section 732.201, Florida Statutes (1977):
732.201 Right to elective share. The surviving spouse of a person who dies domiciled in Florida shall have the right to a share of the estate of the deceased spouse as provided in this part, to be designated the elective share.
[2] § 732.702(2), Fla. Stat. (1977). See In re Estate of Reed, supra.
[3] The inchoate right of dower is a creation of the legislature which may modify or abolish it at will. In re Estate of Donner, 364 So.2d 742 (Fla.3d DCA 1978). Dower vests upon the death of the spouse. In re Ginsberg's Estate, 50 So.2d 539 (Fla. 1951). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596326/ | 530 N.W.2d 690 (1995)
CITY OF CLINTON, Iowa, Appellant,
v.
Charles A. SHERIDAN, Clinton County Auditor, Appellee.
No. 94-82.
Supreme Court of Iowa.
April 26, 1995.
Bruce D. Johansen, City Atty., for appellant.
Lawrence H. Schultz, County Atty., for appellee.
Considered en banc.
ANDREASEN, Justice.
The electors of Clinton, Iowa adopted a home rule charter in 1987. All powers of the city were vested in the city council, except as otherwise provided by the laws of Iowa and the provisions of the charter. The charter included initiative and referendum provisions for adoption, amendment, or repeal of ordinances by voters at an election.
In this appeal we must determine if the initiative and referendum provisions of Clinton's home rule charter are contrary to Iowa *691 law. Based on opinions from the Office of the Iowa Attorney General that initiative and referendum elections are not authorized, the Clinton County Auditor, as commissioner of elections (Auditor), refused to place a referendum issue on the ballot at the 1993 city election.
The city then commenced a declaratory judgment action. The city requested the court declare that the initiative and referendum provisions of its charter are constitutional and not inconsistent with state law and that the Auditor be required to submit the referendum issue on the ballot at a municipal election. The issue was submitted to the district court upon motion for summary judgment by both parties. The court ruled that the initiative and referendum provisions were inconsistent with state law and dismissed the petition. On appeal, we reverse.
I. Constitutional Home Rule.
In 1968 the Constitution of the State of Iowa was amended. This twenty-fifth amendment to the constitution provided:
Municipal corporations are granted home rule power and authority, not inconsistent with the laws of the General Assembly, to determine their local affairs and government, except that they shall not have power to levy any tax unless expressly authorized by the General Assembly.
The rule or proposition of law that a municipal corporation possesses and can exercise only those powers granted in express words is not a part of the law of this state.
Iowa Const. art. III, § 38A.
Prior to the amendment, municipal corporations "owe[d] their origin to, and derive[d] their power and rights wholly from, the legislature." City of Clinton v. Cedar Rapids & Missouri River R.R. Co., 24 Iowa 455, 475 (1868). The home rule amendment granted broad powers and authority to the municipalities and rejected the Dillon rule[1] that had limited the power of the municipality. Bechtel v. City of Des Moines, 225 N.W.2d 326, 328-29 (Iowa 1975). Under the Dillon rule municipal corporations possessed and could exercise only those powers granted in express words, or those necessarily implied or incident to the powers expressly granted, or those absolutely essential to the declared objects and purposes of the municipality. Id.
Under the provisions of the amendment, if the state statute and the municipal ordinance cannot be reconciled, the statute prevails. City of Des Moines v. Gruen, 457 N.W.2d 340, 342 (Iowa 1990). The amendment granted cities broad authority to regulate matters of local concern subject to preemption by laws of the general assembly. Id. at 341. An ordinance is inconsistent with a law of the general assembly and, therefore, preempted by it, when the ordinance prohibits an act permitted by a statute or permits an act prohibited by a statute. City of Council Bluffs v. Cain, 342 N.W.2d 810, 812 (Iowa 1983). An ordinance is also preempted by state law when it invades an area of law reserved by the legislature to itself. Id.
All municipal corporations in Iowa were granted home rule power and authority under the amendment. At the time of the home rule amendment, four forms of municipal government were statutorily recognized. They were (1) mayor-council, Iowa Code chapter 363A; (2) commission, Iowa Code chapter 363B; (3) council-manager by election, Iowa Code chapter 363C; and (4) council-manager by ordinance, Iowa Code chapter 363D (1966).
II. Home Rule Act for Cities.
Following the adoption of the home rule amendment, the general assembly created a study committee to review state statutes relating to municipal corporations. 1969 Iowa Acts ch. 333. In 1972 the legislature made wholesale revisions of municipal statutes. 1972 Iowa Acts ch. 1088 (home rule for cities). Under the 1972 Acts the legislature vested the power of a city in the city council except as otherwise provided by state law. Id. § 11. Specific limitations were imposed on the city powers and duties. Id. § 12. Six forms of city government were recognized, including a home rule charter. Id. § 47. *692 Specific provisions were enacted establishing procedures of adoption of a home rule charter, contents of the charter, and amendments to the charter. Id. §§ 55-57. The provisions of the 1972 Acts may be cited as the City Code of Iowa and are now codified in chapters 362, 364, 368, 372, 376, 380, 384, 388, and 392 of the City Code of Iowa (1995). Iowa Code § 362.1.
III. Clinton Home Rule Charter.
As permitted by the City Code of Iowa, the city of Clinton adopted a home rule charter. Iowa Code §§ 372.9-.10 (1987). The charter included an extensive initiative and referendum provision, article VI. Under its provisions:
The qualified electors have the right to propose ordinances to the City Council and, if the City Council fails to adopt an ordinance so proposed without any change in substance, to have the ordinance submitted to the voters at an election.
The qualified electors have the right to require reconsideration by the City Council of an existing ordinance and, if the City Council fails to repeal such ordinance, to have it submitted to the voters at an election.
Clinton home rule charter, art. VI, § 6.1A(1) and (2).
IV. Background.
In July 1993 the Clinton city council adopted five separate safety standards ordinances (building, fire, electrical, mechanical, and plumbing). After petitions with sufficient qualified electors' signatures had been filed, the city council voted not to repeal the ordinances. As provided by the home rule charter, the city then directed the ordinances be forwarded to the Auditor to be placed on the ballot at the November 1993 municipal election.
When the Auditor refused to submit the referendum to a vote, the city petitioned for declaratory judgment and injunctive relief. The petition asked the court to declare the initiative and referendum provisions of the city's home rule charter to be constitutional and to prohibit the Auditor from refusing to submit the referendum issues requested by the city. After the requested injunctive relief had been denied, the declaratory judgment petition was submitted to the district court.
The district court held article VI of the charter is contrary to state law. The court found provisions of the City Code of Iowa and the election laws of Iowa were inconsistent with the initiative and referendum provisions of the Clinton charter.
V. Scope of Review.
The parties agree our scope of review in this declaratory judgment action submitted on motion for summary judgment is for correction of errors at law.
VI. Charter Provisions Consistent With City Code of Iowa.
To resolve the issue raised in this case we must construe both constitutional and statutory provisions. Generally, constitutional and statutory provisions are subject to the same rules of construction. Junkins v. Branstad, 448 N.W.2d 480, 483 (Iowa 1989). We first look at the words employed, giving them meaning in their natural sense and as commonly understood. Id. (citation omitted). In deciding the meaning of the provisions we strive to ascertain the intent of the framers and of the legislators. See Redmond v. Ray, 268 N.W.2d 849, 853 (Iowa 1978). We may also examine the history and consider the object to be attained as disclosed by circumstances at the time of the adoption. Id.
In 1963 the Iowa general assembly, in an attempt to overturn the Dillon rule, passed a home rule act. 1963 Iowa Acts ch. 235. When required to construe its provisions, we held the statute was a rule of construction and as such it was not unconstitutional. Richardson v. City of Jefferson, 257 Iowa 709, 719, 134 N.W.2d 528, 534 (1965). In Richardson we reviewed the legislative history and the objects to be attained by home rule. Id. at 714-17, 134 N.W.2d at 531-33. We expanded our historical review of home rule following the adoption of the constitutional amendment and the City Code of Iowa. Bechtel, 225 N.W.2d at 328-29. We concluded *693 the intention of the framers of the constitutional amendment was to grant cities power to rule their local affairs and government subject to the superior authority of the general assembly. Id. at 332.
The City Code of Iowa provides in part:
"Council" means the governing body of a city.
Iowa Code § 362.2(8) (1993).
A city may, except as expressly limited by the Constitution, and if not inconsistent with the laws of the general assembly, exercise any power and perform any function it deems appropriate to protect and preserve the rights, privileges, and property of the city or of its residents, and to preserve and improve the peace, safety, health, welfare, comfort, and convenience of its residents.
Id. § 364.1.
A power of a city is vested in the city council except as otherwise provided by a state law.
Id. § 364.2(1).
The enumeration of a specific power of a city does not limit or restrict the general grant of home rule power conferred by the Constitution. A city may exercise its general powers subject only to limitations expressly imposed by a state or city law.
Id. § 364.2(2).
An exercise of a city power is not inconsistent with a state law unless it is irreconcilable with the state law.
Id. § 364.2(3).
The following are limitations upon the powers of a city:
1. A city council shall exercise a power only by the passage of a motion, a resolution, an amendment, or an ordinance.
Id. § 364.3.
Passage of an ordinance ... requires an affirmative vote of not less than a majority of the council members ....
Id. § 380.4.
The district court reasoned, if the power of a city is vested in the city council, and if the city council is the governing body of the city, and if it can exercise city powers only by the passage of an ordinance, then only the city council can pass or repeal an ordinance. The court concluded "[a]uthorizing the electors to adopt or repeal an ordinance cannot be reconciled with Iowa law which requires the City Council to take such action."
Although the council is the governing body, it is not inconsistent to permit ordinances by initiative and referendum vote. Iowa Code section 364.2(4)(b) specifically allows franchise ordinances to be adopted or repealed by the vote of the electorate. The procedure for the adoption and amendment of a home rule charter by ordinance may require submission of the proposed charter or amendment to the voters at a special election. Iowa Code §§ 372.9 and .11. Iowa has a long tradition of permitting cities under special charters to submit ordinances on initiative or referendum vote of the electorate. See 1907 Iowa Acts ch. 48, §§ 19-20.
In Eckerson v. City of Des Moines, 137 Iowa 452, 483, 115 N.W. 177, 189 (1908), we upheld the legality of the 1907 act that permitted initiative and referendum vote. In upholding its legality, we quoted "[t]here is certainly no provision of our Constitution which expressly, or by reasonable inference, prohibits it." Id. at 483-84, 115 N.W. at 189 (citation omitted). Although the general assembly is not authorized to submit to a popular vote the questions as to whether or not a proposed act should become law, it does not follow the general assembly may not reserve to the electorate of a subdivision the right to determine on popular vote if an act should be adopted. Id. at 478, 115 N.W. at 187. The statutory provisions vesting city power in the council, requiring the city council to exercise its power by passage of an ordinance, and providing adoption or repeal of an ordinance by the affirmative vote of a majority of the council were in existence in 1908 when we filed the Eckerson decision. Iowa Code §§ 668, 680, 683 (1907).
The power of direct legislation by initiative and referendum frequently is given to qualified voters of a municipality. 5 Eugene McQuillin, The Law of Municipal Corporations § 16.49 (3d ed. 1989). Whether the power of initiative and referendum exists in *694 any particular municipality depends upon the constitution, charter, or statute. Id. But generally speaking, provision for the power and its exercise, particularly with respect to home rule in larger cities, is to be found in charters, and the power and mode of its exercise are governed by charter provisions rather than by statutes. Id.
The Iowa legislature has expressly preserved the power given to the city by the constitutional amendment unless it is irreconcilable with state statutes. The requirements of section 364.2(3) merely place limitations upon how the city council exercises its power. It is not an express prohibition against a home rule charter providing for initiative and referendum voting. Initially section 56 of the 1972 home rule act provided:
A home rule charter must contain and is limited to provisions for:
1. A council of an odd number of members, not less than five.
2. A mayor, who may be one of those council members.
3. Two-year or staggered four-year terms of office for the mayor and council members.
4. The powers and duties of the mayor and the council, consistent with the provisions of this Act.
The words, "and is limited to" were repealed in 1975. 1975 Iowa Acts ch. 203, § 22. The obvious purpose of this deletion was to allow the home rule charters to include the broad powers to determine local affairs and government as provided by the constitutional amendment.
The constitutional amendment granted home rule power to determine local affairs and government. The City of Clinton is organized under a home rule charter form of government permitted by the amendment and specifically allowed under the City Code of Iowa. The City of Clinton's charter expressly authorizes initiative and referendum adoption and repeal of ordinances. The home rule amendment granted the city power to determine its local government. The city is no longer dependent upon the legislature to grant it power. "Any limitation on a city's power by state law must be expressly imposed." Bryan v. City of Des Moines, 261 N.W.2d 685, 687 (Iowa 1978). We find no irreconcilable conflict between the provisions of the City Code of Iowa and the initiative and referendum provisions of the Clinton home rule charter.
VII. Charter Provisions Consistent With Election Laws.
The second argument urged for denying municipal initiative and referendum vote is that relied upon by the Auditor as expressed in attorney general opinions. The attorney general stated in part:
[W]e are of the opinion that elections may only be held upon matters which are specifically authorized by the Constitution or statutes of the state.
....
In 1976, we opined that the municipal home rule amendment does not give cities the authority to, by municipal charter, establish a type of election not otherwise allowed by law. 1976 Op.Iowa Att'y Gen. 681.
....
[W]e conclude that political subdivisions may only authorize the presenting of questions to voters on matters that are specifically required or authorized to be placed before the electorate by statute or by Constitution.... The commissioner of election does not have the authority to conduct an illegal or unauthorized election, and, therefore has the authority to refuse to conduct an election if the election is not specifically authorized or required by statute or by the Constitution.
1992 Op.Iowa Att'y Gen. 169, 170-71.
An earlier opinion stated:
Since our election laws are so carefully detailed and prescribed, I must conclude that in absence of constitutional or statutory authority, such submissions to the voters are unlawful.
1972 Op.Iowa Att'y Gen. 263, 264.
The Iowa Attorney General has consistently expressed an opinion that elections on adoption, amendment, or repeal of ordinances are not permitted unless specifically *695 required or authorized by statute, despite the existence of home rule powers. Although an attorney general's opinion is not binding on us, it is entitled to our respectful consideration. Albia Publishing Co. v. Klobnak, 434 N.W.2d 636, 639 (Iowa 1989). However, when a controversy addressed by an attorney general opinion reaches the court for determination, the court must enter upon an independent inquiry as to the interpretation to be placed upon the statute. City of Nevada v. Slemmons, 244 Iowa 1068, 1071, 59 N.W.2d 793, 794 (1953).
Here, the attorney general suggests, in the absence of express statutory authority, the submission of an initiative or referendum would be invalid. This suggestion is a carryover of the Dillon rule under which a municipal corporation possessed and exercised only those powers granted by the legislature in express words.
To require specific statutory authority to permit an initiative or referendum vote is contrary to the intent of the amendment that rejected the Dillon rule. Cities no longer have only those powers granted by the legislature. Bryan, 261 N.W.2d at 687. We find no irreconcilable conflict between the election laws and the initiative and referendum provisions of the Clinton home rule charter. If the general assembly intended to preempt municipal initiative and referendum powers, it could have done so by express and unambiguous statutory language. See Chelsea Theater Corp. v. City of Burlington, 258 N.W.2d 372, 373 (Iowa 1977). We find no preemption problem.
We reverse and remand for entry of judgment in accordance with this decision.
REVERSED AND REMANDED.
All justices concur except TERNUS, J., who dissents, and is joined by CARTER, J.
TERNUS, Justice (dissenting).
I respectfully dissent. Although I agree with the majority's underlying premise that a city may exercise any power not inconsistent with state law, I disagree with its conclusion that the initiative and referendum provision of the Clinton city charter does not conflict with the City Code of Iowa.
The City Code of Iowa vests city powers in the city council. Iowa Code § 364.2(1) (1993). The City Code then places "limitations upon the powers of a city" by stating that the council must exercise a power "only by the passage of a motion, a resolution, an amendment, or an ordinance." Id. § 364.3(1) (emphasis added). This limitation is particularly significant in view of the legislature's express requirement that cities "substantially comply with a procedure established by a state law for exercising a city power." Id. § 364.6.
The clear result of these statutes when read together is that a city power may be exercised only by the city council's passage of a motion, a resolution, an amendment, or an ordinance. An initiative and referendum provision such as the one in the Clinton city charter allows the electorate to exercise a city power by enacting an ordinance. Such a provision conflicts with the legislature's express limitations on the exercise of city powers. Unlike the majority, I think this conflict is irreconcilable.
The majority appears to rely on Eckerson v. City of Des Moines, 137 Iowa 452, 115 N.W. 177 (1908), to support its conclusion that initiative and referendum votes do not conflict with the City Code of Iowa. The majority points out that the pertinent provisions of the City Code were also in existence at the time of the Eckerson decision, where we allowed a local initiative and referendum vote. However, the initiative and referendum provision approved in Eckerson was contained in a state law and for that reason alone would not conflict with the City Code. See Iowa Code § 364.2(1) (1993) ("A power of a city is vested in the city council except as otherwise provided by a state law.") (emphasis added). In contrast, the initiative and referendum provision involved in this case is in a city charter, an important factual difference. Consequently, the Eckerson decision has no precedential value here.
I would affirm the district court's declaratory ruling that the initiative and referendum provision of the Clinton city charter is illegal.
CARTER, J., joins this dissent.
NOTES
[1] Chief Justice Dillon in 1868 outlined the nature of the city's powers in Clinton, 24 Iowa 455 at 475 and Merriam v. Moody's Executors, 25 Iowa 163, 170 (1868). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596329/ | 399 So.2d 1003 (1981)
MIAMI LINCOLN MERCURY, INC., Appellant,
v.
Daniel W. KRAMER, Appellee.
Nos. 80-1507, 80-2088.
District Court of Appeal of Florida, Third District.
May 19, 1981.
Rehearing Denied July 6, 1981.
*1004 Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Robert K. Tucker and R. Owen Ricker, Jr., Miami, for appellant.
David H. Zoberg and Michael D. Felton, Miami, for appellee.
Before HUBBART, C.J., and BASKIN and FERGUSON, JJ.
PER CURIAM.
The final order denying attorney's fees which is under review by this appeal is reversed and the cause is remanded to the trial court with directions to award the defendant Miami Lincoln Mercury, Inc. reasonable attorney's fees under Section 817.41(6), Florida Statutes (1979), upon a holding that: (a) the defendant herein was the prevailing person in a civil action brought against it inter alia for misleading or deceptive advertising under Section 817.41(1), Florida Statutes (1979), and accordingly, was entitled to an award of reasonable attorney's fees under Section 817.41(6), Florida Statutes (1979), see e.g., Johnny Crews Ford, Inc. v. Llewellyn, 353 So.2d 606 (Fla.2d DCA 1977); and (b) the defendant's entitlement to said attorney's fees was not defeated by its failure to plead for same in its answer as it properly presented the issue before the trial court by timely motion although admittedly it would have been better practice for the defendant to have pled for said attorney's fees in its answer. See e.g., Ocala Music & Marine Center v. Caldwell, 389 So.2d 222 (Fla. 5th DCA 1980), and cases collected.
Reversed and remanded.
FERGUSON, Judge (dissenting).
Kramer filed this suit against Miami Lincoln Mercury pursuant to Sections 817.40 and 817.41, Florida Statutes (1977), for damages arising from an alleged misleading advertisement that the auto he purchased had been driven less than 7,000 miles. He joined in the suit as defendants prior dealers and a prior owner of the vehicle contending that one of the defendants unlawfully turned back the odometer on the vehicle and that the other defendants, including Miami Lincoln Mercury, knew or reasonably should have known that the odometer had been tampered with. After a jury trial, a verdict was returned for Miami Lincoln Mercury. Miami Lincoln Mercury then sought attorney's fees from Kramer as the prevailing party pursuant to the statute. § 817.41(6).
The parties are unable to provide the court with a case construing the statutory provision in question. Section 817.41(6) provides for attorney's fees to be awarded "to any person prevailing in an action for violation of this action." Similar statutes relied upon by appellant provide for an award of fees to the prevailing party and have been construed to apply as well to a prevailing defendant.[1] This same section provides for "punitive damages in addition to actual damages proven." Under no realistic *1005 hypothesis could the defendant-retailer ever be the party proving actual and punitive damages based on plaintiff-consumer's "action for violation of this section."
As an aid to interpreting this statutory provision, I find it unnecessary to look further than the entire chapter on fraudulent practices. Chapter 817, unlike the statutes relied upon by appellant, is a criminal statute. Unquestionably, it was enacted to grant to consumers a stronger remedy for redress against fraudulent commercial practices than already existing legal remedies.[2]
There are sixty-five sections under Chapter 817 identifying and prohibiting certain frauds. Nearly all of the frauds are made criminal acts and are punishable as such. Section 817.416, supra, prohibits misrepresentations in the sale of franchises and distributorships. A violation of the section is a crime. § 817.416(2)(b). Activities in violation of the section may be enjoined by the Department of Legal Affairs or the Department of Agriculture and Consumers Services in behalf of the people of the state. Most persuasive to an interpretation of the provision in question is the language found in subsection (3) of Section 817.416 which provides for a civil remedy in addition to criminal penalties and injunctive relief:
Any person, who shows in a civil court of law a violation of this section may receive a judgment for all moneys invested in such a franchise or distributorship. Upon such a showing, the court may award any person bringing said action reasonable attorney's fees... .
It is perfectly clear that this section does not intend to award fees to a prevailing defendant even though the very nature of the subject contemplates a more sophisticated type of litigation than does Section 817.41. I am aware of no criminal statute which awards attorney's fees to a prevailing defendant.
Section 817.41 prohibits misleading advertising but is the only fraudulent practice in this Chapter for which no criminal penalty is prescribed, nor is expressly subject to injunctive action by a department of state government. The single statutory remedy for violation of the section is a civil action by a member of the public who has been misled. I believe that the purpose of Section 817.41(6) is to place aggrieved consumers on equal footing with retailers in terms of access to the court for the purpose of vindicating a public as well as private wrong. The interpretation by the majority, that the prevailing retailer is to be awarded attorney's fees even where the action is meritorious and brought in good faith, is contrary to the intent of the statute. Under no other section would a non-prevailing party, be it the government or a private consumer, be liable for attorney's fees. It is doubtful that the Legislature intended this inconsistency.
I would affirm the trial court.
NOTES
[1] § 501.2105(1) Florida Statutes (1979); § 713.29 Florida Statutes (1979); § 718.303(1) Florida Statutes (1979).
[2] § 817.415 Florida Free Gift Advertising Law
(1) LEGISLATIVE INTENT
(2) The Legislature of the State of Florida recognizes that the deceptive misuse of the term "free" and words of similar meaning and intent in advertising by the unscrupulous had resulted in deception of consumers, leading them unknowingly to assume contractual obligations which were initially concealed by the deception. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596331/ | 28 So.3d 983 (2010)
In re COMMITMENT OF Joseph W. FINFROCK.
Joseph W. Finfrock, Appellant,
v.
Florida Civil Commitment Center, and Timothy Budz, Director, Appellees.
No. 2D09-2683.
District Court of Appeal of Florida, Second District.
March 5, 2010.
Joseph W. Finfrock, pro se.
DAVIS, Judge.
Joseph W. Finfrock challenges the trial court's order dismissing his emergency petition *984 for writ of habeas corpus. We reverse.
Finfrock is a detainee of the Florida Civil Commitment Center (FCCC) and is awaiting involuntary civil commitment proceedings pursuant to sections 394.910-.932, Florida Statutes (2009), formerly referred to as the Jimmy Ryce Act.[1] In his Emergency Petition for Writ of Habeas Corpus Relief, he alleged that he "is being illegally detained in F Unit as Punishment" and stated that he was "[s]eeking a hearing before this Court to gain his immediate release from . . . his unlawful detention therein." Finfrock also recounted several bad experiences that he alleges he has endured at the hands of the FCCC staff. Relevant to his petition, he alleged that a staff member, after observing pornography on the computer that Finfrock was using, forcefully removed his zip drive from the computer. According to Finfrock, he grabbed the zip drive from the staff member's hand in order to check whether it had been damaged, when security personnel forcefully removed him from the computer lab and told him to stop resisting even though he was not resisting. Finfrock further alleged in his petition that during the episode his face was pushed into a wall by security personnel and that he ultimately was placed in confinement as a punishment for this episode.
The trial court dismissed Finfrock's petition without hearing, stating that it was "facially insufficient in that [it] did not state a sufficient claim for relief." We do not agree.
In Kearney v. Barker, 834 So.2d 347, 348 (Fla. 4th DCA 2003), the Fourth District "conclude[d] that the position of pre-trial Ryce detainees is most similar to pre-trial criminal detainees." In that case, the appellee had filed a petition for writ of habeas corpus in the circuit court seeking release from his "room restriction" status at the facility where he was being held pending Ryce Act proceedings. The trial court had granted the petition, and the State had appealed. The Fourth District applied the following analysis in affirming the trial court's granting of the petition:
In Bell v. Wolfish, the United States Supreme Court decided that the standard for unconstitutionality as applied to conditions for criminal pre-trial detainees is whether such conditions or restrictions amount to punishment. 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). However, the court recognized that jail officials have an important interest in maintaining jail security, and that restraints reasonably related to maintaining jail security do not, without more, amount to unconstitutional punishment. Id. at 541.
The Seventh Circuit, likewise, recognized that analysis of such appeals should balance the jail's interest in security and the detainee's interest in having as much personal freedom as possible. In Higgs v. Carver, the pre-trial detainee was placed in "lockdown segregation," a type of solitary confinement, for 34 days without notice and an opportunity to be heard. 286 F.3d 437 (7th Cir. 2002). The court reversed for the trial court to determine if the segregation was punitive, noting, "A pretrial detainee cannot be placed in segregation as a punishment for a disciplinary infraction without notice and an opportunity to be heard; due process requires no less." Id.
*985 In the instant case, the trial court, as fact finder, implicitly ruled that Barker's due process rights were violated because the room restriction was a punishment for a disciplinary infraction without proper notice and an opportunity to be heard. Moreover, we acknowledge the trial court's granting of the writ of habeas corpus was an implicit finding that room restriction was not a managerial decision to maintain facility security.
834 So.2d at 348-49 (cross-references omitted).
Here, Finfrock alleged in his habeas petition below that he had been removed from his regular room at FCCC and was being held in restrictive confinement. He further alleged that such confinement was punishment for the computer lab episode and that it violated his constitutional rights.[2] Pursuant to Kearney, 834 So.2d 347, this amounts to a facially sufficient claim.
As such, the trial court erred in dismissing it. We therefore reverse the trial court's order dismissing Finfrock's petition and remand for the trial court to address the petition on its merits.
Reversed and remanded.
WALLACE and MORRIS, JJ., concur.
NOTES
[1] "In Chapter 99-222, Section 1, Laws of Florida, the Legislature removed reference to `Jimmy Ryce' in the title of the act." In re Fla. R. Civ. P. for Involuntary Commitment of Sexually Violent Predators, 13 So.3d 1025, 1025 n. 1 (Fla.2009). We note, however, that the case we rely on in our analysis here references the former title.
[2] We note that Finfrock falls short of actually pleading that he has exhausted his administrative remedies below, instead alleging that "the facility is supposed to conduct a hearing on the conduct report within '5 working days' and usually don't [sic] until 12 to 14 days after the incident, if not longer in some cases." Such failure, however, does not render Finfrock's petition facially insufficient. See Santana v. Henry, 12 So.3d 843, 847 (Fla. 1st DCA 2009) (reversing dismissal of habeas petition for failure to exhaust administrative remedies and noting that "`[w]hen an agency acts without colorable statutory authority that is clearly in excess of its delegated powers, a party is not required to exhaust administrative remedies before seeking judicial relief'" (quoting Dep't of Envtl. Regulation v. Falls Chase Special Taxing Dist., 424 So.2d 787, 796 (Fla. 1st DCA 1982))). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596494/ | 28 So. 3d 1285 (2010)
Dudley KEENE, individually and on behalf of Brookhaven Academy and Shareholders of Brookhaven Academy
v.
BROOKHAVEN ACADEMY, INC., Brookhaven Academy Educational Foundation, Inc., Jeff Gatlin, Ken Powell, Phil McGee, and Dean Snider.
No. 2008-CA-01381-SCT.
Supreme Court of Mississippi.
March 4, 2010.
*1287 Durwood Earnest McGuffee, Jr., Madison, attorney for appellant.
Frank Chandler Breese, III, Jackson, Dudley F. Lampton, Hazlehurst, Cecil Maison Heidelberg, Ridgeland, attorneys for appellee.
Before GRAVES, P.J., DICKINSON and CHANDLER, JJ.
CHANDLER, Justice, for the Court.
¶ 1. This case involves whether the acts of a for-profit corporation were properly ratified and proper procedures were followed in the formation and transfer of responsibilities to a nonprofit organization. Dudley Keene, a shareholder in Brookhaven Academy, Inc., (the Academy) filed suit against the Academy and Brookhaven Academy Educational Foundation, Inc., (the Foundation) in the Chancery Court of Lincoln County, Mississippi. Keene claimed that the Academy failed to follow corporate bylaws and its articles of incorporation when the Academy set up and transferred the use of assets to the Foundation, a nonprofit corporation. Keene requested a declaratory judgment and sought injunctive relief.
¶ 2. The Academy and the Foundation filed an answer and affirmative defenses. They also filed a motion to dismiss, claiming that Keene lacked standing because his claims were derivative in nature and Keene filed in his individual capacity. The trial court granted the motion in part and denied the motion in part. The motion to dismiss was granted with respect to the alleged causes of action concerning the Academy's Board of Directors (Academy Board) which were derivative in nature. *1288 The motion to dismiss was denied as to Keene's causes of action in which he sought to enjoin the Academy's and the Foundation's corporate acts that were outside of the corporate charter. Later, the Academy and the Foundation filed a motion for partial summary judgment claiming without conceding that the shareholders had ratified the Academy Board's actions and Keene lacked standing to sue the Foundation, pursuant to Mississippi Code Section 79-4-3.04. Keene was not a member of the Foundation and not an authorized person to sue pursuant to the statute.
¶ 3. While the chancery-court case progressed, Keene filed a complaint in the Circuit Court of Lincoln County styled: Dudley Keene on behalf of Brookhaven Academy & Shareholders of Brookhaven Academy v. Brookhaven Academy, Inc., Brookhaven Academy Educational Foundation Inc., Jeff Gatlin, Ken Powell, Phil McGee, and John Does 1-11. The circuit-court complaint was derivative in nature and asserted essentially the same claims as the chancery-court matter. The defendants in the circuit-court case filed a motion to dismiss, or in the alternative, to transfer to chancery court. The circuit-court defendants argued in the motion to dismiss that Keene did not meet the demand requirements for a derivative action pursuant to Section 79-4-42. Alternatively, the circuit-court defendants argued that the circuit-court complaint was based on the same facts and asked for the same basic relief as the chancery suit. Likewise, the Academy and the Foundation filed a motion for continuance, or in the alternative, a request that the circuit-court case be transferred to the chancery court. The circuit court denied the defendants' motion to dismiss; however, it granted a transfer of the circuit court case to the chancery court.[1]
¶ 4. After the circuit-court case was transferred to the chancery court, the trial court granted all the defendants' motions for summary judgment and dismissed the action.[2] The chancellor found that: (1) the Academy was not a special-purpose corporation; (2) the acts by the Academy were voidable, not void; (3) the shareholders had received adequate notice of the purpose of the December 15, 2005, shareholders' meeting; and (4) the shareholders properly had ratified the actions of the Academy at the meeting. Keene appeals from this decision. This Court finds no error; therefore, the judgment of the Chancery Court of Lincoln County is affirmed.
DISCUSSION
¶ 5. The standard of review for a grant of summary judgment is de novo. Guidant Mut. Ins. Co. v. Indem. Ins. Co. of N. Am., 13 So. 3d 1270, 1275 (Miss.2009). The moving party is granted summary judgment by the trial court provided that "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Miss. R. Civ. P. 56(c). Summary judgment is granted with abundant caution, and it must be granted where the nonmoving party "failed `to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of *1289 proof at trial.'" Mabus v. St. James Episcopal Church, 13 So. 3d 260, 263 (Miss. 2009) (quoting Smith v. Gilmore Mem'l Hosp., Inc., 952 So. 2d 177, 180 (Miss. 2007)).
A. Ratification[3]
¶ 6. Keene argues that the trial court erred by finding that the shareholders properly ratified the actions of the Academy Board. Keene contends that: (1) the Foundation's vote of 805 of its shares in the Academy legally could not be made because the Foundation is a subsidiary of the Academy, and (2) the shareholders were coerced into transferring their shares in the Academy to the Foundation.
¶ 7. The shareholders ratified: (1) forming a solely owned subsidiary, (2) the June 2004 lease of property from the Academy to the Foundation, and (3) the transfer of educational activities from the Academy to the Foundation. The minutes of the reconvened December 21, 2005, special meeting in lieu of the 2005 annual meeting of stockholders of the Academy reflected the vote results, in part, as follows:
Issue 4. To ratify the Corporation's actions, on or about November 28, 2000, in forming a solely owned 501(c)(3) non-profit corporation, Brookhaven Academy Educational Foundation, Inc.
The minutes reflected that the total shares represented were 1,108, of which 942 voted in favor, none voted against, and 166 abstained. This issue was ratified by the shareholders.
Issue 5. To ratify that certain lease dated June 1, 2004, entered into between Brookhaven Academy, Inc., and Brookhaven Academy Educational Foundation, Inc., wherein the corporation leased all of its real property comprising Brookhaven Academy, including the buildings, improvements and fixtures thereon, to Brookhaven Academy Educational Foundation, Inc.
The minutes reflected that the total shares represented were 1,108, of which 942 voted in favor, none voted against, and 166 abstained. This issue was ratified by the shareholders.
Issue 6. To ratify the actions of the Brookhaven Academy, Inc. officers, directors and employees regarding the transfer of educational activities, formerly conducted by Brookhaven Academy, Inc. to Brookhaven Educational Foundation, Inc.
The minutes reflect that the total shares represented were 1,108, of which 940 voted in favor, two voted against, and 166 abstained. This issue was ratified by the shareholders.
¶ 8. Mississippi courts have permitted shareholders to ratify past actions of corporations. In Jowett v. Scruggs, 901 So. 2d 638, 644 (Miss.Ct.App.2004), the Court of Appeals determined that the shareholders' act of ratifying the actions of a corporate president eliminated any defect in the president's actions.
*1290 1. Subsidiary
¶ 9. Keene asserts that the Foundation is a subsidiary of the Academy, and under fundamental corporate law, the Foundation cannot vote its 805 shares in the Academy, the parent company. He cites a number of cases from other jurisdictions noting that Mississippi has little caselaw on this issue. Keene cites Italo Petroleum Corporation of America v. Producers Oil Corporation of America, 174 A. 276, 281 (Del.Chan.1934), an election-of-directors case, for his position that a wholly owned subsidiary should not be permitted to vote its shares in favor of a parent company.
¶ 10. Keene cites Section 79-4-6.31 concerning a corporation's acquisition of its own shares which states:
(a) A corporation may acquire its own shares, and shares so acquired constitute authorized but unissued shares.
(b) If the articles of incorporation prohibit the reissue of the acquired shares, the number of authorized shares is reduced by the number of shares acquired.
Miss.Code Ann. § 79-4-6.31 (Rev.2009).
¶ 11. Keene's argument fails for a number of reasons. First, Section 79-4-6.31 is inapplicable to the facts in this case, as the Academy did not acquire its own shares. Here, individual shareholders chose to transfer their stock in the Academy to the Foundation. The Foundation did not have "shares" of its own; rather it provided memberships in the Foundation. The Academy is not a member of the Foundation. Second, there is no allegation that the directors of the Academy and the directors of the Foundation were the same. Third, the shareholders ratified the Foundation as a solely owned corporation, not a subsidiary of the Academy. Accordingly, this issue is without merit.
2. Coercion
¶ 12. Keene argues that the Foundation obtained 805 Academy shares by unlawful coercion. In his argument, Keene cites Ivanhoe Partners v. Newmont Mining Corporation, 533 A.2d 585, 605 (Del.Chan.1987) for the proposition that coercion amounts to a wrongful action by a party to induce a shareholder to sell his stock for "reasons unrelated to the economic merits of the sale" such as "a tender offer structured so as to afford shareholders no practical choice but to tender for an unfair price." Ivanhoe, 533 A.2d at 605. Keene argues that a shareholder had little incentive to keep the Academy shares when that shareholder was being coerced into paying $750 to keep the shares.
¶ 13. In an undated letter from the Academy Board to Academy patrons concerning 2004 school registration, the Academy notified patrons of the stock-option transfer. The letter stated, in part:
Enclosed you will find our new registration forms and membership information. According to the guidelines set forth, anyone who wishes to exchange their stock certificates for membership in the new foundation may do so at no charge. However, new families, or those currently enrolled families who do not wish to exchange their stock for a membership, will be required to purchase a membership at a cost of $750.00 before enrolling their children.
Part of the registration process included an application for the Foundation. The application stated, in part:
I understand that no membership certificate will be issued until the following conditions are met:
I pay the non-refundable and non-transferable membership fee of $750.00, or I transfer two shares of capital stock of Brookhaven Academy, *1291 Inc. to Brookhaven Academy Educational Foundation, Inc.
I am approved as a member by the Board of Trustees of the Foundation.
Each family had to have a minimum of two shares to enroll its child in the Academy. With the advent of the new Foundation, the requirement to be a member in the nonprofit corporation was to pay $750 or transfer two shares of Academy stock to the Foundation in exchange for Foundation membership. The Foundation obtained 805 shares of transferred Academy stock.
¶ 14. Keene's argument is without merit. The school enrollment and Foundation membership requirements provided Academy shareholders the option either to retain their Academy stock or pay $750 for membership in the nonprofit Foundation. No shareholder was forced to surrender his or her Academy stock. Indeed, Keene chose to retain his Academy shares, even though he had no children in the Academy at the time. Nonetheless, shareholders had a choice, and both Keene and the defendants are in agreement that the Academy never reported a profit. We find that the enrollment requirements did not amount to coercion. Shareholders had an option either to transfer two Academy shares or pay $750 for school enrollment in exchange for membership in the Foundation.
B. Type of Corporation (General Purpose or Special Purpose)
¶ 15. Keene argues that the trial court erred by finding that the Academy is a general-purpose corporation. He contends that the Academy is a specific-purpose corporation set up for the purpose of conducting a school business. The Academy's articles of incorporation state, in part:
THIRD: the specific purpose or purposes for which the corporation is organized stated in general terms are:
(1) To organize, own and operate primary schools, secondary schools and/or colleges and other educational institutions for the education of youth.
(2) To fix the curricula for such schools, colleges and other such institutions and the standards and qualification of admission of pupils and students and for their retention in such schools, colleges and other such institutions and to reject any applicant for admission or to expel any person so enrolled and attending for any cause whatsoever.
(3) To select and employ such principals, teachers, professors, instructors and other employees as the corporation may deem necessary and advisable and to deny or terminate such employment at the will of the corporation.
(4) To prescribe, charge and collect such fees as the corporation may find necessary and proper to be collected from pupils and students and to vary such charges in any or all individual instances as may be determined by the corporation so that it shall not be necessary for all the pupils or students in the same grade or classes to pay the same or identical fees or tuition, but such fees or tuition as may be charge in each case and each instance to be solely within the discretion of the corporation.
(5) To have and to exercise all powers conferred by the laws of the State of Mississippi upon corporations.
(6) To purchase, own, lease, hire, or otherwise acquire real and personal property, improved and unimproved, or every kind and description, and to sell, dispose of, lease, convey, encumber and mortgage said property, or any part thereof. To acquire, hold, lease, manage, operate, develop, control, build, erect, maintain *1292 for the purposes of said corporation, construct, reconstruct or purchase, either directly or through ownership of stock in any corporation, any lands, buildings, offices, stores, warehouses, plants, machinery, rights, easements, privileges, franchises and licenses, and to sell, lease, hire or otherwise dispose of lands, buildings or other property of the corporation, or any part thereof.
(7) To do all and everything necessary and proper for the accomplishment of the objects herein enumerated or necessary or incidental to the benefit of the corporation.
¶ 16. In reaching its decision, the trial court determined at the hearing for summary judgment that the Academy is a general-purpose corporation. The trial court determined that the formation of the Foundation was in line with the purpose of the Academy's articles of incorporation. Further, the trial court noted the language in subsection six, in particular the language that pertained to the Academy's ability to sell, lease, hire, and to dispose of land, buildings, or other property belonging to the corporation.
¶ 17. The trial court did not err by finding that the Academy is a general-purpose corporation. While one of the enumerated corporate purposes for the Academy is for the organization and operation of schools, it has many others, including "(5) To have and to exercise all powers conferred by the laws of the State of Mississippi upon corporations," and section six, concerning the sale, lease, acquisition and disposal of real and personal property, among other powers. Keene cites Tallahatchie Valley Electric Power Association (TVEPA) v. Mississippi Propane Gas Association, Inc., 812 So. 2d 912, 919 (Miss. 2002) and Blue Cross and Blue Shield v. Protective Life Insurance Company, 527 So. 2d 125, 127-28 (Ala.Civ.App.1987) for authority. Decisions from other jurisdictions are merely informative and not binding authority on this Court. Paz v. Brush Engineered Materials, Inc., 949 So. 2d 1, 7 (Miss.2007); Cucos, Inc. v. McDaniel, 938 So. 2d 238, 241 (Miss.2006); Griffith v. Gulf Refining Co., 215 Miss. 15, 61 So. 2d 306, 307 (1952). "While the Court may utilize these decisions as persuasive authority if it finds them well-reasoned, the decisions are not binding, and this Court is at perfect liberty to disregard them." Paz, 949 So.2d at 7.
¶ 18. Tallahatchie Valley is distinguishable from Keene's case because it involved compliance with statutory laws for regulating rural electric power companies. In Tallahatchie Valley, this Court determined whether Mississippi's Electric Power Association Law prohibited TVEPA, a rural electrical power company, from acquiring a controlling interest in an entity that did not provide electricity. Tallahatchie Valley, 812 So.2d at 914-15. See also Miss. Code. Ann. § 77-5-201 to 255 (Rev.2009). TVEPA's board of directors invested in a propane gas business. Id. at 915. However, both the statutory Act and TVEPA's charter confined it to using electrical energy. Id. at 918. This Court found that the Act expressed a clear legislative intent that limited a corporation under the Act to acquisition of electrical energy. Id. This Court held that "TVEPA's corporate purpose is limited to and cannot exceed the powers granted by the statutory scheme pursuant to which it was created." Id.
¶ 19. Keene also cites Blue Cross for the proposition that a specific-purpose corporation has only those powers necessary to effect its corporate purpose. Blue Cross, 527 So.2d at 127-28. As noted above, rulings from other jurisdictions are nonbinding on the courts of Mississippi. Paz, 949 So.2d at 7. In Blue Cross, the corporation sought to acquire a life insurance *1293 company and to market life insurance. Id. at 126. The Court of Appeals of Alabama determined that Blue Cross was "purely a statutory creature" whose powers were derived from the Alabama Code. Id. The Alabama court also determined that Blue Cross was a specific-purpose corporation limited to maintaining a health-care service plan, and marketing life insurance was prohibited. Id. at 128. Like Tallahatchie Valley, Blue Cross is distinguishable from Keene's case because it was governed by specific statutes created for regulating a specific industry. Accordingly, this issue is without merit.
C. Void or Voidable Acts
¶ 20. Keene argues that the trial court erred by finding that the acts of the Academy Board were voidable and not void. He contends that the Academy Board's actions were ultra vires or outside of its corporate powers. Most of Keene's argument is based on his position that the Academy is a special-purpose corporation and, as such, was prohibited from: (1) forming the Foundation; (2) becoming a "holding company" in essence; and (3) transferring Academy assets via a lease to the Foundation.
¶ 21. This Court has held that the term "`ultra vires' has been used to refer to acts which the corporation's charter does not authorize." Bryant Constr. Co. v. Cook Constr. Co., Inc., 518 So. 2d 625, 629 (Miss.1987). Ultra vires also signifies an act that exceeds the powers of the corporation as defined by law. Id. In Burnett's Lumber & Supply Co. v. Commercial Credit Corporation, 211 Miss. 53, 59, 51 So. 2d 54, 57 (1951), this Court held that "[a]n act of a corporation relating to the subjects within its powers though it should exceed those powers is not void." This Court further held that "[i]t is true that the act of a corporation entirely foreign to the purposes for which it was created is void from want of power." Id.
¶ 22. Keene's underlying contention that the Academy Board's actions were ultra vires in nature and, thus void and not voidable, hinges on his position that the Academy is a special-purpose corporation. As addressed in Issue B, the trial court did not err by finding that the Academy was a general-purpose corporation based on the enumerated corporate purposes contained in the articles of incorporation. The articles of incorporation, as previously mentioned, also conferred on the Academy the powers to lease and hold real and personal property. Additionally, section five and seven of the articles of incorporation generally provided that the Academy had "all powers conferred by the" corporate laws of Mississippi, and "[t]o do all and everything necessary and proper for the accomplishment of the objects herein enumerated." Therefore, Keene's contention that Academy Board's actions were ultra vires in nature in forming the Foundation, being a "holding company," and in transferring assets via a lease, are without merit, because the actions were within the confines of the power conferred on the Academy. Additionally, the shareholders ratified the actions of the Academy Board in forming the nonprofit Foundation, transferring the educational activities, and entering into a lease with the Foundation. Indeed, in his deposition, Keene stated that he had no problem with the formation of the nonprofit corporation to obtain tax-exempt status; he objected only to not having a vote on the issue. Further, Keene chose not to attend or vote at the meeting which ratified the Academy Board's actions. The trial court did not err in finding that the Academy was a general-purpose corporation. Consequently, none of the Academy Board's actions were ultra vires in nature, and this issue is without merit.
*1294 D. Notice
¶ 23. Keene argues that the trial court erred by finding that the shareholders had adequate notice for the December 2005 special shareholders meeting. He therefore argues that because the notice was not adequate, the ratification vote was ineffective due to the failure to inform the shareholders fully on the issues.
¶ 24. The Academy gave the shareholders notice of a December 2005 special meeting in lieu of an annual stockholders meeting. The notice provided the location, time, date, and purpose of the shareholders meeting. See Miss.Code Ann. § 79-4-7.05(a) and (c) (Rev.2009). Some of the enumerated reasons or purposes for the meeting were as follows:
D. To ratify the Corporation's actions, on or about November 28, 2000, in forming a solely owned 501(c)(3) non-profit corporation, Brookhaven Academy Educational Foundation, Inc.
. . .
5. To ratify that certain lease dated June 1, 2004, entered into between Brookhaven Academy, Inc., and Brookhaven Academy Educational Foundation, Inc., wherein the Corporation leased all of its real property to Brookhaven Academy Educational Foundation, Inc.
6. To ratify the actions of the Brookhaven Academy, Inc.'s officers, directors and employees regarding the transfer of educational activities, formerly conducted by Brookhaven Academy, Inc., to Brookhaven Academy Educational Foundation, Inc.
¶ 25. The notice also contained a proxy vote listing the issues to be voted at the meeting. Mississippi Code Section 79-4-7.05 provides the notice requirements for a special shareholder meeting. Keene argues that the shareholders were not provided adequate notice concerning the purpose of the special meeting. In regard to the purpose of a special meeting, Section 79-4-7.05(c) provides that "[n]otice of a special meeting must include a description of the purpose or purposes for which the meeting is called." Miss.Code Ann. § 79-4-7.05(c) (Rev.2009). We find that the trial court did not err by finding that the Academy provided adequate notice to the shareholders. The notice, as previously discussed, provided each shareholder more than a mere description of the purpose, pursuant to the statute. In addition, an attached proxy vote sheet setting forth the voting issues referenced the discussion of the issues in the December 15, 2005, minutes. Also, the wording of the issues provided additional clarification for the shareholders. Indeed, the shareholders voted to ratify the formation of the Foundation, the lease, and the transfer of educational activities. Further, the Academy complied with the notice requirements pursuant to Section 79-4-7.05. Therefore, this issue is without merit.
CONCLUSION
¶ 26. For the above reasons, the judgment of the Lincoln County Chancery Court is affirmed.
¶ 27. AFFIRMED.
WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, LAMAR, KITCHENS AND PIERCE, JJ., CONCUR.
NOTES
[1] Keene filed an amended complaint on February 15, 2007, after the case was transferred to the circuit court.
[2] The trial court dismissed the Academy, the Foundation, Jeff Gatlin, Ken Powell, Phil McGee, and Dean Snider.
[3] At the reconvened December 21, 2005, meeting, the shareholders ratified the Foundation as a solely owned 501(c)(3) nonprofit corporation, and the notice identified the Foundation as being solely owned. However, prior to that time, the Academy, even in its answers, had identified the Foundation as a "subsidiary." There is no indication in the corporate documents, including those from the Mississippi State Corporation Commission, federal forms, or other documents, that identify the Foundation as either a solely owned corporation or a subsidiary corporation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596586/ | 530 N.W.2d 603 (1995)
247 Neb. 813
Trudi MILLER, Personal Representative of the Estate of Timothy Miller, Deceased, Appellee,
v.
Stan E. WALTER, Appellant.
No. S-93-874.
Supreme Court of Nebraska.
April 14, 1995.
Allan J. Eurek and Lisa K. Piscitelli, of Pierson, Fitchett, Hunzeker, Blake & Loftis, Lincoln, for appellant.
*604 Stephen D. Mossman, of Mattson, Ricketts, Davies, Stewart & Calkins, Lincoln, for appellee.
WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, and CONNOLLY, JJ.
LANPHIER, Justice.
Appellee, Trudi Miller, brought this action against appellant, Stan E. Walter, to register a California judgment in the district court for Lancaster County, Nebraska, pursuant to the Uniform Enforcement of Foreign Judgments Act. Appellant asserted the California court lacked personal jurisdiction over him because of failure of personal service, and he resisted registration of the judgment. Appellant demanded a jury trial on the issue of whether the California court possessed personal jurisdiction. The district court denied appellant's demand for a jury trial and proceeded to register the judgment. Appellant's sole assignment of error is that he was denied a jury trial on the issue of personal jurisdiction. We hold there is no right to a jury trial on the issue of personal jurisdiction. We affirm.
BACKGROUND
On January 31, 1990, Timothy Miller obtained a default judgment against Stan E. Walter in a California municipal court. Timothy Miller died on August 10, 1992. On March 11, 1993, Trudi Miller, Timothy Miller's personal representative, filed a second amended petition for registration of the California judgment pursuant to the Uniform Enforcement of Foreign Judgments Act in the district court for Lancaster County, Nebraska.
Appellant answered Miller's petition, alleging as an affirmative defense that the California court lacked personal jurisdiction over him and thus its judgment was not entitled to full faith and credit in Nebraska. Appellant asserted that the manner of service failed to comply with laws of the State of California. By her reply, Miller denied appellant's allegations.
On September 3, 1993, proceedings were had in the district court. Appellant demanded a jury trial on the issue of whether the California court had personal jurisdiction. The district court denied appellant's demand for a jury trial and registered the California judgment. Appellant refused to proceed with a trial to the bench because he feared that by proceeding, he would waive his right to a jury trial. Appellant and his counsel left the hearing without offering any evidence.
After appellant was excused, Miller offered her second amended petition for registration of the California judgment, several affidavits attesting to the manner of service, and certified copies of the proof of service. By its order of September 3, 1993, the district court registered the judgment of the California court as a final personal judgment.
ASSIGNMENT OF ERROR
For his sole assignment of error, appellant asserts the district court erred in overruling his demand for a jury trial on the issue of whether the California court which entered the judgment to be registered had personal jurisdiction over appellant.
STANDARD OF REVIEW
Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below. Grady v. Visiting Nurse Assn., 246 Neb. 1013, 524 N.W.2d 559 (1994); No Frills Supermarket v. Nebraska Liq. Control Comm., 246 Neb. 822, 523 N.W.2d 528 (1994); Anderson v. Nashua Corp., 246 Neb. 420, 519 N.W.2d 275 (1994).
*605 ANALYSIS
The Uniform Enforcement of Foreign Judgments Act, Neb.Rev.Stat. § 25-1587 et seq. (Reissue 1989) provides the statutory framework for bringing an action on a foreign judgment in this state. Although the full faith and credit clause of the U.S. Constitution prohibits a Nebraska court from reviewing the merits of a judgment rendered in a sister state, a foreign judgment can be collaterally attacked by evidence that the rendering court was without jurisdiction over the parties. First Fed. Sav. & Loan Assn. v. Wyant, 238 Neb. 741, 472 N.W.2d 386 (1991); Olson v. England, 206 Neb. 256, 292 N.W.2d 48 (1980).
In his answer to Miller's petition to register the California judgment, appellant alleged that the California court lacked personal jurisdiction over him and, thus, that its judgment should not be given full faith and credit in Nebraska. Appellant asserts that by virtue of § 25-1594, he is entitled to a jury trial on this issue. Section 25-1594 provides in pertinent part: "Any defense, setoff or counterclaim, which under the law of this state may be asserted by the defendant in an action on the foreign judgment may be presented by appropriate pleadings and the issues raised thereby shall be tried and determined as in other civil actions." (Emphasis supplied.)
Appellant asserts that in other civil actions, issues of fact are tried by a jury. Neb.Rev.Stat. § 25-1104 (Reissue 1989) states that "[i]ssues of fact arising in actions for the recovery of money or of specific real or personal property, shall be tried by a jury unless a jury trial is waived...." Appellant argues that given the alleged factual disputes regarding whether the manner of service complied with California law, he is entitled to a jury trial, as in other civil actions. Appellant cites no cases in support of his argument.
However, jurisdiction, whether the question is subject matter jurisdiction or personal jurisdiction, is a question for the court not the jury. State ex rel. Grape v. Zach, 247 Neb. 29, 524 N.W.2d 788 (1995) (stating that subject matter jurisdiction under the Uniform Child Custody Jurisdiction Act is a determination entrusted to the discretion of the court); Chew v. Newsome Chevrolet, Inc., ___ S.C. ___, 431 S.E.2d 631 (App.1993) (subject matter jurisdiction a question for the court, not the jury); Board of County Com'rs v. Amarillo Hosp., 835 S.W.2d 115 (Tex.Civ. App.1992); Walker v. Superior Court, 53 Cal. 3d 257, 807 P.2d 418, 279 Cal. Rptr. 576 (1991) (personal jurisdiction a question for the court); Tigges v. City of Ames, 356 N.W.2d 503 (Iowa 1984) (stating a court must determine its own authority to hear a case even if the issue requires a factual determination).
Generally, a defendant may make a special appearance for the purpose of objecting to the jurisdiction of the court over the person of the defendant. Neb.Rev.Stat. § 25-516.01 (Reissue 1989). Personal jurisdiction is a preliminary matter for the court to decide. See, e.g., Welch v. Welch, 246 Neb. 435, 519 N.W.2d 262 (1994); Line v. Rouse, 241 Neb. 779, 491 N.W.2d 316 (1992); Fisher v. City of Grand Island, 239 Neb. 929, 479 N.W.2d 772 (1992).
Appellant's argument that he was entitled to a jury trial on the issue of personal jurisdiction necessarily fails because in the words of § 25-1594, in "other civil actions," personal jurisdiction questions are within the power of the court to decide.
CONCLUSION
There is no right to a jury trial on the issue of whether the rendering court had personal jurisdiction over the defendant in an action to register a foreign judgment brought pursuant to § 25-1587 et seq. Appellant assigns no other errors regarding the district court's registration of the California judgment, and accordingly, we affirm the district court.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596589/ | 530 N.W.2d 625 (1995)
247 Neb. 837
Lee UNLAND, Appellant,
v.
CITY OF LINCOLN, Nebraska, Appellee.
No. S-93-736.
Supreme Court of Nebraska.
April 21, 1995.
*626 Thom K. Cope, of Bailey, Polsky, Cope, Wood & Knapp, Lincoln, for appellant.
William F. Austin, Lincoln City Atty., and Don W. Taute, Lincoln, for appellee.
WHITE, C.J., CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, and CONNOLLY, JJ.
FAHRNBRUCH, Justice.
Claiming that he was constructively discharged from his employment with the City of Lincoln without due process, Lee Unland petitioned the district court for Lancaster County to order his reinstatement as a police officer.
The district court held that Unland received the procedural due process to which he was entitled and dismissed Unland's petition. Unland appealed that determination.
We affirm the holdings of the district court in all respects.
STANDARD OF REVIEW
This is an action alleging breach of an employment contract and a denial of procedural due process. A suit under an employment contract is an action at law, and an appellate court will overturn factual findings of the trial court only if they are clearly wrong. Hammond v. City of Broken Bow, 239 Neb. 437, 476 N.W.2d 822 (1991).
As to questions of law, an appellate court has an obligation to reach a conclusion *627 independent from a trial court's conclusion in a judgment under review. Winslow v. Hammer, 247 Neb. 418, 527 N.W.2d 631 (1995); In re Guardianship & Conservatorship of Bloomquist, 246 Neb. 711, 523 N.W.2d 352 (1994).
In reviewing a judgment awarded in a bench trial, the appellate court does not reweigh the evidence but considers the judgment in a light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence. Ashland State Bank v. Elkhorn Racquetball, Inc., 246 Neb. 411, 520 N.W.2d 189 (1994).
FACTS
Unland was hired by the City of Lincoln (City) as a police officer in 1978. On September 1, 1988, the City entered into a written labor agreement with the Lincoln Police Union, of which Unland was a member. Article 8 of the agreement provides that discipline and discharge of police officers shall occur only for cause. Unland held his position with the police department until July 1990.
John Becker, then a captain with the Lincoln Police Department, testified that in early July 1990, problems with Unland's performance in a robbery investigation were brought to his attention. Becker testified that Sgt. Roger D. Schmidt, Unland's first line supervisor, informed Becker that a member of his investigation team had been assigned to duplicate the investigation of the July 1990 robbery case because Unland had not completed the necessary reports.
Becker testified that on July 19, he and Schmidt met with Unland to discuss the deficiencies in the robbery investigation. Becker testified that Unland was informed of the duplicate investigation and told that the failure to complete reports in the investigation was a violation of policy and procedure.
Becker testified that on July 24, he again met with Unland and specifically outlined the direction of the discipline he wanted to follow in the matter. Within the previous 6 months, Unland had received 1- and 3-day suspensions for performance deficiencies. Becker testified that he specifically told Unland that he would be recommending to Police Chief Allen Curtis that Unland be terminated because of the prior disciplinary situations and that he did not see the City "going backwards" in the disciplinary process.
Unland testified that he had a discussion with Schmidt and Becker. He testified that he was questioned about the robbery investigation and the timeliness of specific reports. Unland said that he did not recall any discussion regarding the earlier disciplinary matters. Unland also testified that he told Becker that "you ... think I shouldn't work here."
Unland received a written notice, dated July 24, 1990, that a "Personnel Action Report" had been filed by his first line supervisor and team commander. The notice advised Unland that the report would be reviewed at a hearing to be held July 27, at which Unland's attendance was required.
Becker also testified that on either July 25 or 26, he met with Unland's attorney, J. David Thurber. Becker testified that the two discussed the reasons for the upcoming July 27 hearing and his recommendation for Unland's termination.
Thurber testified that when he and Becker met, Becker indicated that he would be recommending Unland's termination because of the pattern of performance deficiencies shown by Unland, his prior disciplinary history, and the current circumstances involving the robbery investigation. Thurber also testified that he reviewed various reports Becker had in his possession concerning the factual circumstances of the current complaint against Unland. Thurber further testified that he told Unland of his discussions with Becker and that termination of his employment was a "real possibility in this case."
Thurber testified that prior to the July 27 hearing, he also contacted Curtis, and that Curtis indicated his concerns about Unland's prior history and the possibility of the termination of Unland's employment.
On July 27, Unland and Thurber attended a hearing over which Chief Curtis presided. Curtis, Becker, and Thurber testified that *628 Curtis began the meeting by asking if anyone wanted him to review the facts and allegations of the situation. Allen Berndt, Lincoln Police Union president, agreed that the accounts of these witnesses reflected what actually occurred at the meeting. It was Unland's testimony that he did not recall specifically what Curtis' general opening comments were as to why they were conducting the hearing. Unland testified that at the hearing, he gave a brief statement on his own behalf regarding why he felt he was "a good police officer and could continue to be a good police officer...."
Thurber testified that he stated on behalf of his client that it was not necessary to have the facts reviewed. Thurber further testified that he presented a proposal as an alternative to Unland's termination. Curtis testified that Thurber's proposal for Unland included a 30-day suspension, 1 year's probation, and termination without any right to appeal in the event that Unland violated any police procedures during his probation period.
Chief Curtis did not accept Thurber's proposal, and suspended Unland for 15 days, at the end of which period his employment would be terminated.
Unland testified that after the hearing was adjourned, he asked his attorney if it was still possible for him to resign. Unland explained at trial that "a firing would not reflect well on a resume, and a resignation would be a better item to approach another employer." Thurber talked to Curtis after the meeting and asked if he would accept Unland's resignation instead of terminating his employment. Curtis testified that he answered in the affirmative, and on July 31, Curtis received Unland's resignation letter.
On August 5, Unland filed a notice of appeal with the personnel director of the City pursuant to the grievance procedures set forth in article 9, § 5, of the agreement between the City and the Lincoln Police Union. The City denied Unland's request for a hearing because he had resigned.
On February 26, 1991, Unland filed this action in district court against the City, requesting, inter alia, damages for loss of wages and reinstatement as a member of the Lincoln Police Department. Unland alleged he was not given notice of the charges against him "prior to his constructive discharge, nor was he given an opportunity to respond." Unland claimed he was terminated from his position without due process of law and in breach of the express employment agreement between him and the City.
The trial court found that Unland had a property interest in his continued employment with the City and that under the police union contract he could be dismissed only for cause. The trial court also found that Unland (1) had notice of the charges against him through conversations with his supervisory officers and with his attorney, (2) had notice of the hearing and had an opportunity to present his case, and (3) was afforded procedural due process. The trial court ordered Unland's petition dismissed.
Unland appealed to the Nebraska Court of Appeals. Pursuant to our authority to regulate the caseloads of the appellate courts, this case was removed from the Court of Appeals' docket to this court's docket.
ASSIGNMENTS OF ERROR
Unland claims that the district court erred in ruling that (1) pretermination due process was adequate and (2) no posttermination due process was required.
ANALYSIS
PRETERMINATION DUE PROCESS
Public employees may have a property right in continued employment. [Citations omitted.] When such property rights exist, they are created not by the Constitution, but by an independent source such as state law. [Citations omitted.] If an employee has a property right in continued employment, he may not be discharged from his job without due process.
Riggins v. Bd. of Regents of University of Nebraska, 790 F.2d 707, 710 (8th Cir.1986), citing Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985), and Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972).
*629 In this case, the City concedes in its brief that Unland had a property interest in his job by virtue of article 8 of the labor agreement between the City and the Lincoln Police Union. Article 8 provides that police officers may be discharged only for good cause. The issue, then, is whether Unland received the process that was due him in connection with his 15-day suspension followed by dismissal at the end of that period.
It is fundamental to established principles of due process that as a prerequisite to an intentional deprivation of a protected property interest, the government must provide some notice and an opportunity for hearing appropriate to the nature of the case. Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950). In Cleveland Board of Education v. Loudermill, supra, the U.S. Supreme Court held that a public employee with a property interest in continued employment who is given posttermination administrative procedures must nevertheless, before termination, be given (1) oral or written notice of the charges against him, (2) an explanation of the employer's evidence, and (3) an opportunity to present his side of the story.
A pretermination procedure functions only as "an initial check against mistaken decisionsessentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action." Loudermill, 470 U.S. at 545-46, 105 S.Ct. at 1495. The pretermination process need not resolve the propriety of the discharge. Loudermill, supra. All process that is due is provided by a pretermination opportunity to respond, coupled with posttermination procedures. Id. See, also, Linton v. Frederick County Bd. of County Com'rs, 964 F.2d 1436 (4th Cir.1992); Duchesne v. Williams, 849 F.2d 1004 (6th Cir.1988); Morton v. Beyer, 822 F.2d 364 (3d Cir.1987); Riggins, supra.
We now examine whether the City afforded Unland the three elements of pretermination due process set forth in Loudermill. As to the first element, Unland claims that he did not have any notice of the specific charges against him or that termination of his employment was a possibility. The record clearly reflects that prior to the July 27 hearing, Unland did receive notice of specific charges against him and that termination of his employment was a possibility.
Under the second element of Loudermill, an employee, prior to termination of his employment, is entitled to an explanation of the employer's evidence against the employee. Unland claims that he did not know that previous disciplinary actions against him would be considered. However, Becker's testimony that he told Unland that he would be recommending termination to Curtis based on Unland's previous disciplinary history was sufficient for the trial court to find that Unland had notice that his disciplinary history would be used as evidence against him at his pretermination hearing.
Moreover, the record also reveals that the discussions between Becker and Thurber, Unland's attorney, were sufficient to give Unland both notice of the charges against him and an explanation of the City's evidence against him. The general rule is that notice to, or knowledge of facts by, an attorney is notice to, or knowledge of, his client. State v. McKenna, 228 Neb. 29, 421 N.W.2d 19 (1988); City of Hastings v. Jerry Spady Pontiac-Cadillac, Inc., 212 Neb. 137, 322 N.W.2d 369 (1982).
Unland argues that his former attorney should not have testified at the trial to his conversations with Unland, due to the attorney-client privilege. Unland objected to his former attorney's testimony at trial. However, this court has held in League v. Vanice, 221 Neb. 34, 374 N.W.2d 849 (1985), that a litigant is not permitted to thrust his lack of knowledge into litigation as a foundation or condition necessary to sustain a claim against another while simultaneously retaining the attorney-client privilege to frustrate proof of knowledge negating the very foundation or condition necessary to prevail on the claim asserted. Unland's alleged lack of knowledge is central to this case. Unland may not assert the attorney-client privilege as to conversations between him and Thurber concerning whether Unland had notice of *630 the charges or an explanation of the City's evidence against him.
We now consider whether Unland had an opportunity to tell his side of the story. Unland himself testified that at the hearing, he gave a "brief speech on why I felt I was had been a good police officer and could continue to be a good police officer...." At the hearing, through his attorney, Unland also presented an alternative discipline proposal which outlined discipline that did not include termination. The record reflects that Unland had a meaningful opportunity to respond to the charges and the evidence against him.
On the basis of the evidence presented at trial, it cannot be said that the trial court was clearly wrong in finding that Unland was accorded procedural due process of law in relation to his termination.
POSTTERMINATION HEARING
We now address Unland's claim that the trial court erred in ruling that no posttermination due process was required.
Article 9, § 5, of the police union's labor agreement provides that in the event of dismissal, an employee may appeal to the personnel board of the City. The labor agreement does not provide for an appeal in the event of a voluntary resignation.
Although Unland submitted a letter of resignation which was accepted, he argues that his resignation was not voluntary and that he was constructively discharged. The record reflects that Unland approached his attorney of his own accord and asked if he could resign in lieu of being terminated. Unland testified that he felt it would be better to have a resignation rather than a termination on his employment record. Thus, the trial court was not clearly wrong in finding that Unland's letter of resignation waived any right to appeal the City's decision to suspend Unland and terminate his employment.
CONCLUSION
The trial court was not clearly wrong in finding from the evidence and the reasonable inferences therefrom that Unland received all the procedural due process to which he was entitled before he was terminated as a Lincoln police officer and that Unland, by voluntarily resigning as a police officer, waived his right to a posttermination hearing. The trial court's dismissal of Unland's petition must be affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596584/ | 28 So. 3d 224 (2010)
Jeffrey Robert COLLETT, Appellant,
v.
STATE of Florida, Appellee.
No. 2D08-5645.
District Court of Appeal of Florida, Second District.
February 26, 2010.
James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
DAVIS, Judge.
Jeffrey Robert Collett challenges his judgments and sentences for armed burglary *225 of a structure, battery, and aggravated assault with a deadly weapon. Because it is not clear from the record whether the trial court utilized the correct standard in evaluating and denying his motion for new trial, we are compelled to reverse and remand for reconsideration of the motion using the proper standard.
Collett allegedly entered a home in the middle of the night while armed with a handgun. Once inside, Collett threatened the occupants of the home, specifically grabbing and pointing the gun at one victim. At trial, Collett was identified by numerous witnesses as the man who entered the home, and the BB-pistol that Collett surrendered to police upon his arrest was identified as the gun he brandished while threatening the victims. Collett testified and admitted that he was present at the home but denied possessing a gun. After he was convicted, Collett's counsel moved for a new trial, alleging that the verdicts were contrary to the weight of the evidence because the evidence failed to support the finding that he used a deadly weapon.[1] Specifically, he alleged that the victims' descriptions of the gun as small did not match the dimensions of the BB-pistol, a gun designed to look like a 9mm handgun. Without the BB-pistol, Collett argued, there was no evidence that a deadly weapon was used. The trial court denied the motion for new trial as it related to this issue, making the following findings on the record:
In regard to the issue surrounding the firearm or gun, dangerous weapon, deadly weapon dangerous weapon, I guess, I believe that there is sufficient evidence that supports the verdict. The jury is the tryer [sic] of fact and they listened to all the evidence and they wade through that and they can believe or disbelieve all or any part of the testimony. I don't know what they believed or disbelieved, but I know that they reached a unanimous verdict and returned that verdict. So as to that, I deny the motion for new trial.
On appeal Collett argues that the trial court applied the incorrect legal standard in evaluating whether the verdict was contrary to the law or weight of the evidence. Specifically, Collett argues that the trial court employed the standard for a motion for judgment of acquittal sufficiency of the evidence rather than the standard required for a motion for new trial weight of the evidence. Collett is correct that the language used by the trial court to deny the motion suggests the use of a sufficiency of the evidence standard.
Regardless of the disputed nature of the evidence, there is no question that the State presented sufficient evidence to overcome a motion for judgment of acquittal and allow the jury to reach a verdict on Collett's charges. See, e.g., Berube v. State, 5 So. 3d 734, 743 (Fla. 2d DCA 2009) ("When considering a motion for judgment of acquittal, the question is whether, `after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt.'" (quoting Fitzpatrick v. State, 900 So. 2d 495, 507 (Fla.2005))). However, Collett raised this evidentiary issue in the context of a motion for new trial, which requires the trial court to consider "whether the evidence presented was adequate to support a conviction." See Ferebee v. State, 967 So. 2d 1071, 1073 (Fla. 2d DCA 2007).
*226 Although this court typically reviews the denial of motions for new trial under an abuse of discretion standard, the standard becomes de novo if, as a matter of law, the trial judge applies the incorrect legal standard in denying the motion. Id. "[A] trial court is not compelled to use `magic words' when ruling on a motion for new trial, but the ruling should demonstrate that the proper standard was applied to the motion." Geibel v. State, 817 So. 2d 1042, 1045 (Fla. 2d DCA 2002). In the instant case, we are unable to ascertain, as a matter of law, whether the trial court utilized the improper standard as is suggested by the language used in its order, or merely used improper wording while actually applying the correct standard. Accordingly, we reverse and remand for the trial court to reconsider the motion for new trial using the proper standard.
Reversed and remanded.
KHOUZAM and CRENSHAW, JJ., Concur.
NOTES
[1] Collett also moved for a new trial based on the use of allegedly improper comments during the State's closing argument. We find no error in the trial court's denial of the portion of the motion for new trial related to this issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596550/ | 399 So. 2d 248 (1981)
Joseph I. HARPER, Jr., Tula Ann Harper, Raymond Youngman, Margaret J. Youngman, Elizabeth S. Staggs, Lillian L. Wilson, Linda Watts
v.
REGENCY DEVELOPMENT COMPANY, INC., Champion Construction Co., Inc., Ellard Contracting Co., Inc.
80-19.
Supreme Court of Alabama.
May 1, 1981.
Rehearing Denied June 5, 1981.
*249 Rodney A. Max of Denaburg, Schoel, Meyerson & Ogle, Birmingham, for appellants.
John F. Whitaker of Sadler, Sadler, Sullivan, Sharp & Stutts, Birmingham, for appellees.
Fournier J. Gale, III, and H. Thomas Wells, Jr., of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for Drummond Coal Co.
JONES, Justice.
The claims upon which this appeal is based arise out of Appellees' blasting operations on Red Mountain in Birmingham, Alabama, during the months of June, July and August of 1978.[1]
Plaintiffs-Appellants are members of a residential community located on the slope of Red Mountain. Plaintiffs initiated these claims in 1979 in the district court, seeking compensation for property damage allegedly caused by Appellees' blasting operations during development of a condominium complex near the crest of the mountain.
Subsequent discovery revealed that the actual costs of repairs to Plaintiffs' residences were in excess of the jurisdictional amount of the district court ($5,000). By the time the amount of actual damages became known, however, expiration of the statute of limitations prevented dismissal and refiling of the actions in the circuit court. Consequently, Appellants amended their claims so as to remain within the district court's jurisdiction.
Upon a finding for Appellees in the district court, Appellants appealed to the circuit court and amended their complaints to claim their actual damages. Thereupon, the circuit court granted Appellees' objections to the amendments and motions to dismiss Count 1 of each of Appellants' complaints. Dismissal of Count 1 of each complaint was predicated upon grounds that it was based solely upon "strict liability" (Coalite, Inc. v. Aldridge, 285 Ala. 137, 229 So.2d *250 539 (1969)), while denial of Appellants' amendments to the ad damnum clauses was based upon ARCP 13(j). We affirm as to the order denying the amendments; we reverse and remand as to the order dismissing Count 1 of each complaint.
APPELLEES' CONTENTIONS FOR AN APPLICABLE LIABILITY STANDARD
Understandably, the position advanced by Appellees is a plea for application of the doctrine of stare decisis: To establish liability for damage allegedly caused by blasting operations, the burden is upon the Plaintiff to allege and prove that such damage was the result of Defendant's negligence and not the result of blasting conducted in accordance with usual methods and a reasonable standard of care. Mitchell v. Richardson, 277 Ala. 651, 173 So. 2d 814 (1964); Vulcan Materials Co. v. Grace, 274 Ala. 653, 151 So. 2d 229 (1963); Ledbetter-Johnson Co. v. Hawkins, 267 Ala. 458, 103 So. 2d 748 (1958).
As a corollary, Appellees urge that strict liability is an unnecessary and unreasonable standard to impose in blasting cases in that: 1) Blasting is a reasonable and necessary activity in developing land, Cratty v. Samuel Aceto & Co., 151 Me. 126, 116 A.2d 623 (1955); 2) Liability without fault is an unreasonable and unnecessarily restrictive doctrine, Klostermann v. Houston Geophysical Co., 315 S.W.2d 664 (Ct.App.Tex.1958); 3) Rylands v. Fletcher, L.R. 3 H.L. 330 (1868), as proposed by Appellants, arguably adopts a negligence standard as opposed to one of strict liability, Toy v. Atlantic Gulf & Pacific Co., 176 Md. 197, 4 A.2d 757 (1939); 4) To apply a standard of liability without fault would amount to judicial legislation, Coalite, Inc. v. Weeks, 284 Ala. 219, 224 So. 2d 251 (1969); 5) Proof of negligence is not an unreasonable burden in blasting cases, Crawford Coal Co. v. Stephens, 382 So. 2d 536 (Ala.1980).
HISTORY
The history of this State's application of standards of liability in blasting cases is succinctly and aptly set forth in Appellants' brief:
"Since 1907, persons injured or damaged... by the concussion or vibration caused by blasting have been without a remedy, unless they could show that the blaster was negligent in his blasting operations. In effect, blasters in Alabama have been allowed to cause injury and damage to surrounding property so long as they do it carefully. This ... approach to liability for blasting is derived from traditional common law dichotomies of trespass/negligence (trespass on the case) and direct injury/indirect injury. These dichotomies may be explained as follows: If rocks are thrown onto plaintiff's property, there is a trespass because of the direct injury, and the defendant is liable without fault.[2] If, however, the damage was caused by concussion in the air or vibration in the ground, the injury is caused indirectly, and the remedy lies in trespass on the case for which the plaintiff must prove negligence in the blasting.[[3]]"
See, also, Rendlemen, More on Procedure Reform, 33 Ala.Law. 37, 44 (1972).
A majority of states now characterize blasting, under certain conditions, as an abnormally dangerous activity and apply a strict liability approach for injury or damage caused thereby. Restatement (Second) of Torts, §§ 519-524A (1977). This Court, in Borland v. Sanders Lead Co., 369 So. 2d 523 (Ala.1979), hinted at the need to reconsider this State's application of the trespass/trespass on the case dichotomy associated *251 with damage caused by blasting operations.[4]
Under a traditional standard of negligence approach, the plaintiff must specifically show negligent conduct in the operative blasting procedures that proximately caused damage. In essence, the plaintiff's evidentiary hurdles are two-pronged: 1) proving that the defendant's conduct fell below the industry's acceptable standard of care; and 2) proving that such conduct proximately caused the damage suffered.
Both prongs of proof set the stage for a battle of the experts. The first prong, in the absence of statutory or regulatory guidelines, places the plaintiff's expert against the defendant's expert in a contest to determine the industry's empirical standard of care. Republic Steel Corp. v. Peoples, 217 F.2d 236 (5th Cir. 1954).[5] The latter prong pits the plaintiff's evidence of before and after damagein the context of circumstantial cause and effectagainst the defendant's expert, who testifies that the damage is not the result of the blasting.
In light of the subjective nature of any scientific criteria, fostered by disagreement among industry experts, creation of an acceptable standard of conduct becomes extremely difficult. At any rate, the present status of the law, when strictly applied, leaves the fact finder bound by standards established and practiced by the very industry sought to be held accountable, and not by any consideration of the abnormally and inherently dangerous character of the instrumentality or substance employed and the intrinsic risk of harm to others.
In recognition of the harshness of the traditional negligence standard of liability, this Court has relaxed the requisite standard of proof in blasting cases. In Ledbetter-Johnson Co. v. Hawkins, 267 Ala. 458, 103 So. 2d 748 (1958), a plaintiff's judgment was affirmed where the expert testimony showed only that if plaintiff's "damage was done ... in the obtaining of chert from this pit by the use of dynamite ..., it would be because it was not done properly, was done in a negligent manner." Admittedly, such conclusionary evidence, even by an expert without any predicate as to the usual and customary practice in the industry or as to the manner in which defendant's conduct deviated therefromfalls far short of the requisite standard of proof in traditional negligence cases. See, also, Crawford Coal Co. v. Stephens, 382 So. 2d 536 (Ala.1980), and the cases cited therein.
Additionally, this Court has consistently treated blasting claims as actions in trespass, thus applying absolute liability, where rocks or other debris were thrown upon plaintiff's property without any differentiation between the precise damage caused by the trespassing objects and any simultaneous damage caused by concussion or vibration. See Milford v. Tidwell, 276 Ala. 110, 159 So. 2d 621 (1963); Ex parte Birmingham Realty Co., 183 Ala. 444, 63 So. 67 (1913); Bessemer Coal, Iron and Land Co. v. Doak, 152 Ala. 166, 44 So. 627 (1907).
While this accommodation to plaintiff's heavy burden of proof has not overtly altered the standard of liability, at the very least it has tended to treat the dangerous condition created by the ultrahazardous activity as the basis for testing the requisite proof of fault. Indeed, the Doak Court observed that where blasting takes place in the midst of "a thickly settled city," one "acts at his peril."
*252 STRICT LIABILITY IN TORT
In the now famous case of Rylands v. Fletcher, supra, the defendants were mill owners who had constructed a reservoir on their land. Water escaped therefrom into an abandoned coal mine through connecting passages and into the adjoining mine of the plaintiff. In the absence of trespass (the flooding damage being indirect) or the existence of any nuisance, the English court applied the doctrine of strict liability in tort to hold defendants liable, saying:
"We think that the true rule of law is that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape."
Fletcher v. Rylands, L.R. 1 Ex. 265, 279-80 (1866).
This holding was somewhat restricted upon review by the House of Lords, wherein the strict liability principle was made applicable only to "non-natural" uses of defendant's land, as distinguished from "any purpose for which it might in the ordinary course of the enjoyment of land be used." Rylands v. Fletcher, supra.
"After a long period during which Rylands v. Fletcher was rejected by the large majority of American courts which considered it, the pendulum has swung to acceptance of the case and its doctrine in the United States." W. Prosser, Handbook of the Law of Torts, § 78 (4th ed. 1971).
Adherence to the strict liability doctrine has been approved by the Restatement (Second) of Torts (1977), § 519 of which provides:
(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.
AN ABNORMALLY DANGEROUS ACTIVITY CONSTITUTES NEGLIGENCE
We believe our adoption of the Restatement lightens the requisite burden of proof without abandoning the time-honored fault philosophy. Whether we adopt, by name, strict liability in tort for damages caused by blasting operations, or whether we perceive our holding as a mere expansion of prior cases, is relatively unimportant. What is important, in our view, is the preservation of our fault-based tort concept in the context of a modified standard of liability which no longer perpetuates what Professor Prosser terms "a marriage of legal technicalities with scientific ignorance." W. Prosser, Handbook of the Law of Torts, § 78 (4th ed. 1971).
The fault concept is preserved simply by transposing the basis for testing culpability from the degree of care exercised in the manner in which the blasting operation is conducted to the conduct of the blaster in carrying on an abnormally dangerous activity which subjects innocent parties to an unreasonable risk of harm. To treat the discharge of an abnormally dangerous substance under ultrahazardous conditions as wrongful conduct is not violative of the duty/breach of duty principle of tort law. The use of the explosives under abnormally dangerous conditions is negligence, and thus actionable if such conduct proximately causes damage to another.
Our holding today is strikingly similar, both in kind and degree, to the Alabama extended manufacturer's liability doctrine. Casrell v. Altec Industries, Inc., 335 So. 2d 128 (Ala.1976); Atkins v. American Motors Corp., 335 So. 2d 134 (Ala.1976). There, we lessened the consumer's burden of proof, but retained the fault concept, by transposing the basis for testing culpability from the degree of care exercised in the manufacturing process to the product's defective condition at the time of sale. Here, we simply shift the culpability test from the degree of care exercised in the discharge of *253 the explosives to the carrying on of an abnormally dangerous activity. See Henderson v. Wade Sand and Gravel Co., Inc., 388 So. 2d 900 (Ala. 1980), which altered the requisite burden of proof from that of traditional negligence to that of nuisance in the context of property damage caused by a continuing activity involving use of underground water.
While our law no longer permits, as a defense, proof of the degree of care with which a defective product was made and sold to the public, neither will it permit the blaster to defend on the ground that he carefully prepared and detonated the explosive. In either case, to carefully injure another is no longer an acceptable exercise of one's legal duty of due care.
In neither case, however, is the claimant exempt from definitive standards of proof both as to culpability and as to proximate cause. Just as the plaintiff must prove the defective condition of the product and an injury or damage proximately resulting therefrom, one claiming blasting damage can establish liability of the blaster only by proving that such damage is the proximate result of an abnormally dangerous activity.
AN ABNORMALLY DANGEROUS ACTIVITY
The Restatement (Second) of Torts, § 520 (1977), sets forth the following factors to be considered in determining whether an activity is abnormally dangerous:
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.
It is apparent that liability for an abnormally dangerous activity arises out of the intrinsic danger of the ultrahazardous activity itself and the risk of harm it creates to those in the vicinity. Restatement (Second) of Torts, § 519, Comment d (1977). The basis for liability is that one who for his own purposes creates an abnormal risk of harm to his neighbors must be responsible for relieving that harm when in fact it does occur. Id.
The rule of strict liability, however, only applies to that harm which is within the scope of the abnormal risk upon which liability is based. In other words, one who detonates explosives on his own property may be responsible for the risk of harm to persons or property in the vicinity. If, however, no explosion takes place, but someone trips over the dynamite and breaks a leg, strict liability will not apply. Restatement (Second) of Torts, § 519, Comment e (1977).
Our adoption of the Restatement is not a holding that the mere act of blastinganytime, anywherewill subject one to liability without fault. The Restatement (Second) of Torts, § 519 (1977), speaks of "abnormally dangerous activities." Thereafter, § 520 provides guidelines against which to test the appropriateness of the blasting operations. Each case will present its own set of facts against which the § 520 guidelines will apply.[6]
A finding, guided by a consideration of factors outlined in the Restatement, that the blaster was "one who carries on an abnormally dangerous activity" is a finding of negligencethe breach of a legal duty and, a further finding that such conduct proximately damaged another, renders the blaster liable therefor. Ordinarily, both of these determinations will be issues of fact for the jury.[7]
*254 We hold, therefore, that the trial judge's dismissal of Count 1 of each of Appellants' complaints was reversible error.
AD DAMNUM CLAUSE AMENDMENTS
The trial court's rejection of claimants' offered amendments to increase their prayer for damages above the jurisdictional level of the district court is mandated by ARCP 13(j). Plaintiffs had the right to claim only a portion of their damages in order to remain within the jurisdiction of the district court; but, by doing so, they destroyed their right, on appeal to the circuit court, to claim the excess. See Hardy v. Tabor, 369 So. 2d 559 (Ala.Civ.App.1979).
The constitutional issue raised by Appellants is without merit. Therefore, that portion of the trial court's order sustaining the Appellees' objection to Appellants' amendments is affirmed.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
MADDOX, FAULKNER, SHORES and ADAMS, JJ., concur.
TORBERT, C. J., and ALMON, EMBRY and BEATTY, JJ., dissent.
EMBRY, Justice (dissenting):
Before addressing the substantive bases for my views contrary to those of the majority, I feel compelled to express my incredulity that these cases involving an amount in controversy of five thousand dollars each are being considered by this court rather than the Court of Civil Appeals. Affirmance by the majority of the order denying the amendments to plaintiffs' complaints seeking more than five thousand dollars as damages is positive concession that these appeals are not within the jurisdiction of this court. To rule otherwise, the majority would, perforce, repeal Rule 13(j), ARCP.
Regarding the substantive holding and content of the majority opinion, I would summarize my views by stating: If it ain't broke, don't fix it. I do not think the law in Alabama regarding liability for blasting needs changing; therefore, I would not tamper with it.
It seems to me that adopting a rule of strict liability in cases of the nature of those here before us, is not only unnecessary and undesirable but will inevitably lead to severe inhibition of needed development of natural resources vital to the survival of a viable industrialized economy and a society with adequate energy, food, shelter, and creature comforts to make life in that society more than mere organic existence.
Under our system of accountability for one's acts that damage another, we have studiously attempted to adhere to the concept of fault; even when it became necessary to balance the burden between the injured and those responsible for the injury in the case of manufactured goods. See Casrell and Atkins, cited in the majority opinion.
I see no need for a prolix convoluted discussion of the various approaches taken by the courts to determine the nature of the cause of action accruing as the result of damage in consequence of blasting depending upon whether that damage results from vibration, concussion or from casting inanimate objects upon the person or property of another. The simple fact is that the negligence standard as applied in Alabama is a reasonable one and neither places an undue burden of proof on the plaintiff nor presents him with anything approaching an impossible task. No plaintiff is bound by a standard of care of defendant that merely conforms to an acceptable standard to those industries engaged in blasting activities. Proof of proximate cause of damage from blasting is a common sense matter which can be shown by any relevant and material evidence, even if it be circumstantial. E. g., see Cratty v. Samuel Aceto & Co., 151 Me. 126, 116 A.2d 623 (1955).
*255 As aptly put by appellees: "It, therefore, becomes clear that the negligence standard as applied to blasters is not just an empirical standard, but involves matters of location, severity, necessity, propriety and techniques, among others. In other words, negligence `according to the relative circumstances' is a much sounder and more applicable standard." Illustrating the ease of carrying plaintiffs' burden and the liberality of proof required to sustain that burden are the facts of Crawford Coal Co. v. Stephens, 382 So. 2d 536 (Ala.1980).
In conclusion: the decision of the majority in this case is not needed; it departs from a well settled body of law with which the bench and bar are familiar; it raises new questions to be resolved without justifiable or desirable results to be served by their resolution, and last but not least, it places an undue burden upon industry without achieving a concomitant desirable social or economic objective.
TORBERT, C. J., and ALMON and BEATTY, JJ., concur.
APPENDIX
Chapter 21
ABNORMALLY DANGEROUS ACTIVITIES
Section
519. General principle
520. Abnormally dangerous activities
520A. Ground damage from aircraft
520B. Liability to trespassers
520C. Liability to licensees and invitees
521. Abnormally dangerous activity carried on in pursuance of a public duty
522. Contributing actions of third persons, animals and forces of nature
523. Assumption of risk
524. Contributory negligence
524A. Plaintiff's abnormally sensitive activity
§ 519. General Principle
(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.
Comment:
a. The general rule stated in this Section is subject to exceptions and qualifications, too numerous to be included within a single Section. It should therefore be read together with §§ 520 to 524A, by which it is limited.
b. As to the factors to be considered in determining whether an activity is abnormally dangerous, see § 520.
c. The word "care" includes care in preparation, care in operation and skill both in operation and preparation.
d. The liability stated in this Section is not based upon any intent of the defendant to do harm to the plaintiff or to affect his interests, nor is it based upon any negligence, either in attempting to carry on the activity itself in the first instance, or in the manner in which it is carried on. The defendant is held liable although he has exercised the utmost care to prevent the harm to the plaintiff that has ensued. The liability arises out of the abnormal danger of the activity itself, and the risk that it creates, of harm to those in the vicinity. It is founded upon a policy of the law that imposes upon anyone who for his own purposes creates an abnormal risk of harm to his neighbors, the responsibility of relieving against that harm when it does in fact occur. The defendant's enterprise, in other words, is required to pay its way by compensating for the harm it causes, because of its special, abnormal and dangerous character.
*256 Comment on Subsection (2):
e. Extent of protection. The rule of strict liability stated in Subsection (1) applies only to harm that is within the scope of the abnormal risk that is the basis of the liability. One who carries on an abnormally dangerous activity is not under strict liability for every possible harm that may result from carrying it on. For example, the thing that makes the storage of dynamite in a city abnormally dangerous is the risk of harm to those in the vicinity if it should explode. If an explosion occurs and does harm to persons, land or chattels in the vicinity, the rule stated in Subsection (1) applies. If, however, there is no explosion and for some unexpected reason a part of the wall of the magazine in which the dynamite is stored falls upon a pedestrian on the highway upon which the magazine abuts, the rule stated in Subsection (1) has no application. In this case the liability, if any, will be dependent upon proof of negligence in the construction or maintenance of the wall. So also, the transportation of dynamite or other high explosives by truck through the streets of a city is abnormally dangerous for the same reason as that which makes the storage of the explosives abnormally dangerous. If the dynamite explodes in the course of the transportation, a private person transporting it is subject to liability under the rule stated in Subsection (1), although he has exercised the utmost care. On the other hand, if the vehicle containing the explosives runs over a pedestrian, he cannot recover unless the vehicle was driven negligently.
Illustration:
1. A, with reasonable care, carries on blasting operations in a closely settled rural district. A has no reason to know of the presence of B's mink ranch nearby. The noise of the blasting frightens the mink and the fright causes them to kill their young. A is not subject to strict liability to B for the loss of the mink.
§ 520. Abnormally Dangerous Activities
In determining whether an activity is abnormally dangerous, the following factors are to be considered:
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.
Comment:
a. This Section deals only with the factors which determine whether an activity is abnormally dangerous. The general principle of strict liability for abnormally dangerous activities is stated in § 519. The limitations upon strict liability for abnormally dangerous activities are stated in §§ 521-524A.
b. Distinguished from negligence. The rule stated in § 519 is applicable to an activity that is carried on with all reasonable care, and that is of such utility that the risk which is involved in it cannot be regarded as so great or so unreasonable as to make it negligence merely to carry on the activity at all. (See § 282). If the utility of the activity does not justify the risk it creates, it may be negligence merely to carry it on, and the rule stated in this Section is not then necessary to subject the defendant to liability for harm resulting from it.
c. Relation to nuisance. If the abnormally dangerous activity involves a risk of harm to others that substantially impairs the use and enjoyment of neighboring lands or interferes with rights common to all members of the public the impairment or interference may be actionable on the basis of a public or a private nuisance. (See § 822, and Comment a under that Section). The rule of strict liability stated in § 519 frequently is applied by many courts in these cases under the name of "absolute *257 nuisance," even when the harm that results is physical harm to person, land or chattels.
d. Purpose of activity. In the great majority of the cases that involve abnormally dangerous activities the activity is carried on by the actor for purposes in which he has a financial interest, such as a business conducted for profit. This, however, is not necessary for the existence of such an activity. The rule here stated is equally applicable when there is no pecuniary benefit to the actor. Thus a private owner of an abnormally dangerous body of water who keeps it only for his own use and pleasure as a swimming pool is subject to the same liability as one who operates a reservoir of water for profit.
e. Not limited to the defendant's land. In most of the cases to which the rule of strict liability is applicable the abnormally dangerous activity is conducted on land in the possession of the defendant. This, again, is not necessary to the existence of such an activity. It may be carried on in a public highway or other public place or upon the land of another.
f. "Abnormally dangerous." For an activity to be abnormally dangerous, not only must it create a danger of physical harm to others but the danger must be an abnormal one. In general, abnormal dangers arise from activities that are in themselves unusual, or from unusual risks created by more usual activities under particular circumstances. In determining whether the danger is abnormal, the factors listed in Clauses (a) to (f) of this Section are all to be considered, and are all of importance. Any one of them is not necessarily sufficient of itself in a particular case, and ordinarily several of them will be required for strict liability. On the other hand, it is not necessary that each of them be present, especially if others weigh heavily. Because of the interplay of these various factors, it is not possible to reduce abnormally dangerous activities to any definition. The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it, even though it is carried on with all reasonable care. In other words, are its dangers and inappropriateness for the locality so great that, despite any usefulness it may have for the community, it should be required as a matter of law to pay for any harm it causes, without the need of a finding of negligence.
Comment on Clauses (a) and (b):
g. Risk of harm. An activity that is abnormally dangerous ordinarily involves a high degree of risk of serious harm to the person, land or chattels of others. The harm threatened must be major in degree, and sufficiently serious in its possible consequences to justify holding the defendant strictly responsible for subjecting others to an unusual risk. It is not enough that there is a recognizable risk of some relatively slight harm, even though that risk might be sufficient to make the actor's conduct negligent if the utility of his conduct did not outweigh it, or if he did not exercise reasonable care in conducting it. If the potential harm is sufficiently great, however, as in the case of a nuclear explosion, the likelihood that it will take place may be comparatively slight and yet the activity be regarded as abnormally dangerous.
Some activities, such as the use of atomic energy, necessarily and inevitably involve major risks of harm to others, no matter how or where they are carried on. Others, such as the storage of explosives, necessarily involve major risks unless they are conducted in a remote place or to a very limited extent. Still others, such as the operation of a ten-ton traction engine on the public highway, which crushes conduits beneath it, involve such a risk only because of the place where they are carried on. In determining whether there is such a major risk, it may therefore be necessary to take into account the place where the activity is conducted, as to which see Comment j.
Comment on Clause (c):
h. Risk not eliminated by reasonable care. Another important factor to be taken into account in determining whether the activity is abnormally dangerous is the impossibility *258 of eliminating the risk by the exercise of reasonable care. Most ordinary activities can be made entirely safe by the taking of all reasonable precautions; and when safety cannot be attained by the exercise of due care there is reason to regard the danger as an abnormal one.
There is probably no activity, unless it is perhaps the use of atomic energy, from which all risks of harm could not be eliminated by the taking of all conceivable precautions, and the exercise of the utmost care, particularly as to the place where it is carried on. Thus almost any other activity, no matter how dangerous, in the center of the Antarctic continent, might be expected to involve no possible risk to any one except those who engage in it. It is not necessary, for the factor stated in Clause (c) to apply, that the risk be one that no conceivable precautions or care could eliminate. What is referred to here is the unavoidable risk remaining in the activity, even though the actor has taken all reasonable precautions in advance and has exercised all reasonable care in his operation, so that he is not negligent. The utility of his conduct may be such that he is socially justified in proceeding with his activity, but the unavoidable risk of harm that is inherent in it requires that it be carried on at his peril, rather than at the expense of the innocent person who suffers harm as a result of it. Thus the manufacture in a city of certain explosives may involve a risk of detonation in spite of everything that the manufacturer may reasonably be expected to do; and although he may not be negligent in manufacturing them at all, he is subject to strict liability for an abnormally dangerous activity.
A combination of the factors stated in Clauses (a), (b) and (c), or sometimes any one of them alone, is commonly expressed by saying that the activity is "ultrahazardous," or "extra-hazardous." Liability for abnormally dangerous activities is not, however, a matter of these three factors alone, and those stated in Clauses (d), (e), and (f) must still be taken into account.
As to strict liability for ground damage resulting from aviation, see § 520A.
Comment on Clause (d):
I. Common usage. An activity is a matter of common usage if it is customarily carried on by the great mass of mankind or by many people in the community. It does not cease to be so because it is carried on for a purpose peculiar to the individual who engages in it. Certain activities, notwithstanding their recognizable danger, are so generally carried on as to be regarded as customary. Thus automobiles have come into such general use that their operation is a matter of common usage. This, notwithstanding the residue of unavoidable risk of serious harm that may result even from their careful operation, is sufficient to prevent their use from being regarded as an abnormally dangerous activity. On the other hand, the operation of a tank or any other motor vehicle of such size and weight as to be unusually difficult to control safely, or to be likely to damage the ground over which it is driven, is not yet a usual activity for many people, and therefore the operation of such a vehicle may be abnormally dangerous.
Although blasting is recognized as a proper means of excavation for building purposes or of clearing woodland for cultivation, it is not carried on by any large percentage of the population, and therefore it is not a matter of common usage. Likewise the manufacture, storage, transportation and use of high explosives, although necessary to the construction of many public and private works, are carried on by only a comparatively small number of persons and therefore are not matters of common usage. So likewise, the very nature of oil lands and the essential interest of the public in the production of oil require that oil wells be drilled, but the dangers incident to the operation are characteristic of oil lands and not of lands in general, and relatively few persons are engaged in the activity.
The usual dangers resulting from an activity that is one of common usage are not regarded as abnormal, even though a serious risk of harm cannot be eliminated by all reasonable care. The difference is sometimes *259 not so much one of the activity itself as of the manner in which it is carried on. Water collected in large quantity in a hillside reservoir in the midst of a city or in coal mining country is not the activity of any considerable portion of the population, and may therefore be regarded as abnormally dangerous; while water in a cistern or in household pipes or in a barnyard tank supplying cattle, although it may involve much the same danger of escape, differing only in degree if at all, still is a matter of common usage and therefore not abnormal. The same is true of gas and electricity in household pipes and wires, as contrasted with large gas storage tanks or high tension power lines. Fire in a fireplace or in an ordinary railway engine is a matter of common usage, while a traction engine shooting out sparks in its passage along the public highway is an abnormal danger.
Comment on Clause (e):
j. Locality. Another factor to be taken into account in determining whether an activity is abnormally dangerous is the place where it is carried on. If the place is one inappropriate to the particular activity, and other factors are present, the danger created may be regarded as an abnormal one.
Even a magazine of high explosives, capable of destroying everything within a distance of half a mile, does not necessarily create an abnormal danger if it is located in the midst of a desert area, far from human habitation and all property of any considerable value. The same is true of a large storage tank filled with some highly inflammable liquid such as gasoline. Blasting, even with powerful high explosives, is not abnormally dangerous if it is done on an uninhabited mountainside, so far from anything of considerable value likely to be harmed that the risk if it does exist is not a serious one. On the other hand, the same magazine of explosives, the hugh storage tank full of gasoline or the blasting operations all become abnormally dangerous if they are carried on in the midst of a city.
So likewise, the collection of large quantities of water in irrigation ditches or in a reservoir in open country usually is not a matter of any abnormal danger. On the other hand, if the reservoir is constructed in a coal mining area that is honeycombed with mine passages, or on a bluff overhanging a large city or if water is collected in an enormous standing tank above the same city, there is abnormal danger and strict liability when, without any negligence, the water escapes and does harm.
In other words, the fact that the activity is inappropriate to the place where it is carried on is a factor of importance in determining whether the danger is an abnormal one. This is sometimes expressed, particularly in the English cases, by saying there is strict liability for a "non-natural" use of the defendant's land.
There are some highly dangerous activities, that necessarily involve a risk of serious harm in spite of all possible care, that can be carried on only in a particular place. Coal mining must be done where there is coal; oil wells can be located only where there is oil; and a dam impounding water in a stream can be situated only in the bed of the stream. If these activities are of sufficient value to the community (see Comment k), they may not be regarded as abnormally dangerous when they are so located, since the only place where the activity can be carried on must necessarily be regarded as an appropriate one.
Comment on Clause (f):
k. Value to the community. Even though the activity involves a serious risk of harm that cannot be eliminated with reasonable care and it is not a matter of common usage, its value to the community may be such that the danger will not be regarded as an abnormal one. This is true particularly when the community is largely devoted to the dangerous enterprise and its prosperity largely depends upon it. Thus the interests of a particular town whose livelihood depends upon such an activity as manufacturing cement may be such that cement plants will be regarded as a normal activity for that community notwithstanding the risk of serious harm from the emission of cement dust. There is an analogy here to the consideration of the same elements *260 in determining the existence of a nuisance, under the rule stated in § 831; and the Comments under that Section are applicable here, so far as they are pertinent.
Thus in Texas and Oklahoma, a properly conducted oil or gas well, at least in a rural area, is not regarded as abnormally dangerous, while a different conclusion has been reached in Kansas and Indiana. California, whose oil industry is far from insignificant, has concluded that an oil well drilled in a thickly settled residential area in the city of Los Angeles is a matter of strict liability.
In England, "a pluvial country, where constant streams and abundant rains make the storage of water unnecessary for ordinary or general purposes," a large reservoir in an inappropriate place has been found to be abnormally dangerous. In west Texas, a dry land whose livestock must have water, such a reservoir is regarded as "a natural and common use of the land." The same conclusion has been reached by many of the western states as to irrigation ditches.
Comment:
1. Function of court. Whether the activity is an abnormally dangerous one is to be determined by the court, upon consideration of all the factors listed in this Section, and the weight given to each that it merits upon the facts in evidence. In this it differs from questions of negligence. Whether the conduct of the defendant has been that of a reasonable man of ordinary prudence or in the alternative has been negligent is ordinarily an issue to be left to the jury. The standard of the hypothetical reasonable man is essentially a jury standard, in which the court interferes only in the clearest cases. A jury is fully competent to decide whether the defendant has properly driven his horse or operated his train or guarded his machinery or repaired his premises, or dug a hole. The imposition of strict liability, on the other hand, involves a characterization of the defendant's activity or enterprise itself, and a decision as to whether he is free to conduct it at all without becoming subject to liability for the harm that ensues even though he has used all reasonable care. This calls for a decision of the court; and it is no part of the province of the jury to decide whether an industrial enterprise upon which the community's prosperity might depend is located in the wrong place or whether such an activity as blasting is to be permitted without liability in the center of a large city.
On Rehearing
JONES, Justice.
On application for rehearing, Appellees (supported by amicus curiae brief) contend, inter alia, that the Court of Civil Appeals and not this Court has exclusive jurisdiction of this appeal. Because the dissent and not the majority opinion addressed this jurisdictional issue, we accede to Appellees' insistence that we do so.
The Court of Civil Appeals jurisdiction is fixed by Code 1975, § 12-3-10:
"The court of civil appeals shall have exclusive appellate jurisdiction of all civil cases where the amount involved, exclusive of interest and costs, does not exceed $10,000.00 ..."
In the context of the instant case, the key phrase is "where the amount involved ... does not exceed $10,000.00." One of the substantive issues presented by this appeal was the propriety of the trial court's order disallowing Plaintiffs' amendments in circuit court. If allowed, each of the Plaintiff's claims would exceed $10,000. Not until this Court entertained the appeal and ruled adversely to Plaintiffs on this issue could it be said that each of the consolidated claims did not exceed $10,000 in amount. Either this Court had jurisdiction in the first instance (and, if so, retained jurisdiction for the purpose of full disposition of the appeal) or it did not have the power to decide any issue presented.
We are aware that Appellees' position is supported by the following sentence from the dissenting opinion: "Affirmance by the majority of the order denying the amendments to plaintiffs' complaints seeking more than five thousand dollars as damages is positive concession that these appeals are not within the jurisdiction of this court." *261 By way of authority the dissent concludes: "To rule otherwise, the majority would, perforce, repeal Rule 13(j), ARCP."
The minority's proposition is self answering. "Affirmance by the majority" of the issue relating to the amendments necessarily (and "perforce," if you please) means that this Court assumed jurisdiction of an appeal where the amount involved exceeded $10,000. Such "affirmance" constitutes an enforceable order only if this Court acted with jurisdiction. To be sure, once the appeal was entertained and the trial court's order disallowing the amendments was affirmed, each of the claims involved an amount less than $10,000. But we know of no authority (nor have we been aided by Appellees, amicus curiae, or the dissenters in this regard) for the splitting of appellate jurisdiction under these circumstances. This Court cannot take jurisdiction for the disposition of one issue, and then, in light of its holding, dismiss (or transfer) the appeal for lack of jurisdiction.
Suppose, for example, that a jury verdict were rendered, and judgment entered thereon, for $15,000. On motion for J.N.O.V., defendant's only ground insists that $9,000 is the highest award supported by the evidence. On appeal, the only issue presented is the propriety of the trial court's order overruling defendant's motion. Under the rationale urged by appellees, this Court's reversal (thus fixing the plaintiff's judgment at $9,000) would strip it of jurisdiction and mandate dismissal of the appeal, thus leaving the $15,000 judgment undisturbed; and this for the reason that, if this Court has no jurisdiction, it had no power to reverse on the damage issue.
Likewise, here, if we have no jurisdiction, we have no power to affirm on the amendment issue. And we have been careful to note that Appellees' lack of jurisdiction argument is premised on the validity of our order affirming the trial court's denial of the amendments to the ad damnum clause of each of Plaintiff's claims. In the absence of a judgment fixing the amount of recovery, the amount claimed in the pleadings is the only guide by which jurisdiction as between this Court and the Court of Civil Appeals may be determined. Although unsuccessful in their efforts to assert a higher claim on their appeal to circuit court, Plaintiffs' proffered amendments put in controversy amounts in excess of $10,000 for each claim. Jurisdiction of this consolidated appeal is with this Court.
OPINION EXTENDED AND APPLICATION FOR REHEARING OVERRULED.
FAULKNER, SHORES and ADAMS, JJ., concur.
TORBERT, C. J., concurs to deny application for rehearing on the jurisdictional issue; but he would grant rehearing on the substantive issue.
MADDOX, J., concurs specially.
ALMON, EMBRY and BEATTY, JJ., dissent.
MADDOX, Justice (concurring specially).
The applicants for rehearing ask:
"What pressing reasons clamor for adopting of the rule of liability without fault, and the abandonment of the rule of negligence?"
The appellees also state that given this state's scintilla rule, there is no need for changing the standard of negligence as applied to blasting. They say: "It is axiomatic that in light of this state's scintilla rule, a properly prepared case demonstrating even the slightest gleam or glimmer of negligence is a case to be submitted for jury determination. There are many blasting cases that have come before this Court that demonstrate the ease with which this can be done." They then cite Crawford Coal Company v. Stephens, 382 So. 2d 536 (Ala. 1980). The applicants for rehearing also state that the decision of the majority was made without the necessary scientific and empirical data required for a comprehensive decision and without the input necessary to determine what effect the decision would have on the development of Alabama and the growth of its industry.
The applicants for rehearing, of course, raise some interesting questions, questions *262 which I wrestled with conscientiously before concurring in the original opinion. Let me now state the reasons why the present state of the law compelled me to take the position I took.
As the applicants correctly point out, Crawford Coal is an example of the ease with which negligence can be proved. If the majority opinion totally abolished the fault concept in blasting cases, as applicants for rehearing fear it does, and as some of the dissenters contend it does, then the majority opinion would be bad law, but the majority opinion clearly retains the fault concept by requiring proof of proximate causation. A close reading of Crawford Coal against the backdrop of Coalite's Inc. v. Weeks, 284 Ala. 219, 224 So. 2d 251 (Ala. 1969), shows that the step taken by this decision is indeed only a short one. It certainly is not a giant leap.
I share some of the same concerns the applicants have about the role of this Court when faced with a rule which no longer serves the public good. In Henderson v. Wade Sand and Gravel Corp., 388 So. 2d 900 (Ala.1980), I dissented on the ground that if the rule of law stated in prior decisions of this Court no longer served the public good and did not strike a balance between the competing interests, the remedy should come from the Legislature which was best suited to consider and evaluate the competing rights, duties and societal interests. The question may be asked, and appropriately so, why this case is different.
I think this case is different, because in Crawford Coal, supra, this Court affirmed a judgment based upon proof which essentially only connected the blasting as the proximate cause of the injury.
The majority decision still requires a plaintiff to show that blasting was the proximate cause of the plaintiff's injury and damage. While the decision does lighten plaintiff's burden of proof quantitatively, it does not necessarily do so qualitatively.
EMBRY, Justice (dissenting):
The reasoning of the majority opinion on rehearing regarding the jurisdictional question turning on "the amount involved" is even more incredible than that employed upon original deliverance! By a convoluted and contorted illogic, the amount involved suddenly becomes not what was actually claimed in the ad damnum clause of the dismissed Count One of each of the complaints but rather what was claimed in the impermissible and disallowed amendments to those counts. This being the case, this court had no jurisdiction. This fact should have been noted at the time the record reached this court and the cases should have thereupon been transferred to the Court of Civil Appeals. See Williamson v. Birmingham Transit Corp., 344 So. 2d 489 (Ala.1977); cf. Great Central Insurance Company v. Edge, 292 Ala. 613, 298 So. 2d 607 (1974). Under this state of the law, anytime a litigant wishes to bypass the Court of Civil Appeals, all that need be done is to proffer some known illegal or impermissible claim or amendment that recites a sum in excess of ten thousand dollars and in spite of it being properly stricken or disallowed, behold, you now have direct access to this court. What more specious reasoning can there be?
I reiterate my views concerning the merits, previously expressed in the original dissent.
ALMON and BEATTY, JJ., concur.
NOTES
[1] Five separate claims were consolidated in the trial court and on appeal.
[2] See, e. g., Coalite Inc. v. Weeks, 284 Ala. 219, 224 So. 2d 251 (1969); Milford v. Tidwell, 276 Ala. 110, 159 So. 2d 621 (1963); Vulcan Materials Co. v. Grace, 274 Ala. 653, 151 So. 2d 229 (1963); Central Iron & Coal Co. v. Vandenheuk, 147 Ala. 546, 41 So. 145 (1906).
[3] See, e. g., Lehigh Portland Cement Co. v. Dobbins, 282 Ala. 513, 213 So. 2d 246 (1968); Vulcan Materials Co. v. Grace, 274 Ala. 653, 151 So. 2d 229 (1963); Bessemer Coal, Iron & Land Co. v. Doak, 152 Ala. 166, 44 So. 627 (1907).
[4] We note with interest that the legal scholars' debate in this field centers not on the trespass/trespass on the case dichotomy; rather, as J. Fleming, The Law of Torts 40 (4th ed. 1971), states:
"In many American blasting cases, it has been held that damage from flying rocks is trespass, but from vibration or concussion at most nuisance. This proposition, which has been castigated as a marriage of legal technicality with scientific ignorance, is nonetheless commendable because any encroachment of trespass on the field traditionally occupied by nuisance would lead to undesirable restrictions on users of land." (Emphasis added.)
[5] Blasting regulations are specifically promulgated under the Coal Surface Mining Reclamation Act in § 9-16-41, Code 1975. Of course, those in the blasting industry argue that these regulations are far too restrictive to apply in any context other than mining.
[6] Because of its utility in the management of a blasting case in the trial court, we append hereto a copy of the Restatement (Second) of Torts, §§ 519 and 520, with Comments.
[7] We note that this aspect of our holding, particularly the determination of the issue of "abnormally dangerous activity," is at odds with Comment (1) of the Restatement. Consistent with our holdings in Casrell and Atkins, we adhere to the traditional rule of submitting both the issue of culpability and proximate cause to the jury except where no dispute of fact is presented on the issue by the evidence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596582/ | 581 F. Supp. 1039 (1984)
PILKINGTON BROTHERS P.L.C., Plaintiff,
v.
AFG INDUSTRIES INC., Defendant.
Civ. A. No. 83-561 MMS.
United States District Court, D. Delaware.
February 28, 1984.
*1040 Charles F. Richards, Jr., Richards, Layton & Finger, Wilmington, Del., for plaintiff; Joel M. Freed, and Joseph R. Magnone, Burns, Doane, Swecker & Mathis, Alexandria, Va., of counsel.
Stephen P. Lamb, Skadden, Arps, Slate, Meagher & Flom, Wilmington, Del., for defendants; John C. Dods, James T. Newsom, and Peter E. Strand, Shook, Hardy & Bacon, Kansas City, Mo., of counsel.
OPINION
MURRAY M. SCHWARTZ, District Judge.
This is an action for declaratory and injunctive relief under 28 U.S.C. §§ 2201-02 (1976) with jurisdiction based upon diversity, and an application for an order confirming an arbitral award under 9 U.S.C. § 201 (1982). The Court has before it plaintiff's motion for a preliminary injunction and defendant's motion for summary judgment. The central issue embodied in those motions is one of first impression: whether an American court should issue a preliminary injunction duplicative of an ex parte interim injunction issued by a foreign court based solely on grounds of international comity and without regard to the merits of the underlying dispute. For reasons which follow the Court concludes that international comity does not require issuance of the requested preliminary injunction. As a consequence, summary judgment will be granted to defendant.
I. Background
Plaintiff Pilkington Brothers P.L.C. ("Pilkington") is a British corporation with *1041 its principal place of business in England. Defendant AFG Industries, Inc. ("AFG") is a Delaware corporation. Pilkington licensed to ASG Industries, Inc. ("ASG"), a predecessor to AFG, an interest in certain technology involved in making "float glass."[1] Its licensing agreements provide that disputes arising under the agreements should be arbitrated in London in accordance with English law. Arbitration, in fact, has for some time been proceeding in a dispute over the failure of AFG to make royalty reports and payments.
A more recently commenced second arbitration bears an immediate relationship to this action. Pilkington grew concerned that AFG was contemplating selling the float glass technology which is covered in its license agreements. Two events in particular gave rise to Pilkington's apprehension. First, AFG formed a new subdivision, AFG Technologies, Inc., which Pilkington believed AFG intended to use to export Pilkington's float glass technology world-wide. Second, AFG allowed representatives of a Portuguese company, Covina Companhia Vidreira Nacional SARL ("Covina"), to tour AFG's float glass plant. This "Covina incident," Pilkington contends, violated AFG's licensing agreements. AFG admits that Covina officials toured its plant but denies that the incident violated its license agreements.
Pilkington brought its misgivings before an arbitration panel in England. On August 25, 1983, motivated by fears that its float glass technology would be exposed, Pilkington requested an interim injunction from the High Court of Justice, Queens Bench Division, Commercial Court, pursuant to section 12(h) of England's Arbitration Act of 1950.[2] The High Court held a hearing on August 26, 1983. Although Pilkington supplied AFG's London counsel with copies of its filings, counsel for AFG did not attend the hearing.[3] The High Court entered an ex parte order that same day restraining AFG from doing the following acts:
(a) from copying, reproducing, transmitting or communicating to any third party whomsoever and in particular to any director officer or employee of AFG Technologies Inc. who is not also an authorized person as defined in subparagraph (c) below any drawings, *1042 diagrams, manuals, memoranda or other technical documents whatsoever obtained by the Defendants from the Plaintiffs pursuant to the License Agreements referred to in paragraph 3 of this Order;
(b) from disclosing to any third party whomsoever and in particular to any director, officer or employee of AFG Technologies Inc. who is not also an authorized person as defined in subparagraph (c) below any technical information or know-how derived by the Defendants under the License Agreements referred to in paragraph 3 of this Order, whether contained in drawings, reproductions of drawings, written reports, letters, memoranda notes or in any other form whatsoever or acquired from observation of machines, processes or activities in plants of the Plaintiffs or otherwise howsoever;
(c) from causing or permitting the inspection of or access to such parts of the Defendants' production facilities in which the operations which are the subject matter of the License Agreements referred to in paragraph 3 of this Order are practiced or carried on by any person whomsoever except for authorized persons (that is to say, the Defendants' own employees actually employed in such production facilities, the Defendants' own management, legal, supervisory, engineering, technical and research employees, the employees of suppliers and contractors employed to repair and maintain such production facilities, and duly authorized governmental and regulatory authority officials, from whom in each case a written undertaking of confidentiality in the form set out in the Fourth Schedule to each of the License Agreements referred to in paragraph 3 of this Order has been obtained by the Defendants);
(Doc. 1, Exhibit F). The High Court extended to AFG the opportunity to "apply on 48 hours notice to the plaintiffs to vary or discharge" the Court's injunction. (Id.). AFG has, apparently, still not made such an application.[4]
II. Preliminary Injunction
Plaintiff seeks a preliminary injunction from this Court that will exactly track the wording of the interim injunctive order issued by the English High Court of Justice. Plaintiff does not ask this Court to decide the merits of its underlying trade secret and contract dispute with defendant or to craft its own injunction based on that dispute. (See Doc. 29 at 31-32). Rather, relying solely on principles of international comity, plaintiff requests this American court to duplicate the English court's order because plaintiff fears that the English order affords it inadequate protection.
This Court earlier denied Pilkington's request for a temporary restraining order. The Court was not convinced that AFG would violate the High Court's order and therefore held that Pilkington failed to demonstrate irreparable injury. Pilkington Brothers P.L.C. v. AFG Industries, Inc., No. 83-561 (D.Del. Sept. 12, 1983) (order denying temporary restraining order). For purposes of the present preliminary injunction motion and motion for summary judgment, the parties stipulated that AFG would violate the High Court injunction and cause irreparable harm to Pilkington.[5] The issue now before the Court is thus whether an American court must duplicate a foreign interim injunction, without reference to the underlying dispute, where there are ongoing and continuous violations of that foreign injunction.
*1043 I conclude that principles of international comity do not require, and in fact militate against, the issuance of a duplicative order that would interject this Court into the arbitration dispute now before the English courts and the English arbitration panel.
Unlike decisions by American courts, those issued by foreign jurisdictions are not entitled to automatic recognition or enforcement in the United States. Nonetheless, an American court will under principles of international comity recognize a judgment of a foreign nation if it is convinced that the parties in the foreign court received fair treatment by a court of competent jurisdiction "under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries...." Hilton v. Guyot, 159 U.S. 113, 202, 16 S. Ct. 139, 158, 40 L. Ed. 95 (1895); see also Bata v. Bata, 39 Del. Ch. 258, 163 A.2d 493 (1960); Restatement (Second) of Conflict of Laws § 98 (1971). As Judge Aldisert explained in Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435 (3d Cir.1971), cert. denied, 405 U.S. 1017, 92 S. Ct. 1294, 31 L. Ed. 2d 479 (1972):
Comity is a recognition which one nation extends within its own territory to the legislative, executive, or judicial acts of another. It is not a rule of law, but one of practice, convenience, and expediency. Although more than mere courtesy and accommodation, comity does not achieve force of imperative or obligation. Rather, it is a nation's expression of understanding which demonstrates due regard both to international duty and convenience and the rights of persons protected by its own laws.
Id. at 440.
In the usual case parties seek enforcement in this country of foreign money judgments, not injunctive orders. According to the Restatement (Second) of Conflict of Laws, however, the principle of international comity should not be limited to money judgments.[6] The Restatement's authors reason that because American courts enforce injunctive decrees of sister states,
[i]t can therefore be assumed that a decree rendered in a foreign nation which orders or enjoins the doing of an act will be enforced in this country provided that such enforcement is necessary to effectuate the decree and will not impose an undue burden upon the American court and provided further that in the view of the American court the decree is consistent with fundamental principles of justice and of good morals.
Restatement (Second) of Conflict of Laws § 102 comment g (1971). This Court has no reason to quarrel with the Restatement's position. Nonetheless, plaintiff is not entitled to its requested relief.
The parties have extensively briefed the issue of whether the High Court's order is "final" for res judicata purposes and the issue of "reciprocity" that is, the issue of whether an English court would recognize an American interlocutory injunction such as that issued by the High Court were the roles reversed. Neither of those issues, however, are of controlling significance.
First, the "reciprocity" doctrine does not govern this dispute. The reciprocity rule, first espoused by the United States Supreme Court in Hilton v. Guyot, 159 U.S. at 227, 16 S.Ct. at 167, has been applied to deny recognition to a foreign judgment if courts of the foreign nation would not accord recognition to a like judgment issued by an American court. See C. Peterson, Foreign Country Judgments and the Restatement of Conflict of Laws, 72 Colum.L.Rev. 220, 233-36 (1972); A. von Mehren & D. Trautman, Recognition of Foreign Adjudications A Survey and Suggested Approach, 81 Harv.L.Rev. 1601, 1660-62 (1968). As a federal court operating under diversity jurisdiction, this Court *1044 must apply Delaware state law of international comity under the principles of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). See Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d at 440. Restatement (Second) of Conflict of Laws § 98 comment e; H. Smit, International Res Judicata and Collateral Estoppel in the United States, 9 U.C.L.A.L.Rev. 44, 48 (1962); Comment, 18 Colum.J.Transant'l L. 119, 127-28 (1979). In Bata v. Bata, 39 Del. Ch. 258, 163 A.2d 493 (1960), the Delaware Supreme Court refused to apply the reciprocity rule in an action brought by foreign citizens, explaining that the reciprocity rule announced in Hilton was "based on the desire to protect American nationals" and was "limited to cases in which it is invoked by an American citizen." Id. 163 A.2d at 505. The court further recognized that the reciprocity rule "has been severely criticized by commentators in the field of conflict of laws." Id. It is unclear whether the present action falls strictly within Bata because both Pilkington and AFG a foreign corporation and a domestic corporation are asserting protection of the reciprocity doctrine. Nonetheless, based on the Delaware Supreme Court's criticism of the rule in Bata, one can reasonably predict that Delaware would reject application of the reciprocity doctrine in this case. See generally Johnston v. Compagnie Generale Transatlantique, 242 N.Y. 381, 152 N.E. 121 (1926); R. von Mehren & M. Patterson, Recognition and Enforcement of Foreign-Country Judgments in the United States, 6 Lans. Ch. & Pol'y in Int'l Bus. 37, 47 (1974); R. Bishop & S. Burnette, United States Practice Concerning the Recognition of Foreign Judgments, 16 Int'l Law. 425, 435 (1962); W. Reese, The Status in this Country of Judgments Rendered Abroad, 50 Colum.L.Rev. 783, 791-92 (1950); H. Smit, supra p. 9, at 49-51; A. von Mehren & D. Trautman, supra p. 9, at 1662; Restatement (Second) of Conflict of Laws § 98 comment e; cf. Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d at 440 n. 8.[7]
*1045 The question of "finality" is likewise not dispositive. A generally recognized rule of international comity states that an American court will only recognize a final and valid judgment. See A. von Mehren & D. Trautman, supra p. 9, at 1657. That rule, however, has not been strictly applied to cases involving enforcement of modifiable judgments. Modifiable foreign orders can be granted extraterritorial effect even though they might not be "final" for purposes of res judicata. See A. von Mehren & D. Trautman, supra p. 9, at 1657-58; Restatement (Second) of Conflict of Laws § 109 comment d. Plaintiff does not ask this Court to give preclusive effect to a foreign judgment in the traditional sense of barring certain claims or issues from relitigation; rather, it asks the Court to domesticate an interim foreign order and give it the imprimatur of an American court. Under Delaware law a court has discretion[8] to enforce a modifiable equitable decree of another state, see McElroy v. McElroy, 256 A.2d 763, 766-67 (Del.Ch.1969), and the Court assumes that a Delaware court would similarly, in its discretion, enforce a modifiable decree of a foreign nation court.[9]
Most cases uncovered in research in which courts have enforced modifiable foreign injunctions involved child custody orders and divorce decrees, all of which were entered into after a full adjudication of the merits in the foreign courts and were modifiable only upon change in circumstances. See generally R. Bishop & S. Burnette, supra p. 10, at 430-31; R. von Mehren & M. Patterson, supra p. 10, at 70-71; H. Smit, supra p. 9, at 64-66. The equitable orders in these cases are, therefore, in some sense more "final" than the interlocutory injunction entered into in this case. The High Court order could thus be distinguished as merely an interim order, entered into in aid of arbitration, and not based on a full consideration of the merits of the underlying dispute. However, rather than create a per se rule against recognition and enforcement of foreign interim injunctions, the Court will analyze the particular facts of this case under general principles of international comity. There may be a case, under different circumstances, in which a foreign nation "interim" injunction could be recognized.
On the facts of this case it would be inappropriate to enter into Pilkington's *1046 requested relief. By issuing an identically worded injunction while arbitration is still proceeding under the watchful jurisdiction of the English High Court, this Court would offend, rather than promote, principles of international comity. For were this Court to issue Pilkington's requested relief, it would interfere unnecessarily in those foreign proceedings proceedings in which Pilkington agreed by contract to participate.[10] For example, upon a future application to this Court for a sanction against violations of its order, this Court would be compelled to interpret and apply an injunction which was drafted by the English High Court in furtherance of the High Court's special role under the English Arbitration Act.[11] This might lead to inconsistent interpretations and inconsistent enforcement. Any interpretation of the High Court's order should be made by that court, not a United States district court. In addition, the existence of two identical outstanding injunctions could lead to a race to that courthouse which is perceived by each party as the more favorable forum. Finally, modifications of an injunction in one jurisdiction could lead to confusion and procedural tangles in the other jurisdiction. It is far simpler to have one court receive all applications for modifications.
Pilkington argues that without an order by this Court it will have no effective means of persuading AFG to obey the High Court order. An order of this Court is required, asserts Pilkington, to give teeth to the High Court order. The English remedies of "sequestration" and "committal," Pilkington explains, are not enforceable in the United States: sequestration is available only if AFG or its officers have property in England (Doc. 22 at 32); likewise, committal can result in imprisonment of AFG officers only if they enter the United Kingdom. (Id. at 32-33).
Penalties are, however, available against AFG. Pilkington concedes the High Court may impose a fine against AFG if it violates the Court's injunction (Doc. 22 at 33; Affidavit of B. Rit and S. Males, Doc. 23 at A-46, 47). The threat of this sanction is a deterrent to AFG. The Court leaves for another day the question of whether insufficient enforcement mechanisms in a foreign jurisdiction of a litigant's choice would ever constitute grounds for issuing a duplicative interim injunction at the behest of the same litigant.
III. Summary Judgment
Defendant is entitled to summary judgment on both of Pilkington's claims. Claim one seeks "a prompt declaration of [Pilkington's] rights under the High Court's Order, and an order of this Court which will carry the High Court's Order into effect in the United States of America...." (Doc. 1 at 10). As explained above, the Court will not interject itself into the English proceedings by assaying its own interpretation of the High Court order. It is thus inappropriate to issue any declaration of Pilkington's rights under the High Court injunction.
Claim two asks for an "order confirming the High Court's Order as an arbital award against Defendant under Title 9, United States Code, Section 201." (Doc. 1 at 10). Section 201 of Title 9 provides for enforcement in United States courts of the "Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958" (the "Convention"). The Convention, in turn, provides for the recognition *1047 of arbitration awards in the courts of signatory nations.
The High Court interim injunction is not an arbitration award entitled to recognition. "Arbitral Awards" are defined in the Convention as including "not only awards made by arbitrators appointed for each case but also those made by permanent arbitral bodies to which the parties have submitted." Convention, art. I, ¶ 2, 9 U.S.C. § 201. An ancillary injunction issued by the High Court to facilitate proceedings in a separately appointed arbitration panel is not an "arbitral award" issued by a "permanent arbitral bod[y] to which the parties have submitted." The High Court is not involved in arbitrating the substantive contract dispute between the parties and has merely exercised powers granted to it by statute to assist arbitration proceedings being conducted in other fora. Defendant is, consequently, entitled to summary judgment on Pilkington's second claim.
An order will be entered denying Pilkington's motion for a preliminary injunction and granting AFG's motion for summary judgment on both counts of Pilkington's complaint.
NOTES
[1] Float glass is a particular type of flat glass which, according to Pilkington, was "brought to commercial fruition in England by Pilkington as a result of considerable efforts spanning many years and involving expenditures of many millions of pound sterling...." (Doc. 22 at 7). The float glass technology, Pilkington asserts, "constituted a revolutionary development of the glass making art" with widely acknowledged international commercial significance. (Id.).
[2] Section 12 of the Arbitration Act of 1950 provides in relevant part that, where proceedings have been referred to arbitration:
(6) The High Court shall have, for the purpose of and in relation to a reference, the same power of making orders in respect of
(a) security for costs;
(b) discovery of documents and interrogatories;
(c) the giving of evidence by affidavit;
(d) examination on oath of any witness before an officer of the High Court or any other person, and the issue of a commission or request for the examination of a witness out of the jurisdiction;
(e) the preservation, interim custody or sale of any goods which are the subject matter of the reference;
(f) securing the amount in dispute in the reference;
(g) the detention, preservation or inspection of any property or thing which is the subject of the reference or as to which any question may arise therein, and authorizing for any of the purposes aforesaid any persons to enter upon or into any land or building in the possession of any party to the reference, or authorizing any samples to be taken or any observation to be made or experiment to be tried which may be necessary or expedient for the purpose of obtaining full information or evidence; and
(h) interim injunctions or the appointment of a receiver;
as it has for the purpose of and in relation to an action or matter in the High Court:
Provided that nothing in this subsection shall be taken to prejudice any power which may be vested in an arbitrator or umpire of making orders with respect to any of the matters aforesaid.
(Doc. 1, Exhibit C) (emphasis added).
[3] AFG contends that it had insufficient time to arrange for presence of counsel at the hearing. (See Doc. 11 at 11 and Exhibit 11).
[4] By the date of oral argument on the motions now pending before the Court, December 2, 1983, AFG had still not contested the High Court's injunction and stated that it had no intention to do so as long as the arbitration proceedings were unfolding orderly. (Doc. 29 at 24-25).
[5] AFG Industries has consistently maintained it will not violate the High Court order as interpreted by it, but entered into the stipulation to both avoid discovery and present a discrete legal issue.
[6] The Restatement cited only one case in support of this proposition. See Restatement (Second) of Conflict of Laws § 102, Reporter's Note to comment g, citing Roblin v. Long, 40 How.Pr. 200 (N.Y.1800).
[7] Even were the reciprocity rule to apply in this case, affidavits of English counsel for both parties reveal that recognition of the High Court order would be inappropriate.
Bernard Anthony Rit and Stephen Martin Males, both English Barristers, submitted affidavits on behalf of Pilkington which, first of all, reflected a misunderstanding of plaintiff's proposed relief in this case and, secondly, demonstrated agreement with AFG's position that issuance of an identically worded order based solely on principles of comity would be improper:
English law rules as to recognition and enforcement in the strict sense of those terms are not relevant to Pilkington's application in this case because, as we understand the matter, the American court is not being asked to recognize or enforce the English court order in that strict sense. The rules as to recognition and enforcement in the strict sense are relevant in English law only when a party seeks to say that his opponent is conclusively bound in an English court by the decision of a foreign court, so that the party is entitled as of right to a judgment from the English court which is itself final.... However, in the present case Pilkington does not suggest, as we understand the matter, that the English court's injunction deprives the American court of discretion and as such is conclusory against AFG....
* * * * * *
We would agree that a foreign interlocutory judgment is not final and conclusive on the merits and is therefore not capable of direct enforcement in England.
* * * * * *
[T]he existence of an interlocutory injunction granted by a foreign court would be a relevant factor for an English court to take only into account in deciding whether to exercise its discretion in favour of granting its own injunction. The public policy in favour of judicial comity would therefore be a factor pointing towards the grant of an injunction by the English court.... Naturally, it is possible that in some cases other considerations (which might include competing claims of public policy) would point in the other direction, against an injunction being granted. The English court would then have to decide whether those other considerations either required it to refuse the injunction as a matter of law or outweighed the principle of comity as a matter of discretion.
(Doc. 28 at 2-4, 8, 9-10).
Thus, Pilkington's own experts agree that under British law a foreign interlocutory order like the one issued by the High Court would receive only persuasive effect in British courts, not preclusive effect.
[8] It is the general view that equitable orders subject to modification by the issuing court are not entitled to automatic recognition in another state under the full faith and credit clause. See McElroy v. McElroy, 256 A.2d 763, 766 (Del. Ch.1969); Restatement (Second) of Conflict of Laws § 109 & comment c; cf. Flood v. Braaten, 727 F.2d 303, 308-309 (3d Cir.1984).
[9] Delaware courts are by statute entitled to recognize and enforce custody decrees of foreign nations. Under the Uniform Child Custody Jurisdiction Act, 13 Del.C. § 1901-25 (1981), Delaware Courts will "recognize and enforce an initial or modification decree of a court of another state ...," 13 Del.C. § 1913, and, if Delaware Courts have jurisdiction, they are entitled to modify a custody decree of another state. 13 Del.C. § 1914. Section 1923 of the Act provides that:
The general policies of this chapter extend to the international area. The provisions of this chapter relating to the recognition and enforcement of custody decrees of other states apply to custody decrees and decrees involving legal institutions similar in nature to custody institutions rendered by appropriate authorities of other nations, if reasonable notice and opportunity to be heard were given to all affected parties.
13 Del.C. § 1923.
The Uniform Reciprocal Enforcement of Support Act, 13 Del.C. § 601-639 (1981), similarly allows criminal or civil enforcement of support orders of "any state, territory or possession of the United States and the District of Columbia in which this or a substantially similar reciprocal law has been enacted, including any province or territory of the Dominion of Canada or any foreign country." 13 Del.C. § 602 (emphasis added).
At least one state court held, prior to adoption of any Uniform Acts, that it could enforce a foreign decree that was subject to modification in a foreign court on the condition that the order entered into in the United States would also be subject to modification. See Herczog v. Herczog, 186 Cal. App. 2d 318, 9 Cal. Rptr. 5 (1960); see also C. Peterson, supra p. 9, at 261; H. Smit, supra p. 9, at 64-65.
28 U.S.C. § 1738A, enacted in 1980, Pub.L. No. 96-611, 94 Stat. 3569 (Dec. 28, 1980), now imposes a nationwide practice of enforcement of child custody decrees rendered by states, territories and possessions of the United States, similar to that of the Uniform Child Custody Act.
[10] AFG is not, of course, free to violate the High Court order in the United States. Assuming the High Court had jurisdiction over AFG and gave AFG sufficient opportunity to be heard, the High Court order does restrict conduct by AFG within the territorial limits of the United States as well as in England. Cf. 11 C. Wright & A. Miller, Federal Practice & Procedure § 2945 (1973). That is no reason, however, to intrude on the ongoing English arbitration proceedings by issuing a redundant interim American order.
[11] Pilkington promises that it would first seek a declaration from the High Court that its injunction had been violated before seeking a sanction from this Court, but that promise only demonstrates why an order of this Court is unnecessary. The High Court is free to issue its own sanctions which, as is explained below, provide a deterrence against violations of its order. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2587200/ | 240 P.3d 986 (2010)
STATE
v.
MAHONEY.
No. 102975.
Court of Appeals of Kansas.
October 29, 2010.
Decision Without Published Opinion
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596601/ | 638 So. 2d 853 (1994)
The BIRMINGHAM NEWS COMPANY
v.
William V. MUSE.
William V. MUSE
v.
The BIRMINGHAM NEWS COMPANY.
1921325, 1921937.
Supreme Court of Alabama.
March 18, 1994.
*854 James C. Barton, Gilbert F. Johnston, Jr. and Hollinger F. Barnard of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for The Birmingham News Co.
Thomas D. Samford III, General Counsel, Auburn University, T.W. Thagard, Jr. and Cynthia A. Holland of Balch & Bingham, Montgomery, and John P. Scott of Balch & Bingham, Birmingham, for William V. Muse.
PER CURIAM.
The Birmingham News Company filed an action against Dr. William V. Muse, president of Auburn University, seeking preliminary and permanent injunctions ordering Dr. Muse to cease and desist from denying access to Auburn University's response to a letter of official inquiry from the National Collegiate Athletic Association ("the NCAA"). The trial court denied a preliminary injunction, because the NCAA had not yet issued a final ruling on the matter, and the News appealed (# 1921325). The court later issued a permanent injunction, and Dr. Muse appealed (# 1921937). The issue is whether Auburn's response to the NCAA inquiry is a public writing subject to inspection and copying pursuant to Ala.Code 1975, § 36-12-40.
Because the trial court entered a permanent injunction granting the News the relief it requested, the appeal from the earlier denial of a preliminary injunction is moot and will be dismissed. The News argues that its appeal is not moot because, it says, the timeliness of the release of the documents is significant, but any decision we might render would not result in an enforceable judgment. The only judgment now capable of having any effect is the permanent injunction, and we decline to express an advisory opinion on the preliminary injunction under the circumstances of this case.
Section 36-12-40 reads, in pertinent part:
"Every citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute."
In Stone v. Consolidated Publishing Co., 404 So. 2d 678, 680 (Ala.1981), this Court rejected the argument that § 36-12-40 applies only to "such public records as are required by law to be kept by public officials. Code 1975, § 41-13-1." (Emphasis in original.) Instead, the Court held that it applies to "such a record as is reasonably necessary to record the business and activities required to be done or carried on by a public officer so that the status and condition of such business and activities can be known by our citizens." 404 So.2d at 681 (emphasis in original). The Court then said:
"This is not to say, however, that any time a public official keeps a record, though not required by law, it falls within the purview of § 36-12-40.... It would be helpful for the legislative department to provide the limitations by statute as some states have done. Absent legislative action, however, the judiciary must apply the rule of reason..... Recorded information received by a public officer in confidence, sensitive personnel records, pending criminal investigations, and records the disclosure of which would be detrimental to the best interests of the public are some of the areas which may not be subject to public disclosure. Courts must balance the interest of the citizens in knowing what their public officers are doing in the discharge of public duties against the interest of the general public in having the business of government carried on efficiently and without undue interference."
404 So.2d at 681 (citations omitted; emphasis added). The Court in Stone reversed the summary judgment for the publishing company that sought access and remanded for the trial court to consider whether the records met the test for public disclosure as set out in Stone.
Dr. Muse argues that this balancing to determine whether documents are subject to disclosure requires a factual finding as to each document. The News complains that Dr. Muse did not request in camera inspection for nondisclosure or redaction of particular documents until the second hearing, during which the court indicated that it would order the entire response disclosed. However, Dr. Muse responds with the statement *855 that Auburn requested in camera review at the first hearing, but that the judge declined to review the documents in detail, having decided to deny immediate relief. The second hearing was prompted by Auburn's objection to the trial court's order that the sealed record be sent to this Court, and during that hearing Dr. Muse requested full review in camera. It appears that the court ordered full disclosure and denied the request for in camera review because it was deferring to this Court because of the earlier appeal from the denial of the preliminary injunction.
When a legitimate argument for nondisclosure is made, a factual determination as to which documents should be disclosed and which should not should ordinarily be made in the first instance by the trial court. But for the preliminary appeal to this Court, the trial court presumably would have engaged in such a review. Furthermore, because Stone contemplates a fact-based decision on disclosure, a denial of a request for nondisclosure made without first undertaking such a review would seem to be error.
One of the cases relied on in Stone was State ex rel. Newsome v. Alarid, 90 N.M. 790, 568 P.2d 1236 (1977). Newsome, a student reporter for the University of New Mexico, wanted access to the nonacademic staff personnel records of the University. The Supreme Court of New Mexico held that an in camera review was required to balance the interests in favor of disclosure against the interests in favor of confidentiality. The court applied several statutory exemptions to certain portions of the record and then considered arguments for nonstatutory exemptions. It set forth guidelines for determining confidentiality and remanded to the trial court for consideration as to disclosure of individual records. Thus, Newsome supports the principle of initial in camera review by the trial court.
As to the merits of Auburn's argument for nondisclosure, we note that "information received by a public officer in confidence" is the first category listed in Stone of records not required to be disclosed pursuant to § 36-12-40. However, the Court stated in Chambers v. Birmingham News Co., 552 So. 2d 854, 856 (Ala.1989), "The exceptions set forth in Stone must be strictly construed...." Therefore, a claim of confidentiality must be grounded in the facts of the particular case.
The argument for confidentiality of the response to the NCAA investigation is strongly supported by the opinion of the Supreme Court of Kansas in Berst v. Chipman, 232 Kan. 180, 653 P.2d 107 (1982). Berst was a mandamus action seeking a protective order against disclosure of NCAA documents at its headquarters in Kansas. The documents pertained to its investigation into charges that the University of Alabama had broken NCAA rules while recruiting Bobby Lee Hurt from Butler High School. Hurt and the principal of Butler had sued the Birmingham Post Company (publisher of the Birmingham Post-Herald newspaper and hereinafter called "the Post-Herald") for libel, and the Post-Herald was seeking the documents to aid in making its defense, its defense being the contention that the articles it had published were true. The trial court allowed full disclosure, but the Supreme Court of Kansas allowed access only to "memoranda contain[ing] information directly relating to a central issue in the Alabama lawsuit, that of the truth or falsity of the information reported in the subject publications." 232 Kan. at 192-93, 653 P.2d at 117 (emphasis added). The Supreme Court of Kansas held that the trial court had erred in denying the motion without conducting an in camera review, 232 Kan. at 186-87, 653 P.2d at 113, but conducted its own review because of the exigency of the pending libel action in Alabama.
The following language from the Berst opinion supports Dr. Muse's argument for confidentiality and nondisclosure:
"Whether the petitioners have a protectable interest in maintaining the confidentiality of their private investigation into possible infractions of NCAA rules undoubtedly presents a legal question of significant public interest. Substantially affected are the privacy interests of those persons to whom information in the file relates or who have passed on information to the NCAA under a pledge of confidentiality, *856 as well as the NCAA's ability to perform one of its primary functions, that of policing its own ranks to prevent corruption in collegiate athletics....
"To fully appreciate the NCAA's high degree of interest in preserving the confidentiality of their investigation files and the identities of their sources, it is helpful to understand the self-policing function of the NCAA and how this system operates. Briefly, the NCAA is a voluntary organization composed of approximately 750 colleges and universities[[1]] throughout the United States. One of the primary duties of the NCAA is to enforce regulations governing the recruiting, admissions, financial aid, and academic standards aspects of collegiate athletics at member institutions.
"Investigations by the NCAA of possible rules infractions are conducted in the strictest of confidence pursuant to internal rules of the NCAA. It is undisputed that investigators must rely on confidential sources for much of their information. Generally, any information an investigator comes across during his inquiries is placed in the NCAA's confidential file on that investigation. In any one of the NCAA's investigation files there may be allegations and speculation about an individual's sexual preferences, mental capacity, drug and alcohol use, and financial condition; academic records of students, anonymous letters and memoranda of telephone calls, and internal memoranda of interviews which contain the investigator's mental impressions, speculations and conclusions.
"Once the NCAA verifies through an investigation that a possible infraction has occurred, a notice of the allegations is sent to the institution thought to be in violation. The institution then attempts to ascertain all relevant information from the principals involved, including coaches, student-athletes and employees, with much of this information being obtained by the institution under a pledge of secrecy. The college or university then prepares a response to the NCAA inquiry, which is also submitted under promises of confidentiality. All this information is placed in the NCAA's file on the investigation. Further action taken by the NCAA's Committee on Infractions may also be reflected in the file. Once a determination is made on the merits of an infractions case, and the case has been completed, a press release is issued by the NCAA disclosing only the institution involved and any sanctions imposed. All other information remains confidential.
"The NCAA maintains that its policy of confidentiality has been central to the success of this self-policing system in effect for the past 30 years. The NCAA strongly argues loss of this confidentiality will destroy the system, causing intercollegiate athletics to suffer. Because of the extent of national interest and involvement in intercollegiate athletics, the NCAA asserts there is a strong public interest in preserving the means by which the NCAA can investigate and supervise the area of college level sports, which outweighs the petitioners' interest in obtaining the information sought for their defense in the libel action. Furthermore, the NCAA is concerned about potential harm to innocent persons not parties to the Alabama lawsuit, who either disclosed information contained in the file or about whom the information relates."
232 Kan. at 183-85, 653 P.2d at 111-12 (emphasis added).
Dr. Muse makes the point that Auburn does not have power to subpoena witnesses for information regarding alleged NCAA rule violations and from that point argues that the promise of confidentiality is an important part of Auburn's power to cooperate with the NCAA in the investigation. He states that virtually all of the witnesses were promised confidentiality before giving Auburn information to use in its response.[2]
*857 In cooperating with or responding to the NCAA's investigation, Auburn is functioning as a member of a voluntary, self-policing institution. When that institution's rules require confidentiality of its investigations, it is reasonable to maintain that confidentiality to the extent compatible with the fact that some of its members are public institutions. Certainly, a private college or university's response to an NCAA investigation would be strictly confidential. Although Auburn University is a state institution, its response does not necessarily become a public record subject to disclosure simply because of that fact.
The News cites no law requiring Auburn to respond to NCAA inquiries or investigations, so there is no showing that its response is a public record as a matter of law. Thus, in applying Stone`s "rule of reason," to determine whether the response and supporting documents are public records subject to disclosure, the confidentiality inherent in the investigation should be honored unless it is overcome by a compelling interest weighing in favor of disclosure. The Berst court cited the NCAA's assertion that there is a "strong public interest in preserving the means by which the NCAA can investigate and supervise the area of college level sports." The Supreme Court of Kansas did not expressly adopt this position, but its discussion indicated that it considered the public interest to weigh against disclosure. It weighed the interest of the Post-Herald as a private litigant against that public interest. Finding that the investigation included information crucial to the Post-Herald's defense, it ordered production only to the extent required by the Post-Herald's need for information strictly pertinent to its defense of truth.
The position of the Supreme Court of Kansas corresponds to an analogous principle in cases decided by this Court. In regard to questions of eligibility to participate in high school athletics, this Court has said that trial courts ordinarily should not interfere. Such questions are decided in this state by the Alabama High School Athletic Association, "a voluntary organization compris[ing] 656 public and private schools." Alabama High School Athletic Ass'n v. Scaffidi, 564 So. 2d 910, 911 (Ala.1990).
"In Scott v. Kilpatrick, 286 Ala. 129, 237 So. 2d 652 (1970), we set forth the standard of review regarding a court's jurisdiction in a high school athletic association's determination of the eligibility of amateur athletes:
"`If officials of a school desire to associate with other schools and prescribe conditions of eligibility for students who are to become members of the school's athletic teams, and the member schools vest final enforcement of the association's rules in boards of control, then a court should not interfere in such internal operation of the affairs of the association....
"`Of course, if the acts of an association are the result of fraud, lack of jurisdiction, collusion, or arbitrariness, the courts will intervene to protect an injured [party's] rights."
"286 Ala. at 132, 237 So.2d at 655 (citations omitted) (emphasis added)."
564 So.2d at 912; see also Alabama High School Athletic Ass'n v. Medders, 456 So. 2d 284 (Ala.1984); Alabama High School Athletic Ass'n v. Rose, 446 So. 2d 1 (Ala.1984).
Thus, this Court has recognized and generally deferred to the self-policing association instituted by the public schools of Alabama. The NCAA is similarly instituted by and among the nation's colleges and universities, many of which are public institutions. Our cases declining to interfere with regular proceedings of the Alabama High School Athletic Association support a similar recognition of the NCAA's policy of confidentiality in its investigations. The recognition of this policy supports the public's interest in maintaining Alabama's state colleges and universities as members of the national collegiate athletic community.
We do not necessarily say that the public interest weighs only in favor of the NCAA's policy of confidentiality in its system for the self-policing of college athletics. The public has an interest in ensuring that its public institutions are run properly. However, that interest can be protected by proceedings other than an NCAA investigation or the college's response thereto. Because the documents *858 at issue here were generated solely as part of Auburn's response to the NCAA investigation, and because such investigations are conducted under promises and policies of confidentiality that are helpful, or even necessary, to such investigations, the court, before ordering that any portion of the response be disclosed, should duly consider the promise and the policy of confidentiality in deciding whether each document should be disclosed.
The Justices concurring in the result and dissenting cite University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373 (Ky.1992), and Memphis Publishing Co. v. Memphis State University, 6 Media L.Rep. (BNA) 2405 (Tenn.App.1980) (not published in S.W.2d). The holdings in those cases are not pertinent to our decision because both courts were construing specific statutory exemptions. The Supreme Court of Kentucky considered four specific statutory exemptions and held that none applied; the Tennessee Court of Appeals considered a statutory exemption for "records of students... relating to academic performance, financial status ..., [or] medical or psychological treatment," and held that it did not apply. This Court in Stone invited the Alabama Legislature to enact such statutory exemptions, but the Legislature has not done so. Therefore, Auburn's reliance on the general exemption stated in Stone for "information received by a public official in confidence" is reasonable, and this Court will not apply the statutory law of other states to conclude that no exemption may be applied in this case.
At the hearing on the request for a preliminary injunction, the trial judge apparently reviewed the response and some of the supporting materials. However, at the hearing on the permanent injunction, the judge acknowledged that he had "not read all of the statements and [had] not look[ed] at all the supporting documents." Therefore, the trial judge has ordered the disclosure of some documents that it has not reviewed. Furthermore, he has not made individualized determinations as to whether the response and the supporting materials are due to be disclosed under the standards set out in Stone, Chambers, and this opinion. These matters should be addressed first by the trial judge. Therefore, the cause must be remanded for an in camera review and a determination by the trial judge.
1921325DISMISSED AS MOOT.
1921937REMANDED.
HORNSBY, C.J., and ALMON, SHORES, STEAGALL, INGRAM and COOK, JJ., concur.
MADDOX, J., concurs in the result.
HOUSTON, J., concurs in part and dissents in part.
MADDOX, Justice (concurring in the result).
It is somewhat difficult for me to understand why the Birmingham News Company is not entitled to see what Justice Houston believes it is entitled to see. I was almost persuaded to concur with his special writing, but I concur in the result, which is to remand the case to the trial court: (1) because the trial judge acknowledged that he had "not read all of the statements and [had] not look[ed] at all the supporting documents," and (2) because I believe that Auburn University should be given another opportunity, if it can, to show why the records should not be disclosed.
In concurring to remand the case for this purpose, I must point out, however, that I agree with Justice Houston's position on the applicable law, and specifically with his statement that "[his] position in this case is consistent with two recent rulings by appellate courts in Kentucky and Tennessee," University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373 (Ky. 1992); Memphis Publishing Co. v. Memphis State University, 6 Media L.Rep. (BNA) 2405 (Tenn.App.1980) (not published in S.W.2d).
HOUSTON, Justice (concurring in part and dissenting in part).
I concur with the majority opinion insofar as it holds that the appeal by the Birmingham News Company is moot and, therefore, due to be dismissed. The overriding issue in both of these appeals is whether Auburn's *859 refusal to make its response available to the News violated Alabama's "Open Records Act," Ala.Code 1975, § 36-12-40. However, the trial court ultimately ordered Auburn to disclose its response. I note the News's contention that its appeal was not rendered moot by the trial court's ultimate ruling in its favor. The News urges us to hold that Auburn should have made its response public when it was first asked to. Stated differently, the News takes the position that it is entitled to both an affirmance of the judgment granting its requested injunctive relief and a holding that the trial court abused its discretion in not entering the injunction earlier. However, given the procedural posture of this case, our resolution of this issue would amount to nothing more than an advisory opinion. I do note, however, that I would not be inclined to find an abuse of discretion on the trial court's part in waiting until after the NCAA investigation had been completed to order the release of the response.
I respectfully dissent from that portion of the majority opinion reversing in toto the trial court's permanent injunction and remanding the case for further consideration. Relying on Stone v. Consolidated Publishing Co., 404 So. 2d 678 (Ala.1981), and Chambers v. Birmingham News Co., 552 So. 2d 854 (Ala.1989), Auburn contends that its response contains statements of a sensitive and personal nature from individuals who were told by investigators representing the NCAA and Auburn that the investigation into Auburn's football program would be kept confidential. Making the response public, Auburn argues, would breach the promises of confidentiality that it says were made to these individuals and would jeopardize Auburn's ability to conduct future internal investigations into alleged improprieties within its athletic program. Maintaining that the trial court did not conduct a thorough in camera examination of all of the documents comprised in the response, Auburn seeks a reversal of the permanent injunction and a remand of the case for further consideration after all of the documents have been examined by the trial court.
Also relying on Stone and Chambers, the News contends that Auburn failed to overcome the strong presumption in favor of the disclosure of public records under § 36-12-40. The News argues that when the interest of the taxpayers in knowing what information their public officials have gathered during a major investigation of alleged improprieties at one of their state universities is balanced against that university's desire to keep the results of that investigation secret, the taxpayers' interest in full disclosure must prevail.
Section 36-12-40 provides in pertinent part:
"Every citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute."
In Chambers, we stated:
"In Stone, supra, we held that a `public writing,' as encompassed by § 36-12-40, is a record `reasonably necessary to record' the required business and activities of a public officer `so that the status and condition of such business and activities can be known by our citizens,' and we recognized that the news media are `clearly appropriate vehicles' through which the citizens of this state can be informed of the business and activities of the public officials. We then wrote:
"`This is not to say, however, that any time a public official keeps a record, though not required by law, it falls within the purview of § 36-12-40. McMahan v. Trustees of the University of Arkansas, 255 Ark. 108, 499 S.W.2d 56 (1973). It would be helpful for the legislative department to provide the limitations by statute as some states have done. Absent legislative action, however, the judiciary must apply the rule of reason. State v. Alarid, 90 N.M. 790, 568 P.2d 1236 (1977). Recorded information received by a public officer in confidence, sensitive personnel records, pending criminal investigations, and records the disclosure of which would be detrimental to the best interests of the public are some of the areas which may not be subject to public disclosure. Courts must balance the interest of the citizens in knowing what their public *860 officers are doing in the discharge of public duties against the interest of the general public in having the business of government carried on efficiently and without undue interference. MacEwan v. Holm, 226 Or. 27, 359 P.2d 413 (1961).'
"Stone, 404 So.2d at 681. Additionally, § 36-12-40 states, in pertinent part, that `every citizen has a right to inspect and take a copy of any public writing of this state.'
"We have paid particular attention to the language in Stone that seeks to prescribe exceptions to the public disclosure requirement of public writings and records, together with the language in § 36-12-40. It is clear from the wording of § 36-12-40 that the legislature intended that the statute be liberally construed. In addition, we note, statutes intended for the public benefit are to be construed in favor of the public. Gant v. Warr, 286 Ala. 387, 240 So. 2d 353 (1970).
"To put the Stone `exception' language into perspective, along with the language of § 36-12-40, we offer the following guidance. There is a presumption in favor of public disclosure of public writings and records expressed in the language of § 36-12-40. Limitations to the broad language of the statute are, nevertheless, necessary, and, as stated in Stone, absent legislative action, the judiciary has to apply the `rule of reason.' However, it must be noted that this `rule of reason' shall not be applied so as to hamper the liberal construction of § 36-12-40. The exceptions set forth in Stone must be strictly construed and must be applied only in those cases where it is readily apparent that disclosure will result in undue harm or embarrassment to an individual, or where the public interest will clearly be adversely affected, when weighed against the public policy considerations suggesting disclosure. These questions, of course, are factual in nature and are for the trial judge to resolve. Moreover, the Stone exceptions should not come into play merely because of some perceived necessity on the part of a public official or established office policy. Furthermore, because there is a presumption of required disclosure, the party refusing disclosure shall have the burden of proving that the writings or records sought are within an exception and warrant nondisclosure of them.
"Doubtless, exceptions to the broad language of § 36-12-40 are needed and should be applied under appropriate circumstances. But, we emphasize that these exceptions must be narrowly construed and their application limited to the circumstances stated herein, for it is the general rule, and has been the policy of this state for a number of years, to advocate open government. The Stone exceptions were not intended, nor shall they be used, as an avenue for public officials to pick and choose what they believe the public should be made aware of."
552 So.2d at 856-57.
I have carefully examined Auburn's response, which contains, among other things, the statements of a number of individuals taken during the investigation. These statements provide great insight into what eventually became one of the most highly publicized NCAA investigations into alleged improprieties at an Alabama state university. After carefully examining the contents of Auburn's response, I have concluded that these statements, while containing information that the citizens of this state may find interesting in a general sense, also contain certain information that the citizens of this state need to know and have a right to know. In reaching this conclusion, I recognize Auburn's concern for the confidentiality of the investigatory process and the effectiveness of future internal investigations by Auburn. I realize that Auburn had no subpoena power to aid it in its attempt to gather information and that it relied heavily on the voluntary cooperation of witnesses. My decision in this case, however, is predicated on the fact that all but two of the statements of confidentiality made by investigators from the NCAA and Auburn during the interviews were general in nature and did not promise confidentiality based upon the specific request of any individual. There is no indication in any of the statements contained in the response, other than the statements of Larry Blakeney, who was an employee of Troy State University at the *861 time of his interview, and Buddy Mitchell, who at the time of his interview was not an employee of Auburn, that any individual questioned specifically solicited a promise of confidentiality and agreed to talk only after such a promise was made. It would run counter to my understanding of the legislature's intent in enacting § 36-12-40 for me to hold that a general assurance of confidentiality could nullify the statute. In this regard, I find persuasive the approach taken by the Supreme Court of Utah:
"The Board contends that the promise of confidentiality made at the top of each form is sufficient to preclude disclosure of the forms. The promise only, however, is not sufficient. If this Court allowed a promise of confidentiality to end the inquiry, any state official could eliminate the public's rights under the Public and Private Writings Act. This is not an acceptable result. Breach of a promise of confidentiality standing alone is not of sufficient harm to the public's interest to prevent disclosure. In this situation, as in others, promises of confidentiality cannot always be kept. The promise would have to coincide with reasonable justification based on public policy for refusing to release the records."
KUTV, Inc. v. Utah State Board of Education, 689 P.2d 1357, 1361 (Utah 1984). See, also, Dale v. Birmingham News Co., 452 So. 2d 1321 (Ala.1984); Moorehead v. Arnold, 130 Ariz. 503, 637 P.2d 305 (App.1981); State ex rel. Newsome v. Alarid, 90 N.M. 790, 568 P.2d 1236 (1977). Given the strong presumption in favor of the public's right to have access to public records, the law should not presume that an individual would not disclose information in the absence of such a general assurance of confidentiality. I reiterate, however, that information or statements given upon promises of confidentiality that are solicited on the record by the individuals sought to be questioned in investigations of this kind and that form the sole basis for the individual's cooperation may be protected from disclosure. An exception for recorded information received by a public official in confidence under these circumstances would serve to protect the integrity of the investigatory process and would provide a reasonable justification based on sound public policy for refusing to release the records.[3]
I suppose that my strong feelings in favor of preserving the sanctity of the taxpayers' right to know what goes on in, or what is done to, institutions supported by their tax money prevent me from truly understanding what our decision in this case has to do with our previous decisions dealing with the appropriate judicial standard for reviewing a high school athletic association's determination of the eligibility of amateur athletes. I do not interpret those decisions as requiring a "hands off" approach by this Court in cases where the public's right to know under § 36-12-40 is challenged. Likewise, I understand that cases of this kind present factual questions as to whether disclosure will result in undue harm or embarrassment to an individual or whether the public's interest will be adversely affected, when weighed against the *862 public policy considerations suggesting disclosure, and that those questions are normally for the trial court to resolve. However, given the lengthiness of this litigation to date (and the corresponding length of time that the public has been denied access to this information), I simply cannot justify a remand. Each Justice on this Court is capable of carefully examining Auburn's response, as I have, and each is capable of making a determination as to whether all of the response, or part of it, should be made public. Presumably this will have to be done anyway when this case returns to us after a ruling on remand, and I note that it will have to be done without any presumption of correctness as to the trial court's judgment.
I would hold, therefore, that Auburn's response to the NCAA investigation should be made available for inspection by the News, with the exception of the statements given by Buddy Mitchell and Larry Blakeney and any information contained in the response to allegation number 2 in the last paragraph on page 36 through the first paragraph on page 44, and any information contained in the response to allegation number 7 in the second and third sentences on page 144, and such other responses to the official inquiry that could have been derived only from the testimony of Larry Blakeney. I note that my position in this case is consistent with two recent rulings by appellate courts in Kentucky and Tennessee. See University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373 (Ky.1992), and Memphis Publishing Co. v. Memphis State University, 6 Media L.Rep. (BNA) 2405 (Tenn.App.1980) (not published in S.W.2d).
I think that the majority opinion conflicts with both the legislative intent in enacting § 36-12-40 and the prior decisions of this Court defining that legislative intent. In a democracy, public records should be open. Openness should be the lodestar. To mix words and thoughts from Justice Oliver Wendell Holmes's dissents in Truax v. Corrigan, 257 U.S. 312, 344, 42 S. Ct. 124, 133-34, 66 L. Ed. 254 (1921), and Abrams v. United States, 250 U.S. 616, 630, 40 S. Ct. 17, 22, 63 L. Ed. 1173 (1919), and an 1865 letter from Holmes to Henry Brownell; there is nothing that I more deprecate than the use of judicial power to keep people ignorant and thereby thwart their search for truth. "Truth sifts so slowly from the dust of the law."
NOTES
[1] Auburn is a member of the NCAA.
[2] The dissent's position that confidentiality exists only when the witness expressly insisted on it ignores the fact that Auburn promised confidentiality to all or virtually all witnesses as an inherent part of the entire investigation. We see no reason why a witness should be required to insist that Auburn repeat a promise that it has already given.
[3] Larry Blakeney's attorney made the following statement on Blakeney's behalf before Blakeney was interviewed:
"Also, I want it to be made very clear to everyone here that everything that occurs in this room today is confidential, and I just want to be sure everybody understands that. That this is not to be discussed with anyone. It is in no way to be disseminated to anyone. It is in no way to be commented [on] to the press by anyone. And if anyone has any idea contrary to that, then they need to speak up, because we need to resolve that problem."
Blakeney's statement should not be subject to disclosure.
Before he was questioned, Buddy Mitchell submitted to Auburn's attorney a letter that contained a statement similar to the one Blakeney's attorney made:
"I've been requested to speak with one or more persons with the NCAA regarding allegations made by Eric Ramsey against Auburn University. I will agree to speak with you and the NCAA investigators regarding this matter under the following conditions:
"(a) My discussion will remain completely confidential.
"(b) That my statements or any part thereof will not be released to the public or the press without my prior written consent.
"(c) This confidentiality and written consent required extends not only to my statements but [also to] any notes which I may choose to share with the NCAA."
Mitchell's statement, like Blakeney's, should not be subject to disclosure. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596707/ | 638 So. 2d 583 (1994)
Anthony N. IAZZO, Ph.D., Appellant,
v.
DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF PSYCHOLOGICAL EXAMINERS, Appellee.
No. 92-4040.
District Court of Appeal of Florida, First District.
June 20, 1994.
*584 Paul Watson Lambert, Tallahassee, for appellant.
Lisa S. Nelson, Asst. Gen. Counsel, Dept. of Professional Regulation, Tallahassee, for appellee.
PER CURIAM.
Dr. Anthony Iazzo (Iazzo) timely appeals a final administrative order from the Department of Professional Regulation, Board of Psychological Examiners (Board), disciplining his license and denying his request for a formal hearing pursuant to section 120.57(1), Florida Statutes (1987). Only one of the five issues raised on appeal merits discussion. We reverse and remand for a formal hearing.
The Department of Professional Regulation (Department) filed an administrative complaint against Iazzo on March 3, 1992, alleging a violation of section 490.009(2)(s), Florida Statutes (1987).[1] Specifically, the Department alleged that Iazzo, a Florida licensed psychologist, failed to meet the minimum standards of performance in professional activities, when measured against generally prevailing peer performance, by becoming a business partner with a patient he was still treating (i.e., dual relationship).[2] The complaint alleged that Iazzo provided psychotherapy services to the patient from June 13, 1985 to December 9, 1988. With a copy of the complaint, the Department sent an Explanation of Rights form, an Election of Rights form, a proposed stipulation offering Iazzo the penalty of a $1,000 administrative fine and two years of probation, and a cover letter. The cover letter advised Iazzo that he was to complete the Election of Rights form within twenty-one days of receipt or face possible entry of a default judgment. This packet was delivered by certified mail on March 12, 1992, and signed for by someone other than Iazzo.
Iazzo did not return the Election of Rights form in twenty-one days, and on April 14, 1992, the Department moved for default. However, on April 31, 1992, Iazzo filed a request for formal hearing, in which he disputed all the material factual allegations in the complaint and requested a formal hearing, as provided in the Election of Rights form. After Iazzo's request, the Department did not pursue its motion for default any further. Nevertheless, on May 8, 1992, the *585 Department sent Iazzo's attorney a letter, which read in pertinent part:
[T]he Department must determine whether there are disputed issues of material fact prior to requesting the assignment of a Hearing Officer... . Please specify, within twenty-one days, which material facts alleged in the administrative complaint you dispute, and the specific reasons therefor... . Any material facts not specifically disputed may be deemed admitted.
The Department sent a second letter to Iazzo's attorney informing him that it had not received notice of any "specifically disputed facts," and as there did not appear to be any disputed issues of material fact, it was filing a Motion for Final Action.
The Department filed its Motion for Final Action, seeking an informal hearing based on the Department's determination that there were no material issues of disputed fact. Iazzo filed a motion in opposition, again alleging he disputed all material factual allegations in the complaint, and reiterating his request for a formal hearing. Upon receiving notice of the hearing to be held on the Department's motion, Iazzo repeated this request and his general denial.
A hearing was held before the Board of Psychological Examiners (Board) on August 31, 1992, to determine whether the case should be referred to the Division of Administrative Hearings (DOAH) or considered at an informal hearing. Iazzo's attorney stated at the outset of the hearing that Iazzo had disputed and continued to dispute each and every factual allegation in the complaint and demanded the case be referred to DOAH. The Board's counsel advised the Board to proceed with an informal hearing and allow the Department to introduce evidence to prove the material facts at issue. She further advised the Board that if Iazzo did present evidence showing a fact was in dispute, then the case should be transferred to DOAH.
After the Department rested its case at the informal hearing, Iazzo's attorney repeated Iazzo's denial of all the allegations in the complaint, that it was the Department's burden to prove by competent, substantial evidence each and every fact in the complaint, that the Department had not done so, and Iazzo, therefore, had no concomitant duty to disprove the allegations in the complaint. The Board issued a final order on November 20, 1992, denying Iazzo's request for a formal hearing, and concluding that Iazzo's request for a formal hearing did not meet the requirements of section 120.57(1) or Florida Administrative Code Rule 28-5.201,[3] in that it did not specifically allege a factual dispute. Accordingly, the Board found Iazzo violated section 490.009(2)(s), as charged, placed him on two years of probation and ordered him to pay a $1,000 administrative fine.
Iazzo contends that his request for a formal hearing, in which he disputed all the material factual allegations in the complaint, was legally sufficient to entitle him to a formal hearing. The Department, on the other hand, contends that Iazzo's request for a formal hearing was not sufficiently specific and did not meet the legal requirements of Florida Administrative Code Rule 28-5.201. We agree with Iazzo, and reverse.
Nothing in sections 120.57(1) or 455.225(4), or Florida Administrative Code Rule 28-5.201 imposes a requirement that a party must specifically identify and separately dispute each factual allegation for it to be considered a disputed factual issue entitling that party to a formal hearing. Section 455.225(4), Florida Statutes (Supp. 1988), which governed the process by which the Department was to conduct disciplinary proceedings at the time Iazzo's wrongdoing allegedly occurred (i.e., 1988), provides in relevant part:
A formal hearing before a hearing officer from the Division of Administrative Hearings of the Department of Administration shall be held pursuant to chapter 120 unless all parties, including the Department of Professional Regulation, agree in writing that there is no disputed issue of material fact... . If any party raises an issue *586 of disputed fact during an informal hearing, the hearing shall be terminated and a formal hearing pursuant to chapter 120 shall be held.[4]
(Emphasis added.) The record demonstrates that Iazzo never agreed in writing that there were no disputed factual issues. Instead, like the teacher in Williams v. Castor, 613 So. 2d 97 (Fla. 1st DCA 1993), Iazzo continuously disputed all of the allegations in the administrative complaint and requested a formal hearing. Although Iazzo did not complete the Election of Rights form, he filed a motion requesting a formal hearing, essentially alleging what he would have alleged under "option 2" of the Election of Rights form, but without listing each disputed allegation separately.[5]
Florida Administrative Code Rule 28-5.201(2)(d) provides that a request for a formal hearing "should contain a statement of all disputed issues of material fact." (Emphasis added.) Subsection (3)(a) of this rule provides that a request for a formal hearing may be denied if the movant "does not state adequately a material factual allegation, such as a substantial interest in the agency determination, or if the petition is untimely."[6] In stating that he disputed all the factual allegations and desired a formal hearing, Iazzo sufficiently met the requirements in rule 28-5.201 and the applicable statutes. Accordingly, the Board erred in denying Iazzo's request for a formal hearing, where he was clearly entitled to one. Williams v. Castor.
The Board failed to cure its error after the informal hearing began, by refusing to refer the matter to DOAH, despite the fact that Iazzo continued to dispute the allegation that he had entered into a business relationship with a patient while still treating him in a therapeutic capacity.
The Department's contention that Iazzo is not entitled to a formal hearing because he never explained how his substantial interests would be affected, is without merit. By offering Iazzo an informal hearing under section 120.57(2), the Department has acknowledged that Iazzo's substantial interests will be affected by its determination. Tuckman v. Florida State Univ., 489 So. 2d 133, 135 (Fla. 1st DCA 1986). Section 120.57 applies both to formal and informal proceedings in which a party's substantial interests are being determined by an agency. Id.
Accordingly, we REVERSE and REMAND to the Board of Psychological Examiners with directions that it refer the case to DOAH for a formal evidentiary hearing.
SMITH, BARFIELD and LAWRENCE, JJ., concur.
NOTES
[1] Section 490.009(2)(s) provides in relevant part:
(2) The following acts of a licensee or applicant are grounds for which the disciplinary actions listed in subsection (1) may be taken:
.....
(s) Failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance, including the undertaking of activities for which the licensee is not qualified by training or experience.
[2] The Department hired Dr. Philip Boswell, a licensed psychologist, to render an expert opinion as to whether entering into a business relationship with a patient prior to terminating that patient's psychotherapy fell below "minimum standards of performance in professional activities" referred to in § 490.009(2)(s). Dr. Boswell opined that such activity did fall below such minimum standards.
[3] Florida Administrative Code Rule 61F13-10.011 authorizes the Board to follow and apply the Model Rules of Procedure, Chapter 28.
[4] Subsequently, this subsection was renumbered as subsection (5). In addition, in 1991, the language was amended to provide that a formal hearing shall be held "if there are any disputed issues of material fact." Ch. 91-137, § 7, at 1323, Laws of Fla.
[5] Option # 2 of the Election of Rights form reads as follows:
I do dispute the allegations of fact contained in the Administrative Complaint and request this to be considered a petition for a formal hearing pursuant to Section 120.57(1), Florida Statutes (1981), before a Hearing Officer appointed by the Division of Administrative Hearings. Please specify the factual allegations contained in the Administrative Complaint which you dispute:
[6] In the instant case, timeliness was not made an issue by either party. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596587/ | 28 So. 3d 162 (2010)
JUSTICE ADMINISTRATIVE COMMISSION, Petitioner,
v.
Vanessa T. GAYDEN, Esquire, Respondent.
No. 5D09-3053.
District Court of Appeal of Florida, Fifth District.
February 12, 2010.
Christian D. Lake, Assistant General Counsel Justice Administrative Commission, Tallahassee, for Petitioner.
No Appearance for Respondent.
PER CURIAM.
The Justice Administrative Commission (JAC) seeks certiorari review of an order awarding attorney's fees to Vanessa T. Gayden, Esquire (Gayden). JAC objects because the order was entered without a hearing. Certiorari is an appropriate remedy.
On August 28, 2007, the circuit court appointed Gayden to represent the mother in a dependency proceeding. On November 19, 2007, Gayden submitted a bill for $1,000, which JAC paid. This would have concluded Gayden's involvement in the case but for the fact that the Department of Children and Families had filed a petition to terminate the mother's parental rights. The mother, though personally served with a summons and notice to appear, failed to appear at the termination advisory hearing. Nonetheless, at this hearing, the circuit court appointed Gayden to represent the mother, and Gayden presented argument on the mother's behalf. The trial court subsequently entered an order terminating the mother's parental rights, finding that the mother's default by failure to appear constituted her consent to the termination of her parental rights.
Gayden submitted a bill for $1,000 to JAC for her legal representation of the mother in the termination of parental rights proceeding. JAC sent a letter of objection to Gayden, asserting that it did not have statutory authority to pay because the parent must be present in the court at the time counsel is appointed. JAC instructed Gayden that if she were to seek compensation in the circuit court, she should note JAC's objection and request a hearing. As directed, Gayden filed a "Petition for Payment of Attorney's Fees," *163 wherein she noted that JAC objected to the payment of the fees, and she requested a hearing on the matter. The circuit court, without holding a hearing, entered an order directing JAC to pay $1,000 to Gayden.
JAC is authorized to pay flat fees to appointed counsel in certain proceedings, including dependency and termination of parental rights cases. If there is an objection, the court retains primary authority and responsibility for determining the reasonableness of all billings for attorney's fees, costs, and related expenses, subject to statutory limitations. See § 27.5304(3), Fla. Stat. (2009). As the entity responsible for payment of attorney's fees to court-appointed counsel, JAC is entitled to participate in proceedings related to those fees. Thus, the order awarding attorney's fees to Gayden, who was court-appointed, should not have been entered without giving JAC the opportunity to be heard on its objection. The circuit court's failure to provide this opportunity constitutes a departure from the essential requirements of law. Cf. Brevard County v. Hammel, 575 So. 2d 772, 773 (Fla. 5th DCA 1991).
Therefore, we quash the order awarding attorney's fees so that a hearing may be held. We also direct the circuit court's attention to the recent opinions of Justice Administrative Commission v. Harp, 24 So. 3d 779, (Fla. 5th DCA 2009) (holding that circuit court lacked statutory authority to appoint counsel for mother who voluntarily executed a written surrender of parental rights; JAC not required to pay counsel for mother's legal representation at the termination of parental rights proceeding under these facts), and Justice Administrative Commission v. Berry, 5 So. 3d 696 (Fla. 3d DCA 2009) (holding circuit court departed from essential requirements of law in requiring JAC to pay attorney's fees for counsel appointed to represent fathers in termination proceedings where fathers did not appear at the proceedings, thereby consenting to the termination of their parental rights, and their indigency could not be determined).
PETITION GRANTED; ORDER QUASHED.
MONACO, C.J., SAWAYA and JACOBUS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596591/ | 28 So. 3d 959 (2010)
EVENTYS MARKETING AND PRODUCTS, INC., Appellant,
v.
COMCAST SPOTLIGHT, INC., Appellee.
No. 3D09-1794.
District Court of Appeal of Florida, Third District.
February 24, 2010.
*960 Gonzalo Dorta and Jonathan Kaskel; John Arrastia, Jr., Miami, for appellant.
White & Case, and Jaime A. Bianchi and David P. Draigh, Miami, for appellee.
Before WELLS, CORTIÑAS, and SALTER, JJ.
SALTER, J.
This case is before us again[1] after the appellant (Eventys) sought to amend its lawsuit in circuit courtand also to demand arbitrationseeking in each forum to assert class action claims under Florida's Deceptive and Unfair Trade Practices Act (FDUTPA), sections 501.201 .213, Florida Statutes (2008). Eventys appeals the circuit court's denial of its motion to allow Eventys to proceed with its class action claims in that court or, alternatively, to assert the class claims in arbitration. We affirm the trial court's ruling that Eventys must submit its claims to arbitration (and the trial court's refusal to direct the parties to submit the enforceability of the waiver provision or the class action claims themselves to the arbitrators for determination), but we reverse that portion of the order limiting Eventys to the arbitration of the "individual claims as asserted in the original complaint."
Comcast I and the "Terms and Conditions"
The agreement and mutual course of conduct we enforced in Comcast I related to Comcast's printed "terms and conditions" for the placement of Eventys's advertisements on cable television programs. Those terms included an agreement to arbitrate disputes, a limitation of available remedies,[2] and a waiver of any right to *961 bring "claims to be arbitrated on a class action or consolidated basis."
Two weeks after oral argument here in Comcast I, and only days before the issuance of our opinion compelling arbitration, Eventys moved to amend its circuit court single-plaintiff breach of contract claim to add the class action claims under FDUTPA. Eventys then filed in the circuit court a "Motion to Declare Unconscionable the Class Relief Contractual Prohibition," seeking in effect a declaratory judgment that the purported waiver of the right of a Comcast customer to participate in a class action was unconscionable and otherwise void because the waiver allegedly frustrated the remedial purposes of FDUTPA.[3] Eventys later filed a "Motion to Determine Class Action Arbitrable," and it is the denial of that motion that gave rise to this appeal.
Eventys's attempt to demand a class action in arbitration before the American Arbitration Association (AAA) was rebuffed by that organization because "the arbitration clause calls for the rules of the American Arbitration Association but specifically excludes administration by the Association." The AAA offered to administer the claims "if all parties consent" or a court enters an order "directing that the matter be filed with the AAA." The parties did not reach agreement on the filing or administration of Eventys's demand for class arbitration, however, because Comcast asserted that Eventys had waived (in the printed terms and conditions) any right to maintain a class action.
AAA's supplemental rules on class action claims in arbitration also specified that it would not accept for administration a demand for class arbitration "where the underlying agreement prohibits class claims . . . unless an order of a court directs the parties to the underlying dispute to submit [that issue] to an arbitrator or the Association." Eventys sought such a circuit court ruling on its right to prosecute the circuit court action or the arbitration as a class action.
The circuit court's order denying Eventys's motion to determine class action arbitrability included these two rulings: "(1) based on the Mandate [in Comcast I], [Eventys] cannot amend to assert class action claim, and (2) [Eventys] must arbitrate individual claims as asserted in original complaint." The first of the two rulings is correct insofar as it relates to the circuit court action; Comcast I held that Eventys's claims must be arbitrated (so that any claims regarding Eventys's transactions with Comcast must be presented to the arbitrators rather than the circuit court). The second ruling, however, goes too far. It is true that the AAA indicated an intention to reject a class arbitration claim in the absence of a court order directing the parties to consider that claim. But the AAA's commercial rules allow parties to seek amendments to a claimant's demand, and there is no reason apparent in this record to preclude Eventys from seeking arbitration of its individual FDUTPA claim together with its original breach of contract claim. This Court and other Florida courts have repeatedly held that FDUTPA claims can be submitted to arbitration. See Murphy v. Courtesy Ford, L.L.C., 944 So. 2d 1131, 1133 (Fla. 3d DCA 2006), and the cases cited there. In short, in Comcast I we compelled arbitration of Eventys's original contract claim, but we did not in any way limit Eventys's ability to pursue additional individual claims in that forum.
*962 Eventys's Current Claims of Unconscionability and Unenforceability
Eventys's primary claim in this appeal is that the circuit court should have authorized Eventys to prosecute its amended class action FDUTPA claims in at least one of the two available forums. By directing that the class action claims be submitted by the parties to the arbitrators, Eventys argues, the circuit court could have assured that both parties would have an opportunity to make their arguments to that forum. Alternatively, Eventys maintains, the circuit court should have considered and expressly ruled upon Eventys's arguments that the provision purporting to waive class action claims was unconscionable and unenforceable. Eventys further argues that, because the "terms and conditions" did not include a severability provision, the circuit court's necessary determination that FDUTPA's remedial purposes are frustrated by the class action waiver provision would then invalidate the entire arbitration provision. For this argument, Eventys relies principally on the analysis in S.D.S. Autos, Inc. v. Chrzanowski, 976 So. 2d 600, 611 (Fla. 1st DCA 2007) (holding that contractual provisions in an arbitration agreement purporting to prohibit consumers from prosecuting class actions for small sums of money per consumer, but for a substantial number of consumers, "are irreconcilably at odds with the remedial purposes of FDUTPA, contrary to the public policy of this state, and unenforceable for that reason"), and a group of federal cases holding that the validity of a class action waiver provision should be adjudicated by the court, not the arbitrators.[4]
Comcast counters that the issue of arbitrability should be determined at the threshold of a case, and that artful pleading (the addition of FDUTPA and class action claims) should not afford another bite at that apple. Comcast cites Goldberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 97 CIV 8779, 1998 WL 321446 (S.D.N.Y. June 18, 1998), for that proposition. Goldberg involved an initial ruling compelling arbitration and a subsequent amendment to assert a new theory on a class action basis. The court held:
Plaintiff should not be allowed to avoid this Court's earlier ruling by recasting this claim of defamation as a class action on the basis of conclusory allegations involving unnamed putative class members. Under the "law of the case" doctrine a court adheres to its own decision at an earlier stage of the litigation unless there are cogent or compelling reasons not to, such as an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.
1998 WL 321446 at *8.
In this case, Eventys maintains that discovery in the original circuit court action provided additional information supportive of its class action claims. A careful inspection of the proposed amended complaint, however, discloses that the proposed class has only one proposed representative (Eventys) and that the alleged *963 breaches and wrongful acts by Comcast in the original and amended complaints are substantially identical. In addition, a common conclusion of the many cases considering this question is that the assessment of arbitrabilityincluding any challenges to all of the arbitration provisions or a class action waiver provisionis a "gateway" determination that should be resolved at the outset and, presumably, once.[5] We agree.
In this case, Eventys had accepted the "terms and conditions" in its dealings with Comcast and was aware of the arbitration provisions, including the waiver of class action provision. Eventys did not seek in its initial circuit court filing a determination that the arbitration requirements (whether in their entirety or simply the class action waiver provisions) were unenforceable on grounds of public policy or unconscionability. Applying the "gateway" analysis to the record here, we conclude that the trial court correctly refused on remand from Comcast I (1) to allow Eventys to challenge arbitrability a second time through its motion to amend and (2) to direct the parties to submit the issues regarding the class action waiver provision (and the class action claims themselves) to the arbitrators.[6]
As noted, however, we reverse and vacate that portion of the order below limiting Eventys in arbitration to the single breach of contract claim asserted in the original circuit court complaint. Eventys may include in its arbitration demand, or amended demand, any additional individual claims it may wish to assert against Comcast, whether under FDUTPA or otherwise. Comcast will have the opportunity in that forum to raise any and all defenses to those individual claims. What Eventys may not do in the arbitration case, however, is to challenge the arbitration provisions in the "terms and conditions" themselves.
Affirmed in part, reversed in part, and remanded for further proceedings as set forth in this opinion.
NOTES
[1] In Comcast Spotlight, Inc. v. Eventys Marketing & Products, Inc., 984 So. 2d 631 (Fla. 3d DCA 2008) ("Comcast I"), we held that Eventys's breach of contract claim against Comcast was subject to an arbitration provision. We reversed a circuit court order to the contrary.
[2] In an all-caps "LIMITATION OF LIABILITY" provision, Comcast's liability for any interruption, cancellation, or omission of any advertising to be "cablecast" was limited to a so-called "make good" during a substitute time slot or a pro rata refund of amounts paid by Eventys. The provision also purported to bar "EQUITABLE REMEDIES OR INJUNCTIVE RELIEF" as well as "PUNITIVE, STATUTORY, INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS AND GOOD WILL."
[3] Eventys's motions in the circuit court to amend the complaint and for a declaration that the class action waiver provision is unconscionable were not separately heard.
[4] This question has been sharply debated over the past few years. Over time the rulings seem to be coalescing into a more orderly body of authority. While the cases cited by Eventys are pertinent, the analysis provided in In re: American Express Merchants' Litigation, 554 F.3d 300 (2d Cir.2009), is particularly thorough. See also F. Paul Bland, Jr., & Claire Prestel, Challenging Class Action Bans in Mandatory Arbitration Clauses, 10 Cardozo J. Conflict Resol. 369 (2009). Federal cases throughout the United States are pertinent in this instance because the arbitration provisions inevitably evidence a "transaction involving commerce" and are thus subject to the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (2009).
[5] Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 453, 123 S. Ct. 2402, 156 L. Ed. 2d 414 (2003); In re: Am. Express Merch. Litig., 554 F.3d at 311, supra note 4.
[6] Our determination that Eventys may not challenge the enforceability of the arbitration and class action waiver provisions after unsuccessfully opposing arbitration in Comcast I means that we need not pass upon the appropriate gateway tests in Florida regarding those provisions. Certified questions regarding the enforceability of class action waivers in arbitration agreements were recently posed by the United States Court of Appeals for the Eleventh Circuit to the Florida Supreme Court in Pendergast v. Sprint Nextel Corp., 592 F.3d 1119 (11th Cir. 2010). We agree with the supplemental memoranda provided by the parties contending (though for different reasons) that our analysis in this case should not be affected by, and need not abide, the resolution of those certified questions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596729/ | 384 N.W.2d 868 (1986)
Wilford Henry GERDIN, Respondent,
v.
PRINCETON STATE BANK, Louis L. Hoffman, et al., petitioners, Appellants.
No. CX-85-204.
Supreme Court of Minnesota.
April 11, 1986.
Michael B. LeBaron, Charles L. Nail, Minneapolis, for Princeton State Bank.
Phillip A. Cole, Kay Nord Hunt, Minneapolis, for Louis L. Hoffman & John C. Hoffman.
William S. Rosen, St. Paul, for respondent.
Heard, considered, and decided by the court en banc.
YETKA, Justice.
Respondent Wilford Gerdin brought suit against appellants Princeton State Bank, Louis L. Hoffman and John C. Hoffman on July 18, 1984, in Sherburne County District Court. Appellants moved for summary judgment, which was granted on January 9, 1985. Respondent appealed to the Minnesota *869 Court of Appeals, which reversed and remanded the district court order on July 9, 1985. Appellants separately petitioned this court for further review. We affirm the court of appeals for the reasons stated in this opinion.
On August 1979, Gerdin Transfer, Inc., secured an obligation to the Princeton State Bank by mortgaging its building and land located in Princeton, Minnesota. This property had been purchased in 1949-50 by the company, which was, at that time, owned by two brothers, Wilmer and Wilford Gerdin. In 1953, Wilmer Gerdin bought out Wilford Gerdin's interest in the company and mortgaged the building to the Princeton Bank.
In addition to the bank mortgage, there were two liens against the property for unpaid federal and state taxes in excess of $46,000. These junior liens were recorded in 1980 and 1982 and appear on the abstract of title.
Gerdin Transfer defaulted in 1983. The debt left outstanding was $52,495.39, and the fair market value of the property was approximately $70,000.
To handle the foreclosure, the Princeton State Bank hired attorneys Louis and John Hoffman. John Hoffman published a notice of the foreclosure sale on January 25, 1983, announcing that the Gerdin Transfer property would be sold at public auction conducted by the Sherburne County Sheriff on March 31, 1983. However, Hoffman did not serve the written notice required by 26 U.S.C. § 7425(c)(1) (1982) and by Minn.Stat. § 270.69, subd. 7 (1984) that would allow discharge of the junior tax liens following the redemption period. In his affidavit, John Hoffman maintains that he had no knowledge prior to the foreclosure sale of the junior state and federal tax liens encumbering the property.
Only the sheriff, Attorney John Hoffman and Wilford Gerdin attended the auction. Gerdin claims he appeared due to curiosity and had no intention to bid. Gerdin and Hoffman spoke before bidding began, and Gerdin became interested in the property. Gerdin describes their conversation as follows:
Q. Now when you arrive [sic] did you talk to anybody?
A Just to John.
Q What did you say to John, do you recall?
A Well, we talked about the sale of the building, and he said he had a price of fifty-five thousand some dollars, and if we bid a dollar more why he wasn't going to raise it that was his top price, and if there were no other bidders I would get it.
Q Okay.
A Then the sheriff came in and asked if I had the cash or certified check, and I said no I didn't have it with me, and he said well, I would have to have a certified check if I was going to bid. Then I asked him how much, and he said well, one dollar over, and I said, "I will make it ten over then," so it was $55,085 I believe.
In his deposition, Gerdin admits that Hoffman made no direct representations concerning the title.[1] Hoffman gives substantially the same description of their conversation. The auction was postponed to allow Gerdin time to obtain the certified check. He went to the Princeton State Bank, where he talked to Art Skarolid, a bank employee. Gerdin describes the transaction as follows:
12. When I went to the bank to get a certified check to give to the sheriff at the foreclosure sale, I told Mr. Art Skarolid, a person that I knew was in a *870 supervisory position at the bank, that I needed the certified check for the purpose of buying the mortgaged property involved in this case. I told Mr. Skarolid that Mr. Hoffman told me that I could buy the property for $1.00 over the bank's bid, and I told Mr. Skarolid that was the reason that I wanted the check.
13. Mr. Skarolid told me that I did not have enough money in my checking account to cover the check. I told him that I was in a big hurry because they were waiting for me at the sale. My account was $10,585.00 short, but Mr. Skarolid gave me the certified check anyway so that I could get to the sale on time. It was agreed between me and Mr. Skarolid that the bank would lend me the difference between the amount in my checking account and the amount of the certified check until I could arrange to cover the shortage.[2]
Gerdin made no investigation concerning the property, but returned to the auction, bid $10 over the bank and acquired the property. He did not learn of the tax liens until his wife obtained the abstract from the Hoffman law office on April 6, 1983.
Gerdin claims that, upon learning of the junior tax liens, he spoke to the president of the Princeton State Bank, Westly Geurkink. According to Gerdin, the bank president told him that Hoffman knew of the junior liens before the auction, and he advised Gerdin to institute suit against Hoffman so the bank could also assert its claims against the attorney.[3]
Gerdin filed suit against the Princeton State Bank and John and Louis Hoffman on January 9, 1984, in Sherburne County District Court. He sought rescission of the sale and restitution of the purchase price. Gerdin alleged that the Hoffmans were liable due to breach of the attorney-client relationship that existed between himself and John Hoffman at the foreclosure sale and due to their negligent failure to discharge the tax liens. The bank was alleged to have breached its duty either to extinguish the tax liens or disclose their existence. He maintained that all defendants induced him to purchase the property, that he relied upon these representations, and that the defendants were unjustly enriched. Gerdin also claimed mutual mistake of material fact. The defendants denied all liability, and the bank cross-claimed against *871 the Hoffmans on grounds that they neglected to obtain effective and complete foreclosure.
The defendants moved for summary judgment, and the district court granted the motion. The court found the record devoid of any basis for finding that an attorney-client or any other fiduciary relationship existed between Hoffman and Gerdin. Furthermore, the court ruled that there was no duty to disclose since no statuory, common law, or trade custom made the existence of the liens a fact basic to the transaction that a buyer would reasonably expect to be revealed. The court also found that the defendants made no affirmative misrepresentations. It did not address the issue of mutual mistake of material fact. Gerdin appealed to the Minnesota Court of Appeals.
The court of appeals reversed and remanded the district court order. Gerdin v. Princeton State Bank, 371 N.W.2d 5 (Minn.Ct.App.1985). While the court upheld the district court's finding that no attorney-client relationship existed between Hoffman and Gerdin, it reversed the order on the grounds that the bank had a legal duty to disclose the existence of the tax liens. The court refused to apply strictly the rule of caveat emptor where misrepresentation by way of non-disclosure of relevant facts had been alleged. The court found that the bank, since it knew about the liens, had a duty to disclose their existence. Whether Hoffman knew of the liens, the court stated, is a question of fact to be determined by the jury. Finding that it was reasonable for Gerdin to assume that the liens were discharged or would be disclosed, the court ruled that the bank and its agent had a duty to disclose the existence of the tax liens.
The bank and the Hoffmans separately petitioned this court for further review.
The issues raised by appellants are:
1. Whether the court of appeals correctly found that, as a matter of law, no attorney-client relationship existed between Hoffman and Gerdin;
2. Whether, under the factual circumstances set out above, the bank and its attorneys had a duty to disclose the existence of the tax liens?
We deem it not necessary to address these issues since we hold that Gerdin is entitled to set aside the foreclosure sale because the sale itself was fatally flawed and is, therefore, voidable.
The purpose of a mortgage foreclosure sale, whether by action or by advertisement, is "to terminate all interests junior to the mortgage being foreclosed and to provide the sale purchaser with a title identical to that of the mortgagor as of the time the mortgage being foreclosed was executed." G. Osborn, G. Nelson & D. Whitman, Real Estate Finance Law § 7.19 (1979). Foreclosure by advertisement, as was the case here, is designed to accomplish this purpose with substantial savings in time and money. Id.
Notice requirements for foreclosure by advertisement vary. Some states and the Uniform Land Transactions Act, § 3508(a), 13 U.L.A. 545, 702 (1975) require notice by mail or personal service to all persons having a recorded interest in the land being foreclosed. Minnesota, however, does not have these notice requirements. Minn.Stat. § 580.03 (1984) requires only 6 weeks' published notice and service thereof upon the person in possession of the mortgage premises.
While junior lienors are not, in general, entitled to individual notice of foreclosure,[4] state and federal junior tax liens will not be extinguished unless notice is given to the respective governments. Thus, Minn.Stat. § 270.69, subd. 7 (1984) mandates that notice of the mortgage foreclosure sale "shall be mailed to the commissioner not less than 25 days prior to the foreclosure * * *." See also 26 U.S.C. § 7425(b)(2)(A).
Not only does both state and federal law require that notice "shall be mailed," but *872 the purchaser of the foreclosure sale is entitled to an affidavit from the person foreclosing the mortgage, or his attorney, or someone with knowledge of the facts that the notice has been properly given to the federal government. Minn.Stat. § 580.15(4) (1984).[5] Furthermore, the purchaser is entitled to a sheriff's certificate of sale which is "prima facie evidence that all the requirements of law in that behalf have been complied with * * *." Minn.Stat. § 580.19 (1984).
Failure to serve notice of foreclosure on the government results in the purchaser, at the foreclosure sale, taking subject to the formerly junior tax liens. In other words, a junior tax lien remains on the property and is elevated to senior status while junior non-tax liens are eliminated so foreclosure without notice to the government fails to accomplish a critical purpose of mortgage foreclosure, a purpose which the purchaser has a right to assume will be accomplished.
Having purchased the property at the foreclosure sale, plaintiff Gerdin was entitled to receive, along with the sheriff's certificate of sale, other evidence of the sale, including attorney Hoffman's affidavit that the tax lien notice had been mailed to the governments pursuant to the mandate of the law. Hoffman and the bank are unable to furnish the affidavit. Therefore, the purchaser is entitled to have the sale set aside.
The bank and its attorneys argue that Gerdin is deemed to have constructive knowledge of all recorded liens and encumbrances. Had Gerdin checked the property's title, he would have found two tax liens which were junior to the mortgage. Because they were junior liens, Gerdin would have been justified in assuming they would be eliminated (subject only to a right of redemption) by the foreclosure sale. It should be emphasized that a search of title by Gerdin would not have indicated whether notice had been sent to the state and federal governments. Because the failure to give notice to the government would not have been discovered by a title search, the doctrine of caveat emptor is inapplicable.
While the power to foreclose by advertisement derives from a power of sale clause in the mortgage agreement, the exercise of that power must comply, at least substantially, with the statutory requirements. See Lowell v. North, 4 Minn. 32, Gil. 15 (1860) (failure to publish notice required by statute entitles mortgagor to damages or to have sale set aside); Sheasgreen Holding Co. v. Dworsky, 181 Minn. 79, 231 N.W. 395 (1930) (failure to record power of attorney before sale, as required by statute, renders sale void);[6]Clark v. Kraker, 51 Minn. 444, 53 N.W. 706 (1892) (failure to separate homestead tract, as required by law, renders sale voidable, but not void). In this case, the mortgagee's failure to comply with mandatory statutory language ("shall be mailed") should render the sale voidable by the purchaser because, as discussed above, failure to give notice to tax lienors makes the foreclosure sale fail its essential purpose.[7]
*873 The court of appeals is affirmed for the reasons stated in this opinion.
NOTES
[1] In an affidavit, Gerdin states:
7. I believed that Mr. Hoffman's statement to me that I could own the property for $1.00 more than the bank's bid, and that the bank would not overbid me, was advice from a respected lawyer in the community to buy the property.
8. Mr. Hoffman's statement to me that the bank would not overbid me convinced me that there would be no competitive bidding and that I would be the buyer for the low price of $1.00 over the amount of the mortgage.
[2] Skarolid gives the following description of the transaction:
2. On or about March 31, 1983, Wilford Gerdin came to the bank and asked for a certified check in the amount of $55,085.00, which I obtained for him.
3. Mr. Gerdin's visit lasted no more than five minutes. During this time, he advised me that the check was to be used to bid on certain property being foreclosed against by the bank, but to the best of my recollection, he made no further reference to the property being sold and asked me no questions about the property or anything relating to its sale.
4. At the time of Mr. Gerdin's visit, I had no knowledge of the condition of title to the property being sold, the circumstances leading up to its sale, or anything else about the property, other than the fact that it was being sold.
[3] Gerdin's affidavit gives the following description of his conversation with Geurkink:
9. Mr. Geurkink told me that when the matter of the foreclosure of the mortgage was turned over to the Hoffman law firm, the lawyers were advised about the existence of the junior tax liens. Mr. Geurkink also told me that he agreed with the conclusion of the IRS that the value of the mortgaged property was sufficient to pay the mortgage debt, but less than the amount of the mortgage debt plus the tax liens.
10. When I talked with Mr. Geurkink after the foreclosure sale, he told me that the entire matter was the Hoffmans' fault. He said that the purpose of the foreclosure was to acquire clear title, and that the Hoffmans should have foreclosed properly to extinguish the tax liens.
11. Mr. Geurkink told me that he was sorry about what had happened, and he told me that I should start a lawsuit so that the bank could assert its claims against the Hoffmans. Mr. Geurkink told me that he thought it was unfair for me to suffer the loss when the entire matter could have been prevented if the Hoffmans had properly foreclosed the mortgage as the bank had expected.
* * * * * *
14. Mr. Geurkink told me that the Abstract of Title to the mortgaged property was delivered to the Hoffman law firm before the foreclosure proceedings were started. My wife picked up the abstract from the Hoffman law firm a few days after the foreclosure sale.
[4] But see Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S. Ct. 2706, 77 L. Ed. 2d 180 (1983) (mortgagee, whose interest may be eliminated by tax sale, is entitled to notice reasonably calculated to apprise it of impending sale).
[5] Minn.Stat. § 580.15 (1984) provides:
Any party desiring to perpetuate the evidence of any sale made in pursuance of this chapter may procure:
* * * * * *
(4) An affidavit by the person foreclosing the mortgage, or his attorney, or someone having knowledge of the facts, setting forth the fact of service of notice of sale upon the secretary of the treasury of the United States or his delegate in accordance with the provisions of Section 7425 of the Internal Revenue Code of 1954 as amended by Section 109 of the Federal Tax Lien Act of 1966, and also setting forth the fact of service of notice of sale upon the commissioner of revenue of the state of Minnesota in accordance with the provisions of section 270.69, subdivision 7. Any such affidavit recorded prior to May 16, 1967 shall be effective as prima facie evidence of the facts therein contained as though recorded subsequent to May 16, 1967.
[6] This result is in spite of the fact that a title search would have shown the failure to record the power of attorney, which raises the further question, not before us here, whether caveat emptor is applicable to noncompliance with statutory foreclosure procedures.
[7] The bank can bring a new foreclosure proceeding. See Bottineau v. Aetna Life Insurance Co., 31 Minn. 125, 16 N.W. 849 (1883) (void foreclosure sale does not prevent a second attempt). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599629/ | 571 So.2d 1015 (1990)
SOUTHERN LIFE AND HEALTH INSURANCE COMPANY and Richard Perry
v.
Lucy R. TURNER.
88-1289.
Supreme Court of Alabama.
September 21, 1990.
Rehearing Denied December 7, 1990.
Ollie L. Blan, Jr. of Spain, Gillon, Grooms, Blan & Nettles, Birmingham, and Ernestine S. Sapp of Gray, Langford, Sapp & McGowan, Tuskegee, for appellants.
Delores R. Boyd of Mandell & Boyd, Montgomery, and Jock M. Smith, Tuskegee, for appellee.
HORNSBY, Chief Justice.
This appeal is from a judgment entered in favor of Lucy R. Turner and against *1016 Southern Life and Health Insurance Company ("Southern") and Richard Perry for $500,000 in a fraud action. Southern and Perry argue that the judgment should be reversed because, they say, Turner failed to present sufficient evidence of fraud, and Southern argues that Turner failed to present evidence that it ratified the actions of Perry.
In January 1986, Perry was hired by Southern as a salesman. His duties included servicing a "debit route," wherein he traveled from house to house on a weekly basis to collect premiums from Southern's policyholders. Turner was one of the policyholders on Perry's route. In 1985 she had purchased a $1,500 life insurance policy on her aunt, Lucy Barrow, who was living with her at that time, naming herself as the beneficiary. We will refer to that policy as the Turner/Barrow policy. Southern had previously issued a policy on Barrow's life with a face value of $1,000, with Grace Banks, Barrow's daughter, as the beneficiary. That policy will be referred to as the Banks/Barrow policy. Turner paid the premiums on both of those policies at all times relevant to this action.
The testimony of Turner and that of Perry were in sharp conflict on almost every material fact regarding the course of their dealings. According to Turner's version of the facts, she paid the premiums that were due on both the Turner/Barrow policy and the Banks/Barrow policy on time up until the month that Barrow died, October 1986. She stated that, as far as she knew, those policies were in force at that time and had never lapsed. Turner stated that Perry never told her that the premium payments were behind or indicated that her policy was in danger of lapsing. That testimony was substantially corroborated by Turner's son, Alvin. Jonas Bowen, the Southern agent in charge of the debit route before Perry, testified that Turner had always made her payments on time when he was servicing the debit route. Bowen also testified that it was Southern's practice to assign to the debit agent the responsibility of notifying the owners of policies with face values of less than $10,000 when their policies lapsed.
Perry testified that Turner was frequently late with premium payments and sometimes skipped them altogether. He stated that, eventually, both the Turner/Barrow policy and the Banks/Barrow policy had lapsed and were in danger of being terminated. Perry stated that he made Turner aware of the status of those policies and recommended that she apply all of the overage[1] that had accumulated on both of the policies to the Banks/Barrow policy. According to Perry, he did not know that Turner was not the beneficiary of the Banks/Barrow policy. Perry testified that Turner agreed to his suggestion. Perry then applied the overage to the Banks/Barrow policy, but continued to collect premiums on both it and the Turner/Barrow policy.
After Barrow died, Turner told Perry that she wished to file a claim on the Turner/Barrow policy. According to Turner's testimony, Perry came by her home in November 1986 and gathered all of the documents in Turner's possession that related to that policy. She said that those documents included a premium receipt card, the only evidence held by Turner that showed that she had made her premium payments. Perry testified that he did not take any documents relating to the Turner/Barrow policy from Turner's home and that he told Turner that he could not file a claim on the policy because it had lapsed.
Turner further testified that for months she heard nothing regarding the status of her claim. In March 1987, Turner went to Southern's district office in Opelika and inquired about her claim. At that meeting she was told that Southern had no record of the Turner/Barrow policy or of her claim. According to Turner, Perry came to *1017 her home the following month and explained the reason for the delay. She testified that Perry told her that Southern did not have $1,500 to pay her claim, but that he and his "boss man" had agreed to pay Turner $500 a month for three months to satisfy her claim. The following month, according to Turner, Perry came to her home and gave her an envelope containing $500 in $20 bills and asked her if she was "satisfied." Turner's testimony concerning that visit by Perry, and the payment of $500, was corroborated by Alvin Turner and by Miller Ephraim, a family friend. Both men testified that they were present when Perry paid the $500, and both testified that they counted the money.[2]
Turner testified that the following day she and Ephraim went to the office of the Alabama Insurance Department in Montgomery. At that office, Turner said, she told Michael DeBellis of the Consumer Protection Division about her problems with Perry and Southern and showed him the envelope containing $500. She said that DeBellis told her he would look into her complaint, but that his investigation was dropped when DeBellis learned that Turner had retained a lawyer and filed an action against Perry and Southern.[3] This testimony was corroborated by DeBellis and Ephraim.
Perry denied offering to pay Turner $1,500 in installments and denied giving her $500 in May 1987.
Southern and Perry argue that they were entitled to a judgment notwithstanding the verdict on the grounds that Turner did not present sufficient evidence of each of the elements of fraud. Turner's complaint was filed on June 8, 1987, and was therefore subject to the "scintilla rule." Ala.Code 1975, § 12-21-12 (Supp.1989).
The elements of fraud are: (1) a misrepresentation (2) of a material fact (3) that was relied upon by the plaintiff, (4) who was damaged as a proximate result of the misrepresentation. Earnest v. Pritchett-Moore, Inc., 401 So.2d 752, 754 (Ala. 1981). The elements of fraud based on the suppression of material facts are: (1) a duty to disclose facts; (2) concealment or non-disclosure of material facts by the defendant; (3) inducement of the plaintiff to act; and (4) action by the plaintiff to his injury. Gary v. Kirkland, 514 So.2d 970, 972 (Ala.1987).
The trial judge presented Turner's claim to the jury with the following instruction:
"[I]n order to make the defendant, Southern Life and Health Insurance Company liable for any misconduct of Richard Perry, the plaintiff has to reasonably satisfy you from the evidence... that Southern Life and Health, either authorized the wrongful conduct of Richard Perry, constituting the fraud, or if they didn't authorize it in advance, they must have ratified it after he did it. Ratification consisting of, number one, having knowledge of what he did, and with knowledge of what he did, they must have approved it, adopted it as their own, and accepted the benefits of it. And, without proving those things, Southern Life and Health Insurance Company cannot be held liable for the wrongful conduct of Richard Perry, even if you find he acted wrongly and committed the legal fraud."
Under that instruction, the jury could have properly returned a verdict against Southern only if it found that Perry's conduct was either authorized or ratified by Southern. There was evidence to support such findings. Under the instructions given to the jury, the trial court's denial of Southern's motion for J.N.O.V. was not error.
However, the instruction did not allow the jury to consider the theory of respondeat superior, which Turner requested the court to present to the jury. Under respondeat superior, a principal can be liable in *1018 tort for its agent's acts that are done within the scope of employment, either real or apparent, even though the principal did not authorize such acts or even expressly forbade them. No evidence of authorization or ratification is needed. That theory has been extended to cases where the fraud was committed for the agent's own benefit and to the principal's detriment. Pacific Mutual Life Ins. Co. v. Haslip, 553 So.2d 537 (Ala.1989), cert. granted, ___ U.S. ___, 110 S.Ct. 1780, 108 L.Ed.2d 782 (1990); Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 305 (Ala.1986); Joyner v. AAA Cooper Transportation, 477 So.2d 364, 365 (Ala.1985).
Pursuant to Rule 50(d), A.R.Civ.P., the plaintiff has properly raised the issue of whether she was entitled to an instruction on the law of respondeat superior. We agree that such an instruction should have been given to the jury in this case. We note that had the jury returned a verdict on respondeat superior based on the evidence before us, that verdict would have been amply supported by the evidence.
In light of the fact that the relationship between agency and respondeat superior is often confused, we do believe that a comment on that relationship is appropriate. The distinction between the law of agency and the law of respondeat superior is subtle.
"The general rule that a principal is liable for the torts of his agent is not grounded on agency principles. This is evident from the holdings that a principal may be held for his agent's tort committed in the course and scope of the agent's employment even though the principal does not authorize, ratify, participate in, or know of, such misconduct, or even if he forbade or disapproved of the act complained of. Fundamentally, there is no distinction to be drawn between the liability of a principal for the tortious act of his agent and the liability of an employer or master for the tortious act of his employee or servant. In both cases, the tort liability is based on the employer and employee, rather than any agency, principle; the liability for the tortious act of the employee is grounded upon the maxim of `respondeat superior' and is to be determined by considering, from a factual standpoint, the question whether the tortious act was done while the employee, whether agent or servant, was acting within the scope of his employment."
3 Am.Jur.2d Agency § 280 at 783 (1986).
Alabama follows the rule stated in Am. Jur.2d. In Autrey v. Blue Cross & Blue Shield of Alabama, 481 So.2d 345 (Ala. 1985), the Court stated:
"`"The liability of a corporation for the torts of its employees, whether agent or servant, is grounded upon the principle of `respondeat superior,' not the principles of agency. The factual question to be determined is whether or not the act complained of was done, either by agent or servant, while acting within the line and scope of his employment. The corporation or principal may be liable in tort for the acts of its servants or agents done within the scope of employment, real or apparent, even though it did not authorize or ratify such acts or even expressly forbade them."' (Citations omitted.)"
Id. at 347-48 (citing National States Insurance Co. v. Jones, 393 So.2d 1361, 1376 (Ala.1980), and quoting from Old Southern Life Insurance Co. v. McConnell, 52 Ala. App. 589, 594, 296 So.2d 183, 186 (1974)). Based on the foregoing analysis, the Court in Autrey found that there was sufficient evidence to raise a factual issue that warranted reversing a summary judgment on the issue of whether a representative of the defendant insurance company was acting within the scope of his employment when he represented to the insurance applicant the effective date of coverage. See also, Craft v. United States, 542 F.2d 1250, 1254-55 (5th Cir.1976); Scott v. Great Atlantic & Pacific Tea Co., 338 F.2d 661 (5th Cir.1964); Pacific Mutual Life Ins. Co. v. Haslip, 553 So.2d 537, 541-42 (Ala.1989), cert. granted, ___ U.S. ___, 110 S.Ct. 1780, 108 L.Ed.2d 782 (1990); AVCO Corp. v. Richardson, 285 Ala. 538, 541-42, 234 So.2d 556, 559-60 (1970); Perfection Mattress & Spring Co. v. Windham, 236 Ala. 239, 182 So. 6 (1938); Hardeman v. *1019 Williams, 150 Ala. 415, 418-21, 43 So. 726 (1907).
The above authorities make it clear that, under circumstances analogous to those in the present case, the actual basis of a principal's liability turns on the doctrine of respondeat superior. It follows that the rule that a principal may be held liable for the acts of his agent by ratifying them is a subpart of the broader rule of respondeat superior, which imputes liability to a principal (employer) for acts of an agent (employee) performed within the scope of the agent's (employee's) employment. In effect, the instruction given by the trial court on ratification required the plaintiff to meet a more stringent requirement of proofproof of ratification rather than proof of action within the scope of employment. Further, in the context of the facts of this case, a scintilla of evidence sufficient to raise the issue of ratification also serves equally well, or better, to raise the issue as to whether Perry's action was within the scope of his employment by Southern. Because we find that there was a scintilla of evidence tending to show Southern's knowledge of or ratification of Perry's fraud, the trial court's error in failing to charge on respondeat superior was harmless, because the plaintiff was able to meet the heavier burden and the defendants were obviously not prejudiced. Holloway v. Robertson, 500 So.2d 1056 (Ala.1986).
A motion for J.N.O.V. must be denied if there is a scintilla of evidence in support of the plaintiff's claims. Gadsden Paper & Supply Co. v. Washburn, 554 So.2d 983 (Ala.1989). In the Gadsden Paper case, this Court stated:
"A motion for J.N.O.V. is really just a reassertion of the motion for directed verdict. It is necessary to the success of a motion for J.N.O.V. that the moving party be entitled to a directed verdict at the close of the evidence. Wilson v. Draper, 406 So.2d 429, 432 (Ala.Civ.App. 1981). Moreover, if the nonmoving party has produced so much as a scintilla of evidence, then the motion for directed verdict or J.N.O.V. must be denied. Marion v. Hall, 429 So.2d 937, 943 (Ala. 1983).
"In Elrod v. Ford, 489 So.2d 534, 537 (Ala.1986), this Court stated the following rules:
"`To be entitled to either directed verdict or J.N.O.V., Defendant must have proved to the trial judge that, from the evidence before the court at the time each motion was made, there was "a complete absence of proof on a material issue or [that there were] no controverted questions of fact on which reasonable people could differ," and that Defendant was entitled to judgment as a matter of law. Deaton, Inc. v. Burroughs, 456 So.2d 771, 773 (Ala.1984). Stated conversely, the motions for directed verdict and J.N.O.V. should not have been granted if reasonable inferences in favor of Plaintiffs' claims could have been drawn from the evidence or if there was any conflict in the evidence for resolution by a jury. O'Donohue v. Citizens Bank, 350 So.2d 1049 (Ala.Civ.App. 1977)."'"
In his Hammond order,[4] the trial judge stated:
"In most civil fraud cases there is a `gray area' as to the commission of the alleged fraud; e.g., the necessity for the jury to interpret the meaning of the words or conduct of the person accused of the fraud, or to determine whether plaintiff's reliance was reasonable. In this case the factual issue of the commission of the fraud was simple and clear; either defendant Perry did it or he didn't. This presented a simple and unambiguous question of fact for the jury, and the jury found for the plaintiff. Whether defendant Southern Life authorized or ratified its agent's conduct was not so simple a question, but the jury was charged on this point and again decided in favor of plaintiff. While the evidence which would make defendant Southern Life liable was not as clear or as abundant as that implicating the agent, there *1020 was nevertheless sufficient evidence to support a verdict against defendant Southern Life."
(Emphasis supplied.)
We agree with this conclusion by the trial judge. The jury heard evidence from the plaintiff and other witnesses tending to indicate Southern's knowledge of Perry's fraud. The plaintiff and other persons clearly testified that Perry came to her home and gave her $500 and that Perry told her that he and "his boss man" had decided to pay her $1500 over a three-month period. Such evidence supports the inference that Perry had communicated his fraud to his superiors, and that this payment scheme was an attempt to "hush" the plaintiff.
In addition, we note that the route lists that were maintained at Southern's corporate offices in Opelika clearly showed that Perry had diverted monies from the "overage" on the Turner/Barrow policy to the Barrow/Banks policy. Yet, when Turner's policy lapsed for failure to pay the premium, Southern provided no notice of lapse to Turner.
Turner testified that she went with Miller Ephraim to Southern's regional office in Opelika, Alabama, to inquire about the non-payment of her claim on the "lapsed" policy. She was informed that the policy had lapsed and that no claim for benefits had ever been filed. Moreover, testimony showed that it was only after her inquiry at the Opelika office that Perry told her that he and "his boss man" would pay the plaintiff $500 a month for three months in settlement of her claim. We believe that the jury could reasonably infer from such evidence that Perry was notified of Turner's claim through the Southern office, and that therefore Southern was cognizant of and approved Perry's actions.
The above matters indicate at least a scintilla of evidence showing that Southern personnel had been informed of Perry's fraud and then schemed to conceal it by paying the plaintiff "hush money." It is axiomatic that one may not undo a fraud by subsequent acts. National States Ins. Co. v. Jones, 393 So.2d 1361, 1367 (Ala. 1980).
Thus, for the reasons set out above, the judgment is affirmed.
AFFIRMED.
SHORES, ADAMS and KENNEDY, JJ., concur.
JONES and HOUSTON, JJ., concur in result.
MADDOX, J., concurs in part and dissents in part.
MADDOX, Justice (concurring in part; dissenting in part).
I concur in that portion of the opinion that affirms the $500,000 award in this case against Perry, but I must point out that I dissented in Pacific Mutual Life Ins. Co. v. Haslip, 553 So.2d 537 (Ala.1989), cert. granted, ___ U.S. ___, 110 S.Ct. 1780, 108 L.Ed.2d 782 (1990), and the principle of law raised in this case is the same as that presented in that case. Therefore, if the Supreme Court of the United States reverses this Court's judgment in that case, then the judgment in this case should also be reversed.
The trial judge gave the following instruction on the award of punitive damages:
"What about punitive damages? Punitive damages are damages in addition to and above and beyond compensatory damages, which seek to punish a wrongdoer. Sometimes we refer to it as exemplary damages. That is, damages to make an example of the wrongdoer. For the purpose of punishing that wrongdoer for the wrong that he has perpetrated. And secondly, to make an example out of him, and to prevent him or other people similarly situated from doing the same sort of wrong in the future. The amount of punitive damages in any case is left to the sound discretion of the jury. If you are to award punitive damages, you determine the amount that is appropriate in this case. In determining the amount though, you can be guided by three things. The enormity of the wrong, the *1021 culpability of the wrongdoer, and the necessity for preventing similar wrongs by this defendant or other people similarly situated in the future. So again, punitive damages are for the purpose of punishment, and making an example of the wrongdoer, so that he or others in the future will not do the same type of misconduct. And in determining the amount, use your sound discretion, keeping in mind three things. The enormity of the wrong, the culpability of the wrongdoer, and the necessity for preventing similar wrongs by that wrongdoer or others similarly situated in the future.
"In a case where fraud is alleged, as in this case, punitive damages can be awarded only when the plaintiff has proved, not only the existence of the legal fraud in question, but another step must be proved. Another item must be proved. Not just that the legal fraud occurred. But, to justify punitive damages, the plaintiff must reasonably satisfy you from the evidence which is clear and convincing, that the fraud in question was malicious, oppressive or gross, and committed with the intent to injure the plaintiff. So, before you could award punitive damages, as opposed to compensatory damages, before you could award punitive damages in this case, you would have to be reasonably satisfied from the evidence, and the evidence would have to be clear and convincing on this point. That Richard Perry committed the legal fraud that he is accused of, as I defined that to you. And, you must be reasonably satisfied, and the evidence must be clear and convincing on this, that that fraud was malicious, oppressive or gross, and that it was done with the intent, committed with the intent to injure, financially injure, Lucy Turner. Without such proof, you might be authorized to award compensatory damages in the amount of a thousand dollars, but you would not be authorized to award any punitive damages."
Does the giving of that instruction alone suffice to guarantee to the defendants due process of law? I think not, but I must await, as everyone else must, the decision of the Supreme Court of the United States in Pacific Mutual Life Ins. Co. v. Haslip, supra.
I respectfully dissent from that portion of the opinion that affirms the judgment concerning the liability of Southern Life. I am of the opinion that there was no evidence that Southern Life was aware of, or ratified, Perry's acts or that Perry was acting within the line and scope of his employment. Thus, Southern Life should not be held liable.
NOTES
[1] "Overage" is the term Southern and Perry used to denominate funds paid by a policyholder who was attempting to become current on delinquent premium payments. Those funds would be held by the agent and set aside until the balance equalled the full amount owed on the policy. At that time it would be applied to the policy, which would then be considered back in force.
[2] Miller Ephraim died before the trial began. His testimony had been procured by deposition some months before his death.
[3] Turner's original complaint contained allegations of breach of contract, conversion, and fraud. However, only the fraud count was submitted to the jury.
[4] See Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1603822/ | 354 N.W.2d 48 (1984)
Richard COUGHLIN, et al., Appellants,
v.
Kenneth Roy LaBOUNTY and LaBounty Manufacturing, Inc., Respondents.
No. C2-84-591.
Court of Appeals of Minnesota.
August 28, 1984.
*49 H.L. Newby, Jr., Jean M. Klosowski, Cloquet, for appellants.
Anthony S. Downs, Steven W. Schneider, Duluth, for respondents.
Heard, considered, and decided by LANSING, P.J., and WOZNIAK and FORSBERG, JJ.
OPINION
WOZNIAK, Judge.
The plaintiff seeks to recover noneconomic losses over and above his no-fault benefits by suing the driver who hit him. The jury found that the plaintiff had sustained $25,000 worth of damages, but was not permanently injured or disabled for sixty days or more. The trial court ruled that the thresholds of the No-Fault Act had not been met and entered judgment for the defendant. The plaintiff moved for a new trial, but the motion was denied and the *50 judgment entered. The plaintiff appeals. We affirm.
FACTS
Richard Coughlin's car was rear-ended by a vehicle driven by Kenneth LaBounty and owned by LaBounty Manufacturing, Inc. LaBounty admitted liability for the accident. This action is concerned only with damages.
The parties hotly disputed the issue of damages. LaBounty's expert, Dr. Budd, unequivocally rejected Coughlin's claim of permanent injury; Coughlin's expert, Dr. Pollard, just as unequivocally claimed the injuries were permanent.
The trial court instructed the jury on permanent injury and on the meaning of disability for 60 days.
A special verdict form was submitted to the jury. The jury found that Richard Coughlin had been damaged in the amount of $25,170, of which $4,170 represented income loss from the day of the accident through trial, almost three years. Medical expenses incurred up to the time of trial were stipulated to be $3,200. Colleen Coughlin's damages were set at $3,850. The jury found specifically, however, that Richard Coughlin had neither sustained a permanent injury nor was he disabled for more than sixty days. The trial court summed up the jury's findings:
Armed with that knowledge [the jury instructions], and armed with the evidence which had been presented to it, the jury simply rejected the claims of the Plaintiff Coughlin on those two issues and the Court perceives no reason that it should substitute its judgment on those disputed matters for the judgment of the jury.
Coughlin had been a school teacher, and continued to work as a school teacher after the accident. Though he was later laid off his teaching job, it is undisputed that his layoff was because of a decline in enrollment, not his injuries.
The number of sick leave days, personal leave days, and emergency leave days taken by Coughlin after the accident were no greater than those taken by him prior to the accident. He subsequently worked as a travelling salesman and also sold insurance.
During the trial, Coughlin testified of his aspiration to work as a carpenter although he had never actually been a carpenter and never earned any money doing carpentry. He was not permitted to introduce the testimony of a Lake County carpenter on how much money he had made due to lack of sufficient foundation.
ISSUES
1. Was the verdict of $25,000 in damages, but neither permanent injury, nor sixty days or more of disability, inconsistent?
2. Did the trial court err in not submitting to the jury the question of whether the plaintiff met the $4,000 in medical expenses threshold?
3. Did the trial court err by refusing to admit the testimony of a Lake County carpenter on how much he had earned?
ANALYSIS
Before an injured person covered under the No-Fault Act can recover noneconomic loss in a tort action, the tort thresholds of the Act must be met. The plaintiff must carry the burden of proving $4,000 of medical expenses or an injury producing a disability of sixty days or more, a permanent injury or disfigurement, or death before he can sue. Minn.Stat. § 65B.51, Subd. 3 (1982); Marose v. Hennameyer, 347 N.W.2d 509 (Minn.Ct.App.1984). If the threshold requirements are not met, no recovery may be had.
1. A jury verdict must be manifestly and palpably contrary to the evidence before it will be overturned. Templin v. Crestliner, Inc., 263 Minn. 149, 116 N.W.2d 178 (1962). It will not be overturned if evidence reasonably tends to support it. Kuehl v. National Tea Co., 310 Minn. 48, 245 N.W.2d 235 (1976). A jury verdict may be overturned only if no reasonable *51 mind could make the findings the jury did. Belden Porter Co. v. The Kimball Co. Inc., 303 Minn. 98, 226 N.W.2d 310 (1975). An appellate court must reconcile special verdict answers if possible. Reese v. Henke, 277 Minn. 151, 152 N.W.2d 63 (1967). An inconsistent special verdict must be overturned. Carufel v. Steven, 293 N.W.2d 47 (Minn.1980). The evidence as a whole must be viewed in the light most favorable to the verdict, and if the special verdict answers can be reconciled on any theory, the verdict must stand.
Here the jury found Coughlin had sustained damages as a result of an accident almost three years ago in the total amount of $25,170. Of that amount, $4,170 represented Coughlin's income loss for three years, and $3,200 were stipulated medical costs.
Appellant indicates that the case of Carufel v. Steven, 293 N.W.2d 47 (Minn.1980) supports his position. Carufel, however, is not contrary to respondent's position. In Carufel, the jury found damages in the amount of $25,000, but also found that the plaintiff had not received any permanent injury. The testimony in Carufel was much different than that in the instant case. In Carufel, the plaintiff's physician indicated that plaintiff had suffered a twenty percent permanent disability. The defense presented medical testimony which indicated that plaintiff had psychological problems which were the cause of her continuing pain. The defense physicians testified that the plaintiff's psychological problems "could be cured with the appropriate treatment." Id. at 48. The Minnesota Supreme Court interpreted the testimony as indicating that plaintiff, at the time of trial, had not recovered from her injuries. The primary conflict in the testimony was "as to whether plaintiff's injuries would be permanent or whether she would fully recover." Id. (emphasis supplied).
The primary conflict in the medical testimony in Carufel was as to whether the plaintiff's problems would resolve themselves in the future. Carufel involves factually dissimilar medical testimony and cannot be considered as authority for the proposition that a finding of damages and a finding of no permanent injury are always irreconcilable. In the instant case, the testimony was in direct conflict as to whether there was a permanent injury at the time of trial. The direct dispute in the testimony was whether the appellant had fully recovered at the time of trial or had suffered any disability for sixty days or more.
The theories presented were very different from those presented in Carufel. Here, the defense's expert testified that the plaintiff had been injured, but that the injury was not permanent; that, in fact, there was no disability even at the time of trial. The plaintiff's expert testified the opposite. The jury's verdict fits squarely with the defense's theory: there were general damages of $25,170 (less special damages), but no permanent injury. The jury accepted the defense's theory and rejected the plaintiff's theory. There was no inconsistency in the verdict as there was in the unique facts of Carufel.
Coughlin had a full opportunity to present his case to the jury. Coughlin had the burden of establishing that the tort thresholds set forth in Minnesota Statutes § 65B.51, subd. 3 (1983) had been met. There was a conflict in the testimony between the doctors and clearly the jury believed the testimony of one, as they were free to do, and disregarded the testimony of the other. The jury answered the special verdict questions, finding no permanent injury and no disability for sixty days or more.
Such an award, however, does not preclude a jury from making a finding that Coughlin had suffered some temporary general damages as a result of the accident. Coughlin does not claim that one must suffer a permanent injury or disability for sixty days or more in order to have suffered some general damages. Nor does Coughlin argue that it is the amount of the general damages award which mandates a finding of permanent injury or disability for sixty days or more. In fact, in this case, under the special verdict form, *52 the jury was free to award whatever amount it felt was reasonable for some temporary general damages. It would, however, be better practice for the trial court to submit the threshold questions first and, if not met, instruct them not to answer any questions on general damages.
In light of the testimony, the verdict is not irreconcilable as a matter of law and must be allowed to stand.
2. One of the stated purposes of the No-Fault Act is to prevent litigation over automobile accident claims. Minn.Stat. § 65B.42(4) (1982). As such, the No-Fault Act substitutes first party insurance as the remedy for the majority of personal injury claims. The tort thresholds represent a safety valve for the victim who is so severely injured that the no-fault insurance limits are so inadequate as to be unjust. Thresholds are established to reserve only the more serious personal injury cases for third party litigation.
The language itself, "paid, payable or payable but for an applicable deductible," indicates that the legislature intended to measure the seriousness by the reasonable medical expenses incurred in the past rather than the future. Minn.Stat. § 65B.51, Subd. 3(a)(3). As Professor Steenson notes, "[The statute] precludes consideration of future medical expenses in computing the tort threshold." Steenson, Minnesota No-Fault Automobile Insurance 161 (1982).
The plaintiff stipulated that at the time of trial, his medical expenses were only $3,200. He did not meet the $4,000 medical expenses threshold. The trial court properly refused to allow him to compute future medical expenses into the threshold amount.
3. Coughlin complains that the testimony of an "expert" and himself relating to Coughlin's expected earnings as a self-employed carpenter were improperly excluded. Expert testimony is to assist the jury in reaching its conclusion. Minn.R. Evid. 702. As noted in the comments to Rule 702:
The admissibility of expert opinion has traditionally rested in the discretion of the trial court. This discretion is primarily exercised in two areas:
1. determining if an opinion can assist the trier of fact in formulating a correct resolution of the questions raised; and
2. deciding if the witness is sufficiently qualified as an expert in a given subject area to justify testimony in the form of an opinion.
There will be no change in existing practice in this regard.
Id. committee comment 1977, found in, Minnesota Rules of Court 340 (West 1984), see Gardner v. Coca-Cola Bottling Co., 267 Minn. 505, 127 N.W.2d 557 (1964).
In this case, the trial court was presented with a school teacher who had never been a carpenter, never earned any money as a carpenter, was willing, able, and would prefer to be teaching, and who sought to introduce an experienced, established carpenter's testimony about what the experienced carpenter's earnings were. The connection between the experienced carpenter's earnings and the possible earnings of the plaintiff as a carpenter was so nebulous that the trial court refused to allow the testimony. Implicitly the court found that the opinion would not help the jury. The court did allow the plaintiff to testify about his aspirations to carpentry and what he might make. In each instance, there is a total lack of foundation as to Coughlin's potential earnings as a self-employed carpenter. Coughlin is a school teacher and the evidence is clear his employment as a school teacher was not affected by his injuries. Further, his opportunities as a school teacher were terminated because the student body has declined. He wanted to continue his career as a school teacher, and had sought employment as a school teacher since his layoff.
The excluded testimony of the "expert" and Coughlin would necessarily be based solely on nebulous and undefined assumptions regarding Coughlin's skills and opportunities in self-employed carpentry business, and any opinion heard on this type of *53 foundation would be purely speculative. This was not an abuse of discretion.
DECISION
There was a clear conflict in the testimony as to whether appellant had suffered a disability for sixty days or more or a permanent injury as a result of the accident of January 15, 1981. The jury had the opportunity to hear all of the evidence and to weigh that evidence in making its decision. The jury verdict is not contrary to all of the evidence and is not irreconcilable with the award of general temporary damages. The jury verdict should be allowed to stand.
Further, Coughlin stipulated that his medical expenses at the time of trial were $3,200. Medical expenses not yet incurred may not be included under Minnesota Statute § 65B.51, Subd. 3(a)(1) for the purpose of establishing the medical expense threshold of $4,000. It was not error for the trial court to refuse to submit this issue to the jury.
The testimony regarding Coughlin's opportunities as a self-employed carpenter was without any foundation in the evidence. No evidence of appellant's experience, past earnings, or opportunities in the field was presented. Under the circumstances, it was not error for the trial court to exclude such testimony as without foundation and as pure speculation.
The jury verdict was reached after a full and fair trial and must be affirmed in all respects.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599665/ | 571 So.2d 420 (1990)
THE FLORIDA BAR, Complainant,
v.
Howard A. LEVINE, Respondent.
No. 72327.
Supreme Court of Florida.
November 29, 1990.
John F. Harkness, Jr., Executive Director, John T. Berry, Staff Counsel, and James N. Watson, Jr., Bar Counsel, Tallahassee, for complainant.
John A. Weiss, Tallahassee, for respondent.
PER CURIAM.
This is a lawyer discipline proceeding in which The Florida Bar seeks to increase the recommended discipline by the referee from three years' suspension to disbarment. We have jurisdiction. Art. V, § 15, Fla. Const. We approve the findings but conclude that the discipline should be disbarment nunc pro tunc August 1, 1987.
This proceeding concerns Howard Levine's plea of guilty to two felony offenses for securities fraud; specifically, he pled and was adjudicated guilty of organized fraud and the unlawful operation of boiler rooms in violation of sections 817.034 and 517.312, Florida Statutes (1989), respectively. As a result of his plea, Levine was sentenced to a prison term of thirty months and three years' probation. Levine also entered a plea in Oklahoma to four counts of an information relating to the same events and was sentenced to a prison term *421 of thirty months to run concurrent with the Florida sentence.
The facts underlying the pleas and convictions reflect that from April, 1985, through May, 1986, Levine was employed by individuals involved in an investment scheme that defrauded investors. Levine's involvement consisted of drafting legal documents in order to form marketing, leasing, and drilling companies consistent with the laws of the Comanche nation and the laws of Oklahoma and Florida. In 1986, the Securities and Exchange Commission (SEC) began investigating these companies, alleging that they were actually securities, not partnerships, which Levine had failed to register with the SEC. Levine cooperated fully with the SEC and no criminal charges were filed against him by the SEC. Levine asserts that he entered Alford[1] pleas to these charges because of personal health reasons, family considerations, and his financial inability to defend these criminal charges. Levine was sentenced to two thirty-month concurrent prison terms and three years' probation.
The referee found Levine guilty of ethical violations and recommended (1) a three-year suspension dating back to the date of his felony suspension in August, 1987, and (2) that Levine be required to pass The Florida Bar examination before reinstatement.
Levine's misconduct involved the failure to register agents, the employment of unregistered agents, distribution of unfiled and unapproved sales literature, and fraud in the offer and sale of securities. The charges relate to one continuous event and all of Levine's pleas, both in Florida and in Oklahoma, involve the same fraudulent scheme. The record establishes that Levine was employed as a lawyer and not a participant sharing in the profits of the scheme and that the only financial benefit he received was the reasonable attorney's fees for the work he performed.
The Florida Bar seeks disbarment. The Bar argues that this case is identical to The Florida Bar v. Isis, 552 So.2d 912 (Fla. 1989), and that it merits the same discipline. The respondent in Isis was involved in the same fraudulent scheme as Levine and was named a codefendant in both counts to which Levine pled guilty. Since Isis was disbarred, the Bar asserts that Levine should also be disbarred.
Levine asserts that the record supports the referee's recommendation, based on the following mitigating circumstances: (1) Levine did not directly participate in illegal activities since he was employed as a lawyer, not a partner in the scheme; (2) Levine did not receive any profit or share from the scheme; (3) Levine cooperated fully with the SEC and no charges were filed against him by the SEC; (4) Levine cooperated fully with the state in its prosecution; (5) Levine entered Alford pleas; (6) Levine had no prior disciplinary record; and (7) finally, in the referee's words, the
respondent recognizes the seriousness of the charges against him and, while steadfastly maintaining his innocence to the Florida and Oklahoma charges for which he entered pleas, he has not asked that this action be dismissed or that he be found not guilty and has accepted the fact that discipline is appropriate.
We agree with the Bar. In doing so, we realize that Isis had been suspended previously from the Bar, whereas Levine had no prior disciplinary record. However, we note that Levine received a more severe sentence from the federal court for his conduct. This is a serious offense, for which disbarment is the appropriate discipline. We find that the mitigating factors found by the referee justify making the order of disbarment nunc pro tunc to the date Levine was suspended by reason of his criminal convictions.
Accordingly, we hold that Levine is guilty of violating Disciplinary Rules 1-102(A)(3) and 1-102(A)(4) of the Code of *422 Professional Responsibility and Rules 11.02(3)(a) and 11.02(3)(b) of article XI of The Florida Bar Integration Rule; and we direct that Levine shall be disbarred from the practice of law nunc pro tunc August 1, 1987. Judgment for costs is hereby entered against Howard A. Levine in the amount of $989.00, for which sum let execution issue.
It is so ordered.
SHAW, C.J., and OVERTON, McDONALD, EHRLICH, BARKETT, GRIMES and KOGAN, JJ., concur.
NOTES
[1] An Alford plea is "a plea containing a protestation of innocence when ... a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt." North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162 (1970). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596870/ | 638 So.2d 176 (1994)
Vickie BROADWAY and Husband Michael E. Broadway, Appellants,
v.
BAY HOSPITAL, INC., d/b/a HCA Gulf Coast Hospital, Appellee.
No. 92-2337.
District Court of Appeal of Florida, First District.
June 14, 1994.
Edmund D. Quintana of Burke & Blue, P.A., Panama City, for appellants.
Ann J. Tipton of Baker, Duke & Tipton, P.A., Pensacola, for appellee.
*177 PER CURIAM.
This cause is before us on appeal from a final order dismissing appellants' second amended complaint with prejudice. Appellants contend (1) that the trial court erred in finding that they were required to comply with the presuit screening requirements of chapter 766, Florida Statutes, for medical malpractice claims; (2) that their compliance with the presuit screening requirements was sufficient such that the trial court erred in dismissing their complaint; and (3) that section 766.203(2), Florida Statutes, which imposes as a condition precedent to the filing of a medical malpractice claim that the plaintiff provide notice of the claim and a corroborating expert opinion, is unconstitutional. We reverse as to the first issue and, consequently, do not reach the second and third issues.
The second amended complaint alleged that plaintiff/appellant Vickie Broadway was a patient at appellee's hospital in July 1989 and was injured when her hospital bed collapsed. Appellants sought damages based on appellee's breach of its duty to use reasonable care in maintaining its premises and breach of its duty to warn Ms. Broadway of latent hazards. Appellee sought dismissal of the complaint on the ground that the complaint stated a claim for medical negligence and that appellants had failed to comply with the presuit screening requirements of chapter 766, Florida Statutes. The trial court entered an order dismissing the complaint with prejudice under section 766.206(2), Florida Statutes, which requires that a medical malpractice complaint be dismissed if the court finds that the plaintiff is not in compliance with the presuit investigation requirements of chapter 766.
Under section 766.106(1)(a), Florida Statutes, "claim for medical malpractice" is defined as "a claim arising out of the rendering of, or the failure to render, medical care or services." A person seeking recovery for injury resulting from medical malpractice must prove that the injury resulted from a breach of the prevailing professional standard of care as set forth in section 766.102(1), Florida Statutes. The test for determining whether a defendant is entitled to the benefit of the presuit screening requirements of section 766.106, Florida Statutes, is whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section 766.102(1), Florida Statutes. Weinstock v. Groth, 629 So.2d 835 (Fla. 1993), citing NME Properties, Inc. McCullough, 590 So.2d 439 (Fla. 2d DCA 1991). Not every wrongful act by a health care provider amounts to medical malpractice. Stackhouse v. Emerson, 611 So.2d 1365 (Fla. 5th DCA 1993).
From the face of the complaint, it is apparent that appellants have sued appellee for the failure to warn of a dangerous condition or properly maintain a piece of equipment, rather than for breach of some professional standard of care. We hold that the trial court erred in dismissing the complaint. We reject appellee's contention that Neilinger v. Baptist Hospital of Miami, Inc., 460 So.2d 564 (Fla. 3d DCA 1984), requires affirmance of the order below. In Neilinger, the complaint alleged that the plaintiff, a maternity patient, slipped and fell on a pool of amniotic fluid while descending from an examination table under the direction and care of employees of the hospital. The complaint on its face alleged breach of a professional standard of care.
The order appealed from is therefore reversed, and this cause is remanded for proceedings consistent herewith.
BOOTH, JOANOS and MINER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/553180/ | 921 F.2d 438
UNITED STATES of America, Appellee,v.Robert L. STEPHENSON, Defendant-Appellant.
No. 400, Docket 90-1365.
United States Court of Appeals,Second Circuit.
Argued Oct. 22, 1990.Decided Dec. 17, 1990.
Henriette D. Hoffman (The Legal Aid Society Federal Defender Services Unit, New York City, of counsel), for defendant-appellant.
Steven A. Standiford, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Michele Hirshman, Asst. U.S. Atty., of counsel), for appellee.
Before MESKILL and ALTIMARI, Circuit Judges, and CONNER, Senior District Judge.*
ALTIMARI, Circuit Judge:
1
Defendant-appellant Robert L. Stephenson appeals from an amended judgment, entered in the United States District Court for the Southern District of New York (Charles E. Stewart, Judge ), imposing concurrent thirty-eight month terms of imprisonment for extorting and soliciting a bribe and making false statements to a federal agent. Judge Stewart also imposed a $100,000 fine on Stephenson. Stephenson is currently serving the sentence.
2
On this appeal, the defendant-appellant contends that the district court erred by applying the Sentencing Guidelines in effect at the time he was originally sentenced ("October 1988 Guidelines"), rather than applying a combination of the October 1988 Guidelines and the Guidelines in effect at the time of resentencing ("November 1989 Guidelines"). Stephenson also claims that the district court erred by upwardly departing pursuant to Sec. 5K2 of the Sentencing Guidelines rather than pursuant to Sec. 4A. Finally, Stephenson argues that the district court erred by failing to group count three with counts two and four under Sec. 3D1.2 of the Guidelines. For the reasons set forth below, we vacate the judgment of the district court and remand for further proceedings.
BACKGROUND
3
In this Court's disposition of defendant-appellant's first appeal, United States v. Stephenson, 895 F.2d 867 (2d Cir.1990), the Court set forth the facts of this case in detail. Consequently, we will discuss only those facts which are relevant to this appeal.
4
Stephenson was formerly employed as an Export Licensing Officer at the United States Department of Commerce in Washington, D.C. His responsibilities included reviewing licensing applications from companies seeking to export high technology equipment. At trial, evidence was adduced that while he was a Department of Commerce employee, Stephenson began accepting unlawful payments from officials at C.H. International ("CHI"), a small exporting firm, in exchange for the improper issuance of export licenses. According to trial testimony, CHI paid Stephenson over $100,000 in cash and merchandise to obtain the licenses.
5
In 1987, a representative of Zamax Co. ("Zamax"), another export company, approached CHI's shipping manager and requested her assistance in preparing and submitting export license applications to the Department of Commerce. Upon receipt of these applications, Stephenson telephoned Ken Yeh, a Zamax vice president, and accused Zamax of intentionally understating the value of the equipment that it sought to export. After several conversations with Stephenson, Yeh became convinced that Stephenson was soliciting a bribe. Yeh informed the president of Zamax, Wilson Chang, of his suspicions. Chang then contacted the Federal Bureau of Investigation ("FBI"), which directed him to arrange a meeting with Stephenson. At this meeting, which Chang secretly recorded, the two men agreed that Chang would pay Stephenson $35,000 to "resolve the problems" with the license.
6
Subsequently, Stephenson began telling co-workers that Chang had offered him a bribe. On November 30, 1987 he falsely informed a Department of Commerce special agent that a Chinese businessman had attempted to bribe him, but that he had refused the offer. One day later, Stephenson told the same story to another Department of Commerce special agent, Michael Dubensky. Stephenson then enlisted the former president of CHI to call Dubensky and inform him that Chang had committed numerous export violations.
7
Stephenson was later arrested and charged with four separate offenses. Count one of the indictment charged him with conspiring with CHI employees to commit bribery in violation of 18 U.S.C. Sec. 371; count two charged him with extorting $35,000 from Zamax in violation of 18 U.S.C. Sec. 1951(b)(2); count three charged him with accepting a $35,000 bribe from Zamax in violation of 18 U.S.C. Sec. 201(b)(2); and count four charged him with making false statements to a federal agent in violation of 18 U.S.C. Sec. 1001. Following a jury trial, Stephenson was acquitted of count one and was found guilty of the remaining three counts.
8
Applying the Sentencing Guidelines then in effect, the district court determined that the proper combined adjusted offense level was 20. Pursuant to the Sentencing Guidelines, the court sentenced Stephenson to three concurrent thirty-eight month terms of imprisonment and, in addition, imposed a $100,000 fine and a $500 special assessment. On Stephenson's initial appeal, this Court found that the district court erred by making an upward departure without articulating its rationale. Accordingly, the Court vacated the sentence and remanded the case for further proceedings. Stephenson, 895 F.2d at 878.
9
Prior to Stephenson's resentencing, the November 1989 Guidelines were promulgated. The district court determined that application of the November 1989 Guidelines would result in imposition of a harsher sentence than would application of the October 1988 Guidelines. Therefore, Stephenson was resentenced on the basis of the October 1988 Guidelines. In calculating Stephenson's offense level, the district court grouped together counts two and four, but concluded that Sec. 3D1.2(d) of the Guidelines prohibited it from grouping counts two and three. Additionally, upon finding, by preponderance of the evidence, that Stephenson had accepted $100,000 in bribes from CHI "in connection with" the counts on which he was found guilty, the court made a two point upward departure pursuant to 18 U.S.C. Sec. 3553(b). Joint Appendix ("J.A.") at 115. Consequently, Stephenson was sentenced to three concurrent thirty-eight month terms of imprisonment on counts two, three and four and was fined $100,000. This appeal followed.
DISCUSSION
10
A. Application of the November 1989 Guidelines
11
Before Stephenson was resentenced, the October 1988 Guidelines, which were in effect on the date Stephenson was originally sentenced, were amended by the November 1989 Guidelines. Upon determining that application of the November 1989 Guidelines would result in a three level increase in the base offense level, the district court sentenced Stephenson under the October 1988 Guidelines. J.A. at 104. See generally, Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987); see also United States v. Suarez, 911 F.2d 1016 (5th Cir.1990); Hutchinson & Yellin, Federal Sentencing and Practice Sec. 10.2 (1989) ("Miller thus seems to foreclose retrospective application of revised sentencing guidelines when the change made in the guidelines increase[s] the applicable penalty."). Stephenson argues that because 18 U.S.C. Sec. 3553(a)(4) requires that sentences be calculated according to the Guidelines and policy statements in effect at the time of sentencing, he is entitled to the benefit of the intervening amendments. In essence, Stephenson challenges the district court's decision to apply the October 1988 Guidelines as a whole rather than considering each amended provision in isolation and applying only those amended provisions redounding to his benefit.
12
The Sentencing Commission intended the Guidelines to be applied as a "cohesive and integrated whole." United States v. Kikumura, 918 F.2d 1084, 1109 (3d Cir.1990); see United States Sentencing Commission, Guidelines Manual Sec. 1B1.1 (Nov. 1987) ("Guidelines Manual"); see also United States v. Lawrence, 916 F.2d 553, 555 (9th Cir.1990) ("By allowing the guidelines to take effect, Congress has sanctioned the approach of the Commission, which, as expressed by the Commission's 'Application Instructions' of Sec. 1B1.1, requires that the guidelines be read as a whole."). Applying various provisions taken from different versions of the Guidelines would upset the coherency and balance the Commission achieved in promulgating the Guidelines. Such an application would also contravene the express legislative objective of seeking uniformity in sentencing. See Guidelines Manual at Sec. 1B1.1. We therefore reject Stephenson's argument that the district court erred by failing to apply the intervening amendments in a piecemeal manner.
B. Upward Departure
13
Stephenson next contends that the district court erred by upwardly departing on the basis of Sec. 5K2 rather than on the basis of Sec. 4A. Because sentencing judges are afforded considerable latitude in making upward departures, see United States v. Palta, 880 F.2d 636, 639 (2d Cir.1989); United States v. Sturgis, 869 F.2d 54, 56 (2d Cir.1989), this Court reviews upward departures under a reasonableness standard. United States v. Correa-Vargas, 860 F.2d 35, 36-37 (2d Cir.1988).
14
The Sentencing Guidelines endow the district court with the discretion to select the method of accomplishing an upward departure, provided that the method chosen is reasonable. An upward departure pursuant to Sec. 5K2 is warranted in those instances when an aggravating circumstance occurring "in connection with" the crime of conviction is not adequately taken into account under the Guidelines. United States v. Kim, 896 F.2d 678, 683 (2d Cir.1990). Here, the district court determined, by a preponderance of the evidence, that the Zamax bribes were solicited as a result of Stephenson's ongoing criminal relationship with the shipping manager of CHI. Moreover, trial testimony revealed that Stephenson requested CHI's president to make false representations to federal agents in order to stymie their investigation of Stephenson's pattern of illegal activity. The district court therefore concluded that the CHI bribes were related to "the crime of conviction." We conclude that the district court's interpretation of the facts and its application of Sec. 5K2 were reasonable.
15
C. Proper Grouping of Counts Two, Three and Four
16
Finally, Stephenson contends that the district court erred by failing to group counts two and three--the bribery count and the extortion count--on the basis of Sec. 3D1.2(a). Section 3D1.2(a) provides that counts may be grouped "[w]hen [the] counts involve the same victim and the same act or transaction." U.S.S.G. Sec. 3D1.2(a). The government concedes that the district court misread Sec. 3D1.2 by inferring that Sec. 3D1.2(d)'s prohibition against grouping bribery and extortion counts precluded grouping of those counts under Sec. 3D1.2(a) as well. It is understandable that the district court, faced with the arduous task of determining whether to apply the October 1988 or the November 1989 Guidelines, did not focus on how the counts should be grouped.
17
Although the government concedes that the district court erred by failing to group counts two and three, it argues that such a failure was "harmless error." See United States v. Sacco, 899 F.2d 149, 151 (2d Cir.1990) (per curiam ). According to the government, the judge erred by grouping counts two and four and, as a result, arrived at the same combined adjusted offense level that would have been obtained if all of the offenses had been grouped correctly. However, we find that it was not improper to group counts two and four under Sec. 3D1.2. If count three had been grouped with counts two and four as permitted, the combined adjusted offense level would have resulted in a lower figure than the district court calculated. We therefore reject the government's argument that the court's failure to group counts two and three was harmless error. Accordingly, we must vacate the sentence and remand this case to the district court for further proceedings.
CONCLUSION
18
Based on the foregoing, the amended judgment of conviction entered by the district court is vacated and the case is remanded for further proceedings not inconsistent with this opinion.
*
The Honorable William C. Conner, United States District Court for the Southern District of New York, sitting by designation | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/334631/ | 533 F.2d 23
SERVICE AUTO SUPPLY CO. OF PUERTO RICO, Plaintiff-Appellee,v.HARTE & COMPANY, INC., Defendant-Appellant.
No. 75-1145.
United States Court of Appeals,First Circuit.
Argued Feb. 4, 1976.Decided April 14, 1976.
Harvey Reich, New York City, with whom John J. Sobolewski and Aranow, Brodsky, Bohlinger, Benetar & Einhorn, New York City, were on brief, for defendant-appellant.
Harry E. Woods, Santurce, P. R., with whom Philip E. Roberts and Baker & Woods, Santurce, P. R., were on brief, for plaintiff-appellee.
Before COFFIN, Chief Judge, MATTHES** and CAMPBELL, Circuit Judges.
COFFIN, Chief Judge.
1
This is an appeal by defendant Harte & Company, Inc. from a judgment in the amount of $86,623.30, following a jury verdict as to damages in a breach of contract action. Plaintiff-appellee, Service Auto Supply Co. of Puerto Rico, was, at the time of the events leading to this suit, known as Cle-Ware Industries, Inc. of Puerto Rico (Cle-Ware). Cle-Ware was a wholesaler of automotive accessories and Harte a New York manufacturer of plastic products, including car mats for the front and rear sections of automobiles. The contract, for alleged breach of which Cle-Ware brought suit, was for the delivery of car mats ordered in three purchase orders in the spring of 1969. The total price to Cle-Ware was $41,823.60, the recovery of which Harte sought by counterclaim.
2
The case was tried to a jury. Three witnesses testified for plaintiff Cle-Ware; the sole defense witness was Harte's president, Strauss. Various letters and other documents were introduced into evidence. At the close of all the evidence, the court granted plaintiff's motion for a directed verdict as to liability and its motion to dismiss defendant's counterclaim except for $8,000, the amount received by plaintiff in 1972 when it sold the goods to a third party. The critical issues are whether the court erred in directing the verdict as to liability and in so dismissing the counterclaim; and whether the jury's verdict as to damages was supported by the evidence.
3
The most troublesome issue lies in the direction of the verdict for plaintiff on liability.1 While such a direction in favor of the party having the burden of proof is rare, it is permitted where that party "has established his case by testimony that the jury is not at liberty to disbelieve."2 But the standard of proof to be met is a strict one. The Supreme Court in Brady v. Southern Ry. Co., 320 U.S. 476, 479, 64 S.Ct. 232, 234, 88 L.Ed. 239, 243 (1943), has defined the evidence meriting such a sudden death result as "such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict." In Federal Insurance Co. v. Summers, 403 F.2d 971, 975-76 (1968), we said:
4
"It is a rare case where the proponent is entitled to a directed verdict, Roche v. New Hampshire Nat'l Bank, 192 F.2d 203 (1st Cir. 1951), and indeed, the only case, where a directed verdict would be warranted would be where the proponent's . . . evidence establishing a prima facie case is uncontradicted and unimpeached. See, e. g., Chesapeake & O. R. Co. v. Martin, 283 U.S. 209, 51 S.Ct. 453, 75 L.Ed. 983 (1931); National Dynamics Corp. v. Petersen Publishing Co., 185 F.Supp. 573 (S.D.N.Y.1960). See generally 5 Moore's Federal Practice 2319 (2d ed. 1968). Even where the proponent's evidence is uncontradicted, a directed verdict would not be proper if the evidence gives rise to conflicting inferences, see, e. g., Readnour v. Commercial Standard Ins. Co., 253 F.2d 907 (10th Cir. 1958), or where the case is totally dependent on the credibility of a witness. See, e. g., Powers v. Continental Cas. Co., 301 F.2d 386 (8th Cir. 1962); Polhemus v. Water Island, Inc., 252 F.2d 924 (3rd Cir. 1958)."
5
In ordinary cases, such as this one, where the issues are factual, oral testimony is dominant, and the testimony from each side is likely to be given by witnesses who are committed in their views to one party or the other, whether or not legally "interested", the making of a motion for directed verdict by a party having the burden is a long shot gamble. In the generality of cases, it saves perhaps a few hours of jury time but nothing else. Affirmance requires the most detailed combing of the record and exposition by the appellate court. Reversal means an entire new trial and possibly another appeal. Perhaps its only merit is that if made and refused, the motion preserves, for a plaintiff, the issue of sufficiency of defendant's evidence in the event of a verdict for defendant. While counsel may feel obligated to make the motion, we advise caution on the part of the court.
6
The plaintiff's evidence consisted of the testimony of Michaels, who had been Harte's exclusive sales representative in Puerto Rico;3 of Kaplan, the former president of Cle-Ware; and of Maldonado, Cle-Ware's former general manager. Their testimony can be summarized as follows. In late 1968 Cle-Ware's predecessor, Economy Auto Supply Co., had purchased some car mats from Harte, had complained about them, and Harte had arranged a transfer of the mats to another buyer, indemnifying Cle-Ware against any loss. Other companies had had similar complaints. On the very date when written evidence of the indemnification undertaking was given Cle-Ware, March 31, 1969,4 Cle-Ware entered into a series of new orders, the first two carrying the notations "First quality merchandise only. Shipment will not be accepted with more than 2% 'seconds' or defectives. All new open front cartons."The first shipment arrived in Puerto Rico on June 4. Shortly thereafter it was inspected by Michaels, Kaplan, and Maldonado. They testified that they opened at random approximately one fourth of the cartons in the shipment, and found that the mats had been shipped in smaller cartons without an open end front (for use on display shelves), were wrinkled or curled in cartons too small to contain them flat, were of varying shades within each set of two, had holes or bubbles, and some were lacking manufacturer's labels.
7
Within a few days of this first shipment, Kaplan and Michaels visited Harte's New York headquarters, seeing Senie, the sales manager, and Shedlin, the Vice President. Kaplan complained about the one shipment that had been made. The testimony of Michaels and Kaplan varied in detail about what was said at this meeting, but both agreed that further decision was held in abeyance until Senie went to Puerto Rico to look into the problem. Kaplan said that after this meeting, on the same day, he saw Strauss, and merely presented his problem to him, knowing that others were closer to the situation.
8
Senie wrote Michaels on June 17 that he would be coming to Puerto Rico within a few days. He came, viewed at least the first two shipments, offered Cle-Ware a rebate of $2.25 a set (each set carrying a price to Cle-Ware of from $3.85 to $6.65), and, this being refused by Kaplan, said he would go back to Harte and see what further action could be taken. Subsequently, Kaplan and Michaels inspected the third and fourth shipments (about June 19 and July 3), sampling about 25 per cent of the cartons and finding the same predominance of defective mats and cartons.
9
This, apparently, was the end of attempted settlement. On July 10, Senie wrote Michaels a mea culpa letter, saying both had been guilty of poor planning, in effect having looked on Puerto Rico as a dumping ground, and that, henceforth, only first quality goods should be programmed. On July 11, Kaplan cabled Harte, insisting on removal of the goods and payment of the excise taxes paid and damages suffered by Cle-Ware. Strauss called Kaplan at about this time and offered to take back the goods, if Cle-Ware would abandon any claim for damages. Failing that, Strauss (according to Kaplan) would flood Puerto Rico with low price car mats. Kaplan wrote Strauss on July 14 that Senie had not produced on his offer to increase the discount or remove the merchandise in late June; he warned of the continuation of large accumulating expenses and demanded immediate action. The suit was filed August 1.5
10
Harte's witness its President, Strauss testified that he was aware of only one prior complaint concerning its products in Puerto Rico. He did not know of the indemnity arrangement with Cle-Ware in early 1969. The first time he knew of Cle-Ware's current complaint was on June 13, 1969, when Kaplan phoned him while in New York. Strauss said that Kaplan, having been unable to see Senie and Shedlin, wanted to see him. Kaplan came into his office, samples under each arm, and complaining about the cartons not revealing the product within, about colors of individual sets not matching, and about the mats being curled in boxes which were too small. Strauss offered to stop the fifth shipment, which was yet at the factory, and to take back the entire order. He offered a car to Kaplan to go to the factory and see the goods for himself. But Kaplan did not want to cancel the order. Things, he said, were "not that serious". He preferred to leave the order standing and to rely on the results of Senie's visit to Puerto Rico.
11
After the June visit of Kaplan, Strauss did nothing until July 11, 1969, when he called Kaplan, offering to take back all of the car mats, or such part as Kaplan could not use. Strauss said that Kaplan refused, saying that he would never let Harte distribute any of the mats in Puerto Rico. On July 24, Strauss wrote Kaplan, saying that, without conceding any merit to Cle-Ware's complaints, if Cle-Ware was not willing to let Harte pick up its merchandise and pay any duty thereon, it would have to take all necessary action.
12
The remaining part of Strauss' testimony had to do with the value of scrap plastic material in 1972, when plaintiff sold the mats it had received in the four shipments (the fifth was never picked up by Cle-Ware) for $8,000. Strauss said that the recycling or remelting value would yield a total price in 1972 of approximately $21,000.
13
This is the distillation of several days of trial. The focus is whether Strauss, by his testimony or letter of July 24, created an issue of fact for the jury. A minor issue raised by his testimony might be said to be whether or not others had registered complaints with Harte prior to the events at issue here. Strauss said he was aware of only one. But documentary evidence from his own official, Senie, evidenced a different disposal of seconds and an indemnity arrangement with Cle-Ware. This was positive proof that he did not know the complaint picture in significant detail.
14
The major thrust of Strauss' testimony was that, as of June 13, before delivery of the second, third, and fourth shipments, Kaplan was not so disturbed as to cancel the entire deal. This is a significant piece of evidence. Our question is whether the jury could reasonably have concluded from this that the shipments really were not bad enough to reject and that Cle-Ware's later determination not only to reject the shipments but claim damages was a belated move to cut obligations. Had the plaintiff's evidence stopped as of this time, a jury issue would clearly have been made.
15
But Kaplan and Cle-Ware never claimed that they had given up hope by the time of the first shipment. Cle-Ware had arrangements to fill orders from retailers based on lists of products it had held out as available. It could not easily or quickly obtain another source of supply. The troubles deepened as the succeeding shipments arrived. When Senie made his mid-June trouble-shooting trip to Puerto Rico, and looked at the first two shipments, he (according to all three of plaintiff's witnesses) agreed that the merchandise was poor, and made the very substantial offer to allow Cle-Ware a credit of $2.25 a set. Strauss said he knew of this offer an offer which implicitly recognized that there were more than the two per cent of defectives in the shipments, which the order set as the ceiling. Moreover, Strauss himself acknowledged that the cartons were not the "open end" type that had been ordered, and that mats allowed to remain curled up for two to four weeks would not regain their former shape. For a wholesaler dealing with retailers who required a display carton and for whom a delay of several weeks in transit was inevitable, these defects were not minor.
16
Finally there is the fact of Strauss' eleventh hour offer, evidenced by his letter as well as his testimony, to take back all the mats and pay the excise taxes. Construing this evidence most favorably for defendant, it was an attempt by Harte to salvage Cle-Ware's good will, rather than an admission of defective goods. But this is not positive evidence of the satisfactory condition of the goods.
17
The fact is that, apart from Strauss' testimony as to six samples from the first shipment, Harte produced no witnesses as to the condition of the goods as delivered. Senie was not available. Its key official, Shedlin, to whom Senie reported, did not testify. During the two and one half years which elapsed between the filing of suit and Cle-Ware's sale of the mats for $8,000, no attempt at inspection or production was made. Strauss testified only as to an early conversation and a last minute offer. It is true that much of plaintiff's evidence was in the form of testimony given by witnesses who were sympathetic to Cle-Ware, although none were presently affiliated with it. But not only did Strauss' testimony fail to contradict plaintiff's witnesses as to the condition of the goods on delivery; it corroborated it as to the packaging of the mats in closed cartons, so small as to bring about curling, as to Senie's offer of a credit, and as to Strauss' offer to take the entire shipment back and pay for the excise taxes. We conclude, though not without travail and antipathy for this kind of analysis, that a jury could not have found for the defendant on the issue of liability. The directed verdict on this issue may stand.
18
Not so with the dismissal of the counterclaim except as to the $8,000 paid by Kaplan to Cle-Ware in 1972 for the mats which had been delivered. Strauss' testimony that, in 1972, the scrap value was at least $21,000 posed a jury issue. The duty to mitigate damages must be subjected to a reasonable value test. The case must be remanded for a finding as to the reasonable value of the mats disposed of by Cle-Ware.
19
Appellant attacks the jury verdict as not being supported by the evidence. It is true that the evidence as to lost profits, as to storage and labor, and as to good will was not documented or detailed. But what evidence there was went to the jury without objection and proved persuasive. We see no egregious error of law in instructing the jury. No objections were made to the instructions. The jury returned a verdict substantially less than was asked. We cannot, in the hindsight which is vouchsafed to us, say that what the jury did profoundly shocks our sense of justice.
20
Appellant sees fit to challenge the closing argument of appellee's counsel. It does indeed appear, in cold print, somewhat Gothic and extreme. But there was no call on the court to halt the excess of verbal imagery or invocation to the poets. We cannot fault the court. And perhaps opposing counsel felt that the effort would trip on its own ebullience. This kind of play must normally be left to counsel and the trial court, at least in a civil case.
21
As for a claim that the appropriate statute of limitations required plaintiff to bring an action within four days of receipt of the merchandise,10 L.P.R.A. § 1712, we find persuasive the argument of appellee that another section, § 1703, is applicable when sale is made by sample, as here.
22
Judgment vacated. Remanded for trial as to amount by which damages are mitigated. No costs.
*
Of the U. S. Customs Court, sitting by designation
**
Of the Eighth Circuit, sitting by designation
1
Plaintiff-appellee argues that appellant is barred from raising the question of sufficiency of the evidence, it not having itself moved for a directed verdict, citing our cases requiring such from a defendant who seeks to challenge the sufficiency of evidence supporting plaintiff's case. Gillentine v. McKeand, 426 F.2d 717 (1st Cir. 1970) and Bayamon Thom McAn, Inc. v. Miranda, 409 F.2d 968 (1st Cir. 1969). But defendant here objected and later moved for a new trial on the ground that the verdict was wrongly directed. It does not challenge the sufficiency of plaintiff's evidence; rather it challenges the determination, as a matter of law, that its evidence was insufficient to go to the jury. It clearly has preserved its right to make the challenge
2
9 Wright and Miller, Federal Practice and Procedure, 591. See authorities gathered in § 2535
3
Harte has argued that Michaels' statements and correspondence should not have been admitted, since no general agency relationship was established. But Michaels took the stand and testified to the substance of his correspondence. Moreover, as is the case with many other points raised on appeal, error if any was not preserved; the testimony came in without objection
4
A written undertaking of indemnity, signed by Senie, Harte's sales manager, was in evidence. Senie's whereabouts was unknown by either party at the time of trial
5
At least from this time on, there was no question as to Cle-Ware's rejection of the goods | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1821438/ | 468 So. 2d 577 (1985)
John T. VOLLENWEIDER
v.
NEW ORLEANS PUBLIC SERVICE, INC.
No. 85-C-0734.
Supreme Court of Louisiana.
May 13, 1985.
Denied.
DIXON, C.J., would grant the writ. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596912/ | 638 So.2d 205 (1994)
Vincent GRAMEGNA, Appellant,
v.
FLORIDA PAROLE COMMISSION, Appellee.
No. 93-3572.
District Court of Appeal of Florida, First District.
June 8, 1994.
*206 Vincent Gramegna, pro se.
Kurt E. Ahrendt, Asst. Gen. Counsel, Tallahassee, for appellee.
PER CURIAM.
Vincent Gramegna appeals the denial of a petition for writ of mandamus. He seeks to be declared eligible for consideration for "control release" from state prison,[1] where he is serving concurrent ten-year sentences for lasciviously assaulting a child.
On April 23, 1991, Gramegna entered a plea of no contest to three counts of lewd, lascivious, or indecent assault or act upon or in the presence of a child. § 800.04(1), Fla. Stat. (1991). The information initiating the prosecution alleged that he had fondled the breasts and vagina of a fourteen-year-old victim, and that he had placed her hand on his penis. Because of the plea, no trial took place.
When the Florida Parole Commission (Commission) determined that his convictions rendered him ineligible for control release under section 947.146(4)(c), Florida Statutes, (1991),[2] Gramegna filed a petition for writ of mandamus in circuit court challenging that determination. The statute provides that control release is not available to an inmate who has been convicted of:
committing or attempting to commit sexual battery, incest, or any of the following lewd and lascivious acts: masturbating in public; exposing the sexual organs in a perverted manner; or nonconsensual handling or fondling of the genitals of another person.
Gramegna contends both that the sexual activity underlying his convictions was in fact consensual and that he was never convicted of "nonconsensual handling or fondling of the sexual organs of another person." He argues that the Commission lacked authority to determine him ineligible for control release solely on the strength of the word "forced" in an arresting officer's affidavit. The affidavit recited that Gramegna, while alone with the victim, "did fondle the breasts, underneath her clothing, did fondle her vaginal area on the outside of her clothing, and did take the victim's hand and forced her to fondle his genitals."
The Florida Supreme Court has held that the Secretary of the Department of Corrections could rely on information in an inmate's presentence investigation report, to determine eligibility for provisional credits, when factual matters apart from the nature of a conviction were at issue. Dugger v. Grant, 610 So.2d 428 (Fla. 1992). In Grant the supreme court considered, inter alia, subsections 944.277(1)(d) and (e), Florida Statutes (1989), which provided that provisional release (the predecessor to control release) was not available as to an inmate who:
*207 (d) is convicted, or has been previously convicted of committing or attempting to commit assault, aggravated assault, battery, or aggravated battery, and a sex act was attempted or completed during commission of the offense;
(e) is convicted, or has been previously convicted, of committing or attempting to commit kidnaping, burglary, or murder, and the offense was committed with the intent to commit sexual battery.
(Emphasis added.) Subsections 944.277(1)(d) and (e), Florida Statutes (1989), required proof of certain facts in addition to proof of a specified conviction in order to disqualify an inmate from provisional release. In contrast, section 947.146(4)(c), Florida Statutes (1991), requires proof of nothing other than a specified conviction in order to disqualify the convict from control release.
Under the supposed authority of Grant, the Commission relied in this case on an affidavit never attached to an accusatory pleading or even offered into evidence as grounds to conclude that Gramegna was convicted of an offense listed in section 947.146(3)(c), Florida Statutes (1991). But the Grant court never held that a conviction could be proven except by a copy of the judgment. Under section 947.146(3)(c), Florida Statutes (1991), the Legislature has provided that control release eligibility will be withheld from persons convicted of certain types of lewd or indecent assaults or acts.
This court, in Fulkroad v. Florida Parole Commission, 632 So.2d 148 (Fla. 1st DCA 1994), upheld the denial of mandamus relief for an inmate who had been convicted of sexual activity with a child by a person in familial or custodial authority in violation of section 794.041(2)(b), Florida Statutes (1991). The Commission had denied Fulkroad control release eligibility under the sexual battery disqualifier then contained in section 947.146(4)(c), Florida Statutes (1992 Supp.). We reasoned that, although the same act could constitute both sexual battery and sexual activity with a child,[3] each of the crimes had a unique element, so that a prisoner could not be "deemed to have committed the crime of sexual battery, and thus be ineligible for control release, simply by virtue of having committed the offense of engaging in sexual activity with a child."[4] 632 So.2d at 149. Citing Dugger v. Grant, 610 So.2d 428 (Fla. 1992), we held that the clear indications of forcible or nonconsensual sexual activity contained in the probable cause affidavit which led to the arrest of Fulkroad provided a sufficient basis for deeming him ineligible for control release under section 947.146(4)(c). Id.
While we feel constrained to follow recent precedent, we now question whether Dugger v. Grant permits the Commission to deny control release pursuant to 947.146(4)(c), relying on an arrest affidavit, rather than on the judgment of conviction, as the statute appears to mandate. We affirm the denial of mandamus relief based on our own recent decision in Fulkroad v. Florida Parole Commission, 632 So.2d 148 (Fla. 1st DCA 1994), but, for the reasons set forth above, we certify the following question to the Supreme Court of Florida as one of great public importance:
WHETHER AN ARRESTING OFFICER'S AFFIDAVIT MAY BE USED TO DENY CONTROL RELEASE ELIGIBILITY, UNDER SECTION 947.146(3)(C), FLORIDA STATUTES (1993), WHERE THE INFORMATION, INDICTMENT, BILL OF PARTICULARS AND JUDGMENT OF CONVICTION DO NOT ESTABLISH A DISQUALIFYING CONVICTION?
We recognize that the trial court also based its denial of mandamus relief on its conclusion that the fourteen-year-old victim could not, as a matter of law, have consented to the *208 sexual acts in this case. Accordingly, we certify the following additional question to the Supreme Court of Florida as one of great public importance:
WHETHER, FOR PURPOSES OF CONTROL RELEASE ELIGIBILITY DETERMINATIONS UNDER SECTION 947.146(3)(C), FLORIDA STATUTES, A CHILD UNDER THE AGE OF SIXTEEN CAN CONSENT TO SEXUAL ACTS THAT CONSTITUTE A VIOLATION OF SECTION 800.04, FLORIDA STATUTES?
The denial of the petition for writ of mandamus is affirmed and the foregoing questions are certified to the Supreme Court of Florida.
ZEHMER, C.J., and KAHN and BENTON, JJ., concur.
NOTES
[1] [Control Release A]uthority has as its primary purpose the implementation of a system of uniform criteria for the determination of the number and type of inmates who must be released into the community under control release in order to maintain the state prison system at or below 99 percent of its lawful capacity as defined in s. 944.096. No inmate has a right to control release. Control release is an administrative function solely used to manage the state prison population within lawful capacity... .
§ 947.146(2), Fla. Stat. (1993).
[2] When section 947.146 was subsequently amended, this subsection was renumbered as 947.146(3)(c). Ch. 93-406, § 27, at 3580, Laws of Fla.
[3] The critical distinction between the two statutes for purposes of control release eligibility lay in the requirement for sexual battery that the proscribed sexual acts be nonconsensual or forcible in nature. Fulkroad v. Florida Parole Commission, 632 So.2d 148, 149 (Fla. 1st DCA 1994). We concluded that Fulkroad could be found ineligible for control release on account of sexual battery only if the circumstances of his offense involved force or nonconsent. Id.
[4] Under section 794.011(8), Florida Statutes (1993), sexual activity with a child by a person in familial or custodial authority now constitutes sexual battery. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597377/ | 638 So. 2d 1360 (1993)
Ex parte Donnis George MUSGROVE.
(Re David Walter ROGERS and Donnis George Musgrove v. STATE).
Ex parte David Walter ROGERS.
(Re David Walter ROGERS and Donnis George Musgrove v. STATE).
1921210, 1921211.
Supreme Court of Alabama.
December 17, 1993.
Rehearing Denied March 4, 1994.
*1362 Dwight L. Driskill, Birmingham, for Donnis George Musgrove.
Tommy Nail of McAbee, Nail & Ragsdale, Birmingham, for David Walter Rogers.
James H. Evans, Atty. Gen., and Melissa G. Math and Sandra J. Stewart, Deputy Attys. Gen., for State.
HORNSBY, Chief Justice.
In a consolidated trial, David Walter Rogers and Donnis George Musgrove were convicted of capital murder and both were sentenced to death. The Court of Criminal Appeals reversed their convictions, based on what that court ruled was the improper admission of evidence of their flight from police nearly two months after the murder. Rogers and Musgrove v. State, 630 So. 2d 78 (Ala. Crim.App.1991). On certiorari review, this Court reversed, ruling that there had been no error in the admission of the flight evidence. Rogers and Musgrove v. State, 630 So. 2d 88 (Ala.1992). On remand from this *1363 Court the Court of Criminal Appeals addressed the remaining issues raised on appeal and then affirmed the convictions. Rogers and Musgrove v. State, 638 So. 2d 1347 (Ala.Crim.App.1992).
This Court has granted each defendant's petition for certiorari review. Rule 39(c), A.R.App.P. In their petitions, Musgrove raised 16 issues for review and Rogers raised 15. All but four of the issues were presented to and treated in great detail by the Court of Criminal Appeals in its two prior opinions in this case.[1] We address only the newly raised issues and one issue previously considered by the Court of Criminal Appealswhether during closing arguments at the guilt phase of the trial the district attorney improperly commented on the defendants' failure to testify and, thus, violated their constitutional right not to testify.
I. Facts
In the early morning of September 27, 1986, two men armed with handguns broke into a small house in Robinwood, in Jefferson County, Alabama. The house was occupied by Coy Eugene Barron, his wife Libby, their baby, and an overnight guest, Jamie Crawford, who was asleep on a mattress in the living room. The men kicked in the front door of the darkened house and proceeded directly to the single bedroom where Coy and Libby and their baby were sleeping.
Coy awoke and attempted to hold the bedroom door closed while his wife stood behind him, holding the baby. The men forced the door open and when Coy picked up a bottle as if to throw it at them, they each fired a shot. One of the shots missed, but the other fatally injured Coy. After the shots, the men quickly fled.
On October 1, 1986, Libby Barron was shown a five-photograph "lineup" of potential suspects, which included photos of both Musgrove and Rogers. She identified the two as her husband's killers, but wanted to see a live lineup. Musgrove and Rogers were arrested on November 22, 1986, following a lengthy, high-speed automobile chase in the area of Decatur, Alabama, which ensued when they fled from a police officer who was attempting to pull them over for driving a vehicle that did not have a license plate other than a dealer's tag. At the time of their arrest, both defendants were escapees from prison work release programs and Rogers was under a sentence of life imprisonment. On December 5, 1986, Libby Barron identified both Musgrove and Rogers in separate live lineups.
In February 1987 the defendants were indicted for capital murder. Musgrove was charged with intentionally causing the death of Coy Barron by shooting him with a pistol during the course of a burglary, Ala.Code 1975, § 13A-5-40(a)(4). Rogers's indictment contained the same count as Musgrove's and contained a second count alleging that he committed the murder while under a sentence of life imprisonment, Ala.Code 1975, § 13A-5-40(a)(6).
At trial, in February 1988, the defendants presented alibi evidence that they had been in Bradenton, Florida, staying with Musgrove's aunt from August 28 until October 6, 1986, and that they had never left her house for more than a few hours at a time. The State rebutted this testimony by presenting evidence that a wallet and identification that were in Rogers's possession at the time of his and Musgrove's arrest had last been seen by the wallet's owner in the glove compartment of his automobile, which had been parked in front of his apartment in suburban Atlanta, Georgia, on September 28, 1986, the day following the murder.
The jury found both defendants guilty of capital murder, and at the sentencing phase of the trial the jury returned a verdict recommending the death penalty. On May 20, 1988, the trial judge sentenced the defendants to death.
II. Separation of the Jury
Musgrove and Rogers contend that they are due a new trial because they say the jury "separated" during a Sunday recess of their trial and the separation was without their consent. Section 12-16-9(a), Ala.Code 1975, provides:
*1364 "If the accused and his counsel and also the prosecuting attorney, in any prosecution for a capital felony consent thereto in open court, the trial court in its discretion may permit the jury trying the case to separate during the pendency of the trial, whether the jury has retired or not. A separation so permitted shall not create a presumption of prejudice to that accused, but on the contrary it shall be prima facie presumed that the accused was not prejudiced by reason of the separation of the jury."
Where a separation occurs in violation of such a statute, there is a presumption of prejudice to the accused. Reeves v. State, 432 So. 2d 543, 547-48 (Ala.Crim.App.1983). Musgrove and Rogers contend not only that a separation occurred, but that the separation was in violation of the statute and that the State has failed to rebut the presumption of prejudice. In response, the State argues that the record reveals only that the trial judge allowed family visitation during the Sunday recess if the jurors chose to have family visitation and that the defendants have not shown that there was an actual "separation" of the jury. The State further contends that unless the defendants can first show that the jury improperly separated, there is no presumption of prejudice for the State to overcome. We agree.
Neither Musgrove nor Rogers objected at trial to the Sunday recess. Thus, this issue is being raised for the first time on this certiorari review. Accordingly, the issue was not properly preserved for appeal and is reviewable only under the plain error standard. Rule 39(k), A.R.App.P.; Ex parte McWilliams, [Ms. 1911242, January 29, 1993] ___ So.2d ___ (Ala.1993). We further note that before trial defense counsel objected to the court's decision to sequester the jury and suggested that a Sunday recess be taken, stating that the case had not received much publicity and was not expected to receive more during trial. For the defendants now to contend that the Sunday recess requested by defense counsel caused a "separation" of the jury that entitles them to a new trial nearly rises to the level of invited error.
Although the defendants vigorously argue that the trial court's allowing visitation rights for the jurors' family members during the Sunday recess constituted an improper "separation" of the jury, our review of this allegation of error is limited to what is found in the record. See Bush v. State, 333 So. 2d 186, 188 (Ala.1976). The record contains no indication that jurors actually received visitation from family members or that, if they did, any visitation amounted to a separation of the jury. The jurors were properly instructed by the trial judge not to discuss the case with anyone. Absent a showing in the record, it is not this Court's province to speculate as to what actually occurred during the Sunday recess. Accordingly, we find no plain error.
III. Jury Instructions on Felony Murder and Accomplice Liability
Both Musgrove and Rogers contend that the jury was not properly charged that it could return a felony murder conviction based on accomplice liability against either defendant if it found that the other was guilty of felony murder as the actual killer. They contend that the accomplice liability charge did not include an instruction that a defendant could be found guilty of felony murder by accomplice liability because the charge instructed the jury that accomplice liability required an intentional killing. Thus, they argue that the charge given precluded the jury from applying accomplice liability while considering the lesser included offense of felony murder, which does not require an intentional killing. In response, the State argues that proper instructions were given on both felony murder and accomplice liability.
Neither Musgrove nor Rogers objected to the jury charges at issue during trial and they have not previously raised the issue on appellate review. Accordingly, the issue is reviewable only under the plain error standard. Rule 39(k), A.R.App.P. We further note that during a conference with the trial judge before the jury charges were given, counsel for both Musgrove and Rogers objected to the court's giving of an instruction on felony murder. Defense counsel objected *1365 to jury charges on any lesser included offenses. For the defendants now to argue that they should be granted a new trial based on the contention that an offense they did not want the jury to consider was charged in such a way as to preclude the jury from finding them guilty on that charge, again, comes close to invited error.
We have examined the record and conclude that the jury was fully and adequately charged on both felony murder and accomplice liability. The record shows that the felony murder charge was immediately followed by the accomplice liability charge. Although the accomplice liability charge did instruct the jury that an intentional killing was required, the immediately preceding charge had properly instructed the jury that under the felony murder doctrine the element of intent is supplied by the commission of a felony.
In review of a trial court's jury charge, individual instructions are not to be isolated or taken out of context, but must be considered in light of all the instructions. Ex parte Holifield, 562 So. 2d 254, 255 (Ala.1992); Alexander v. State, 601 So. 2d 1130, 1133 (Ala.Crim.App.1992). Taken as a whole, these charges properly instructed the jury on the application of accomplice liability to felony murder. Accordingly, we find no deficiency in these jury charges that rises to the level of plain error.
IV. Jury Instruction on Determining Credibility of Witnesses and Finding Facts
Musgrove and Rogers contend that a jury instruction regarding the credibility of witnesses and the truthfulness of testimony removed from the jury its exclusive right to be the finder of fact and denied the defendants a fair trial. The jury instruction that the defendants now claim is improper stated:
"Now, if you find that you cannot reasonably reconcile the testimony of all the witnesses so as to make them all speak the truth then you should determine what testimony you find to be true and what testimony you find to be untrue, consider that which you find to be true and disregard that which you find to be untrue."
(Emphasis added.)
The defendants contend that a jury instruction to reconcile all the testimony and to weigh the testimony of different witnesses differently only if such reconciliation is not possible requires that a juror initially take all the testimony of all the witnesses as true. They contend that such an instruction is "functionally identical" to an instruction to presume that the witnesses are testifying truthfully, which would have prevented the jury from disbelieving any testimony that was not contradicted. Under Alabama law, there is no presumption that a witness is testifying truthfully. Ex parte Holifield, 562 So. 2d 254, 255 (Ala.1990); Williams v. State, 520 So. 2d 179, 181 (Ala.Crim.App.1987).
Neither Musgrove nor Rogers objected to the jury charges at issue during trial and they have not previously raised the issue on appellate review. Accordingly, the issue is reviewable only under the plain error standard. Rule 39(k), A.R.App.P. The State contends that this individual jury instruction does not constitute plain error because, it says, the jury charge, when taken in its entirety, clearly informed the jurors that they were the sole factfinders and judges of the witnesses' credibility. We agree.
In Ex parte Holifield, we found that a nearly identical jury instruction to reconcile the testimony so that the witnesses have spoken the truth was merely harmless error because the charge in its entirety "cured" the error found in that isolated instruction. 562 So.2d at 255. As previously noted, in review of a trial court's jury charge, individual instructions are not to be isolated or taken out of context, but must be considered in light of all the other instructions. Id.; Alexander, 601 So.2d at 1133. In this case, the record reveals that the trial judge repeatedly instructed the jurors that they were to be the sole finders of fact and weighers of the witnesses' credibility. For example, the trial judge stated:
"As jurors you are the triers and finders of facts in these cases[,] from the evidence[,] in determining and deciding the *1366 guilt or innocence of each of these Defendants....
"As jurors you are the sole and exclusive judges of the evidence and the weight and sufficiency of the evidence[,] and not only that, you are the sole judges of the credibility of the witnesses. You are to determine what weight you will give to the testimony of witnesses and in making that determination [,] among other things[,] you may consider any interest, any bias, any prejudice, any relationship or any other thing that you may find a witness has if in your judgment it may tend to keep that witness from testifying to the truth....
"The testimony of an expert witness[,] even though they have had ample opportunity to experiment and examine the subject matter on which they testify [,] is not binding upon the jury. Such testimony has been submitted for you to weigh and consider with all the other testimony and evidence in this case....
"Now, it is a matter of law that if a witness has heretofore been convicted of a crime involving moral turpitude it goes to his credibility as a witness; in other words, the jury may take that into account in determining how much weight and how much credibility they will give to that particular witnesses's testimony ..."
Accordingly, even though the trial judge's instruction to reconcile the testimony was in error, any error was sufficiently cured by the additional instructions, so that the error did not rise to the level of plain error.
V. Jury Instruction on Evidence of Flight
Musgrove and Rogers contend that the trial court improperly instructed the jury that evidence of their flight from police could be used only to conclude that they absented themselves out of a consciousness of guilt of the murder of Coy Barron or that they absented themselves out of an innocent and lawful purpose. They argue that the jury was, therefore, not allowed to consider that their flight was motivated by reasons other than a consciousness of guilt of the murder, such as the fact that both were escapees from prison release programs or that they were riding in a stolen car. In response, the State argues that when the jury instruction at issue is examined in its entirety, and not isolated, one must conclude that the jury was properly instructed to look to all the evidence to determine the motivation for the defendants' flight and was not precluded from finding a motive other than a consciousness of guilt of the murder.
The jury instruction at issue stated:
"Now, ladies and gentlemen, in the prosecution for a crime it is permissible for the State to offer proof of the flight of the Defendant or Defendants from the location as a circumstance tending to show the guilt of the accused, but where a crime has been committed and proof of flight of the accused is offered or evidence tending to infer that the Defendant or Defendants absente[d] himself or themselves from the location in which the alleged crime was committed, the probative force or the value of the fact of flight depends entirely upon the purpose of the Defendant or Defendants in their absenting themselves from the locations. The question as to why the defendant or Defendants left the location becomes a question for the jury. And it is for the jury to determine from the evidence of all the surrounding circumstances whether the Defendants absent[ed] himself or themselves from the location and if he did, did he so absent himself or themselves out of a sense of guilt, out of a fear of or to avoid arrest or whether he absented himself from the location for an innocent and lawful purpose disassociated with any idea of the crime for which we are trying today. When I refer to crime, I'm referring to the crime that is charged in these indictments, that being the offense of capital offense [sic] that you will have that is alleged in the indictments plus the lesser included offense of murder under the felony murder doctrine."
(Emphasis added.)
Neither Musgrove nor Rogers objected to this jury charge during trial, and they have not previously raised the issue on appellate review. Accordingly, the issue is reviewable only under the plain error standard. Rule 39(k), A.R.App.P. The State contends that the instruction properly informed *1367 the jury that it was to consider all the surrounding circumstances in determining a motivation for the defendants' flight and that when a second charge given to the jury is also considered, it is clear that there was no plain error.
This Court concludes that, by itself, the first charge given to the jury regarding the use of evidence of the defendants' flight improperly limited the jury to considering the flight to be either evidence of guilt of the murder of Coy Barron or, in the alternative, evidence of an innocent and lawful flight. Standing alone, this jury charge might rise to the level of plain error. Plain error is "error which, when examined in the context of the entire case, is so obvious that failure to notice it would seriously affect the fairness, integrity, and public reputation of the judicial proceedings." United States v. Butler, 792 F.2d 1528, 1535 (11th Cir.), cert. denied, 479 U.S. 933, 107 S. Ct. 407, 93 L. Ed. 2d 359 (1986).
However, as previously noted, in review of a trial court's jury charge, individual instructions are not to be isolated or taken out of context, but must be considered in light of all the other instructions. Ex parte Holifield, 562 So.2d at 255; Alexander, 601 So.2d at 1133. We hold that any error in the first charge on the use of flight evidence was sufficiently cured by a later jury charge, so that there was no plain error.
The second instruction, which had been requested by defense counsel, stated:
"The flight of a defendant in a criminal case may or may not be considered as a circumstance tending to prove guilt depending on the motive which prompted it, whether a consciousness of guilt and a pending apprehension of being brought to justice caused the flight or whether it was caused from some other motive. And the jury may look to all the surrounding circumstances to determine this fact."
(Emphasis added.) This instruction repeated to the jury the explanation that it could look to all the evidence to determine the motive for the defendants' flight, and it sufficiently cured the impropriety that existed in the earlier charge. Accordingly, we find no plain error.
VI. The District Attorney's Statements During Closing Argument
A.
Musgrove and Rogers argue that, during the State's closing argument to the jury in the guilt phase of the trial, the prosecutor improperly commented on their failure to testify, thereby violating their constitutional rights and depriving them of a fair trial. Article I, § 6, of the Alabama Constitution of 1901 states, in part, that the accused in a criminal prosecution "shall not be compelled to give evidence against himself." This constitutional right is the basis for the requirement that a criminal defendant's failure to testify shall not be commented upon by the prosecution. Ex parte Wilson, 571 So. 2d 1251, 1261 (Ala.1990); Whitt v. State, 370 So. 2d 736, 738 (Ala.1979). In Alabama, this right is also protected by statute:
"On the trial of all indictments, complaints or other criminal proceedings, the person on trial shall, at his own request, but not otherwise, be a competent witness, and his failure to make such a request shall not create any presumption against him nor be the subject of comment by counsel. If the district attorney makes any comment concerning the defendant's failure to testify, a new trial must be granted on motion filed within 30 days from entry of the judgment."
Ala.Code 1975, § 12-21-220.
B.
Specifically, Musgrove and Rogers contend that the prosecutor's questions, "What did you hear from the defense?" and "What did you hear from the Defendant?"made during rebuttal closing argumentwere improper comments on their failure to testify. Following defense counsel's objections, the trial judge failed to give a curative instruction regarding the district attorney's statements to the jury. The prosecutor continued with the remainder of his closing argument. At a later request for a ruling on the objections, the trial judge indicated that the objections would be overruled, but also taken under advisement.
*1368 The defendants argue that because they properly objected and moved for a new trial based on the prosecutor's statements and because no curative instruction was given to the jury, § 12-21-220 requires that they be granted a new trial. For reasons set forth below, we disagree.
C.
Given another set of circumstances, this Court might find the defendants' argument compelling. Because even indirect comments on an accused's failure to testify have the potential to be highly prejudicial, a prosecutor must be careful not to step over the line and into a violation of the defendant's constitutional rights. Ex parte Williams, 461 So. 2d 852, 853 (Ala.1984); Whitt v. State, 370 So.2d at 739. However, under the particular facts of this case, we find that the prosecutor's statements were not comments on the defendants' failure to testify.
When an accused contends that a prosecutor has made improper comments during a closing argument, the statements at issue must be viewed in the context of the evidence presented in the case and the entire closing argument made to the juryboth defense counsel's and the prosecutor's. Washington v. State, 259 Ala. 104, 65 So. 2d 704 (1953); Stephens v. State, 580 So. 2d 11 (Ala.Crim.App.1990), aff'd, 580 So. 2d 26 (Ala. 1991). When the prosecutor's statements are viewed in the proper context, we conclude that they were permissible responses to comments made by the defendants' counsel during closing argument. See Stephens, supra; Merritt v. State, 571 So. 2d 409 (Ala. Crim.App.1990).
During closing argument, defense counsel made repeated attacks upon the prosecution's presentation of its case and the prosecution's motivation for obtaining a conviction. For example, defense counsel for Rogers criticized the prosecutors and argued:
"After October the 1st, 1986, there was a lot of efforts expended in this case, but those efforts were expended to obtain a conviction, not to find out what the facts were or find out what the truth is and there is a big difference, folks.
"....
"No, they made up their minds on October the 1st, 1986, these two men were guilty and after that it didn't matter. The only thing they were interested in was taking a conviction, because look what they did.
"....
"... [Y]ou know, something concerns me about this case. When we get prosecutors that start harassing State's witnesses or defense witnesses ... You think that attitude is the kind of attitude that is interested in the truth or finding out what the facts are or listening to what she had to say about what she knows about this case? I don't think so.... They are not interested in the facts or the truth, they are interested in a conviction.
"....
"And they don't know they were over there stealing a car, they want you to speculate these people into the electric chair."
Among the concluding comments in Rogers's closing argument was the following statement:
"Was there something in those recordsI don't know whether theythere may have been nothing, it may have been just like he said, just an employment record, but it got thrown away anyway. It got thrown away, but it is a pattern of conduct, it started from the beginning and it progressed all the way through the trial. A pattern of conduct that we want a conviction regardless of what the facts are or regardless of what the evidence is and that is very sad, folks, it is very sad. I'm not saying that they did it with that in mind, consciously, you know, said the end justifies the means. People say I'm right so therefore what I do[,] although it may not be proper[,] justifies what I'm doing. I may not say that, but it is consciousness like Hitler justified killing 6,000,000 Jews, he obviously thought it was the thing to do. He thought he was protecting the world. Killed 6,000,000 people. The end justifies the means? And there were plenty of examples, that just happened to come to mind. Does the end justify the means *1369 when we are talking about justice and fairness and people's lives?"
(Emphasis added.)
It was only thereafter, during the prosecution's rebuttal closing argument, that the statements at issue on this review were made. In the first part of that closing argument, the prosecutor discussed at length the evidence presented by the State. Then he outlined the evidence presented by the defense and contested its merit. Finally, the prosecutor began an ending summary of the State's, and then of the defense's, case.
"[DISTRICT ATTORNEY]: The evidence I state to you in argument, ladies and gentlemen, shows that they are murderers. And there is no honor.
"Now the case is going to be yours. What did you hear from the defense?
"[COUNSEL FOR ROGERS]: And I'm going to object on the grounds of both the Alabama Constitution and the U.S. Constitution based on [the district attorney's] comments and respectfully ask for a mistrial.
"THE COURT: I will have to rule on that at the end of the closing argument.
"[COUNSEL FOR ROGERS]: Judge, we are asking for a mistrial on his unconstitutional statements [based] on both the Alabama and U.S. Constitution.
"THE COURT: At this point in time, I will have to take it under advisement.
"[DISTRICT ATTORNEY]: What did you hear from the Defendant?
"[COUNSEL FOR ROGERS]: Again, I'm going to object on both the constitution of ... Alabama and the U.S. Constitution and
"[COUNSEL FOR MUSGROVE]: And we would like a continuing objection and
"[COUNSEL FOR ROGERS]: And ask for a mistrial.
"THE COURT: I will take it under advisement at this time.
"[DISTRICT ATTORNEY]: Think about that last question and the answer is what you heard. Adolph Hitler and 6,000,000 Jews. You heard [counsel for Musgrove] talk about the electric chair in his opening statement. Opening statement is supposed to be for the purpose of outlining what you expect the evidence to show. When you hear [counsel for Rogers] talking about the electric chair and Adolph Hitler killing 6,000,000 Jews and that is right after he talked about the State letting the guilty party go free, they are not interested in the truth, just getting a conviction, et cetera, et cetera, et cetera. Folks, he is right, I'm wanting a conviction, I have worked hard for the last year and a half on this case and ask my wife about this, the evidence shows that those men gunned down Coy Barron in his house with his wife and baby standing by."
The Court of Criminal Appeals wrote concerning the second statement at issue:
"[This comment,] when viewed in the context of the entire argument, did not refer to the appellants' failure to testify, but was rather the prosecutor's opening into a summary of the case presented by the defense. The comment was clearly not a direct reference to the appellants' failure to testify because it was not "`manifestly intended to be, or was of such a character that the jury would naturally and necessarily take it to be, a comment on the failure of the accused to testify.'" [Citations omitted.] Nor was this comment an indirect reference to the appellants' failure to testify and there was no `close identification' of the appellants as the exact people who did not become witnesses. [Citation omitted.] This statement by the prosecutor was merely a general opening statement to a recapitulation of the defense's case."
Musgrove and Rogers v. State, 638 So. 2d 1347, 1359 (Ala.Crim.App.1992).
We agree. A prosecutor has the right to point out to the jury that certain parts of the State's evidence have not been contradicted. Ex parte Williams, 461 So.2d at 853; Windsor v. State, 593 So. 2d 87, 91 (Ala.Crim.App.1991). Further, a prosecutor has the right to fairly "reply in kind" to statements made by defense counsel in the defense's closing argument. Davis v. State, 494 So. 2d 851 (Ala.Crim.App.1986). We conclude that, when viewed in the context of the closing arguments of both the defense and *1370 the State, the statements at issue were not a reference to the defendants' failure to testify, but rather were a reply to the argument made by Rogers's counsel comparing the State's efforts to convict the defendants to the actions of Adolph Hitler in killing millions of Jews. Accordingly, we find no error in the statements that would warrant a reversal of the defendants's convictions.
VII. Conclusion
We have searched the entire record for any plain error or defect that might have adversely affected the defendants' substantial rights and we have found none. Rule 45A, A.R.App.P. Having considered each of the issues raised by Musgrove and Rogers, we conclude that their convictions and sentences of death are due to be affirmed.
AFFIRMED.
MADDOX, SHORES, HOUSTON, STEAGALL and INGRAM, JJ., concur.
NOTES
[1] After a thorough and careful review of the record, we hold that the Court of Criminal Appeals correctly decided those issues not further addressed in this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597392/ | 638 So. 2d 1009 (1994)
Vincent J. SCIANDRA and Marilyn A. Sciandra, Appellants,
v.
FIRST UNION NATIONAL BANK OF FLORIDA, Appellee.
No. 93-01798.
District Court of Appeal of Florida, Second District.
June 15, 1994.
Vincent J. Sciandra and Marilyn A. Sciandra, Pro Se.
Laura L. Whiteside and Ronald B. Cohn of Cohn & Cohn, P.A., Tampa, for appellee.
PER CURIAM.
Vincent J. and Marilyn A. Sciandra appeal a final deficiency judgment entered following a mortgage foreclosure. Although the Sciandras raise numerous issues on appeal, we find merit in only one. As conceded by First Union, the final judgment erroneously awards interest on interest. See S & E Contractors, Inc. v. City of Tampa, 629 So. 2d 883 (Fla. 2d DCA 1993).
Accordingly, we reverse only that part of the final judgment which awards interest on the amount found due as prejudgment interest. In all other aspects, the final judgment is affirmed.
HALL, A.C.J., and BLUE, J., concur.
ALTENBERND, J., concurs specially.
ALTENBERND, Judge, specially concurring.
"As a matter of logic, and therefore of law, it is irrefutable that an award of prejudgment interest cannot itself bear interest." Sandoval v. Banco de Commercio, S.A., 582 So. 2d 179 (Fla. 3d DCA 1991). Without further explanation, the Third District ended debate concerning "interest on interest." Both the Fourth District and this district have adopted the general rule announced in Sandoval. S & E Contractors, Inc. v. City of Tampa, 629 So. 2d 883 (Fla. 2d DCA 1993); Central Constructors, Inc, v. Spectrum Contracting Co., 621 So. 2d 526 (Fla. 4th DCA 1993). At least some of our court rules have been amended to comply with these cases. See In re Amendments to the Florida Rules *1010 of Civil Procedure, 604 So. 2d 1110 (Fla. 1992); In re Amendments to the Florida Small Claims Rules, 601 So. 2d 1201 (Fla. 1992).
About the same time the supreme court amended the rules of procedure, the Fifth District criticized Sandoval and reached a conflicting result in Peavy v. Dyer, 605 So. 2d 1330 (Fla. 5th DCA 1992). I agree with the result and most of the reasoning in Peavy. Unfortunately, the Second District has expressly conflicted with Peavy, so this panel is not free to follow that decision. City of Tampa v. Janke Constr., Inc., 626 So. 2d 239 (Fla. 2d DCA 1993).
This small issue concerns me because the majority rule seems to overlook the longstanding doctrine of merger. A cause of action and the damages recoverable on it merge into any judgment entered on that cause of action. See Manley v. Union Bank, 1 Fla. 160 (1846); Jax Ice & Cold Storage Co. v. South Florida Farms Co., 91 Fla. 593, 109 So. 212 (1926); 32 Fla.Jur.2d Judgments and Decrees §§ 85-88 (1981).
During a trial, interest is often awarded as an element of damages included within the plaintiff's cause of action. That interest should generally, if not always, be included in the aggregate amount of the judgment.[1] When the judgment is entered, the cause of action merges into the judgment. The aggregate amount of the judgment may reflect many elements of damages, but after the merger the damages become a single judgment. Thereafter, the judgment does not bear interest as a cause of action or as elements of damage, but as a judgment. § 55.03, Fla. Stat. (1993). This does not result, at least from my perspective, in an unlawful compounding of interest.
For example, in an action for default on a promissory note, the lender typically is entitled to a judgment for the outstanding principal amount, plus contractual interest. Upon entry of the judgment, the lender can no longer charge contractual interest, but it is entitled to statutory interest on the judgment. Over the last twenty years, the effect of this structure has varied substantially. In the late 1970s, it was not uncommon for a small loan company to have a contractual right to interest at a rate in excess of 18%. When judgment was entered after default on such a note, that judgment, including the principal and contractual interest, accrued statutory interest at the lower rate of 6% or 8%. § 55.03, Fla. Stat. (1979). In the 1990s, it is now common for a contract to permit interest at 8% while the resulting judgment earns interest at 12%. § 55.06, Fla. Stat. (1990). I see little reason to conclude that either of these examples involves a compounding of interest. If they do, the lawyers that represent banks in foreclosure actions have been improperly requesting compound interest in the standard judgment of foreclosure for many years. See Form 1.996, Forms for Use With Fla.R.Civ.Pro.[2]
The notion of interest on interest probably became more plausible when the availability of prejudgment interest was expanded in Argonaut Insurance Co. v. May Plumbing Co., 474 So. 2d 212 (Fla. 1985). There has long been a statutory provision establishing a legal rate of interest in the absence of a contractual provision. § 687.01, Fla. Stat. (1993). Prior to Argonaut, however, this legal rate of interest was only occasionally used to increase the damages that merged into a judgment. Especially when the statutory rate of interest on a judgment and the statutory rate for prejudgment interest are both 12%, it is easy to visualize the prejudgment interest as a stream of earnings that begins prior to judgment and continues until the judgment is paid. From this perspective, allowing post-judgment interest on prejudgment interest is *1011 a compounding of the 12% rate, even though the rates are authorized by two distinct statutes.[3]
It might be appropriate to regard prejudgment interest that was based on an implied, statutory legal rate, rather than an express, contractual rate, as merely an early award of judgment interest. This analysis would treat such interest as merely the initial interest on a judgment that was deemed to be entered at the time prejudgment interest commenced. This seems a little artificial given that the prejudgment interest can commence at different times concerning the elements of damage on a single cause of action.[4] In any event, I see nothing logical or "irrefutable" in such an approach
I am bound by this court's ruling on the "interest upon interest" issue. Otherwise, I would hold that a plaintiff is entitled to include any interest awarded as damages in the face amount of the judgment. After merger, the full judgment should accrue judgment interest without regard to the elements of damage that merged into the judgment.
NOTES
[1] Some cases draw a distinction between interest recoverable under a contract when no breach occurs, and interest recoverable as damages following a breach. See 22 Am.Jur.2d Damages §§ 648-49 (1988). Because judgments on contracts usually involve a breach, I doubt this distinction creates any exceptions to the general rule that interest awarded as damages in a lawsuit is merged into the judgment.
[2] As noted by this court in City of Tampa v. Janke Constr. Co., 626 So. 2d 239 (Fla. 2d DCA 1992), form 1.988(b) was modified by the supreme court to prevent "interest on interest." Id. at 240 (citing In re Amendments to the Florida Rules of Civil Procedure, 604 So. 2d 1110, 1111 (Fla. 1992)). The language in the standard form final judgment of foreclosure, however, has not been similarly amended.
[3] In Coggan v. Coggan, 183 So. 2d 839 (Fla. 2d DCA), cert. denied, 188 So. 2d 820 (Fla. 1966), which is frequently cited as an early Second District case preventing interest on interest, a judgment was entered awarding interest that was already accruing under an earlier judgment. Thus, judgment interest was actually compounded in Coggan. It was not a case in which the earlier interest was based on a right to interest separate from the right to interest on a judgment.
[4] For example, in the leading case of Argonaut Insurance Co. v. May Plumbing Co., 474 So. 2d 212 (Fla. 1985), the insurer probably issued many checks to condominium owners damaged by the fire. Unless the checks were all issued the same day, prejudgment interest commenced at different times on the checks. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/459843/ | 774 F.2d 1320
TERRAIN ENTERPRISES, INC., Plaintiff-Appellee,v.The WESTERN CASUALTY AND SURETY COMPANY, Defendant-Appellant.
No. 84-4615.
United States Court of Appeals,Fifth Circuit.
Oct. 29, 1985.
Ott & Purdy, William A. Weinischke, Jackson, Miss., for defendant-appellant.
Paul D. Snow, III, Charles I. Knauss, Jr., Jackson, Miss., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Mississippi.
Before CLARK, Chief Judge, POLITZ and JONES, Circuit Judges.
OPINION
CLARK, Chief Judge.
1
The Western Casualty and Surety Company appeals a jury verdict against them in a tortious breach of contract suit brought by Terrain Enterprises, Inc. We reverse.
2
Terrain entered into a contract with U-Con on April 4, 1979. U-Con was to prepare street and sewer connections for a subdivision being developed by Terrain. Western was the surety on the project. U-Con defaulted on its contract with Terrain in early 1980. Western was not informed of this default until July 1980.
3
Upon notification Western hired an adjustor and an engineer to determine what completion costs would be. This job was made more difficult because the job site had been ignored for the six months between U-Con's default and Western's notification and the engineer could not readily determine the extent of U-Con's underground work. Based on the information acquired, Western made a settlement offer of $50,000, which combined with the amount remaining in the contract, would have provided $198,327.90 to complete the project.
4
Terrain rejected this offer and hired Mid-South Constructors to complete the job at a cost of $196,596.50. Terrain's excess costs were $48,677.46. Western repeated its settlement offer after Terrain entered the contract with Mid-South, which offer was rejected. Instead, Terrain sued Western for tortious breach of contract.
5
Two weeks before the earliest trial date, however, David Mockbee, Terrain's attorney, made a $65,000 settlement offer to Western's attorney, which offer was accepted by Western. Terrain subsequently disavowed the offer as unauthorized. Western made a motion to enforce the settlement on October 14, 1983. The trial court expressly recognized that a settlement offer was made by Terrain's attorney and accepted by Western's attorney but denied the motion. (Order of October 17, 1983). He found a genuine misunderstanding between Terrain and Terrain's attorney regarding the attorney's authority to settle the case.
6
The jury returned a verdict against Western for $283,830 compensatory damages and $800,000 punitive damages. The trial judge awarded prejudgment interest in the amount of $88,932.00. Western appeals the verdict as excessive, against the evidence, the subject of passion and prejudice and rendered in accordance with improper instructions.
7
As a matter of law, based on uncontradicted evidence, there was an offer of settlement by counsel for Terrain and an acceptance by counsel for Western. Where the parties, acting in good faith, settle a controversy, the courts will enforce the compromise without regard to what the result might have been had the parties chosen to litigate. Hennessy v. Bacon, 137 U.S. 78, 11 S. Ct. 17, 4 L. Ed. 605 (1890). Mississippi law also looks with favor upon compromise and settlement of litigation. State v. Stockett, 249 So. 2d 388 (Miss.1971); Parker v. Howarth, 340 So. 2d 434 (Miss.1976) (the compromise of doubtful claims is favored); McCorkle v. Hughes, 244 So. 2d 386 (Miss.1971) (where there is no fraud and the parties meet on equal terms and adjust their differences, the court will not overlook the compromise, but will hold the parties concluded by the settlement).
8
Notwithstanding the law regarding settlement, Terrain contends that their counsel, David Mockbee, did not have actual or apparent authority to settle the case for $65,000. Western countered that contention with Mockbee's testimony that he was "directed" to settle the case. Because in a diversity suit, state law controls whether a contract of settlement was made and whether it should be enforced, Glazer v. J.C. Bradford & Co., 616 F.2d 167 (5th Cir.1980), we will look to Mississippi law to resolve the matter.
9
Mississippi follows the common law rule except where changed by statute. Tuggle v. Williamson, 450 So. 2d 93 (Miss.1984). In this instance there is no statute changing the doctrine of apparent authority which is recognized by Mississippi law. NMS Industries v. Premium Corp. of America, 487 F.2d 292 (5th Cir.1973). An act is considered to be within the agent's apparent authority when a third party is justified in concluding that the agent is authorized to perform it from the nature of the duties which are entrusted to him. McPherson v. McLendon, 221 So. 2d 75, 78 (1969). Apparent authority is to be determined from the acts of the principal and requires reliance and good faith on the part of the third party. Tarver v. J.W. Sanders Cotton Mill, 187 Miss. 111, 192 So. 17 (1939).
10
As both parties point out, Terrain's actions are dispositive of the question of apparent authority in this situation. Terrain hired Mockbee as counsel and from that point until the termination of his services, he handled the case. Testimony showed that he attended and took depositions, corresponded with counsel for Western, conducted discovery and participated in all pretrial conferences and orders.
11
It is presumed that an attorney who has represented a party is authorized to take all action necessary to conduct the litigation. Great Atlantic and Pacific Tea Co. v. Majure, 176 Miss. 356, 168 So. 468 (1936). The burden of showing that the attorney had no authority to act is upon the party denying such authority. Hirsch Bros. & Co. v. R.E. Kennington Co., 155 Miss. 242, 124 So. 344 (1929). Terrain did not meet this burden because they did not offer any proof that Mockbee did not have authority to act on their behalf. Western was justified in relying upon the settlement offer made by Mockbee based upon his previous actions as representative of Terrain. There is no question here of good faith. Thus, the three requirements of apparent authority were satisfied in this instance.1
12
The judgment appealed from is reversed and the case is remanded to the district court with directions to enforce the settlement offer between Terrain and Western.
13
REVERSED and REMANDED.
1
The factual and legal issues raised on appeal are now irrelevant because the case was resolved on the settlement issue. Terrain, however, suggests that even if the court enforces the settlement, the issue of bad faith remains and the punitive damages award could and should be affirmed. Not only is this argument without merit, but the instruction on bad faith should not have been given under the facts of this case. Blue Cross & Blue Shield of Miss. v. Campbell, 466 So. 2d 833 (Miss.1984) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1597378/ | 158 N.W.2d 184 (1968)
Earl J. SCHMIDT, dba Schmidt Agency, Plaintiff and Appellant,
v.
Lorne T. EARL, Defendant and Respondent.
No. 10372.
Supreme Court of South Dakota.
April 16, 1968.
Miller, Kaye & Hanson, Shandorf & Bleeker, Mitchell, for plaintiff and appellant.
Morgan & Fuller, Mitchell, for defendant and respondent.
RENTTO, Judge.
This action was brought to recover a real estate broker's commission. The jury returned a verdict for the plaintiff. On defendant's motion for a judgment notwithstanding the verdict, the verdict was set aside and a judgment entered in favor of the defendant in accordance with his motion for a directed verdict. From this the plaintiff appeals.
Defendant was the owner of a well improved farm in Davison County, South Dakota, containing about a section of land. When he evidenced a desire to sell it for $96,000 a mutual friend who had resided in Iowa, suggested that he list the farm with plaintiff, a real estate broker in the city of *185 Spirit Lake, Iowa, licensed in that state, but not in South Dakota. Many of the plaintiff's claims are denied and disputed by the defendant. The jury by its verdict resolved these in favor of the plaintiff. In our review we must accept that version of the testimony which supports the verdict. Hullander v. McIntyre, 78 S.D. 453, 104 N.W.2d 40. When viewed in that light these are the basic facts.
The defendant listed his farm with the plaintiff who found and produced to the owner a purchaser from Ohio, ready, able and willing to purchase the same on the terms of the listing. He and his associate brought the prospective purchaser to the farm, and made a thorough investigation of it, but the defendant refused to complete the sale. About a week later these three returned again to the farm and spent considerable time looking it over. This time they did not see the defendant. A couple of months later plaintiff and his associate returned to the farm and tried to persuade the defendant to pay the commission which plaintiff claimed was due him. He refused to pay and claimed that he owed plaintiff nothing.
This was the only transaction in which plaintiff acted as a real estate broker in South Dakota.
In addition to denying the claims made by the plaintiff, defendant also urged that plaintiff is prevented from recovering any commission because he was not licensed as a real estate broker in South Dakota. Plaintiff seeks to avoid the bar of our statute on the grounds: (1) that this was a single isolated transaction and (2) he held a power of attorney from the owner. It is his claim that such circumstances exempt this transaction from the operation of our statute. In the posture in which the case is presented these are the questions which we must decide. Because of differences in statutory provisions decisions from other jurisdictions do not shed much light on our problems.
South Dakota had no statutory law regulating real estate brokers until Ch. 268, Laws of 1955 was enacted. It now appears as SDC 1960 Supp. Ch. 51.07A. So far as here material 51.07A05 provides:
"It shall be unlawful on and after January 1, 1956, for any person, copartnership, association or corporation, to act as a real estate broker or real estate salesman, or to advertise or assume to act as such real estate broker or real estate salesman, without a license issued by the Real Estate Commission and no person, firm, copartnership, association or corporation shall be entitled to collect any fees, compensation or commission as a real estate broker or real estate salesman without having first complied with the provisions of this chapter."
In the next section 51.07A06, a real estate broker and a real estate salesman are defined thus:
"A real estate broker within the meaning of this chapter is any person, firm, partnership, copartnership, association or corporation, who for a compensation or valuable consideration sells or offers for sale, buys or offers to buy, or negotiate the purchase or sale or exchange of real estate, or of the improvements thereon for others, as a whole or partial vocation. * * *
"A real estate salesman within the meaning of this chapter is any person who for a compensation or valuable consideration is employed either directly or indirectly by a real estate broker, to sell or offer to sell, or to buy or offer to buy, or to negotiate the purchase or sale or exchange of real estate, or of the improvements thereon, as a whole or partial vocation."
It is to be observed from these definitions that both brokers and salesmen are persons engaged in the business of selling real estate for others. That section further provides that a single act or an isolated transaction *186 shall not constitute the one performing it a real estate broker or salesman.
Exceptions to the statute are listed in 51.07A07. These concern transactions by persons not engaged in the business of selling real estate for others, such as an owner or a lessor and their employees, a resident lawyer, one holding a power of attorney, a fiduciary and public officers in the performance of their duties. The power of attorney exception is limited to a person "holding in good faith a duly executed power of attorney from the owner, authorizing the final consummation and execution for the sale, purchase, leasing or exchange of real estate when such acts are not of a recurrent nature and done with the intention of evading this section". No exception is made of nonresident brokers licensed under the laws of another state.
However, SDC 1960 Supp. 51.07A10 does provide a simple procedure whereby brokers licensed in another state can become licensed in this state without taking an examination or maintaining an office here, provided the state in which they are licensed offers the same privileges to the licensed brokers of this state. See I.C.A. § 117.21, § 117.22, and § 117.23. The provisions of these sections are substantially the same as those contained in 57.07A10. One of these common provisions requires an irrevocable consent that the foreign broker can be sued in the courts of the state affording him reciprocity, and permitting service in such suits to be made on the real estate commission of that state.
It is well to look again at the definition of a real estate broker. SDC 1960 Supp. 51.07A06 says he is one "who for a compensation or valuable consideration sells or offers for sale, buys or offers to buy, or negotiate the purchase or sale or exchange of real estate * * * as a whole or partial vocation." Because of the emphasized phrase similar provisions have been construed to apply only to one engaging in the business, and not to a person involved in a single transaction. Knight v. Watson, 221 Ala. 69, 127 So. 841; Land Co. of Florida v. Fetty, 5 Cir., 15 F.2d 942. Thus our statute is one making it unlawful to engage in the business of selling real estate for others without a license and denies to those so engaged the right to collect any fee without first complying with our law. The last paragraph of this section concerning single acts or isolated transactions adds nothing to its definition of a real estate broker or salesman.
It is generally held that a license is not required of one engaged in another business who serves as a real estate broker on a single occasion, but not as a regular occupation. 12 C.J.S. Brokers § 67; Owens v. Capri, 65 Wyo. 325, 202 P.2d 174, 169 A.L.R. 783; Downing v. Marks, 318 Pa. 289, 178 A. 676; Schwartz v. Weiner, 94 Colo. 251, 30 P.2d 1110. He is not engaged in the real estate business as a "whole or partial vocation". Conversely the single transaction rule does not protect one who is engaged in the business as a "whole or partial vocation", regardless of where he is so engaged. Horwitz v. Food Town, Inc., D.C., 241 F. Supp. 1; William Coltin & Co. v. Manchester Savings Bank, 105 N.H. 254, 197 A.2d 208. As pointed out above, our statute does not make an exception of nonresident brokers, but it does specifically provide for their licensing. The record indicates no reason why plaintiff did not avail himself of the reciprocity provisions of our law which seem very simple.
In opposition to this view plaintiff directs our attention to Ressler v. Marks, 308 Pa. 205, 162 A. 666, 86 A.L.R. 638 and Boggan v. Clark, 141 Miss. 849, 105 So. 760. While these cases support his position the opinions do not indicate that their statutes make provision for the reciprocal licensing of nonresident brokers. The statutes involved in those cases are revenue measures while ours is not. A review of SDC 1960 Supp. Ch. 51.07A indicates clearly that the legislature intended it as a police regulation for the benefit and protection of the public against fraud and incompetence at the hands of unscrupulous brokers. In construing it we are duty bound to effectuate the revealed intention *187 of the legislature. SDC 65.0202(1). We are not persuaded by these cases. A foreign broker, such as plaintiff, engaged in an isolated transaction in this state is not exempt from the provisions of our law.
This brings us to the contention that the power of attorney which plaintiff had from the owner, under the provisions of SDC 1960 Supp. 51.07A07(3), excepted this transaction from the requirements of our real estate broker's law. It is suggested that this exception may not be availed of by one who is engaged in the business of selling real estate for others. That conclusion is compelled by our analysis of the statute above set out. See also Trentman Co. v. Brown, 176 La. 854, 147 So. 14.
However, there is an additional reason why the plaintiff may not avail himself of this exception. The power of attorney which will except one from the requirements of the act must authorize "the final consummation and execution" of the sale. The power of attorney here involved in Exhibit 1 merely authorized plaintiff "to obtain a buyer for my farm". By Exhibit 2 plaintiff was appointed "exclusive agent to make sale of the real property" described therein, but it specifically provided that if the property were sold the owner would execute the deed of conveyance. These powers do not authorize the plaintiff to complete the sale of the property so as to come within the exception of our statute. Lewis v. Jones, 43 S.D. 282, 178 N.W. 1001; Trentman Co. v. Brown, supra.
Accordingly, the judgment entered notwithstanding the verdict is affirmed.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597347/ | 3 So. 3d 986 (2009)
Perry Alexander TAYLOR, Appellant,
v.
STATE of Florida, Appellee.
Perry Alexander Taylor, Petitioner,
v.
Walter A. McNeil, etc., Respondent.
Nos. SC06-615, SC07-1168.
Supreme Court of Florida.
January 29, 2009.
As Revised on Denial of Rehearing January 29, 2009.
*990 Bill Jennings, Capital Collateral Regional Counsel, and David Robert Gemmer, Assistant CCR Counsel, Middle Region, Tampa, FL, for Appellant/Petitioner.
Bill McCollum, Attorney General, Tallahassee, Florida, and Katherine V. Blanco, Assistant Attorney General, Tampa, FL, for Appellee/Respondent.
PER CURIAM.
Perry Alexander Taylor appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, §§ 3(b)(1), (9), Fla. Const. For the reasons set forth below, we affirm the trial court's denial of Taylor's postconviction motion and deny Taylor's petition for writ of habeas corpus.
FACTS AND PROCEDURAL HISTORY
The facts are taken from this Court's opinions in Taylor's direct appeals.
Taylor was charged with the murder and sexual battery of Geraldine Birch whose severely beaten body was found in a dugout at a little league baseball field. Shoe prints matching Taylor's shoes were found at the scene. Taylor confessed to killing Birch but claimed that the sexual contact was consensual and that the beating from which she died was done in a rage without premeditation. Taylor testified that on the night of the killing, he was standing with a small group of people when Birch walked up. She talked briefly with others in the group and then all but Taylor and a friend walked off. Taylor testified that as he began to walk away, Birch called to him and told him she was trying to get to Sulphur Springs. He told her he did not have a car. She then offered sex in exchange for cocaine and money. Taylor agreed to give her ten dollars in exchange for sex, and the two of them went to the dugout.
Taylor testified that when he and Birch reached the dugout they attempted to have vaginal intercourse for less than a minute. She ended the attempt at intercourse and began performing oral sex on him. According to Taylor, he complained that her teeth were irritating him and attempted to pull away. She bit down on his penis. He choked her in an attempt to get her to release him. After he succeeded in getting her to release her bite, he struck and kicked her several times in anger.
Taylor v. State, 583 So. 2d 323, 325 (Fla. 1991) (footnote omitted). "The jury convicted Taylor on both counts. Upon the jury's unanimous recommendation, the trial judge sentenced Taylor to death." Id.
On direct appeal, Taylor raised three issues related to the guilt phase of his trial. Id. at 326. First, that the trial court erred by failing to conduct an inquiry pursuant to State v. Neil, 457 So. 2d 481 (Fla.1984), on the State's peremptory challenge of a black prospective juror. Taylor, 583 So.2d at 326. Second, that the trial court erred in excluding testimony that the victim had used crack cocaine. Id. at 328. *991 Third, that the trial court erred in denying his motion for judgment of acquittal because the State's circumstantial case was legally insufficient to prove sexual battery and premeditation. Id. We rejected these claims and affirmed Taylor's convictions.
Additionally, Taylor raised three issues related to the penalty phase of his trial, but we addressed only one. Id. at 329. We concluded that the prosecution overstepped the bounds of proper argument and we vacated Taylor's sentence and remanded for resentencing. Id. at 330.
At resentencing the jury again recommended death:
The new jury recommended death by an eight to four vote. The judge found the following aggravating factors: (1) Taylor had a previous felony conviction involving the use or threat of violence; (2) the capital felony occurred during the commission of a sexual battery; and (3) the capital felony was especially heinous, atrocious, or cruel. The court found no statutory mitigators but did give some weight to Taylor's deprived family background and the abuse he was reported to have suffered as a child. The court considered but gave little weight to Taylor's remorse, to psychological testimony that while Taylor has above-average intelligence, he suffers from an organic brain injury, and to testimony concerning Taylor's good conduct in custody. The judge determined that the aggravating circumstances outweighed the mitigating factors and sentenced Taylor to death.
Taylor v. State, 638 So. 2d 30, 31-32 (Fla. 1994). Upon review we affirmed Taylor's conviction and sentence. Id. at 33.
Thereafter, Taylor filed a postconviction motion to vacate his judgments of conviction and sentence on March 12, 1996. The trial court held hearings pursuant to Huff v. State, 622 So. 2d 982 (Fla.1993), on November 25, 1998, and April 8, 2005. Evidentiary hearings were ordered on two of the claims set out in Taylor's third amended motion to vacate judgments of conviction and sentence and the trial court later issued an order denying all relief.
At the evidentiary hearings held on October 7, 2003, June 7, 2004, June 8, 2004, and March 3, 2005, testimony was heard from Mike Benito, the prosecutor at Taylor's trial; James McNally, Taylor's childhood social worker; Judge Manuel Lopez, penalty phase counsel; Nick Sinardi, trial counsel; Bill Brown, defense trial investigator; Dr. Ronald Wright, forensic pathologist; Dr. Catherine Lynch, obstetrician-gynecologist; Dr. Donald Taylor, adult psychiatrist; Dr. Henry Dee, clinical neuropsychologist; Stanley Graham, Taylor's brother; Edwina Graham, Taylor's mother; Charles Kelly, a jail deputy who had been physically assaulted by Taylor; Howard Ury, who had been a foster child in the same home as Taylor; Dr. Frank Wood, head of neuropsychology at Wake Forest; Dr. William Mosman, forensic psychologist; Dr. Lee Miller, medical examiner; Robert Norgard, mitigation expert; Dr. Jon Kotler, PET scan interpreter; and Dr. Helen Mayberg, PET scan interpreter.
In its sixty-nine page order denying relief, the trial court comprehensively treated each of Taylor's twenty-one claims.[1] This appeal follows.
*992 DISCUSSION
On appeal from the denial of rule 3.850 relief, Taylor first contends that the trial court erred in denying his claims of newly discovered evidence, ineffective assistance of counsel, and his Brady and Giglio claims.
DR. MILLER'S TESTIMONY
Taylor raised multiple claims concerning Dr. Miller's trial testimony concerning the extensive injuries suffered by the victim. The trial court addressed these claims together, finding Taylor's allegations of recantation by Miller as to the victim's sexual injuries to be an inaccurate characterization of Miller's testimony. The trial court denied these claims, finding no newly discovered evidence, that trial counsel was not deficient, and that any possible deficiencies did not have the cumulative effect of denying Taylor a fair trial.
At trial, Dr. Miller testified that the injuries to the victim's vagina were, within a reasonable degree of medical probability, caused by something "inserted into the vagina which stretched the vagina enough for it to tear over the object that was inserted in there." Dr. Miller further testified that the injuries were inconsistent with someone having kicked the victim. Relying on this evidence, we noted on review that "the medical examiner's testimony contradicted Taylor's version of what happened.... The medical examiner testified that the extensive injuries to the interior and exterior of the victim's vagina were caused by a hand or object other than a penis inserted into the vagina." Taylor, 583 So.2d at 329.
At the postconviction evidentiary hearing, Dr. Miller testified that the injuries sustained were mostly confined to the labia minora and radiated inward, while some were inside the labia minora in "what anyone would describe as the vaginal canal." However, Dr. Miller further testified that the injuries could possibly have been the result of a kick if the blow had been struck where the toe of the shoe actually went into the vagina, stretching it, that any shoe would have been able to penetrate the victim's vagina due to extraversion, but that ultimately the injuries were caused by stretching and not direct impact. Miller testified that the possibility of a kick causing the injury was "a one in a million shot" and that his opinions as expressed at trial had not changed. He attributed any differences in his testimony to differences in the questions being asked and, in some instances more elaboration in exploring possibilities. Taylor contends that had Miller's testimony about a kick possibly causing the vaginal injuries been presented at trial he could not have been convicted of sexual battery or felony murder. Taylor alleges that (1) this is new evidence that requires a new trial, (2) the State withheld this evidence, (3) the State allowed Dr. Miller to present false testimony, or (4) his trial counsel was deficient for *993 not having discovered this evidence before trial.
Newly Discovered Evidence
In ruling on this issue, the trial court found Taylor's claim of a "supposed recantation" by Dr. Miller of his trial testimony was "not an accurate statement of [Dr. Miller's] testimony." Hence, the trial court concluded Taylor had not actually established the existence of important new evidence of his innocence of sexual battery. We agree.
To obtain a new trial based on newly discovered evidence, Taylor must meet two requirements: first, the evidence must be newly discovered and not have been known by the party or counsel at the time of trial, and the defendant or defense counsel could not have known of it by the use of diligence; second, the newly discovered evidence must be of such quality and nature that it would probably produce an acquittal on retrial. See Jones v. State, 709 So. 2d 512, 521 (Fla.1998) (citing Jones v. State, 591 So. 2d 911, 915 (Fla.1991)). In determining whether the evidence compels a new trial, the trial court must "consider all newly discovered evidence which would be admissible," and must "evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial." Jones, 591 So.2d at 916. This determination includes
whether the evidence goes to the merits of the case or whether it constitutes impeachment evidence. The trial court should also determine whether the evidence is cumulative to other evidence in the case. The trial court should further consider the materiality and relevancy of the evidence and any inconsistencies in the newly discovered evidence.
Jones, 709 So.2d at 521 (citations omitted). As noted above, the second prong of Jones requires a showing of the probability of an acquittal on retrial.
On review, "[t]his Court does not substitute its judgment for that of the trial court on issues of fact when competent, substantial evidence supports the circuit court's factual findings." Smith v. State, 931 So. 2d 790, 803 (Fla.2006) (citing Windom v. State, 886 So. 2d 915, 921 (Fla. 2004)); see also Blanco v. State, 702 So. 2d 1250, 1252 (Fla.1997) (citing Demps v. State, 462 So. 2d 1074, 1075 (Fla.1984)). In essence, the postconviction court concluded that, at trial, Dr. Miller testified that the lacerations were not, within reasonable medical probability, caused by a kick. Similarly, at the evidentiary hearing, Dr. Miller testified that it was his opinion that there was only a one-in-a-million chance that the lacerations could have been caused by a kick. Hence, because the record refutes Taylor's contrary interpretation of the testimony, Taylor fails to show that Miller's postconviction testimony qualifies as newly discovered evidence. While it is true that Miller's trial testimony did not admit to this one-in-a-million possibility, we find this omission insufficient to overturn the trial court's conclusion that sufficient "new evidence" had not been established.
Additionally, we note the jury was not instructed to and did not differentiate between first-degree premeditated murder and first-degree felony murder in determining Taylor's guilt. There is no indication that Taylor was convicted of first-degree murder predicated solely upon the felony of sexual battery. This Court previously detailed the massive injuries sustained by the victim to support the State's alternative theories of premeditation and felony murder:
[T]he jury reasonably could have rejected as untruthful Taylor's testimony that he beat the victim in a rage after she injured him. Although Taylor claimed that the victim bit his penis, an examination *994 did not reveal injuries consistent with a bite. According to Taylor, even after he sufficiently incapacitated the victim by choking her so that she released her bite on him, he continued to beat and kick her. The medical examiner testified that the victim sustained a minimum of ten massive blows to her head, neck, chest, and abdomen. Virtually all of her internal organs were damaged. Her brain was bleeding. Her larynx was fractured. Her heart was torn. Her liver was reduced to pulp. Her kidneys and intestines were torn from their attachments. Her lungs were bruised and torn. Nearly all of the ribs on both sides were broken. Her spleen was torn. She had a bite mark on her arm and patches of her hair were torn off. Her face, chest, and stomach were scraped and bruised. Although Taylor denied dragging the victim, evidence showed that she had been dragged from one end of the dugout to the other. The evidence was sufficient to submit the question of premeditation to the jury.
Taylor, 583 So.2d at 329.
Accordingly, even if Dr. Miller's alleged change in testimony were considered sufficient to call into question Taylor's sexual battery conviction, it would not be sufficient to outweigh the evidence that Taylor committed premeditated murder or to cast doubt on his conviction for first-degree murder based upon premeditation. Ultimately, then, even if we were to construe Dr. Miller's testimony at the evidentiary hearing the way Taylor seeks, there remains an abundance of evidence the jury could have used to convict Taylor of premeditated first-degree murder. Hence, we conclude the trial court did not err in denying this claim.
Giglio/Brady
In addition to the claim of newly discovered evidence arising from Dr. Miller's testimony, Taylor asserts that the trial court erred in denying his claim that through Miller's testimony the State intentionally permitted false or misleading evidence to be presented to the jury in violation of Giglio (where the United States Supreme Court held it to be a violation of due process when a prosecutor failed to disclose to the defense a promise made by the prosecution to a key witness that he would not be prosecuted if he testified for the prosecution). Finding there was no change in Dr. Miller's testimony, the trial court denied this claim. We conclude that the trial court properly denied Taylor's claim because it is refuted by the record.
To prevail under Giglio, a claimant must show that false testimony was presented by the State and that there is a reasonable possibility that the false evidence affected the judgment of the jury. See Ventura v. State, 794 So. 2d 553, 564-65 (Fla.2001) (holding that a witness's testimony was not material under Giglio where the witness was significantly impeached); Routly v. State, 590 So. 2d 397, 400-01 (Fla.1991) (finding that an equivocal statement did not have a reasonable probability of affecting the judgment of the jury).
Taylor alleges that Dr. Miller's trial testimony was false because it was contradicted by his testimony at the evidentiary hearing. As the trial court concluded, the record does not support this allegation. Dr. Miller's testimony did not materially change. When the trial court finds that the testimony is not false, and there is competent substantial evidence to support that finding, we defer to the trial court's findings. Accordingly, Taylor has not shown cause for relief under Giglio.
Alternatively, Taylor asserts that the State withheld material, favorable information in violation of Brady. Brady requires the State to disclose material information *995 within its possession or control that is favorable to the defense. Mordenti v. State, 894 So. 2d 161, 168 (Fla.2004) (citing Guzman v. State, 868 So. 2d 498, 508 (Fla.2003)). To establish a Brady violation, the defendant has the burden to show (1) that favorable evidence, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999); Cardona v. State, 826 So. 2d 968, 973 (Fla. 2002); Way v. State, 760 So. 2d 903, 910 (Fla.2000). The remedy of retrial for the State's suppression of evidence favorable to the defense is available when "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Strickler, 527 U.S. at 290, 119 S. Ct. 1936 (quoting Kyles v. Whitley, 514 U.S. 419, 435, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995)).
Here, however, the trial court has concluded, and we agree, that neither the State nor its actors suppressed evidence. Because the trial court has concluded that Dr. Miller's testimony is unchanged, there is nothing the State has been demonstrated to have suppressed.
INEFFECTIVE ASSISTANCE OF COUNSEL
Taylor raised multiple claims of ineffective assistance of defense counsel stemming from his representation at trial and both penalty phases. Taylor also alleged ineffective assistance in the alternative should the court determine any of his other claims insufficient for lack of due diligence by counsel. In addressing these claims, the trial court found that Taylor failed to demonstrate deficiency or any resulting prejudice, the two prongs of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We agree.
We have held that for ineffective assistance of counsel claims to be successful, the two requirements of Strickland must be satisfied:
First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.
Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla.1986) (citations omitted). To prove the deficiency prong under Strickland, Taylor must prove that counsel's performance was unreasonable under the "prevailing professional norms." Morris v. State, 931 So. 2d 821, 828 (Fla.2006) (quoting Strickland, 466 U.S. at 688, 104 S. Ct. 2052). "To establish the [prejudice] prong under Strickland, the defendant must show that `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. 2052).
Failure to Perform Due Diligence
Taylor asserts this ineffectiveness argument in the alternative for his newly discovered evidence claims relating to Dr. Miller's testimony. Taylor alleges that should this Court find that any evidence could have been discovered at trial, then trial counsel was deficient for failure to discover said evidence. As discussed *996 above with Dr. Miller's testimony, and below with Taylor's other claims, we conclude there was no material new evidence presented during these proceedings. Further, unlike the situation in State v. Gunsby, 670 So. 2d 920 (Fla.1996), upon which Taylor relies, the State has not been shown to have withheld evidence, and trial counsel has not been found to have failed to object to abuses by the State. See id. at 922-24. Each of Taylor's claims of newly discovered evidence is sufficiently refuted by the trial and postconviction record. None of them fail for counsel's lack of diligence. For example, we find there has been no demonstration of ineffectiveness under Strickland as to counsel's alleged failure to elicit Dr. Miller's "one in a million" testimony at trial. Accordingly, we reject Taylor's claim that counsel's performance was deficient.
Failure to Prepare Taylor to Testify
Contrary to Taylor's assertion below, and now on appeal, trial defense counsel, Nick Sinardi, testified that he did prepare Taylor to testify, and his trial strategy was to show that Taylor did not have the intent to murder the victim. Sinardi testified that he believed it was in Taylor's best interest to take the stand in order for the jury to evaluate his defense. Further, although Sinardi testified that he did not rehearse Taylor's testimony, he did tell Taylor to testify truthfully. Because Taylor had given a detailed confession, defense counsel felt he was limited in available strategies.
After hearing defense counsel's testimony, the trial court found that Taylor failed to demonstrate any deficiency or resulting prejudice from the performance of guilt phase counsel. Further, the trial court found that Sinardi made reasonable tactical decisions under the circumstances he faced and with the limited choices available.
In Zack v. State, 911 So. 2d 1190 (Fla. 2005), this Court rejected a similar claim:
Zack argue[d] that trial counsel failed to adequately prepare him to testify at trial and failed to inform him about what would occur during cross-examination. Zack contend[ed] that had he been adequately prepared and informed of the hazards of cross-examination, he would not have testified. Zack stated that trial counsel gave him no choice but to testify, and that he was only told that he was going to testify after trial began.
Id. at 1198. The trial court found that Zack had testified on his own behalf at trial to give his version of events even on cross-examination. Id. at 1199. The trial court further found that Zack showed a desire to explain himself on cross-examination, and that Zack failed to show either that counsel failed to prepare him or that he suffered any prejudice. Id. at 1199-1200. This Court accepted the trial court's findings. Id.
This Court has also held that trial counsel cannot be deemed ineffective simply because postconviction counsel now disagrees with trial counsel's strategy or because there were other choices. See Davis v. State, 875 So. 2d 359, 366 (Fla.2003) (citing Occhicone v. State, 768 So. 2d 1037, 1048 (Fla.2000)); see also Henry v. State, 862 So. 2d 679, 681-82 (Fla.2003) (ineffective assistance claims for reliance on theories of self-defense and diminished capacity failed because they were conclusively refuted by the record).
On the record before us, we conclude that Taylor, like Zack, has not shown that he testified against his will, nor has he met the burden to demonstrate that Sinardi's strategy was unreasonable under the circumstances, especially considering the limited choices available to the defense. Because we agree with the trial court that Taylor has failed to demonstrate deficient *997 performance, we need not address prejudice. See, e.g., Waterhouse v. State, 792 So. 2d 1176, 1182 (Fla.2001) (because Strickland requires both prongs, it is not necessary to address prejudice when a deficient performance has not been shown).
Failure to Investigate and Present Mental Health Issues
Taylor claimed below that defense counsel failed to demand a hearing on Taylor's competency or present evidence of Taylor's mental health problems. However, Sinardi testified at the postconviction hearing that he did not feel there was any reason to question Taylor's competence. The trial court found that Taylor did receive a competent mental health evaluation at trial, and he did not prove that his counsel's investigation of this issue was deficient.
Taylor cites Futch v. Dugger, 874 F.2d 1483 (11th Cir.1989), to support his claim. In Futch, the Eleventh Circuit considered a habeas petition brought by a defendant convicted of second-degree murder. Id. at 1484. The court stated, "In order to demonstrate prejudice from counsel's failure to investigate his competency, petitioner has to show that there exists `at least a reasonable probability that a psychological evaluation would have revealed that he was incompetent to stand trial.'" Id. at 1487 (quoting Alexander v. Dugger, 841 F.2d 371, 375 (11th Cir.1988)). The court stated that if Futch was correct in his allegation that a prison psychologist evaluated him and found him incompetent and that trial counsel was aware of this finding, Futch met this burden. Id. The Eleventh Circuit remanded for evidentiary hearing on this issue. Id. at 1488.
Unlike the petitioner in Futch, however, Taylor has had an evidentiary hearing on this claim. And, unlike Futch, Taylor has never been declared incompetent by any of the psychologists and neuropsychologists who have examined him. Despite Taylor's reading of this case, the Eleventh Circuit did not mandate that trial counsel investigate a defendant's competency without some cause. Instead, in Futch, the petitioner specifically alleged that although counsel had substantial reason to suspect petitioner's competency, he still failed to investigate. Id. at 1487. We conclude that the trial court did not err in holding Taylor has not demonstrated deficiency of his trial counsel in regard to counsel's investigation of any mental health issues.
Failure to Investigate and Present Mitigation
Taylor asserts that there were more mitigating factors that could have been presented that counsel, Manuel Lopez, failed to present, but does not specify what these factors could be. Instead, Taylor attempts to demonstrate counsel's ineffectiveness by focusing solely on the number of hours Lopez spent preparing for resentencing.
We have held:
"An attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant's background, for possible mitigating evidence." Porter v. Singletary, 14 F.3d 554, 557 (11th Cir.), cert. denied, 513 U.S. 1009, 115 S. Ct. 532, 130 L. Ed. 2d 435 (1994). The failure to do so "may render counsel's assistance ineffective." Bolender [v. Singletary], 16 F.3d [1547,] 1557 [(11th Cir.1994)].
Rose v. State, 675 So. 2d 567, 571 (Fla. 1996). In Rose, we found counsel was ineffective where counsel made practically no investigation, and Rose was able to demonstrate substantial mitigation that counsel failed to uncover and present. Id. at 572. The record demonstrated that counsel was inexperienced, and this Court held that his uninformed decision did not amount to strategy. Id. Likewise, in Hildwin v. Dugger, 654 So. 2d 107 (Fla.1995), *998 the petitioner also was able to demonstrate mitigation that trial counsel failed to uncover. Id. at 110.
The trial court found, and we conclude, that trial counsel's performance at sentencing was deficient. Trial counsel's sentencing investigation was woefully inadequate. As a consequence, trial counsel failed to unearth a large amount of mitigating evidence which could have been presented at sentencing. For example, trial counsel was not even aware of Hildwin's psychiatric hospitalizations and suicide attempts.
Id. at 109.
However, "Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing." Wiggins v. Smith, 539 U.S. 510, 533, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003). "Rather, in deciding whether trial counsel exercised reasonable professional judgment with regard to the investigation and presentation of mitigation evidence, a reviewing court must focus on whether the investigation resulting in counsel's decision not to introduce certain mitigation evidence was itself reasonable." Ferrell v. State, 918 So. 2d 163, 170 (Fla.2005) (citing Wiggins, 539 U.S. at 523, 123 S. Ct. 2527; Strickland, 466 U.S. at 690-91, 104 S. Ct. 2052). "When making this assessment, `a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.'" Ferrell, 918 So.2d at 170 (quoting Wiggins, 539 U.S. at 527, 123 S. Ct. 2527). Ultimately, in Ferrell, we agreed with the trial court's assessment that trial counsel was not deficient, stating that this was not a case where counsel presented no mitigation, nor a case where counsel made no attempt to investigate. Id. at 171 (citing Torres-Arboleda v. Dugger, 636 So. 2d 1321, 1326 (Fla.1994)).
The record shows this is not a case where trial counsel failed to investigate and present available mitigating evidence. Cf. Rose, 675 So.2d at 571-72. The trial court's findings of mitigation directly refute such a claim. Taylor does not allege that counsel made no attempt to investigate mitigation or that he failed to present something he otherwise uncovered. Importantly, Taylor makes no specific allegation of what mitigation could have been presented that counsel failed to present. Under these circumstances, we conclude Taylor has shown no error in the trial court's holding that Taylor has failed to demonstrate that counsel was deficient. Accordingly, the Court need not address prejudice. See, e.g., Waterhouse, 792 So.2d at 1182.
NEWLY DISCOVERED EVIDENCE
PET Scan
Taylor argues that a PET Scan is newly discovered evidence that shows brain damage. However, in the prior sentencing proceedings the trial court found Taylor's brain damage was established as a mitigating factor, and gave it little weight. Taylor's argument resembles that rejected by this Court in Ferrell, stating
In fact, a capital cases defense manual prepared by the Florida Public Defender's Association and distributed in 1992 did not mention either PET or SPECT scans in a list of medical tests used to confirm brain damage. Furthermore, the manual cautioned that even the listed medical tests could be unreliable and did not always indicate organic brain damage. Instead, the manual stated that neuropsychological testing was actually more reliable in showing such deficits.
*999 918 So.2d at 175 n. 11. In denying this claim, the trial court relied on Ferrell and also noted that the testimony of two experts who interpreted the scan showed that the scan did not represent a significant indication of brain damage. As in Ferrell, Taylor has not demonstrated that a PET scan would have been available to counsel or even admissible at Taylor's prior trial. Further, in light of the trial court's findings, Taylor has also failed to demonstrate that if the scan had been prepared, it would have affected the outcome of Taylor's penalty phase, since the sentencing court did consider proof of brain damage in mitigation. Accordingly, we conclude the trial court properly rejected this claim.
Sonya Davis
The trial court denied Taylor's claim that trial counsel was ineffective for failing to present the testimony of the victim's daughter, Sonya Davis, because the record "clearly shows Ms. Davis would not have been willing to testify in the prior proceedings." Additionally, the trial court denied the claim for being untimely since the evidence of Ms. Davis was known at trial. The trial court denied admission of Davis's deposition because the deposition would not have been admissible at trial and because the postconviction claim allegedly supported by the deposition was untimely asserted. None of these findings have been demonstrated to have been erroneous.
The summary denial of a newly discovered evidence claim will be upheld if the motion is legally insufficient or its allegations are conclusively refuted by the record. McLin v. State, 827 So. 2d 948, 954 (Fla.2002). It is evident from the record that Taylor was aware of Davis's existence prior to the trial, and that Davis would have been unwilling to testify for Taylor. Additionally, as the State correctly points out, even if Taylor had succeeded in introducing this evidence, it would have served to impeach his own testimony and to impugn his theory of defense. Cf. Antone v. State, 410 So. 2d 157, 162 (Fla.1982) (holding that newly discovered evidence that would have impeached defendant's testimony and changed totally his theory of defense did not meet the test that the alleged facts must be of such a vital nature that they would have prevented entry of the judgment). Accordingly, the trial court properly denied this claim.
PETITION FOR HABEAS CORPUS
In his petition for habeas corpus, Taylor argues that his death sentence is unconstitutional under Johnson v. Mississippi, 486 U.S. 578, 108 S. Ct. 1981, 100 L. Ed. 2d 575 (1988), and Richmond v. Lewis, 506 U.S. 40, 113 S. Ct. 528, 121 L. Ed. 2d 411 (1992); that the jury instructions unconstitutionally diminished the jury's sense of responsibility; and that Florida's capital sentencing statute constitutes cruel and unusual punishment. We reject each of these claims on the merits. Further, we note that Taylor's constitutional claims are procedurally barred because they were not preserved on direct appeal.
Taylor argues that his prior violent felony aggravator was invalid because his conviction for sexual battery in 1982 was unconstitutional because his then deficient mental state prevented him from making a knowing, intelligent, and voluntary waiver of his right to trial in entering a plea of nolo contendere. He further argues that this 1982 conviction was too remote in time to qualify as an aggravator.
In Nixon v. State, 932 So. 2d 1009, 1023 (Fla.2006), we refused to grant relief where the allegedly unlawful prior felony convictions had not been vacated and were still valid. Nixon was convicted of and received a death sentence for first-degree murder, kidnapping, and other crimes. Id. *1000 On appeal, he argued that the prior felonies used to support the prior felony aggravator in his case were invalid. Id. We held that because no court had vacated the prior convictions, Johnson did not apply. Id. The invalid conviction at issue in Johnson had been reversed by the New York Court of Appeals. Johnson, 486 U.S. at 583, 108 S. Ct. 1981. Taylor's conviction has not been vacated by any court. Accordingly, his claim under Johnson must fail. We also reject Taylor's argument that the prior conviction is too remote in time, since we have held a conviction obtained thirty-two years prior to the crime in question is not too remote to be considered a valid aggravating factor. Thompson v. State, 553 So. 2d 153, 156 (Fla.1989).
Taylor's claim as to the invalidity of Florida's heinous, atrocious and cruel aggravator is procedurally barred. Taylor cannot relitigate the merits of an issue through a habeas petition or use an ineffective assistance claim to argue the merits of claims that either were or should have been raised below. See Preston v. State, 970 So. 2d 789, 805 (Fla.2007); Knight v. State, 923 So. 2d 387, 395 (Fla.2005). "It is important to note that habeas corpus petitions are not to be used for additional appeals on questions which could have been, should have been, or were raised on appeal or in a rule 3.850 motion, or on matters that were not objected to at trial." Parker v. Dugger, 550 So. 2d 459, 460 (Fla. 1989). We rejected a similar argument in Doyle v. Singletary, 655 So. 2d 1120, 1121 (Fla.1995) (holding that Doyle's claim was procedurally barred because Doyle had failed to pursue the issue on appeal). As in Doyle, Taylor did not raise this claim on direct appeal and we now reject this habeas claim for the same reason.[2]
CONCLUSION
In light of the above analysis, we affirm the trial court's denial of Taylor's postconviction motion and deny Taylor's petition for writ of habeas corpus.
It is so ordered.
WELLS, PARIENTE, LEWIS, and CANADY, JJ., and ANSTEAD, Senior Justice, concur.
QUINCE, C.J., recused.
POLSTON, J., did not participate.
NOTES
[1] Taylor's postconviction claims were: (1) no trial transcript had been provided; (2) his statements were admitted in error; (3) there was prosecutorial misconduct; (4) he was absent from critical proceedings; (5) there were violations of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), and ineffective assistance of counsel; (6) the State failed to prove corpus delicti; (7) counsel was ineffective for failure to obtain a mental health evaluation; (8) Taylor's right to confront witnesses was violated; (9) the prosecutor made improper statements; (10) defense counsel failed to obtain a mental health expert; (11) there was ineffective assistance of counsel in other respects; (12) the death sentence is disproportionate; (13) the sexual battery aggravator is unconstitutional; (14) the prior conviction record admitted was obtained illegally; (15) the aggravating factors statute is unconstitutional; (16) the jury instructions were unconstitutional; (17) the death sentence was unconstitutional; (18) Florida's capital sentencing statute is unconstitutional; (19) Taylor's rights under Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985), were violated; (20) numerous trial and resentencing errors deprived Taylor of his rights; and (21)Taylor was denied due process.
[2] The lower court instructed the sentencing jury with then-standard instructions for the "heinous, atrocious, or cruel" aggravating factor. Taylor did not challenge the standard jury instructions at trial or on direct appeal. The United States Supreme Court later declared Florida's standard jury instructions for the "heinous, atrocious, or cruel" aggravating factor unconstitutionally vague in Espinosa v. Florida, 505 U.S. 1079, 1081, 112 S. Ct. 2926, 120 L. Ed. 2d 854 (1992). However, even though Taylor's resentencing occurred prior to the Espinosa decision, the jury instructions used were not those involved in Espinosa but were the same as this Court found constitutional in Hall v. State, 614 So. 2d 473, 478 (Fla. 1993). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596879/ | 28 So.3d 44 (2010)
BANCO INDUS. DE VENEZUELA, C.A.
v.
DE SAAD.
No. SC10-21.
Supreme Court of Florida.
March 15, 2010.
Decision Without Published Opinion Review granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3035767/ | FILED
NOT FOR PUBLICATION MAR 30 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BOBBY LAYTHEN BINFORD, No. 07-35706
Plaintiff - Appellant, D.C. No. 3:06-CV-05364-RBL
v.
MEMORANDUM *
TERRY BENDA, Institutional
Investigator; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted March 16, 2010 **
Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
Bobby Laythen Binford, a Washington state prisoner, appeals pro se from
the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
tk/Research
defendants violated his civil rights. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We
affirm the summary judgment for the reasons stated in the magistrate judge’s report
and recommendations entered on June 29, 2007, and adopted by the district court
on July 27, 2007.
We do not consider Binford’s claims that were not properly raised below.
See Dodd v. Hood River County, 59 F.3d 852, 863 (9th Cir. 1995).
Binford’s remaining contentions are unpersuasive.
AFFIRMED.
tk/Research 2 07-35706 | 01-03-2023 | 10-13-2015 |
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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN></CENTER>
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<P><STRONG><CENTER>NO. 03-96-00419-CR</CENTER>
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<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>Tajah Clinton, Appellant</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>v.</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>The State of Texas, Appellee</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER></CENTER>
</STRONG></P>
<P><SPAN STYLE="font-family: CG Times" STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT</CENTER>
</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: CG Times" STYLE="font-size: 11pt"><STRONG><CENTER>NOS. 0953410, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING</STRONG></SPAN><SPAN STYLE="font-family: CG Times"><STRONG></CENTER>
</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: CG Times"><STRONG><CENTER></CENTER>
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<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times"><STRONG>PER CURIAM</STRONG></SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times"> This is an appeal from an order revoking community supervision. Appellant has filed a
motion to withdraw the appeal. No decision of this Court has been delivered. The motion is granted and
the appeal is dismissed. <EM>See</EM> Tex. R. App. P. 59(b).</SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times">Before Chief Justice Carroll, Justices Kidd and B. A. Smith</SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times">Appeal Dismissed on Appellant's Motion</SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times">Filed: December 5, 1996</SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times">Do Not Publish</SPAN></P>
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</HTML> | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1596844/ | 28 So.3d 737 (2009)
DOLGENCORP, INC.
v.
Arlie TAYLOR.
1070900.
Supreme Court of Alabama.
June 12, 2009.
Rehearing Denied August 28, 2009.
*738 Robert S. Lamar, Jr., and Rick D. Norris, Jr., of Lamar, Miller, Norris, Haggard & Christie, P.C., Birmingham, for appellant.
Frederick P. Gilmore and Wyman O. Gilmore, Jr., of Gilmore Law Firm, P.C., Grove Hill, for appellee.
*739 SMITH, Justice.
Dolgencorp, Inc. ("Dolgencorp"), which owns and operates Dollar General retail discount stores, appeals from a judgment entered on a jury verdict in favor of Arlie Taylor on Taylor's claims alleging negligence and wantonness. We reverse the trial court's judgment and render a judgment for Dolgencorp.
Facts and Procedural History
On December 2, 2004, Taylor, who was then 68 years old, went to a Dollar General retail discount store ("the store") in Jackson to purchase laundry products. After entering the store, Taylor attempted to push her shopping cart to the back aisle of the store where the laundry products were located by way of the middle aisle; however, the middle aisle was impassible because of displays of Christmas decorations and candy. Taylor then attempted to push her shopping cart to the back aisle by way of an aisle on the right side of the store. She testified at trial that she was "going around boxes" of merchandise that were located on the floor of the aisle as she moved toward the back aisle.
When Taylor arrived at the back aisle of the store, she turned her shopping cart to the left and began looking for the laundry detergent. Taylor testified that there were unopened cases of merchandise on the floor of the back aisle and that she "had to avoid one ... when [she] went to get [her] washing powder." After placing a box of laundry detergent in her shopping cart, Taylor pushed her shopping cart further along the back aisle to the section where the laundry bleach was located. After placing a bottle of bleach in her shopping cart, Taylor moved further down the aisle in search of fabric softener, which was located on the top shelf of the back aisle. Taylor testified at trial that she "step[ped] out from behind the [shopping cart]" to reach for the fabric softener and that when she did she fell over two unopened cases of merchandise that were stacked one on top of the other in the aisle. Taylor testified both in her deposition[1] and at trial that she did not see the two cases of merchandise before she fell over them; she also testified that, based on her observation of other cases of merchandise she had maneuvered around in the store on the day that she was injured, two cases stacked one on top of the other would be approximately "knee or thigh high."
On March 3, 2005, Taylor and her mother, Rena Cave (sometimes referred to collectively as "the plaintiffs"), sued Dolgencorp; Linda Bailey, the manager of the store from January 2004 until January 2005; and fictitiously named defendants (Dolgencorp and Bailey are sometimes referred to collectively as "the defendants"). The complaint alleged, among other things, that Dolgencorp and Bailey had negligently and/or wantonly failed to maintain the premises of the store in a safe condition.[2] The plaintiffs' complaint requested compensatory and punitive damages, plus interest and costs. The defendants filed an answer denying liability and asserting a number of affirmative defenses including the defense that the cases of merchandise in the aisle were an "open and obvious condition."
*740 On September 11, 2007, the defendants filed a motion for a summary judgment, which the trial court denied. At trial, the defendants filed a motion for a judgment as a matter of law ("JML") at the close of the plaintiffs' evidence. In their motion for a JML, the defendants asserted, among other things, that they owed no duty of care to Taylor because, the defendants said, the hazardous condition was "open and obvious" and that the plaintiffs failed to present substantial evidence establishing that the defendants had acted negligently or wantonly.
The defendants also made an oral motion to the trial court to supplement their written motion for a JML. After hearing argument on the defendants' motion for a JML, the trial court stated that it was "striking the punitive damages claim against ... Bailey" and denied the motion for a JML as to the negligence and wantonness claims asserted against Dolgencorp and as to the negligence claim asserted against Bailey.[3] The defendants renewed their motion for a JML at the close of all the evidence; the trial court granted that motion as to the remaining claims asserted against Bailey but denied that motion as to the claims asserted against Dolgencorp.
On September 28, 2007, the jury returned the following verdict:
"We the jury, find for [Taylor], and against [Dolgencorp], on the count of negligence, and fix [Taylor's] compensatory damages therefore at $85,000. Further, we the jury, find for [Taylor] and against [Dolgencorp], on the count of wantonness, and fix [Taylor's] punitive damages at $175,000, in addition to the compensatory damages for negligence."
On October 25, 2007, the trial court entered a judgment on the jury's verdict. That judgment provided, in pertinent part:
"The jury, having returned a verdict for the Plaintiff, Arlie Taylor, and against the Defendant, Dolgencorp, Inc., in the amount of $85,000 in compensatory damages and $175,000 in punitive damages; a judgment is hereby entered accordingly for the Plaintiff, Arlie Taylor, and against the Defendant, Dolgencorp, Inc., in the amount of $85,000 in compensatory damages and $175,000 in punitive damages."
On October 29, 2007, Dolgencorp filed a postjudgment motion styled as a "motion for judgment notwithstanding the verdict and renewed motion for judgment as a matter of law or, in the alternative, motion for new trial, and for remittitur"; that motion was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. This appeal followed.[4]
Standard of Review
"When reviewing a ruling on a motion for a JML, this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d *741 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). The nonmovant must have presented substantial evidence in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court's ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala. 1992)."
Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala. 2003).
Issues
Dolgencorp raises two issues on appeal. Dolgencorp first argues that the trial court erred in denying its motions for a JML as to Taylor's negligence claim against it because, Dolgencorp contends, the hazardous condition in the store was open and obvious; thus, Dolgencorp says, it had no duty either to eliminate the hazardous condition or to warn Taylor of the hazardous condition. Conversely, Taylor argues that the cases of merchandise were not open and obvious; instead, Taylor argues that the cases of merchandise were a "hidden danger" because, she says, "it is not only foreseeable to [Dolgencorp], but expected, that a customer such as Ms. Taylor would focus her attention on the shelves when looking for a particular item and not anticipate any tripping hazards in the aisle while doing so."
Dolgencorp also argues that the trial court erred in denying its motions for a JML on Taylor's wantonness claim against it and the request for punitive damages because, Dolgencorp contends, the evidence was not sufficient to support a finding that it "had deliberately engaged in conduct that was in reckless or conscious disregard of the safety of the store's customers." Rather, Dolgencorp argues, the evidence established that "the cases or boxes were placed along the walls of the aisles, out in the open, where they could be seen by any reasonably vigilant shopper." Conversely, Taylor argues that there was "sufficient evidence that [Dolgencorp] knew the boxes were dangerous, exhibited a conscious disregard for the safety of [its] customers, and that [its] customers were ultimately placed in danger for the wantonness claim to be submitted to the jury."
I. Negligence Claim
It is undisputed that Taylor was a business invitee of Dolgencorp. See Ex parte Mountain Top Indoor Flea Market, Inc., 699 So.2d 158, 161 (Ala.1997) ("`In order to be considered an invitee, the plaintiff must have been on the premises for some purpose that materially or commercially benefited the owner or occupier of the premises.'" (quoting Sisk v. Heil Co., 639 So.2d 1363, 1365 (Ala.1994), overruling on other grounds recognized by Sessions v. Nonnenmann, 842 So.2d 649, 654 (Ala.2002))). The liability of a premises owner to an invitee is well settled.
"In a premises-liability setting, we use an objective standard to assess whether a hazard is open and obvious. As discussed *742 in Sessions [v. Nonnenmann, 842 So.2d 649 (Ala.2002)], the question is whether the danger should have been observed, not whether in fact it was consciously appreciated:
"`[I]n order for a defendant-invitor in a premises-liability case to win a summary judgment or a judgment as a matter of law grounded on the absence of a duty on the invitor to eliminate open and obvious hazards or to warn the invitee about them, the record need not contain undisputed evidence that the plaintiff-invitee consciously appreciated the danger at the moment of the mishap. While Breeden [v. Hardy Corp., 562 So.2d 159 (Ala.1990)], does recite that "[a]ll ordinary risks present are assumed by the invitee," 562 So.2d at 160, this recitation cannot mean that the invitor's duty before a mishap is determined by the invitee's subjective state of mind at the moment of the mishap. This Court has expressly rejected the notion that an invitor owes a duty to eliminate open and obvious hazards or to warn the invitee about them if the invitor "should anticipate the harm despite such knowledge or obviousness." Ex parte Gold Kist, Inc., 686 So.2d 260, 261 (Ala.1996) ....'
"842 So.2d at 653-54 (some emphasis added)."
Jones Food Co. v. Shipman, 981 So.2d 355, 362-63 (Ala.2006). Similarly, this Court has stated that "`[t]he owner of premises has no duty to warn an invitee of open and obvious defects in the premises which the invitee is aware of, or should be aware of, in the exercise of reasonable care on the invitee's part.'" Mountain Top Indoor Flea Market, 699 So.2d at 161 (quoting Shaw v. City of Lipscomb, 380 So.2d 812, 814 (Ala.1980), citing in turn Tice v. Tice, 361 So.2d 1051 (Ala.1978)). The test for determining whether a hazard is open and obvious "`"is an objective one."'" Id. (quoting Hines v. Hardy, 567 So.2d 1283, 1284 (Ala.1990), quoting in turn Restatement (Second) of Torts § 343A (1965)).
Dolgencorp's argument that the condition that caused Taylor's fall was open and obvious is an affirmative defense, for which it bears the ultimate burden of proof. Horne v. Gregerson's Foods, Inc., 849 So.2d 173, 176 (Ala.Civ.App.2002) (citing Ex parte Neese, 819 So.2d 584 (Ala.2001), and Furgerson v. Dresser Indus., Inc., 438 So.2d 732, 734 (Ala.1983)).
Dolgencorp, citing Sessions, 842 So.2d at 652, asserts in its brief on appeal that
"openness and obviousness of a hazard, if established, negates the invitor's duty to eliminate the hazard or to warn the invitee of the hazard. This negation of duty, in and of itself, defeats the invitee's injury claim without the operation of any affirmative defense such as contributory negligence or assumption of risk. In other words, in this context, openness and obviousness, if established, negates the duty [and] defeats the claim...."
Dolgencorp primarily relies on the following undisputed evidence in asserting that the cases of merchandise in the aisles were an open and obvious hazard. Dolgencorp asserts that Taylor had shopped at the store approximately once every two weeks during the two- to three-year period preceding the accident and that, as a result, she had long been aware of the cluttered condition of the store; in fact, Taylor testified during her deposition that she was aware that "the place was cluttered" to the extent that "[y]ou couldn't help but know it." Dolgencorp also notes that Taylor testified during her deposition that at some point before the date of her injury she had asked a store cashier, "[H]ow *743 come y'all had all these boxes and stuff down here?"
Dolgencorp also asserts that the cases of merchandise in the back aisle were an open and obvious hazard because Taylor, by her own admission, had maneuvered around other cases of merchandise on the floor of the store before falling over the two cases located on the back aisle. Dolgencorp further asserts that Taylor, in the exercise of reasonable care, should have seen the cases she fell over but did not because, according to her deposition testimony, she had become "distracted" while looking for fabric softener.
Taylor cites several cases in support of her contention that the hazard created by the cases of merchandise was not an open and obvious one, including Wal-Mart Stores, Inc. v. McClinton, 631 So.2d 232 (Ala.1993), Wal-Mart Stores, Inc. v. Rolin, 813 So.2d 861 (Ala.2001), Williams v. Bruno's, Inc., 632 So.2d 19 (Ala.1993), Blizzard v. Food Giant Supermarkets, Inc., 196 F.Supp.2d 1202 (M.D.Ala.2002), and Ryles v. Wal-Mart Stores East L.P. (No. 2:04cv334-T, December 16, 2004) (M.D.Ala.2004) (not reported in F.Supp.2d).
In Wal-Mart Stores, Inc. v. McClinton, McClinton sued Wal-Mart Stores, Inc. ("Wal-Mart"), alleging negligence. McClinton was injured when he slipped and fell in a Wal-Mart store on a piece of wood molding located either on or near a wooden gun cabinet that protruded approximately six inches into the aisle. The jury returned a verdict in favor of McClinton. This Court affirmed the trial court's judgment entered on the jury's verdict and rejected Wal-Mart's argument that the hazard was open and obvious, concluding that "[w]hile it is evident that McClinton saw the displayed cabinet, it is not evident that he knew, or should have known, or that he appreciated, the danger caused by the fact that the cabinet and its molding protruded into the aisle." 631 So.2d at 234.
In Wal-Mart Stores, Inc. v. Rolin, Rolin sued Wal-Mart alleging negligence and wantonness. Rolin was injured when she tripped and fell in a Wal-Mart store over a barbeque-grill display that allegedly protruded into a walkway. After the trial court granted Rolin's motion to dismiss the wantonness claim, the jury returned a verdict in favor of Rolin on the negligence claim. As Taylor specifically notes in her brief on appeal, this Court affirmed the trial court's judgment entered on the jury's verdict and rejected Wal-Mart's argument that it had no notice that the grill display was hazardous, concluding that "the barbeque-grill display is analogous to the gun cabinet in McClinton [, supra,] ... in that there is evidence to indicate that the hazardous condition was created by employees of the premises owner." 813 So.2d at 865.
In Williams v. Bruno's, Inc., Williams sued, among others, Bruno's, Inc. ("Bruno's"), alleging negligence and wantonness. Williams was injured when he slipped and fell in a Food World grocery store. Williams testified that he did not know what caused his fall, but that after his fall he noticed "four to eight small strips of an unidentified material in the floor around him" and that one of the strips was "protruding out" from the bottom grocery shelf approximately six inches into the aisle. 632 So.2d at 20. The trial court entered a summary judgment in favor of Bruno's. This Court reversed the summary judgment as to the negligence claim, concluding that the evidence did not establish that the strips were an open and obvious condition. Specifically, this Court stated:
"One could reasonably infer from [Williams's] testimony that Williams was focusing his attention on the shelves, not *744 that he was not looking where he was going. Nowhere in Williams's testimony does he say that the strips were obvious to him before he fell; in fact, Williams stated that he did not see the strips until after he fell."
632 So.2d at 22.
In Blizzard v. Food Giant Supermarkets, Inc.,[5] Blizzard sued Food Giant Supermarkets, Inc. ("Food Giant"), alleging negligence, wantonness, and failure to maintain a common area. Blizzard was injured when she tripped and fell in a Pic-N-Sav grocery store. Blizzard tripped over an "end-cap pallet," which is a platform that rests on the floor at the end of grocery aisles and is used to display products. Food Giant moved for a summary judgment and, regarding Blizzard's negligence claim, argued that it was entitled to judgment as a matter of law because, among other reasons, the end-cap pallet was an open and obvious hazard. The district court, citing Williams, supra, denied Food Giant's summary-judgment motion as to the negligence claim and concluded that "there is evidence that [Blizzard's failure to perceive the danger occurred because] she was looking at the products put in place by [Food Giant]." Blizzard, 196 F.Supp.2d at 1208.
Finally, Taylor cites Ryles v. Wal-Mart Stores East L.P.,[6] a case in which Ryles sued Wal-Mart Stores East L.P. ("Wal-Mart Stores") alleging negligence and wantonness. Ryles was injured when she tripped and fell over a box of merchandise that had been placed on the floor near a counter. The district court denied Wal-Mart Stores' summary-judgment motion as to the negligence claim and concluded that the box Ryles tripped over "did not, as a matter of law, constitute an open and obvious danger...." Taylor cites Ryles specifically for the following statement: "The above cases [cited in the district court's order, including Williams, supra], therefore, clearly indicate that [the plaintiff's] failure to stare at the floor while walking down the shopping aisle, in particular where the store sought to draw her attention to its shelves, does not prevent her negligence claim from surviving summary judgment." Viewing, as we must, the evidence in the light most favorable to Taylor, there is plainly no dispute regarding whether Taylor saw the cases of merchandise in the aisles of the store, appreciated the hazard posed by those cases, and acted more carefully because of that hazard. The evidenceTaylor's deposition and trial testimonyestablished that Taylor, a regular shopper at the store, had been aware for some time of the "cluttered" condition of the store, that she had at some point before the date of her injury questioned a store employee about the "boxes and stuff" in the aisles, and that she had seen and maneuvered around several other cases of merchandise in the aisles of the store on the day she was injured.
It seems evident that the presence of cases of merchandiseeach of which was at least 12-13 inches high and 15-16 inches widein the aisles of the store presents an open and obvious hazard of a fall. No evidence was presented indicating that the cases of merchandise were in any way obscured or hidden from view; rather, *745 the evidence clearly established that the cases of merchandise had been placed in the aisles in plain view of anyone attempting to navigate the aisles. The application of an objective standard, as set forth in Jones Food, supra, and Mountain Top, supra, compels the conclusion that such a hazard was open and obvious. The condition of the premises was open and obvious for all to see, and it is undisputed that Taylor had noticed and maneuvered around several cases of merchandise in the aisles before her fall.
Based on the foregoing, we conclude that the cases of merchandise that caused Taylor to fall were an open and obvious hazard and that, accordingly, Dolgencorp owed Taylor no duty to eliminate the hazard or to warn her of the hazard. Thus, Taylor's negligence claim fails as a matter of law, and the trial court erred by denying Dolgencorp's motions for a JML on the negligence claim.
II. Wantonness Claim
As mentioned above, Dolgencorp argues, among other things, that the trial court erred by denying its motions for a JML on the wantonness claim against it because the cases of merchandise were an open and obvious hazard and, thus, it says, it had no duty to eliminate the hazard or to warn Taylor of the hazard. See Sessions, 842 So.2d at 652. Dolgencorp correctly notes that this Court previously has defined wantonness "`as the conscious doing of some act or the omission of some duty, while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result.'" Bozeman v. Central Bank of the South, 646 So.2d 601, 603 (Ala.1994) (quoting Stone v. Southland Nat'l Ins. Corp., 589 So.2d 1289, 1292 (Ala. 1991), quoting in turn McDougle v. Shaddrix, 534 So.2d 228 (Ala.1988) (emphasis added)); in her brief on appeal, Taylor expressly adopts Dolgencorp's "general statement of the law regarding wantonness."
Taylor primarily relies on the following factual assertions in contending that Dolgencorp's conduct rises to the level of wantonness. Taylor contends that cases of merchandise had been stored in the aisles of the store for several years before her accident because, she says, the stockroom was overcrowded with Christmas merchandise and could not hold any additional merchandise. Taylor also contends that, although store employees had made numerous requests of their district manager for assistance regarding the overcrowded stockroom since 1999, their requests had gone unheeded. Taylor further contends that Dolgencorp's wanton conduct is evidenced by the fact that, in October 2001, another store customer had fallen over "some excess merchandise stored in the aisle," but, despite being aware of that accident, Dolgencorp made no effort to remedy the hazardous condition. Moreover, Taylor contends that Dolgencorp acted with reckless disregard for the safety of its customers because, Taylor says, the cases of merchandise were stored in the aisles in violation of store policy.
Taylor contends that the testimony of certain store employees also evidences the wanton nature of Dolgencorp's conduct. Taylor notes that a former store employee, Vicki Brown, testified that the store "was an accident ready to happen" on the day Taylor fell because, according to Brown, "our stockroom was full and we had a floor full of boxes." Taylor also notes that another former store employee, James Bettis, testified that the store was a "wreck," a "mess," and so cluttered that "[y]ou couldn't hardly get through" on the day Taylor fell.
Regarding Taylor's negligence claim, we concluded that the cases of merchandise *746 that caused Taylor to fall were an open and obvious hazard and, accordingly, that Dolgencorp owed Taylor no duty to eliminate the hazard or to warn her of the hazard. Because Dolgencorp owed no duty to Taylor, her wantonness claim must also fail as a matter of law; thus, the trial court erred by denying Dolgencorp's motions for a JML on the wantonness claim. See Sessions, supra; see also Lilya v. Greater Gulf State Fair, Inc., 855 So.2d 1049, 1056 (Ala.2003) (concluding in a case in which Lilya was injured when he fell from a mechanical bull ride while attending a fair on the premises owned by Greater Gulf State Fair, Inc., that the condition that caused Lilya's injuries was an open and obvious hazard, that the premises owner thus owed no duty to warn Lilya of the possible danger, that "[w]ithout the existence of a duty, Lilya's negligence and wantonness claims fail as a matter of law, and that the trial court's summary judgment as to those claims was appropriate" (emphasis added)).
Because Taylor's negligence and wantonness claims fail as a matter of law, we reverse the trial court's judgment and render a judgment for Dolgencorp.
REVERSED AND JUDGMENT RENDERED.
WOODALL, STUART, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.
COBB, C.J., dissents.
COBB, Chief Justice (dissenting).
I respectfully disagree with my colleagues that the trial court should have granted the motion for a judgment as a matter of law filed by Dolgencorp, Inc. Therefore, I dissent.
This Court has long held that "a premises owner owes any business invitee `"a duty to exercise reasonable care to maintain its premises in a reasonably safe condition."'" Shiv-Ram, Inc. v. McCaleb, 892 So.2d 299, 314 (Ala.2003) (quoting Kmart Corp. v. Peak, 757 So.2d 1138, 1144 (Ala.1999), quoting in turn Norris v. Wal-Mart Stores, Inc., 628 So.2d 475, 477 (Ala. 1993)). See also Borden v. Consumer Warehouse Foods, Inc., 601 So.2d 976, 979 (Ala.1992) ("The duty of a shopkeeper to maintain premises in a reasonably safe condition for its invitees is well settled."). However, "as a general rule, an invitor will not be liable for injuries to an invitee resulting from a danger which was known to the invitee or should have been observed by the invitee in the exercise of reasonable care." Quillen v. Quillen, 388 So.2d 985, 989 (Ala.1980).
As I noted in my dissent to the overruling of the application for rehearing in Jones Food Co. v. Shipman, 981 So.2d 355 (Ala.2006):
"`The question whether a danger is open and obvious is generally one of fact.' Howard v. Andy's Store for Men, 757 So.2d 1208, 1211 (Ala.Civ.App.2000). `[T]he plaintiff's appreciation of the danger is, almost always, a question of fact for the determination of the jury.' F.W. Woolworth Co. v. Bradbury, 273 Ala. 392, [396], 140 So.2d 824, [827] (1962). Furthermore, `[t]here is a presumption that a jury's verdict is correct; that presumption is strengthened when the trial court has denied a motion for a new trial.' SouthTrust Bank v. Donely, 925 So.2d 934, 943 (Ala.2005) (citing First Alabama Bank of South Baldwin v. Prudential Life Ins. Co. of America, 619 So.2d 1313 (Ala.1993))."
981 So.2d at 370 (Cobb, C.J., dissenting).
The majority discusses three opinions of this Court as well as two of the federal district court for the Middle District of Alabama applying Alabama law, all of *747 which held that the question whether an item protruding into the aisle of a store is an open and obvious hazard is one for the trier of fact. The majority in fact quotes Williams v. Bruno's, Inc., 632 So.2d 19 (Ala.1993), in which this Court opined:
"One could reasonably infer from [Williams's] testimony that Williams was focusing his attention on the shelves, not that he was looking where he was going. Nowhere in Williams's testimony does he say that the strips were obvious to him before he fell; in fact, Williams stated that he did not see the strips until after he fell."
632 So.2d at 22. I believe the same rationale holds true in this case.
I also find persuasive the federal district court's decision in Hunter v. Durr Systems, Inc., (No. 2:06cv411-WHA, April 24, 2007) (M.D.Ala.2007) (not reported in F.Supp.2d), a case not discussed in the majority opinion. In Hunter, a freelance photographer was taking photographs of a robotic paint booth at the Hyundai Motor Manufacturing plant in Montgomery. The booth contained an elevated walkway with a metal grated floor. On the day the photographer was present, a grate approximately 4 feet by 2 feet was missing from the walkway. During the photo session, the photographer fell through the hole created by the missing grate and sustained injuries. Relying on Williams, the federal district court denied the motion for a summary judgment filed by Durr Systems, Inc., stating:
"Just as the Williams court found that protruding strips on the floor of a grocery store were not definitively open and obvious where the shopper's focus was on the shelves instead of the walkway, this court believes that a jury potentially could find that the missing grate was not open and obvious because Hunter was focused on photographing the robotic arms instead of the walkway."
The federal district court for the Middle District of Alabama addressed a similar issue in Blizzard v. Food Giant Supermarkets, Inc., 196 F.Supp.2d 1202 (M.D.Ala. 2002), a case discussed in the majority opinion. In Blizzard, a grocery store customer tripped over an end-cap pallet, approximately 4 feet by 4 feet by 8 inches in size, at the end of the grocery store aisle. In denying Food Giant's motion for a summary judgment, the federal district court, again relying on Williams, wrote: "The court cannot conclude, however, that there is a legally significant difference in this case between Blizzard's looking at cereal apparently intended by Food Giant to be viewed by customers while she was attempting to buy a particular product, and the plaintiff in Williams who was shopping for products on the shelves." 196 F.Supp.2d at 1208.
Considering the foregoing, and viewing the facts in the light most favorable to Taylor, the nonmovant, I conclude that Taylor presented sufficient evidence for the case to be submitted to the jury for a factual resolution. I firmly believe that the question whether a danger is open and obvious is generally one of fact and that this Court should use restraint in holding, as a matter of law, that something is an open and obvious danger.[7] Taylor entered *748 the Dollar General store to do her shopping. Dolgencorp, as does any other retail store, placed items on its shelves to draw the consumer's attention to those items. Because Taylor was focused on her shopping and was looking for the fabric softener on the shelf instead of focusing on the floor of the shopping aisle, I believe that reasonable persons could differ as to whether the boxes were an open and obvious hazard, and, thus, I believe that the entry of a judgment as a matter of law for Dolgencorp on this issue would be improper. See Brookwood Med. Ctr. v. Lindstrom, 763 So.2d 951, 952 (Ala.2000) ("A judgment as a matter of law `is proper (1) where the nonmoving party has failed to present substantial evidence regarding some element essential to her claim, or (2) where there is no disputed issue of fact upon which reasonable persons could differ.'"). Although the record indicates that Taylor noticed other boxes in the aisles of the store, there is no indication in the record that Taylor saw the specific boxes in the back aisle before she fell over them.
I also dissent from the majority's holding that Taylor's wantonness claim must likewise fail as a matter of law. Statutorily, wantonness is defined as "[c]onduct which is carried on with a reckless or conscious disregard for the rights or safety of others." Ala.Code 1975, § 6-11-20(b)(3). Likewise, "`"[w]antonness" has been defined by the Court as the conscious doing of some act or the omission of some duty, while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result. McDougle v. Shaddrix, 534 So.2d 228 (Ala.1988).'" Bozeman v. Central Bank of the South, 646 So.2d 601, 603 (Ala.1994) (quoting Stone v. Southland Nat'l Ins. Corp., 589 So.2d 1289, 1292 (Ala.1991)).
The record is replete with evidence indicating that Dolgencorp and its employees knew about the condition of the Dollar General store in Jackson and appreciated the potential consequences of its cluttered aisles. A former employee testified that "our stockroom was full and we had a floor full of boxes that weit was all over the store, full of boxes. All around the store. It was an accident ready to happen." Another former employee testified that the store was "a mess" and "a wreck" on the day Taylor was injured. The former manager of the Jackson store testified that it was against company policy to have boxes in the aisles of the store, that she recognized that having boxes in the aisles was a potential hazard, and that she had complained to her direct supervisor to no avail about the overflowing stockroom that necessitated the storage of merchandise in the aisles. This evidence is substantial enough to warrant a finding that Dolgencorp appreciated the hazardous condition created by the unopened boxes of merchandise in the aisles and that it consciously refused to remedy the situation.
Because I believe substantial evidence was presented to defeat Dolgencorp's motion for a judgment as a matter of law and because substantial evidence was presented of Dolgencorp's inaction, which I believe amounted to evidence of wantonness, I respectfully dissent.
NOTES
[1] Taylor's deposition was read into the record at trial.
[2] The complaint also stated three additional counts that are not at issue in this appeal: Count II alleged that, under the doctrine of respondeat superior, Dolgencorp is liable for Bailey's negligent and/or wanton actions; count III alleged that Dolgencorp negligently and/or wantonly hired, trained, and/or supervised Bailey; and count IV asserted a loss-of-consortium claim against Dolgencorp and Bailey on behalf of Cave.
[3] The trial court also stated that Cave's loss-of-consortium claim was "evaded [sic] by [Cave's] death." The record on appeal reveals that Cave died before trial.
[4] In January 2009, this Court entered an order remanding the case to the trial court, noting that the "claims stated by plaintiff Rena Cave against the defendants, and claims stated by plaintiffs against defendant Linda Bailey, have not been adjudicated ...." Subsequently, the trial court entered an "order of dismissal and final judgment" dismissing with prejudice Cave's loss-of-consortium claim, entering a judgment in favor of Bailey on all claims asserted against her, and entering a judgment in favor of Taylor and against Dolgencorp in the amount of $260,000 ($85,000 compensatory damages and $175,000 punitive damages).
[5] We note that United States district court decisions are not controlling authority in this Court. See Buist v. Time Domain Corp., 926 So.2d 290, 297 (Ala.2005) ("Even considering these cases directly on point, however, they are United States district court cases and can serve only as persuasive authority." (citing Glass v. Birmingham S. R.R., 905 So.2d 789, 794 (Ala.2004))).
[6] See note 5, supra.
[7] I am also troubled by what appears to be a trend of this Court as exemplified by this case and Jones Food Co. v. Shipman, supra, to interject itself into the place of the jury and hold that a danger is open and obvious as a matter of law. This Court should be respectful of the long-standing principle that the question whether a danger is open and obvious is generally one for the trier of fact. See Denmark v. Mercantile Stores Co., 844 So.2d 1189, 1195 (Ala.2002) ("Whether a condition is open and obvious is generally a question for the jury."); F.W. Woolworth Co. v. Bradbury, 273 Ala. 392, 396, 140 So.2d 824, 827 (1962) ("We have long been committed to the proposition that the plaintiff's appreciation of the danger is, almost always, a question of fact for the determination of the jury."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597015/ | 638 So.2d 1067 (1994)
Bruce MARTIN
v.
LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY, et al.
No. 94-C-0069.
Supreme Court of Louisiana.
July 5, 1994.
*1068 Raymond C. Jackson, III, Allen & Gooch, Harry Alston Johnson, III, Michael B. Wallace, for applicant.
Louis D. Bufkin, McHale, Bufkin & Dees, for respondent.
Ann Elizabeth DeGroff Levine, Eugene Peter Urbanowicz, Jr., Richard W. Bussoff, Perry Roger Staub, Jr., for amicus curiae, Ochsner Health Plan (OHP).
WATSON, Justice.[1]
The issue is whether a health and accident insurer, which pays its insured's medical expenses after an automobile accident, is entitled to legal subrogation against the tortfeasors.
FACTS
On October 27, 1987, guest passenger Bruce Martin was injured in a two-vehicle collision. Martin sued the drivers, the owners, and the insurers of both vehicles. Golden Rule Insurance Company, Martin's health and accident insurer, paid his medical expenses and intervened to recoup the sums paid under Martin's policy.
The trial court sustained plaintiff's exception of no cause of action and dismissed the intervention, holding that Golden Rule had no right to legal subrogation. The Court of Appeal affirmed. Martin v. Louisiana Farm Bureau Cas. Ins., 628 So.2d 1213 (La. App. 3d Cir.1993). Writs were granted to review the judgment of the court of appeal. 94-0069 (La. 3/18/94), 634 So.2d 844. We affirm.
LAW AND DISCUSSION
Golden Rule's claim for legal subrogation rests on Civil Code article 1829(3), which provides:
Art. 1829. Subrogation by operation of law.
Subrogation takes place by operation of law:
* * * * * *
(3) In favor of an obligor who pays a debt he owes with others or for others and who has recourse against those others as a result of the payment.
Article 1829(3) is an exception to the general rule that subrogation does not take place when a third person pays the debt of another. LSA-C.C. art. 1855 states the general rule that "... performance rendered by a third person effects subrogation only when so provided by law or by agreement." Legal subrogation derogates from the principle that no one may acquire another's right without that person's concurrence. 1 Saul Litvinoff, Obligations, § 11.51, at 289-90 (5 Louisiana Civil Law Treatise 1992); 7 Planiol & Ripert, Traité Pratique de Droit Civil Francais nos. 632-33 (2e ed. 1954). Due to the exceptional nature of subrogation by operation of law, the right is strictly construed. Pringle-Associated Mortgage Corporation v. Eanes, 254 La. 705, 226 So.2d 502 (1969).
The initial inquiry under article 1829(3) is whether Golden Rule is bound "with ... or for others."
An obligor is bound with others when the obligation is solidary. LSA-C.C. art. *1069 1794. Obligors are also bound with others when the obligation is indivisible. LSA-C.C. art. 1815; LSA-C.C. art. 1818. Co-sureties of the same debt are bound with each other. LSA-C.C. art. 3056. Sureties for debtors, who bind themselves or their property to secure performance, are subsidiary obligors and bound for others. LSA-C.C. art. 3048; LSA-C.C. art. 3295. These applications are supported by leading civil law commentators. See 2 Planiol & Ripert, Traité Elementaire de Droit Civil, pt. 1, no. 501, at 282 (La.St. L.Inst. trans., 11th ed. 1959); Aubry & Rau, Droit Civil Francais, in 1 Civil Law Translations § 321, at 202 (1965); 1 Saul Litvinoff, Obligations, § 11.54-56, at 297-301 (5 Louisiana Civil Law Treatise 1992); 12 Duranton, Cour de Droit Francais no. 166-70 (3e ed. 1834); 7 Toullier, Droit Civil Francais no. 147-153 (5e ed. 1839). Comments of French authors interpreting articles adopted from the French Civil Code are entitled to great weight. Orleans Parish Sch. Bd. v. Pittman Construction Co., 261 La. 665, 260 So.2d 661 (1972); Rials v. Davis, 212 La. 161, 31 So.2d 726 (1947).
None of these relationships are present in this case. First, Golden Rule is not solidarily bound with the defendants. An obligation is solidary among debtors when they are obliged to the same thing, so that either may be compelled to perform the whole obligation, and payment by one exonerates the other. LSA-C.C. art. 1794; Hoefly v. Government Employees Ins. Co., 418 So.2d 575 (La.1982). Solidary liability is never presumed and arises only from a clear expression of the parties' intent or from the law. LSA-C.C. art. 1796. An insurer bound to repair the damage caused by a tortfeasor is solidarily liable with the tortfeasor because both are obliged to the same thingrepair of the tort damage. Fertitta v. Allstate Ins. Co., 462 So.2d 159 (La.1985). See LSA-R.S. 22:1406(D)(1)(a); LSA-R.S. 22:655(B)(1). Medical insurers are not obligated to repair tort damages. A medical insurer contracts to pay stipulated medical expenses, regardless of whether there is a tortfeasor and tort liability. The medical insurer thus pays its own debt, not that of the tortfeasor, and the two are not obligated to "the same thing." See Fertitta, 462 So.2d at 164, n. 7; 2 Planiol & Ripert, Traité Elementaire de Droit Civil, p. 1, no. 491 n. 27, at 278 (La.St.L.Inst. trans. 11th ed. 1959).
Golden Rule's obligation is not indivisible. An obligation is indivisible when the object of performance is not susceptible of division, for example an obligation to deliver a specific thing. LSA-C.C. art. 1815. The obligation to pay money at issue here is susceptible of division and thus provides no basis for legal subrogation.
A health and accident insurer is principally liable for the insured's medical expenses within the policy limits. Golden Rule is therefore not a subsidiary obligor or surety whose purpose is to secure the tortfeasors' debt.
Aetna Ins. Co. v. Naquin, 488 So.2d 950 (La.1986), allowed the insurer of rental property subrogation recovery against a negligent roofing contractor. In Naquin, both the insurer and the negligent roofer were bound for payment of the leaky roof damages. Naquin was a property damage exception to the general rule, which should not be extended to health and accident insurance. See the Naquin dissent by Dixon, C.J.
Golden Rule argues that legal subrogation should obtain because a contrary result would produce dual recovery. The possibility of a plaintiff's dual recovery alone does not overcome the weight of authority against legal subrogation. A tortfeasor is barred from raising collateral sources as a defense. See e.g., American Indemnity Co. v. New York F. & M. Under. Inc., 196 So.2d 592 (La.App. 1 Cir.1967); Peacock's, Inc. v. Shreveport Alarm Co., 510 So.2d 387 (La.App. 2 Cir.), writ denied, 513 So.2d 826, 827, 828 (La. 1987); Dixie Trucks, Inc. v. Davis, 530 So.2d 107 (La.App. 2 Cir.1988); Brannon v. Shelter Mut. Ins. Co., 520 So.2d 984 (La.App. 3 Cir.1987); Weir v. Gasper, 459 So.2d 655 (La.App. 4 Cir.1984), writ denied, 462 So.2d 650 (La.1985); Teague v. Barnes, 519 So.2d 817 (La.App. 5 Cir.1988). Consequently, plaintiffs will occasionally have insurance reimbursements for certain elements of damages and recover some of the same elements from tortfeasors.
*1070 Legal subrogation would bestow a windfall on Golden Rule, which did not bargain for that benefit. Health and accident insurers can readily protect themselves by stipulating reimbursement rights or conventional subrogation in their policy contracts. See, for example, Miller v. Sauseda, 611 So.2d 831 (La.App. 3d Cir.1992), writ denied, 614 So.2d 1254 (La.1993).
CONCLUSION
A health and accident insurer is not "bound with ... or for" a tortfeasor whose actions give rise to medical expenses. Consequently the insurer does not become legally subrogated to its insured's cause of action simply by making the medical payments called for in its insurance contract.
For the foregoing reasons, the judgments of the trial court and the court of appeal are affirmed.
AFFIRMED.
LEMMON, J., concurs and assigns reasons.
MARCUS, J., dissents and assigns reasons.
MARCUS, Justice (dissenting).
I disagree with the majority's holding that a health and accident insurer does not become legally subrogated to its insured's cause of action against a tortfeasor by making medical payments. La.C.C. art. 1829(3) provides for legal subrogation:
in favor of an obligor who pays a debt he owes with others or for others and who has recourse against those others as a result of the payment.
Golden Rule, as the insurer, is responsible for plaintiff's medical expenses. Defendants are also liable for those expenses as a result of the accident. This is sufficient to satisfy the requirement in art. 1829(3) that the obligor owe a debt "with others." It is not necessary to examine the nature of the relationship between the obligors as the article does not require solidarity. See Aetna Insurance Co. v. Naquin, 488 So.2d 950, 954 (La.1986) (interpreting similar language in old La.C.C. art. 2161(3), the predecessor of art. 1829). Since the tortfeasor has not yet paid the plaintiff, the insurer still has recourse against the tortfeasor, thus satisfying the second requirement of art. 1829(3). Therefore, the insurer should be legally subrogated to the rights of the plaintiff against the tortfeasor for the medical expenses it has paid. Accordingly, I respectfully dissent.
NOTES
[1] Pursuant to Rule IV, Part 2, § 3, Hall, J. was not on the panel which heard and decided this case. See the footnote in State v. Barras, 615 So.2d 285 (La.1993); Judge Melvin A. Shortess, Court of Appeal, First Circuit, sitting in place of Justice James L. Dennis. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597018/ | 638 So.2d 1032 (1994)
STATE of Florida, Appellant/Cross-Appellee,
v.
John WATERMAN, Appellee/Cross-Appellant.
No. 91-03843.
District Court of Appeal of Florida, Second District.
June 22, 1994.
*1033 Robert A. Butterworth, Atty. Gen., Tallahassee, and Carol M. Dittmar, Asst. Atty. Gen., Tampa, for appellant/cross-appellee.
James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Asst. Public Defender, Bartow, for appellee/cross-appellant.
DANAHY, Acting Chief Judge.
The State of Florida appeals from an order which partially granted John Waterman's motion to suppress. The state contends that the trial court erred in suppressing items seized from Waterman's car and home. Waterman cross-appeals that portion of the order which otherwise denied his motion to suppress. He contends that his initial arrest for loitering and prowling was invalid, that statements he made after his invalid arrest should have been excluded, and that the search warrant for his house was defective. We find no merit in the issues Waterman raises in his cross-appeal and affirm the partial denial of his motion to suppress. On the state's direct appeal, we affirm in part and reverse in part.
Waterman's next-door neighbor in the city of Sarasota was found murdered on June 13, 1991. Her body, wrapped in a bedsheet and bound around the neck, waist, and ankles with traverse curtain rod cord bearing a unique knot, was dumped in a rural section of eastern Sarasota County. There was a ligature around her neck also and ligature marks on her wrists. After inspecting her apartment, which was open and undisturbed, Sarasota County sheriff's detectives theorized that the murderer was someone close by or someone who knew about her activities. Because black, gray, and silver fibers similar to car trunk lining or auto carpeting were found on the body, but few fibers of any kind were found on the bedsheet in which the body was wrapped, the detectives further theorized that the body was transported in two different cars.
Approximately five weeks later, Detective Don Wenger of the Sarasota County Sheriff's Office, who lived on the same street as the victim but about five blocks away, noticed an unfamiliar late model Buick parked on the street across from his home at 10 p.m. in front of the darkened and vacant house there. The Buick had not been there when he arrived home fifteen minutes earlier and the driver was nowhere to be seen. Suspecting the car was stolen, the detective radioed from his car to check the license tag number and found that it was registered to an elderly woman who lived on Gulfstream Drive in downtown Sarasota. Wenger then waited in his own car about twenty minutes. He saw Waterman come out from behind the vacant house and approach the Buick as its trunk opened automatically. Waterman did not have a flashlight and was dressed completely in black. Believing Waterman did not have a legitimate reason to be there, Wenger approached Waterman, identified himself as a sheriff's deputy, and asked him what he was doing there. Waterman replied that he might be interested in buying the house. As he was replying to the detective, his demeanor was very nervous, he spoke with a quivering voice, and would not look the detective in the eye.
There had not been a "For Sale" sign on the house, and Wenger was not otherwise aware that the owner was interested in selling it. Wenger asked Waterman why he thought the house was for sale. Waterman responded that he lived five blocks away and was considering relocating because he had some problems in his neighborhood. Spontaneously, Waterman mentioned that he lived next door to the murder victim, named her, and asked if Wenger were working on that case and if police were making any progress on it. During the conversation Wenger glanced into the open trunk, saw a bag of some type, and noticed that the carpeting was black and gray. He recalled that the same color fibers had been found on the victim's body and that investigators believed she had been transported in a car's trunk.
Wenger's suspicions about loitering and prowling had not been allayed by Waterman's explanations. Although Wenger believed *1034 he had probable cause to arrest Waterman for loitering and prowling he preferred not to do so because he was within Sarasota city limits. He called Sarasota City Police and requested they come to the scene. Sarasota City Police Officer Brenda Redden arrived quickly and Wenger briefed her on his suspicions about Waterman's loitering and prowling, but not about Waterman's comments relating to the victim and the ongoing investigation. Redden had her dispatcher call the owner of the Buick to ask if the owner knew where the car was. The owner replied that she believed it was parked in the garage of her condominium but that if Waterman had it, that was permissible.[1] Officer Redden interviewed Waterman while Wenger checked around the house and backyard.
In the backyard Wenger discovered that, although the house showed no signs of burglary, through a gap in the fence at the back of the yard, one could see into the next house. Wenger knew that a woman and her two teenage daughters lived there. Wenger returned and related what he had seen to Redden.
During the interview with Officer Redden Waterman did not allay her suspicions either so she arrested him for loitering and prowling and transported him to the Sarasota County Jail. Meanwhile, Wenger contacted one of the sheriff's deputies investigating the murder, Detective Penny Kimball, to acquaint her with Waterman's arrest and Waterman's expressed interest in the murder investigation. Kimball's notes did not show that Waterman had been interviewed as part of the neighborhood canvass at the time the homicide was discovered so she was very interested in speaking to him. Accordingly, she went to the jail to speak to him during the booking procedures on the loitering and prowling charge.
Just as the booking procedures were getting underway, Detective Kimball read Waterman his Miranda rights and he voluntarily agreed to be interviewed about the murder. Because of the noisy booking area they were in, the detective sought a quieter place and conducted the interview in the detectives' offices in a nearby building. Waterman was cooperative and did not invoke his right to counsel or ask to call a friend or a family member. He stated he was willing to talk about the case because he felt badly about the death of his neighbor. Waterman said he lived with his fiancee and worked as a security guard at Bay Plaza Condominium and as a chauffeur for an elderly woman who lived there. He was living at his current residence when the homicide victim moved in next door. He had never been formally introduced to her but knew what she looked like since he had seen her unloading groceries, going to the mailbox, and doing other things at the residence. He knew she rented a separate apartment attached to the house next door to his and that two men occupied the front part of that house. He knew what type of car she drove, that she was sometimes gone for several days at a time, and that friends of hers had a blue van or large white vehicle which would sometimes be parked out front.
Waterman admitted that he had a lot of rope around his house, commenting that one could never have enough rope. He said he also kept rope in his car. He had recently obtained a quantity of cord from a traverse curtain rod he had gotten from Bay Plaza. He described how his house was decorated and listed the colors of his sheets which matched the kind in which the victim was wrapped beige with brown trim. He discussed his sexual relations with his fiancee telling the detectives that at one time he had tied her to the bed but that he had cut the bindings off after she complained they were too tight and caused her discomfort. Kimball noticed a prominent wound in the middle of his forehead which Waterman said had come from hitting his head against the top of a car trunk while he was parking cars. He explained away almost healed scratches on his forearms as having been inflicted by a cat. He said that during the week of the homicide he had worked as a chauffeur every *1035 morning, showered at home, and returned to the condominium to work security from 3 to 11 p.m. He occasionally kept the Buick overnight to get it washed and serviced but did not recall if he had done so the week of the murder.
He agreed to undergo a polygraph test and seemed, according to the polygraph examiner, very interested in all the procedures, even eager to take the test. While the polygraph was being administered, two detectives went to inspect Waterman's own car, a Renault, which was parked in the garage at the Bay Plaza condominium complex, his place of employment. The first three floors of the garage were used for valet parking by the businesses at Bay Plaza. There was a swinging-arm type gate at the entrance to the garage which was operated by a security guard. The garage levels above the first three floors were private and secured for condominium residents only. A floor-to-ceiling gate divided the first three floors of the garage from the more secure, residents-only, floors above. Employees and residents could drive their own cars into the garage upon being identified by the security guard. Waterman's Renault was located on the second level but below the secure, residents-only parking area. The security guard on duty at the time voluntarily showed the detectives to the Renault when they requested to view it.
The detectives inspected the car from the outside. It had vinyl seats which were not conducive to transferring fibers. They believed this was consistent with the lesser number of fibers found on the sheet wrapped around the body of the homicide victim. Using a flashlight to look into the car through the windows they saw a thin white piece of cord lying between the front seats. The cord had the same unique knot and loop that was on the ligature found around the victim's neck. The detectives stood outside the car and took Polaroid pictures of the car and, through the windows, of the uniquely-knotted cord inside. They then returned to the sheriff's office and related what they had seen to the other officers, learning from the polygraph examiner that Waterman had failed the test.
After hearing about the evidence in the car, the polygraph examiner told Waterman that he had failed the test and that the examiner believed Waterman had killed the victim. When shown the Polaroids taken of the cord in his car, Waterman gave conflicting statements about how long that cord had been in the car. At this point he invoked his right to counsel. This occurred at approximately 4 a.m. The detectives stopped interviewing Waterman and about 5 a.m. they returned him to the jail to complete the booking procedures for his arrest on the loitering and prowling charge. At about the same time that Waterman was being transported back to the jail for completion of the loitering and prowling booking procedures, Detective Sims began to prepare the affidavits and search warrants for the two cars and other detectives went with a tow truck to the garage at the condominium to seize Waterman's Renault. The detectives never entered the car while it was still in the condominium's garage. They impounded the car at 5:15 a.m.
Detective Sims was in charge of preparing the affidavits and search warrants for the cars. Since he would need two affidavits, one for the Buick and one for the Renault, and the same facts would support both warrants, he first prepared one affidavit leaving the space where the vehicle would be described blank so it could be photocopied and used for the other by filling in each vehicle's identification information after photocopying. When the warrants themselves were prepared, the identifying information on each car was in place on the affidavits but police neglected to insert the same information on the warrants. Thus, when the affidavits and warrants were presented to the reviewing magistrate, the space for the description of the property to be searched on each warrant was blank.[2]
Detective Sims appeared before the magistrate and presented him with two separate multi-page documents each held together by a paper clip. Each warrant was two pages and each supporting affidavit was five pages. The magistrate read over both documents, *1036 swore Sims to verify the facts adduced, and signed each warrant. When Detective Sims was executing the warrant on the Renault he began to read aloud the description of the property to be searched and realized that the warrant did not contain the required description. He therefore flipped over the pages to the supporting affidavit and read aloud the correct description of the Renault before he flipped back to the warrant to finish reading it. After the warrant was read, the Renault's VIN was checked against the VIN contained in the affidavit. At no time was there ever a doubt that the correct car would be searched since the officer executing the warrant was the same officer who had prepared it and the affidavits and who had appeared before the issuing magistrate. The officers entered the car, searched it, and seized various items, including the incriminating cord with the unique knotted loop in it mentioned above.
Waterman moved to suppress. The trial court partially granted his motion and suppressed all the evidence seized from the Renault, including the cord with the unique knot. In its studied and comprehensive order the trial court found there was probable cause to search the Renault but suppressed the Renault's contents because it found that there were no exigent circumstances excusing the need for a warrant. Although the police had obtained a warrant, the court found the warrant so defective that it could not support the search either because of the missing description of the property to be searched. The trial court further decided that the affidavit accompanying the warrant, and which had the Renault's full description, was not incorporated in the warrant to cure the defect. Finally, the trial court refused to apply the good faith exception to the warrant requirement because the warrant was so defective on its face that an officer could not have, in good faith, relied upon it. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
On appeal, the state argues (1) that there were exigent circumstances justifying the seizure and search of the Renault under the automobile exception to the warrant requirement, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), thus obviating the need for a warrant; or (2), if there were no exigent circumstances, that the defect in identifying the property to be searched in the description portion of the warrant was cured by the affidavit which was properly incorporated into the warrant; or (3), if the affidavit did not cure the defect, that the officers acted in good faith pursuant to Leon in relying on the warrant despite its deficiencies in identifying the property to be searched.
We find, as did the trial court, that under the totality of the circumstances known to the police there was probable cause to seize the Renault when they did so at 5:15 a.m. Waterman had been voluntarily talking to the police before and after the detectives first inspected his car at the garage, at all times after being apprised of his right to remain silent. His statements were but part of the accumulation of circumstances contributing to the finding of probable cause. Furthermore, incriminating items were seen in his car when the police looked into it from a place where they had a right to be. See Ensor v. State, 403 So.2d 349 (Fla. 1981) ("open view" of contraband contrasted to "plain view"). But, as Ensor teaches, once probable cause exists because of an "open view" of incriminating evidence, the police must obtain a warrant, unless an exception to the warrant requirement is present, to justify entry into the protected area and the seizure of the evidence. The trial court granted suppression of the items found in the Renault because it concluded there were no exigent circumstances present excusing the need for the search warrant. We disagree.
The trial court properly perceived that no amount of probable cause can justify a warrantless search or seizure absent exigent circumstances. Taylor v. U.S., 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951 (1932). In the case before us, however, the car's ready mobility created the exigent circumstances and fulfilled the requirements of the automobile exception to the warrant requirement. Thus, the police had all they needed to seize and search the car at the moment they saw the incriminating rope tied in its unique way inside the car. A vehicle's ready mobility, as *1037 well as its pervasive regulation by the state, as Carroll recognized, has long justified a warrantless search or seizure of it once probable cause exists. See, e.g., Adoue v. State, 408 So.2d 567 (Fla. 1981) (warrantless seizure of marijuana in airplane in "open view" circumstances proper notwithstanding plane parked and secured by police); Hendrix v. State, 456 So.2d 494 (Fla. 2d DCA 1984) (car had ready mobility even when in garage being repaired, where repairs about to be completed and friend of defendant arriving shortly to take possession of it); State v. Hicks, 579 So.2d 836 (Fla. 1st DCA 1991) (ready mobility of car provided exigent circumstances to search it for evidence that it was stolen when it was parked in bank parking lot even though defendant already in custody); State v. Starkey, 559 So.2d 335 (Fla. 1st DCA 1990) (where defendant in custody, warrantless search of his car known to be on public parking lot proper where probable cause provided by open view of pistol cartridges); State v. Coleman, 502 So.2d 13 (Fla. 4th DCA 1986) (open view of contraband in defendant's car parked on street in front of his residence justified warrantless seizure).
Adding to the exigent circumstances created by the ready mobility of the Renault was the fact that just at the time the police seized the car they knew that Waterman was on his way out the jailhouse door and warned that the police had seen incriminating evidence in his car. Knowing this, the police were justified in believing that the car would soon be moved and the evidence it contained disposed of if they did not act quickly. We reject Waterman's argument that the police "created" the exigent circumstances by informing Waterman of their suspicions about him and delaying his departure from the station house. The police conducted their inquiry in a proper manner, confronting Waterman with their conclusion in an obvious effort to spur a post-Miranda confession. Merely because Waterman rejected this invitation to confess does not deprive the police of the heightened urgency caused by Waterman's imminent release. Waterman was released by the sheriff's deputies interrogating him about the homicide to the custody of the officers to complete the booking procedures on the loitering and prowling arrest. The sheriff's deputies did not know how long the booking procedure would take. But they knew that it probably would not take long and that he was at that moment apprised of their interest in him and the contents of his car. They were justified in their fear that Waterman would move the car out of their reach or have someone else move it.
Because we find the seizure and search sustainable under the automobile exception to the warrant requirement, we need not discuss the state's arguments going to the validity of the warrant itself or the application of the Leon "good faith" exception to the warrant requirement under the instant circumstances.
We turn now to the second issue raised by the state. After gaining further evidence from the searches of the Buick and the Renault, an affidavit and search warrant for Waterman's home was obtained and executed the day following the searches of the cars. Many items not listed in the warrant were seized from Waterman's home. In this appeal the only item suppressed which the state appeals is the paperback novel Post-Mortem.
The book was removed from the shelf in Waterman's home either because of its title or because the search warrant authorized the police to look for fingernails and fibers, items small enough to be secreted within the pages of a book. The officer who saw the book testified that he took it from the shelf mainly because of its title. Once off the shelf, the picture on the front cover of the book interested him because it showed a corpse of a young woman covered by a sheet on an autopsy table. After determining that the book contained no fingernails or fibers the officer continued reading various passages in the book and, after about twenty minutes, came to believe that the plot of this novel paralleled the instant facts in a substantial way, including the use of some uniquely-tied knots. The officer testified that the murder they were investigating might have been a "copy cat" of this book so he seized it. The trial court suppressed the book concluding its seizure went beyond the scope of the warrant *1038 and did not fulfill all the elements of the "plain view" exception to the warrant requirement.
We have carefully considered the record illustrating the circumstances surrounding the seizure of this book and agree with the trial court's legal conclusion on this remaining issue. Although the book was in plain view to the officer who was in a place where he had a right to be, the incriminating nature of this evidence was not readily apparent. See, Neary v. State, 384 So.2d 881 (Fla. 1980) (three conditions necessary to sustain plain view seizure under Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971): (1) police officer must be in a place where he has a lawful right to be; (2) in the course of his presence officer inadvertently comes upon an object which is openly visible; and (3) it must be immediately apparent to the officer that the object constitutes evidence of a crime).
In sum, we affirm on all issues raised by Waterman in his cross-appeal; on the state's direct appeal, we affirm the suppression of the paperback novel but reverse the suppression of the items seized during the search of Waterman's Renault, and remand for this case to move forward.
PATTERSON and ALTENBERND, JJ., concur.
NOTES
[1] Investigators later learned that Waterman worked part-time as a chauffeur for the owner of the Buick.
[2] The search of the Buick is not at issue in this appeal since the owner consented to the search. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597031/ | 638 So.2d 467 (1994)
Sheldon M. FLEMING
v.
Thomas SMITH, et al.
No. 93-CA-488.
Court of Appeal of Louisiana, Fifth Circuit.
May 31, 1994.
*468 Chester A. Fleming, III, New Orleans, for plaintiff/appellee, Sheldon M. Fleming.
Richard L. Edrington, LaPlace, for defendant/appellant, Allstate Ins. Co. and Thomas Smith.
Thomas J. Miller, Metairie, for defendant/appellant, Ormond Country Club & Aetna Cas. and Sur. Co.
Before BOWES and CANNELLA, JJ., and JOHN C. BOUTALL, J. Pro Tem.
BOWES, Judge.
Defendants/appellants, Ormond Country Club ("Ormond"), with its insurer, Aetna Casualty and Surety Company ("Aetna"), and Thomas Smith ("Smith") with his insurer Allstate Insurance Company ("Allstate"), appeal a judgment of the district court which granted additur to a jury verdict in favor of plaintiff Sheldon Fleming ("Fleming"). Fleming has answered the appeal. We affirm the judgment as follows.
FACTS
Fleming was injured at Ormond on May 18, 1989 while walking on a sidewalk between the pro shop and the parking lot for the golf carts. A cart, operated by defendant, Smith, backed into Fleming and struck him down, causing serious injury to both legs. Fleming was taken to River Parishes Hospital where he was treated for a broken fibula in his right leg, and released. Fleming consulted an orthopedic surgeon, Dr. David Aiken, who treated him for the broken bone and other injuries, including torn cartilage in his left knee. Fleming was able to return to limited work by July, 1989, and by September he resumed normal employment activities. Suit was filed, wherein it was alleged by Fleming that Smith was negligent in, among other things, failing to maintain proper lookout, failing to maintain proper control of the vehicle, and driving at an unsafe speed. Ormond was allegedly negligent in (among other things) failing to supervise safe operation of the golf carts, failing to safely design the parking lot, and sidewalk, failing to provide proper warnings, failing to provide and enforce regulations regarding proper use of golf carts, etc. Smith filed a cross-claim against Fleming and Ormond. In turn, Ormond filed a third-party demand against architects Pelias, Thienaman, and Pershall alleging negligent design; and further filed a cross-claim against Smith. The demands against the architects were dismissed prior to trial.
The case was tried before a jury in October, 1991. At the trial, the jury found that Smith and Ormond were negligent in the ratio of 90% and 10%, respectively. They awarded the following damages:
*469
Past, present and future physical
pain and suffering $ 5,000.00
Past, present and future mental anguish $ 2,500.00
Past, present and future permanent
partial disability/loss of enjoyment of
life $25,000.00
Medical expenses, past present and
future $ 6,800.00
Past lost wages $10,000.00
Loss of earning capacity/future lost
wages -0-
__________
TOTAL DAMAGES $49,300.00
==========
Fleming filed a post verdict motion for judgment notwithstanding the verdict as to damages only, and alternative motions for new trial (as to damages) and for additur. The trial court denied the JNOV, but granted the new trial as to damages and, alternatively, gave the defendants 15 days to give written consent to an additur of $27,500.00. This consisted of an additional $20,000.00 for past lost wages, which the court found totalled $30,000.00; and an increase in general damages of $7,500.00 to a total of $40,000.00. The defendants accepted additur under protest and judgment in favor of Fleming was granted in the amount of $76,800.00.[1] The percentages of negligence against the separate defendants were maintained.
Ormond has appealed the additur and the award of costs to plaintiff for a deposition not used at trial. However, in its brief, Ormond makes no complaint regarding the percentage of fault found in their action or inaction. Smith has also appealed the additur, as well as the determination of fault percentage assessed against him. Fleming answered these appeals, requesting an increase in damages in all categories.
TRIAL
At trial, testimony indicated that Fleming was a 31 year old insurance catastrophe adjuster whose job it was to appraise damages on behalf of property owners. He was paid based on the amount of claims worked on, and the amount of damage claimed. Fleming was scheduled to leave on a job in Dallas three days after the accident. He testified that on the day of the accident, he was walking on the sidewalk toward the clubhouse when he heard a group of women yelling: "... apparently they saw the cart backing out that was going to hit me and hollered. And as soon as they hollered, I went to turn ... and as soon as that instant (snapped fingers), that's when the cart hit me and jammed me up against these bushes...".
Fleming was hit from the back and had no opportunity to avoid the accident. He testified that his right leg was put in a cast, and then following arthroscopy on his left knee, was on crutches until July. He was unable to work at all during that time. After the doctor released him to return to work, in the first week in July, he was able to work on an inside/office basis. He could not climb on roofs, ladders, etc., as would be required on his regular duties, until September, and then, when he did climb he was still sore. At the end of 1989/90, some eight and one-half months later, he was able to do an adjusting job in the Virgin Islands and Puerto Rico. During this time his knee and back continued to hurt him.
Fleming testified that before the accident, he was active. In addition to golf, he played tennis, and occasionally played racquet ball; he did regular weight lifting and some jogging. While he can still perform these activities, he does so on a more limited basis; he can no longer play racquetball, jog or lift weights without pain. However, he still maintains his occupation as a catastrophe claims adjuster.
With regard to income, plaintiff testified that he was unable to keep a job assignment in Dallas in May and June to handle catastrophic claims adjustments due to the accident. When asked the rate of pay for that particular job, plaintiff replied:
A. On a catastrophe, on an outside catastrophe claim, you can work six days a week. And it's by the number of claims that you go on a day; and hail storms, *470 you can go on ten a day easily. And it's about $1,000 a day.
Q. A thousand dollars a day for six days a week for six weeks?
A. Right.
Fleming also testified that while working inside, during most of July through August, 1989, he earned between $1,500.00 and $1,700.00 per week. After that he resumed his regular job at his regular rates. His 1989 W-2 form, submitted into evidence, shows income from commissions for 1989 of $22,886.55, plus $9,443.75 miscellaneous income. His W-2 form for the following year of 1990 showed income of $117,766.50.
With regard to active employment prior to the accident, the only evidence was the testimony of Fleming that in 1980-81, he marketed "home protection plans"; he then worked as a manager for an insurance company through 1985, and then operated a construction company which was still in business through 1989 (although no houses were built after 1986). After that Fleming began his career as a catastrophe claims adjuster. No testimony was elicited, nor evidence produced, of how long Fleming worked for Crawford in 1989 and it is unclear from the record whether the W-2 form represented plaintiff's entire 1989 income. Further, there is absolutely no evidence as to his income prior to 1989.
Smith testified that on the date of the accident, he arrived at Ormond to join a group of friends for a golf game. Due to a golf tournament earlier in the day, the golf carts were arranged helter-skelter, in no organized fashion, with the exception of two or three carts still lined up that had not been out. He got into one of the unused carts, and started to move it out when he realized that one of the return carts was in the way. Intending to move the return cart, which was already on the pedestrian sidewalk, he got into it from the passenger side and put it in reverse. He could reach the pedals with his left foot and the steering wheel with his left hand. He looked back before he hit the accelerator but did not see Fleming before he was hit.
Smith stated that he believed that one of the spikes on his shoe caught on the edge of the brake, and though he thought he had his foot on the brake, it was still on the accelerator. He did not give a warning that he was backing up. He admitted that if he had taken time to sit in the driver's seat to move the cart, he would probably not have missed the brake pedal.
Dr. David Aiken, plaintiff's treating physician, testified that Fleming consulted him on May 22, 1989, four days after the accident. Fleming had stated that following the accident, he was X-rayed at an emergency room and found to have a fracture or broken bone in his right leg. He complained that after the accident, he began to notice constant low back pain, aggravated by activity. Dr. Aiken also X-rayed the leg and reaffirmed that plaintiff had fractured the fibula bone in his right leg just above the ankle. The leg was placed in a cast. Dr. Aiken also diagnosed that Fleming had a sprained muscle in his lower back and a torn cartilage in his left knee. At that time, in addition to the leg cast, rest was prescribed.
Several weeks later, after continued complaints, Dr. Aiken recommended and performed an arthroscopy of Fleming's left knee to remove the torn cartilage. To do this Fleming underwent general anesthesia in outpatient surgery. There were three stitches where the arthroscope was inserted. Plaintiff recovered well from the surgery, although pain and swelling necessitated anti-inflammatory medication. By July 7, he was released to return to work, since he was able to work and still limit his physical activities. By July 18, 1989, he was released for full work. Although the fracture had not completely healed, the right leg felt fine. In August, about three months after the accident, he still complained of low back problems and left knee pain.
Almost one year later, Fleming returned to Dr. Aiken. His main complaint was a swelling of the left knee which prevented him from several activities such as running and which sometimes "popped"; and his low back pain continued. His right ankle was sore with running. Dr. Aiken recommended Mr. Fleming consider another arthroscopy. On *471 November of 1990, Dr. Aiken again recommended the procedure which plaintiff has continued to decline.
With regard to his lower back, Dr. Aiken ordered an MRI, the results of which were within normal limits.
Ultimately, Dr. Aiken determined that plaintiff has a whole body impairment of about 10%consisting of 3-5% due to chronic lumbar sprain and 6% due to the continuing knee problem. He opined that plaintiff probably still has additional torn cartilage in that knee, which injury usually progresses to arthritis. Plaintiff may elect to have a total knee replacement somewhere in the future after age 50. His chances for needing such surgery were dramatically increased as a result of the injuries in this accident. Dr. Aiken estimated that a second arthroscopy would cost $4,500.00 and the knee replacement about $15,000.00.
Samuel Farnet, an architect, testified for the plaintiff. Although he had designed different types of structures such as hotels, he had never designed a golf course or country club. In his opinion, the placement of the golf cart storage area on a paved surface at the same elevation as the sidewalk, with no separation or barrier to protect the sidewalk or pedestrians, was unsafe. Doorways which swing open onto the sidewalk could obstruct the view of a pedestrian and prevent him from seeing an oncoming golf cart on the (dual purpose) sidewalk. Farnet suggested a planted area of bushes, or posts to separate the golf cart parking from the sidewalk, and that such improvement would cost about $1,500.00. He admitted, however, that there were no national or standard building codes that would require such changes, and that Ormond did not fall below any written building standards.
Leonard Quick, a civil engineer called by Ormond, testified that the golf cart/sidewalk area in question conformed to parish codal requirements and industry standards. Ormond was favorably compared with two other country club/golf courses which were of similar design, and in Quick's opinion, none of them presented unsafe conditions. Quick stated that the sidewalk in question was extra-wide to accommodate the joint usage of pedestrians and golf carts, and such joint usage in these clubs was not unexpected.
Gregory Core, interim general manager and director of activities at Ormond on the date of the accident, testified that no other claims for similar accidents such as the present one had been made. However, there had been complaints about the danger to sidewalk pedestrians from the golf carts. In response, Ormond painted yellow lines in the entrance areas to the locker rooms as warnings. There were employees whose duties were to return the used golf carts to the shed for recharging, and arrange the charged carts conveniently near the clubhouse.
ANALYSIS
The applicable law with regard to our standard of review is as follows:
LSA-C.C.P. art. 1814:
Remittitur or additur as alternative to new trial; reformation of verdict
If the trial court is of the opinion that the verdict is so excessive or inadequate that a new trial should be granted for that reason only, it may indicate to the party or his attorney within what time he may enter a remittitur or additur. This remittitur or additur is to be entered only with the consent of the plaintiff or the defendant as the case may be, as an alternative to a new trial, and is to be entered only if the issue of quantum is clearly and fairly separable from other issues in the case. If a remittitur or additur is entered, then the court shall reform the jury verdict or judgment in accordance therewith.
LSA-C.C.P. art. 2083(B) gives the standard of review thus: "In reviewing a judgment reformed in accordance with a remittitur or additur, the court shall consider the reasonableness of the underlying jury verdict."
In discussing the above amendment to C.C.P. art. 2083, the Third Circuit has stated:
In Lougon v. Era Aviation, Inc., 609 So.2d 330 (La.App. 3d Cir.1992), we recently recognized that this amendment legislatively overrules prior jurisprudence in *472 this circuit which held that the jury award was not to be considered in the appellate review of a judgment reformed by either an additur or remittitur. Under the new standard of review, the appellate court should review the jury's award for abuse of discretion, and the trial court abuses its discretion in granting an additur or remittitur when the jury's award is within the range of its discretion.
Hodapp v. American Indem. Co., 618 So.2d 32, 34 (La.App. 3 Cir.1993).
Additur and remittitur are intended as substitutes for a new trial which may be granted where the verdict is clearly contrary to the weight of the evidence. See Comments under LSA-C.C.P. art. 1811. We thus review the items of damages under the above-established criteria.
PAST LOST WAGES
In its reasons for judgment, the trial court found that "... plaintiff established at trial that he had lost $30,000.00 in past wages as a result of his injuries. Despite that fact, the jury awarded plaintiff only $10,000.00 for lost wages...."
There was, in the record, only the plaintiff's testimony about the job he was scheduled to leave for in Dallas, quoted infra. On review, we agree with the trial judge that the verdict was contrary to the weight of the evidence. Plaintiff's W-2 forms for 1989 and 1990 were remarkably different: in 1990, plaintiff earned over $90,000 more than he had the previous year working for the same employer. Further, his testimony was consistent in that while investigating catastrophe claims, the going rate of income was much higher than indoor work. He stated in trial that another job (which he did not attend due to the trial) paid $1,500.00 per day. His testimony, while unsupported except possibly for the W-2 forms, was not contradicted or impeached.
We agree that a claim for lost wages need not be proved with mathematical certainty, and only requires such proof as reasonably establishes the claim; this proof may consist of the plaintiff's own reasonable testimony. Buras v. United Gas Pipeline Co., 598 So.2d 397 (La.App. 4 Cir.1992); Austin v. Pascarelli, 612 So.2d 201 (La.App. 4 Cir.1992). This testimony must be accepted as truthful, absent contradiction or impeachment. See Partner v. Anderson, 513 So.2d 471 (La.App. 2 Cir.1987). After considering the record herein in connection with the jurisprudence, we find that it was not reasonable for the jury to conclude that plaintiff had lost only $10,000.00 in past wages, and the weight of the evidence proves a much greater loss. The trial judge therefore did not abuse his discretion in increasing the award to $30,000.00.
FUTURE LOST WAGES
Plaintiff did not establish that he will suffer a future loss of wages due to the injuries suffered. Mr. Fleming's income, as seen previously, increased five fold from that of the previous year. Dr. Aiken testified that more often than not, persons with plaintiff's injury will have progressive arthritis, and, in his opinion, there was a greater than 50% claim that a knee replacement would be necessary in 20-30 years. Such surgery would restrict plaintiff to more sedentary work. However, there was no testimony or evidence to prove how this would impact on plaintiff's income 30 years into the future.
A claim for loss of earnings need not be proven with mathematical certainty, but only by such proof as reasonably establishes plaintiff's claim. Veazey v. State Farm Mutual Automobile Insurance Co., 587 So.2d 5 (La.App. 3rd Cir.1991). In Guidry v. Sam Grimmett, Inc., 557 So.2d 249, 253 (La.App. 3rd Cir.1989), writ denied, 558 So.2d 557 (La.1990), this court reasoned as follows:
Damages for loss of future earnings are speculative. Factors which should be considered in assessing such an award include age, life expectancy, work life expectancy, investment income factor, productivity increase, prospects for rehabilitation, probable future earning capacity, loss of future earning capacity, loss of earning ability, and inflation. Lanclos v. Rockwell International Corporation, 470 So.2d 924 (La.App. 3rd *473 Cir.1985); writ denied, 477 So.2d 87 (La. 1985). (Emphasis ours)
Furthermore, in Folse v. Fakouri, 371 So.2d 1120, 1124 (La.1979), the Supreme Court stated as follows:
Earning capacity in itself is not necessarily determined by actual loss; damages may be assessed for the deprivation of what the injured plaintiff could have earned despite the fact that he may never have seen fit to take advantage of that capacity. The theory is that the injury done him has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it monetarily.
In awarding damages for impairment of earnings capacity, the trial court is accorded broad discretion. Perez v. State Through Department of Transportation and Development, 578 So.2d 1199 (La.App. 4th Cir.1991), writ denied, 581 So.2d 706 (La.1991).
Jenkins v. Kerr-McGee Corp., 613 So.2d 1097, 1105 (La.App. 3 Cir.1993).
See also, Young v. Armadores de Cabotaje, S.A., 617 So.2d 517 (La.App. 4 Cir.1993); Mistich v. Pipelines, Inc., 609 So.2d 921 (La.App. 4 Cir.1992).
In Smith v. Louisiana Farm Bureau Cas. Ins., 603 So.2d 199, 204 (La.App. 3 Cir.1992), the court denied an increase in future loss of wages thus:
Loss of wages resulting from an offense or quasi-offense must be proven with reasonable certainty. Damages which are purely conjectural or uncertain are not allowed. Meyers v. Imperial Cas. Indem. Co., 451 So.2d 649 (La.App. 3rd Cir.1984).
Assuming for the moment the correctness of Smith's contention that she will suffer a loss of $4,000 yearly because of her inability to work at the same pay level she received prior to the raccoon bite, we find that Smith failed to carry her burden of proof. The record is void of any evidence of Smith's work life expectancy. No economist testified, and Smith's attempt to introduce a table of the United States Vital Statistics, without any testimonial foundation, was properly rejected by the trial judge. In the absence of such record evidence, we are unable to examine Smith's contention. Therefore we find that the jury's award of $38,000 for Smith's past and future loss of wages was not manifestly erroneous.
A similar analysis is called for in the present case. This record is likewise devoid of evidence of work life expectancy, economist testimony, etc. We find no abuse of discretion, either by the jury or the trial judge, in refusing to award this item of damages. Plaintiff did not carry his burden of proving that he will suffer future economic loss of future wages.
GENERAL DAMAGES
Plaintiff complains that the award of general damages for his injuries is inadequate, and urges us to raise it, citing several cases with higher awards.
In assessing general damages in cases of tort, much discretion is given the trier of fact. Perniciaro v. Brinch, 384 So.2d 392 (La.1980). Before we will disturb such an award, the record must clearly reveal that the trier of fact abused its discretion in making the award based upon the particular injuries and their effect upon the injured victim(s). Perniciaro, supra and Reck v. Stevens, 373 So.2d 498 (La.1979). Scott v. Hosp. Serv. Dist. No. 1, 496 So.2d 270 (La.1986). In this regard, the award will be modified only to the extent of raising it (or lowering it) to the lowest (or highest) amount which is reasonably within the discretion of the jury.
Pritchett v. Martin, 612 So.2d 290, 292 (La.App. 5 Cir.1992).
Reck v. Stevens, 373 So.2d 498, 501 (La. 1979) cautioned the courts of appeal to take into consideration the particular effects of the particular injuries upon the particular plaintiff:
Thus, the initial inquiry must always be directed at whether the trier court's award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact's "Much (FN3) discretion," La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses *474 an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La. 1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967). Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.
In the case before us, plaintiff is a 31 year old man who, after undergoing arthroscopy, has returned to most of his regular activities, with some limitations. According to the record, the only limitations he now has is that some leisure activities are curtailedhe stopped playing racquetball (which previously he had played only five or six times a year); he still lifts weights, although he does so less often; he continues to play golf (his handicap appears to have changed very little). There is no other evidence of a diminution of his present lifestyle. Mr. Fleming has undergone one arthroscopy, and demonstrated no inclination or indication that he was willing to have another one in the near future.
We do not find that the testimony of Dr. Aiken established with requisite probability that knee replacement surgery so many years into the future will be required. In the rather distant future, the prospect of surgery becomes speculative and the nature of the underlying problem, arthritis, makes it difficult to relate such procedure to the accident in question.
A review of the facts and circumstances, the effect of the particular injuries on this particular plaintiff, reveals no abuse of discretion in the additur granted by the trial court. As we review the reasonableness of the underlying jury verdict, we find that the original award was too low, and that the trial court correctly found the verdict inadequate so as to require additur.
FUTURE MEDICAL EXPENSES
An award for future medical expenses by nature is not susceptible of mathematical certainty. Like any other element of special damages, however, future medical cost or expenses must be established with some degree of certainty, and a plaintiff must demonstrate that such expenditures more probably than not will be incurred. Thomas v. Petrolane Gas Service, Ltd., 588 So.2d 711 (La.App. 2d Cir.1991), writ denied, 590 So.2d 1201 (La.1992) (citation omitted); Durkee, infra. The burden of proof in a claim for future medical expenses is a preponderance of evidence. Durkee v. City of Shreveport, 587 So.2d 722, 730 (La.App. 2d Cir.1991), writ denied, 590 So.2d 68 (La.1991). Awards will not be made for future medical expenses which may or may not occur, in the absence of medical testimony that the expenses are indicated and setting out their probable cost. Durkee and Hunt [v. Bd. of Supervisors, 522 So.2d 1144 (La.App. 2d Cir.1988)], both supra (citations omitted).
Coffin v. Bd. of Sup'rs of La. Univ., 620 So.2d 1354, 1364 (La.App. 2 Cir.1993).
Also see Mistich v. Pipelines Inc., 609 So.2d 921 (La.App. 4 Cir.1992).
As pointed out above, the medical evidence does not establish the degree of probability necessary to support an award for future medical expenses. While another arthroscopy was recommended, plaintiff has continued to decline it; we have discussed the knee replacement surgery in the foregoing section and it need not be reiterated here. Under these circumstances, we find that an award for future medical expenses was properly denied.
FAULT PERCENTAGE
We find no manifest error in the determination by the jury that Smith was 90% at fault, and Ormond 10% at fault in the accident. There were two experts who testified at trialone who found the club design to be dangerous, and one who did not. We said in Bourgeois v. Roudolfich, 580 So.2d 699, 702 (La.App. 5 Cir.1991) as follows:
A trier of fact, be it judge or jury, must weigh expert testimony as it weighs any other evidence and is not bound by it. Comberrel v. Basford, 550 So.2d 1356 (La. App. 5th Cir.1989), writs denied 556 So.2d *475 1284 & 1286 (La.1990). Where findings are supported by credible evidence which furnishes a factual basis for them, we will not disturb them absent manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973).
See also Coley v. State Through DOTD, 621 So.2d 41 (La.App. 2 Cir.1993) which held at p. 50:
However, even more basic than the above proposition is the proposition that a trial court, after weighing and evaluating the medical and lay testimony, may accept or reject the opinion expressed by any medical expert. The trial judge should evaluate the expert testimony according to the same rules as apply to other witnesses. The trial court is not bound by expert testimony. It may substitute its own common sense and judgment for that of an expert witness where, in the opinion of the trier of fact, such substitution appears to be warranted by the evidence as a whole. The trial court's evaluation of expert and lay testimony will not be disturbed unless found to be clearly wrong. Lloyd v. TG & Y Stores Co., 556 So.2d 629 (La.App. 2d Cir.1990).
The jury was not bound to accept the determination of either one or the other expert. After reviewing the testimony and evidence delineated hereinabove, while we may have felt that Ormond was not at fault at all, we can find no abuse of discretion in the factfinder's evaluation of the expert testimony, nor in the allocation of damages made by the jury. While there may have been some amount of design defect which afforded no three dimensional separation of the golf cart area from the sidewalk, we agree that the great majority of fault must remain with Smith, who attempted to operate the cart from the passenger side and who had the responsibility to watch out for pedestrians. Therefore, we find no manifest error in this determination of comparative fault.
COSTS
Plaintiff has stipulated that costs for the deposition in question should not be taxed, inasmuch as it was not used. Such costs are therefore deleted from the judgment.
DECREE
For the above reasons, the judgment is affirmed.
Costs of Mr. Smith's deposition in the amount of $96.00 is deleted from the judgment. Costs of this appeal are taxed in the following proportions: defendant/appellant is assessed 90% of the costs with plaintiff liable for the remainder.
AFFIRMED.
NOTES
[1] Due to clerical error, proof of the acceptance of additur was omitted from the trial record, and this Court dismissed the original appeal taken in March of 1992. The defendants were permitted to supplement the record with the appropriate judgment, and another appeal was granted. Thus, the case is now properly before us. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597032/ | 384 N.W.2d 233 (1986)
George E. KOZA, Appellant,
v.
RYAN DEVELOPMENT, INC., Respondent,
Wisconsin Country Stone, Inc., et al., Defendants,
First Federal Savings and Loan Association of Grand Rapids, First National Bank of Minneapolis, Respondents.
No. C3-85-1890.
Court of Appeals of Minnesota.
March 25, 1986.
Review Denied May 29, 1986.
*234 Richard W. Johnson, Grand Marais, for appellant.
Richard J. Leighton, Duluth, for respondent Ryan Development, Inc.
Steven C. Fecker, Grand Rapids, for respondent, First Federal Savings and Loan Ass'n of Grand Rapids.
Craig D. Diviney, Minneapolis, for respondent, First Nat. Bank of Minneapolis.
Heard, considered and decided by LESLIE, P.J., and PARKER and CRIPPEN, JJ.
OPINION
CRIPPEN, Judge.
Appellant George Koza brought this action to foreclose a mechanic's lien against respondent Ryan Development, the owner and general contractor for a construction project in Lutsen, Minnesota. Koza sought to recover four months in rental charges for machinery he leased to C & H Contracting, Inc., a subcontractor on the project. The trial court ordered judgment for Koza, but limited the award to one month's rental of the machinery on the grounds that the machinery only contributed to the improvement of the real estate during one of the four months. We reverse.
FACTS
Respondent Ryan Development, as general contractor, entered into a subcontract agreement with C & H Contracting, Inc. (C & H) for the installation of sewer and water lines on a project in Lutsen, Minn. C & H agreed to pay for all equipment used in connection with performance of the subcontract and agreed to hold Ryan harmless from all claims and mechanic's liens arising out of C & H's failure to pay for the equipment. C & H was paid in full by Ryan for all the work it performed.
C & H rented a backhoe from appellant George Koza for $5000 per month for use on the project. C & H began work in November 1981 and paid Koza for the rental through March 1982. The backhoe sat unused on the project site in April, May, and June. In July, C & H returned to the project site and used the backhoe on the project during that month. C & H did not pay Koza for rental of the backhoe for any of those four months. C & H returned the backhoe to Koza in September 1982.
Koza timely filed a mechanic's lien for $20,000 in August 1982. In May 1983, he filed suit to foreclose the lien. C & H was also a defendant in the suit. The trial court found that Koza was entitled to rent for the months of April through July and, based on the contract between C & H and Koza, awarded judgment against C & H in the full amount of Koza's claim. However, the trial court found that Koza was entitled to a mechanic's lien against Ryan only for July, because the backhoe did not contribute to the improvement of the real estate during the other three months.
ISSUE
Where appellant furnished machinery for the improvement of real estate, but because of a third party's conduct the machinery did not continuously contribute to the improvement of the real estate, is appellant entitled to a mechanic's lien?
ANALYSIS
The mechanic's lien statute provides in relevant part:
Whoever * * * contributes to the improvement of real estate by * * * furnishing * * * machinery * * *, whether under contract with the owner of such real estate or at the instance of any * * subcontractor of such owner, shall have a lien upon the improvement, and upon the land on which it is situated * * *.
Minn.Stat. § 514.01 (1984). The statute is remedial in nature and should be liberally *235 construed so as to protect the rights of those who furnish material or services for the improvement of the property of another. Albert & Harlow, Inc. v. Great Northern Oil Co., 283 Minn. 246, 250, 167 N.W.2d 500, 504 (1969). If a construction of the statute that will sustain the lien is permissible, it is to be preferred to one that will invalidate it. Armco Steel Corp., Metal Products Div. v. Chicago & N.W. Railway Co., 276 Minn. 133, 138, 149 N.W.2d 23, 26 (1967).
The statute expressly provides liens for both those whose contribution is made under a contract with the property owner and those whose contribution is at the instance of a subcontractor. See Minn. Stat. § 514.01. If an owner complains that there was no contribution to the improvement of the real estate but the supplier has furnished materials, the supplier's lien is upheld. See Dunham Associates, Inc. v. Group Investments, Inc., 301 Minn. 108, 118, 223 N.W.2d 376, 383 (1974) (as against an owner, a lien may attach for material not actually used on the premises).
The language of the lien statute allows for a lien without an actual improvement to the property. Lamoreaux v. Andersch, 128 Minn. 261, 266, 150 N.W. 908, 910 (1915). The Lamoreaux doctrine has been used to protect architects who contracted with owners who refused to pay when buildings were never actually constructed. Burner v. Northwestern Bible and Missionary Training School, 161 Minn. 480, 201 N.W. 939 (1925).
Supplier's liens have been upheld where the owner abandoned the improvement, as in Dunham, and where the acts of an intermediary subcontractor prevented the materials from contributing to the property's improvement. See W.B. Martin Lumber Co. v. Noss, 256 Minn. 471, 473, 99 N.W.2d 65, 67 (1959) (the right of an innocent mechanic or materialman to a lien cannot be imparied by the wrong or fraud of the contractor in which a mechanic or materialman in no manner participated).
The present case falls into the category of cases described in W.B. Martin Lumber Co. As long as Koza's contribution was made in good faith, Koza will not be forced to bear the risk that the lessee of his equipment did not continue to use the equipment to contribute to the improvement of the real estate. See Thompson-McDonald Lumber Co. v. Morawetz, 127 Minn. 277, 279-80, 149 N.W. 300, 301 (1914). In Thompson-McDonald Lumber Co., the supreme court held that after a materialman had delivered materials to the contractor, he was not bound to follow the contractor and see to it that the material was in fact delivered to the construction site. The court held that such a rule "would impose upon [the materialman] an unnecessary burden and result in no benefit to the owner." Id. at 281, 149 N.W. at 301. Similarly, a rule requiring Koza to monitor C & H's use of the rented machinery would impose an unfair burden upon Koza and others like him who furnish machinery for construction projects. The suspension of work without any fault on Koza's part should not have the effect of depriving him of his lien. See Knight v. Norris, 13 Minn. 473, 476 (Gil. 438) (1868).
It is more appropriate here to place the risk upon Ryan, which could have but did not require C & H to provide bond or other security for payment of the rental agreement to protect itself from potential wrongful conduct on the part of C & H. Thompson-McDonald Lumber Co., 127 Minn. at 281, 149 N.W. at 301. This conclusion is especially compelling here, where Ryan was the general contractor as well as the landowner, so that he had an identified supervisory role toward C & H, its subcontractor.
In a 1969 case, the supreme court held that
the burden upon one seeking to establish a right to a lien is three-fold: He must show that the real estate has been improved, that he supplied labor or materials, and that the labor or materials were supplied for one of the purposes stated in the statute.
Anderson v. Breezy Point Estates, 283 Minn. 490, 494, 168 N.W.2d 693, 696 (1969). *236 The requirement of showing that the real estate has been improved does not overrule the rule in Lamoreaux and the line of cases decided under it that no actual improvement is necessary in order to establish a lien for a good faith supplier. As stated in Dunham,
[i]t is obvious that the decision in Anderson is based upon the premise that the work done did not come within one of the purposes enumerated in our lien statute. That is not true here. If the services of plaintiff are lienable, these services do come within the enumeration of purposes for which a lien may attach under our statute, that is, they were intended to prepare plans for the erection of a building. As a result, Anderson v. Breezy Point Estates, * * * which does not even mention Lamoreaux v. Andersch, * * * can hardly be held to have overruled it.
Dunham, 301 Minn. at 116, 223 N.W.2d at 382. The holding in Dunham is equally applicable here, where Koza's contribution comes within one of the purposes enumerated in the lien statute. Furthermore, even if Anderson could be read to require a showing that the real estate has been improved, that requirement is not decisive here, since C & H used the machinery on the improvement for several months prior to ceasing work as well as in July when C & H renewed work on the project.
DECISION
The trial court erred in denying appellant a mechanic's lien for the full amount of the rental cost for the machinery he furnished for the improvement of respondent's real estate.
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597035/ | 384 N.W.2d 586 (1986)
STATE of Minnesota, Appellant,
v.
Michael Dennis MALETICH, Respondent.
No. C1-85-1922.
Court of Appeals of Minnesota.
April 8, 1986.
*587 Hubert H. Humphrey, III, Atty. Gen., St. Paul, Michael L. Samuelson, Asst. City Atty., St. Cloud, for appellant.
John T. Lund, St. Cloud, for respondent.
Heard, considered and decided by NIERENGARTEN, P.J., and FORSBERG and LESLIE, JJ.
OPINION
NIERENGARTEN, Judge.
This is a pretrial appeal by the State seeking review of an order of the district court dismissing misdemeanor DWI charges against respondent Michael Maletich based on a lack of probable cause to believe that Maletich was in physical control of his vehicle. We reverse and remand for trial.
FACTS
At approximately 2:40 a.m. a St. Cloud police officer went to an apartment complex to investigate a report that a man was pounding on the outside window of an apartment. The officer found no one at the window, but observed a parked vehicle in the parking lot with a man seated inside. The officer parked behind the vehicle and respondent Michael Maletich got out of the driver's side and walked to the squad car. The officer asked him what he was doing and Maletich replied that he was looking for the keys for his car or his apartment. Maletich lived in the apartment complex. The officer noticed that Maletich had an odor of alcohol on his breath and appeared to have been drinking. The officer found Maletich's keys on the front passenger side floor of his car. The officer then noticed some damage to the right rear taillight area of Maletich's car, and in the immediate area, discovered a truck parked up over a curb with fresh damage to it. The officer matched taillight fragments near the truck with a broken piece of lens from Maletich's car and concluded that Maletich's car had caused the truck damage. The officer learned that the truck had been parked in the parking lot in an undamaged condition at approximately 11:00 p.m. the previous night. Maletich told the officer an unidentified person drove him there to the parking stall and walked away. Based on observations of Maletich's indicia of intoxication (odor of alcohol, swaying walk, and loud, belligerent demeanor), Maletich was placed under arrest for DWI. He consented to a breath test which revealed a blood alcohol concentration of .16.
Following the omnibus hearing, the trial court dismissed the charges based on the arresting officer's lack of probable cause to believe that Maletich was in physical control of his car.
ISSUE
Did the trial court err in dismissing the DWI charge based on the State's failure to prove that the officer had probable cause to believe respondent was in physical control of his vehicle?
ANALYSIS
Probable cause to believe a driver is in physical control is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the driver was in physical control. See State v. Harris, 265 Minn. 260, 264, 121 N.W.2d 327, 330 (1963). The State's burden at the omnibus hearing is to demonstrate physical control by a preponderance of the evidence, not reasonable doubt. Lego v. Twomey, 404 U.S. 477, 926 S.Ct. 619, 30 L.Ed.2d 618 (1972); State v. Wajda, 296 Minn. 29, 32, 206 N.W.2d 1, 3 (1973).
The only witness at the omnibus hearing was the arresting officer who testified to the following facts which gave him probable *588 cause to believe Maletich was in physical control: 1) he deduced or suspected Maletich was the unknown person pounding on an apartment window because Maletich was the only person in the area at 2:40 a.m.; 2) Maletich was observed awake in a parked vehicle; 3) Maletich's keys were found on the floor of the passenger side of the car; 4) Maletich's car was recently involved in an accident with a parked truck in the parking lot sometime within the previous three and one-half hours; 5) Maletich was observed to have several indicia of intoxication (odor of alcohol, swaying walk, belligerent manner); and 6) Maletich's version of the events was that an unknown person drove him in his car and then left on foot.
Maletich analogizes these facts to State v. Pazderski, 352 N.W.2d 85 (Minn.Ct.App. 1984).
This case is unlike Pazderski. First, Pazderski involved an appeal from conviction where the burden of proof was beyond a reasonable doubt. Second, here there is no evidence of Maletich's intentions to further use or abstain from further use of his vehicle, whereas Pazderski decided to spend the night sleeping in his car. In addition, in contrast to Pazderski, there is evidence here that the car had been driven recently because of the observed damage. Finally, unlike Pazderski, Maletich was found awake and seated in his car.
We have stated that a running engine is not an essential element to prove physical control. Steinberg v. State, Department of Public Safety, 357 N.W.2d 413, 416 (Minn.Ct.App.1984). In Berns v. Commissioner of Public Safety, 355 N.W.2d 493, 495 (Minn.Ct.App.1984) we noted that even if the keys were on the floor of the passenger's side, "it is absurd to argue the driver has no physical control since the keys could be retrieved and the vehicle operational in a matter of seconds." Where a driver was found lying in the front seat of his car, legally parked with the ignition keys in his possession, we held that the driver continued to be a threat to the public safety because he could set out on an inebriated journey at any moment. Martin v. Commissioner of Public Safety, 358 N.W.2d 734, 737 (Minn.Ct.App.1984).
The question of physical control ultimately must be evaluated by examining whether the policy concerns behind our drunk driving laws will be served. The physical control requirement is designed to deter drunken individuals from getting into their vehicles, except as passengers. State v. Thurmer, 348 N.W.2d 776, 778 (Minn.Ct. App.1984). The police officer here had no way of knowing if Maletich was home or intended to drive elsewhere as Maletich was seen awake and seated in his car. Further, Maletich had the present ability to drive away, even if he had trouble finding the keys, as the keys were in his constructive possession. See Berns, 355 N.W.2d at 495.
In dismissing the case, the trial court made several comments which are described as "findings" by Maletich. These "findings" have no support in the record. For example, the trial court's comments that Maletich's rapping at a window is indicative of no intent to drive in the future is speculative, at best. The court's comment that there is no reasonable certainty to believe that Maletich drove in the past during the time that he was intoxicated laid too heavy a burden upon the State. The State's burden at the omnibus hearing is not "reasonable certainty" but rather a preponderance of the evidence. At a minimum, the State has shown by a preponderance of the evidence that the officer had probable cause to believe that Maletich was in physical control of the vehicle. The State's showing was sufficient to withstand a motion to dismiss; whether the evidence is beyond a reasonable doubt is for the jury to determine.
DECISION
The trial court erred in dismissing the DWI charge based on lack of probable cause to believe the driver was in physical *589 control of a vehicle. The case is remanded for trial.
Reversed and remanded for trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597039/ | 28 So.3d 49 (2010)
HARDING
v.
STATE.
No. 1D08-5828.
District Court of Appeal of Florida, First District.
February 5, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596899/ | 638 So. 2d 517 (1994)
Walter Edward WHITNEY, Appellant,
v.
Drue Leslye WHITNEY, Appellee.
No. 93-1594.
District Court of Appeal of Florida, Third District.
January 11, 1994.
Maland & Ross and Lauri Waldman Ross, Arnold Nevins, Miami, for appellant.
Caruana, Gordon, Langan and Eisenberg and Elena B. Langan, Miami, for appellee.
Before BARKDULL, JORGENSON and GERSTEN, JJ.
PER CURIAM.
Walter Edward Whitney appeals from an order awarding his former wife attorney's fees in a post dissolution modification proceeding. For the following reasons, we reverse and remand.
The parties were divorced in 1989 following a six-year marriage; they have two minor children. The Final Judgment of Dissolution of Marriage incorporated a marital settlement agreement that provided for child support of $2,000 per month. In September, 1991, the former husband sought a downward modification of his child support obligations on the basis of a substantial change in circumstances. Although the husband had been a partner in the accounting firm of Peat, Marwick when the dissolution was entered, he lost that job and took a position with another employer at a substantially lower salary. The trial court denied the husband's petition; this court reversed. Whitney v. Whitney, 624 So. 2d 275 (Fla. 3d DCA 1993). The wife sought fees in the trial court and was awarded $14,200 for 71 hours of work at $200 per hour.
The trial court abused its discretion in determining the amount of fees to which the wife was entitled.
"In deciding upon amounts to be awarded as attorney's fees, a trial court must consider not only the reasonableness of the fees charged but the appropriateness of the number of hours counsel engaged in performing his services as well. The court should review the nature of the services rendered and the necessity for their performance, along with the reasonableness of the charges."
Mercy Hospital, Inc. v. Johnson, 431 So. 2d 687, 688 (Fla. 3d DCA), rev. denied, 441 So. 2d 632 (Fla. 1983). See also Valparaiso Bank & Trust Co. v. Sims, 343 So. 2d 967, 972 (Fla. 1st DCA) (when reviewing award of fees, appellate court should consider complexity of issues, nature of responsibility undertaken, services required, and skill and diligence necessary), cert. denied, 353 So. 2d 678 (Fla. 1977).
In this single-issue case, the claim for hours reasonably expended is excessive, and is subject to reduction. See, e.g., Dalia v. Alvarez, 605 So. 2d 1282, 1283 (Fla. 3d DCA 1992). The wife was represented by an experienced competent attorney in routine modification proceedings which involved no novel or complex questions of law or fact. The husband's petition generated one two-hour deposition, routine document discovery, and one final hearing. On the basis of the record, "we conclude that there was nothing *518 complex about the case that an experienced attorney could not have handled in one-half the time claimed." Dalia, 605 So.2d at 1284.[1]
We reverse and remand with directions to award fees in an amount not to exceed $7,000.
NOTES
[1] Although the hours which the trial court found reasonable were within the range of the experts' testimony presented at the hearing before the General Master, "[t]he existence of such evidence does not require that we abandon our own expertise, much less our common sense." Miller v. First American Bank & Trust, 607 So. 2d 483 (Fla. 4th DCA 1992). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599839/ | 1 So.3d 53 (2008)
A.D.B.H.
v.
HOUSTON COUNTY DEPARTMENT OF HUMAN RESOURCES.
2060699.
Court of Civil Appeals of Alabama.
March 21, 2008.
Rehearing Denied June 20, 2008.
Certiorari Denied August 8, 2008 Alabama Supreme Court 1071338.
*54 Benjamin J. Freeman of Prim, Freeman & Mendheim, L.L.C., Dothan, for appellant.
*55 Troy King, atty. gen., and Sharon E. Ficquette and Lynn S. Merrill, asst. attys. gen., Department of Human Resources, for appellee.
PER CURIAM.
This is a termination-of-parental-rights case. On October 21, 2005, the Houston County Department of Human Resources petitioned to terminate A.D.B.H.'s parental rights to two of her children, J.B. and K.T. The Houston Juvenile Court held hearings on the petition on November 21, 2006, December 18, 2006, February 1, 2007, and March 13, 2007. The juvenile court terminated A.D.B.H.'s parental rights to J.B. and K.T. on April 5, 2007.
A.D.B.H. ("the mother") gave birth to J.B. on August 20, 1999, and to K.T. on February 20, 2002. In October 2002, the mother lost custody of her childrenJ.B., K.T., M.D., and K.M., who are all half siblingsafter the Houston County Department of Human Resources ("DHR") concluded that the mother's home was unsafe and unsanitary. By the next month, the mother's father and stepmother ("the maternal grandparents") had obtained physical custody of all four children. In March 2003, the maternal grandfather also obtained legal custody of the children. However, the mother subsequently regained custody of the children in June 2003. Upon regaining custody of the children, the mother received family services through DHR. Despite the mother's having received those services, J.B. was transferred to a foster home in late 2003 because of severe behavioral problems.
Betty Faircloth, a DHR caseworker, testified that she became involved in the case in February 2004. At that time, three of the children were residing with the mother, while J.B., who had been diagnosed with attention deficit/hyperactivity disorder ("ADHD") and had been prescribed numerous medications to control his behavior, remained in a foster home. J.B. would visit with the family every other weekend from Friday to Monday morning. Faircloth testified that the mother routinely telephoned her at 8:00 a.m. on Monday mornings to request that she come and get J.B. because the mother could not handle his behavior, which included insomnia, violence towards his half sisters, and a disrespectful attitude. In addition, on several occasions, the mother, when she was upset, requested that Faircloth take all four children. Faircloth testified, however, that the mother was able to handle the other three children and that she wanted all of her children, but that the mother simply could not handle any conflict with J.B. and that she often failed to properly administer his medications despite her knowledge of their importance.
Faircloth testified that she attempted to keep the children with the mother as long as possible but that the children were removed from the mother's home in August 2004. Faircloth testified that the mother had failed to address the children's chronic head-lice problem, that another family had moved into the mother's home, and that the mother was leaving the children with neighbors or whomever would care for them. Faircloth testified that the home environment had become unsanitary and unsafe.
The three children who had been residing with the mother, including K.T., were initially transferred to a traditional foster home. In August 2004, M.D. was placed in the custody of her paternal grandmother. J.B. remained in a separate foster home until October 2004. Although the foster parents were able to control J.B. with the aid of his medications, the foster mother recommended in October 2004 that he be transferred to a therapeutic foster *56 home that could better address his special behavioral problems.
Linda Shirey, J.B.'s therapist, testified that she had counseled J.B. approximately every other week since April 12, 2004. According to Shirey, when J.B. started therapy, he was developmentally behind and withdrawn, his speech was very hard to understand, he was very emotional, and he had a very short attention span. Shirey described him as "a disturbed child." Shirey testified that she had often attempted to integrate the mother into J.B.'s counseling sessions but that the mother had attended his sessions only twice. Shirey testified that the mother had a very negative effect on J.B., causing him "a lot of problems." Faircloth testified that she considered J.B. to be a "target child," who the mother, and even the half sisters, would blame for any problems the family encountered. During 2004, J.B. expressed sadness that he was not seeing his half sisters, but he never expressed similar feelings about not seeing his mother.
After the children were removed from her home in 2004, the mother received visitation rights that she exercised at DHR's offices. Faircloth testified that the mother would visit with all four children at the same time on a weekly basis for one hour and that, during that time, the mother would spend approximately 40 minutes on her cellular telephone. Sometimes she would be talking to B.B.T., K.T.'s father, or to her parents, and she would pass the telephone to the children so they could speak with them briefly. However, the mother would often spend most of her time talking on the telephone rather than visiting with the children. Sometimes she would be talking to a man to whom she was engaged who had never met the children. Faircloth testified that she felt the mother spent an inappropriate amount of time talking on the telephone rather than visiting with her children.
Judy Whatley, another caseworker, testified that she had observed the visitations between the mother and the children in 2004. Whatley testified that during the visits the mother spent 20 minutes to 1 hour on her cellular telephone speaking to someone in Spanish and that, as a result, there was very little interaction between the mother and the children. Whatley testified that M.D., who was nine years old at the time, would basically take care of the younger children, taking them to the bathroom, unwrapping their hamburgers, tying their shoes, and cleaning up after them, while the mother talked on the telephone. Whatley testified that the mother constantly questioned the children about what color they were, insisting that they were brown, not white.
Faircloth testified that in 2004 and 2005 the mother would make intermittent progress with the children but that, for every step forward, she would take two steps back. Faircloth worked with the mother on a daily basis to assist the mother with correcting the problems DHR had identified. The mother never progressed to the point at which the children could be returned to her, however.
In March 2005, J.B. was able to leave the therapeutic foster home and move to the traditional foster home with K.T. and K.M. At trial, Shirey testified that J.B. had blossomed since leaving the therapeutic foster home and that he was now a developmentally normal and happy child. She testified, however, that J.B. still had no attachment to the mother. Shirey also testified that J.B. remained very close to his half sisters.
In March 2006, the juvenile court awarded custody of K.M. to her father, who lived in Atlanta. In the custody order the juvenile court indicated that "there is no ordered *57 visitation pending further order of the court." Based on this order, DHR suspended all visitation between the mother and K.M., as well as the other children. The mother did not petition to reinstate visitation, and, as a result, the mother did not visit with the children after March 2006. Before that, the mother had been consistent with visitation and telephone calls, although she had occasionally missed a visit.
Whatley testified that DHR offered many services to the mother in an attempt to rehabilitate her, including providing day-care services, food stamps, child support, financial support, Christmas presents, transportation, counseling and psychiatric services, domestic-violence services, psychological evaluations, parent coaching, and services through Family Options, but, she testified, the mother was resistant to DHR's efforts and failed to adjust to the needs of the children. Services were interrupted or halted because of noncompliance or other issues traceable to the mother.
According to Whatley's testimony, during the time Whatley oversaw the case, the mother never showed any stability. Whatley testified that since 1995 the mother had worked at 35 different jobs, working the longest for a grocery store for 6 months. Since 1998, the mother had lived at 39 different residences; however, the mother had lived at the same address in Headland since August 2005, although sometimes her mail would stack up, indicating that she was not staying there. The mother was combative and threatening to her caseworkers and at least one foster parent, but not to her children. The mother had been barred from J.B.'s pediatrician's office because of her failure to comply with the medical advice given for the children. The mother fed the children candy at visitations, although she had been cautioned that candy would make the children hyperactive. According to Whatley, the mother continued to be emotionally abusive to J.B., although she has never been physically abusive to any of her other children and the children had never exhibited any signs of physical injury. Whatley testified that the mother had not paid any child support since October 2005 and that a warrant had been issued for the mother's arrest for her having failed to appear in court on the child-support matter. The mother had no criminal history.
The Henry County Department of Human Resources ("the Henry County DHR") performed a home study on the mother's residence in October 2005. According to Whatley's testimony, the Henry County DHR did not approve placing the children into the mother's home at that time. The Henry County DHR representative determined that the mother had lied about her employment, stating she was working when, in fact, she had been discharged four days before the home study because of her constant controversial conduct. The representative also found that the home had only one furnished bedroom. A few weeks before the initial termination-of-parental-rights hearing, a second home study was conducted. At that time, all three bedrooms were furnished and the home was clean. Whatley testified that it appeared that the mother had corrected the cleanliness problem. Faircloth testified that the mother had shown the ability to properly maintain the home when residing with her new husband, but that she had never shown the ability to properly maintain the home with all of her children residing with her.
Robert Nolan, a clinical psychologist, testified that he had evaluated the mother in January and February 2006. Nolan indicated that the mother had grown up in an unstable environment and that she had *58 been diagnosed and was being treated for bipolar disorder, a problematic, but treatable biological condition that causes altered mood patterns. He opined that the mother, due to her own unstable upbringing and her mental-health issues, would have difficulty providing a stable and nurturing environment for her own children. Although Nolan admitted that treatment of the mother's bipolar disorder, if "wonderfully effective," could possibly lead to the significant changes necessary for the mother to change her patterns and become a stable and nurturing influence to her children, such treatment, if both effective and fully complied with by the mother, only "might" benefit the mother. He noted that the mother had yet to admit that the situation in which she found herself was due, in large part, to her own poor judgment. In fact, Nolan pointed out that the mother blamed others for her children being taken into DHR's custody. In his report, Nolan concluded that
"[g]iven the family history, the parent-child relationships are likely to be rather difficult to manage [as] a result of the instability of attachment and instability of home environment that has occurred, and the children will require a skillful, insightful, adaptive, and personally very stable parenting figure. These will be special needs children in terms of their emotional development and it will be critical that those needs are met during these earlier years of their lives, which will require that they have stable placements and attachments with nurturing parenting figures. It is not evident that their mother can be that person at this time."
DHR placed into evidence a September 2006 letter from Dr. Jerlyn C. McLeod, an expert in child and adolescent psychiatry. Dr. McLeod had examined and treated J.B. Dr. McLeod diagnosed J.B. with "ADHD Combined Type, Mood Disorder, and Enuresis" for which he was treating J.B. with the prescription medications Adderall, Seroquel, and Remeron. Dr. McLeod stated that he was most concerned with J.B.'s emotional stability. Dr. McLeod felt that J.B. would remain stable only so long as he stayed out of the mother's home and was kept in a structured and safe environment. Dr. McLeod felt J.B. could succeed in his current placement and that J.B. should continue psychiatric care and medication to avoid future hospitalizations. DHR also placed into evidence a December 2006 letter from Shirey in which she opined that J.B. had stabilized since his visitations with his mother had ceased and recommended that the mother have no further visitation with J.B. to assure his continued emotional and psychological well-being.
In September 2006, the mother was admitted to a local hospital emergency room for an intentional overdose of prescription medication. The emergency-room physician diagnosed the mother with bipolar disorder and felt she had attempted suicide after becoming despondent about not being able to see her children. A psychiatrist evaluated the mother and found that she was not an acute suicide risk, but he opined that the mother was quite unstable and was having difficulty functioning and making rational decisions. He diagnosed the mother with an adjustment disorder with major depression, along with medical noncompliance and parent-child relational problems.
The mother introduced into evidence two letters from Nathan Shimer, the mother's counselor, dated November 2004 and December 2005. In the November 2004 letter, Shimer indicated that the mother was, at that time, compliant with her medication regimen, although the mother had deemed the medication insufficient to treat *59 the stress and worry generated by the dependency case. Shimer further noted in the November 2004 letter that the mother was stable and that she should not become unstable again if she continued to take her medication regularly. In the December 2005 letter, Shimer opined that the mother was a strong advocate for her children whose maternal instinctual responses had been misread by some. He believed the mother loved and worried about her children, but not always in a conventional manner. He described the mother as a typical Latino mother, noting that although she was not Latino by birth, she had been assimilated into the Latino culture. Shimer opined that it would be in the children's best interests to be returned to the mother, who he described as a loving and nurturing parent.
The mother testified that in February 2007 she was not employed but that she occasionally worked as a translator for the City of Dothan and also cleaned houses. She said that she lived in Headland with her third husband, who was a construction worker. She earned $180 from the City of Dothan for the 11-month period immediately before September 2006. The mother testified that she was not actively seeking employment but stated that she had filed for Social Security disability benefits. Despite her unemployment, the mother testified that she had paid some child support since October 2005.
The mother testified that she had been diagnosed with bipolar disorder and attention deficit disorder. A local psychiatrist was actively treating her for those conditions at the time of the hearing in February 2007. The doctor had prescribed Ritalin to help the mother's attention, Seroquel to help stabilize the mother's moods, and Lamictal to treat the mother's bipolar disorder. The mother also used the prescription medications Ambien as a sleep aid and Xanax for her nerves, as needed. The mother testified that her medications helped her focus and that she did not know whether she would have to continue taking the medications in the future. However, she testified that her dosages were stronger at the time of the February 2007 hearing than they had been previously. The mother was also undergoing therapeutic counseling. The mother admitted that she had had suicidal thoughts in September 2006, but she denied that she had attempted suicide at that time or in 2004 or 2005.
The mother testified that since March 2006 she had had no contact with DHR, except during Christmastime of 2006, when she asked her attorney to have DHR specify any requirements she needed to meet in order to regain custody of her children. The mother testified that she had done everything she had been asked to do and everything that she knew to do to regain custody. The mother testified that she kept a clean house and that, although DHR had never asked her to maintain stable housing, she had been living in the same residence for over two years. The mother testified that she had addressed DHR's concerns about having multiple family members living with her. The mother testified that she was only $700 in arrears on her child support and that she was paying on those arrears. The mother also testified that she took her medication to appease DHR and to address her emotional problems from having her children taken away from her. The mother testified that she had attended almost every visitation and that she had telephoned DHR when she could not attend the visitations because of sickness or other problems. The mother admitted that she had not contacted the children since March 2006, but she said she had done so because DHR had told her she would be arrested if she did. The mother denied being loud and threatening while *60 visiting with the children at DHR's facilities. The mother denied that she had asked Faircloth to pick up J.B. because she could not control him.
The mother testified that the maternal grandparents were willing to take custody of the children. The maternal grandparents had acted as custodians for all four children in 2002 and 2003, and, according to the mother's testimony, DHR had never complained about their conduct or expressed any concern about the maternal grandfather's behavior. At the time of the termination hearings, the maternal grandfather was on active duty with the Army. Although he was physically present in the state at the time of the February 2007 hearing, the maternal grandfather was on emergency leave to attend to the maternal stepgrandmother, who was in the hospital recuperating from hip surgery. Neither of the maternal grandparents had filed a petition to obtain custody of any of the children.
The juvenile court entered separate but largely identical judgments regarding J.B. and K.T., finding in each judgment that the respective child was dependent, that the mother was unable or unwilling to provide a stable home for that child, and that the mother was unable to care for or to provide for that child. The juvenile court further found that it and DHR had considered less drastic measures than termination of the mother's parental rights, but it concluded that there was no other reasonable and viable alternative to termination. Finding that it was in the best interests of both children, the juvenile court terminated the mother's parental rights to J.B. and K.T.[1] The mother appeals from both judgments.
The mother first argues that the judgments terminating her parental rights were not supported by clear and convincing evidence because the evidence showed that she was in the process of making the necessary steps to reunite with the children and that her current conditions indicated that she was able and willing to discharge her parental responsibilities to and for the children. The mother secondly argues that the judgments finding that there was no less drastic viable alternative to termination of her parental rights were unsupported by clear and convincing evidence because the juvenile court could have placed custody of the children with the maternal grandparents.
"`The right to maintain family integrity is a fundamental right protected by the due process requirements of the Constitution. Pursuant to this right, Alabama courts recognize a presumption that parental custody will be in the best interests of a child. This prima facie right of a parent to custody of his or her child can only be overcome by clear and convincing evidence that permanent removal from the parent's custody would be in the child's best interests, but the primary consideration in any proceeding to terminate parental rights is always the best interests and welfare of the child. In making that determination, the court must consider whether the parent is physically, financially, and mentally able to care for the child. If the court finds from clear and convincing evidence that the parent is unable or unwilling to discharge his or her responsibilities to and for the child, his or her parental rights can *61 then be terminated, pursuant to [Ala. Code 1975,] § 26-18-7(a)....'
"Bowman v. State Dep't of Human Res., 534 So.2d 304, 305 (Ala.Civ.App.1988) (citations omitted).
"A juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights. Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990)."
B.M. v. State, 895 So.2d 319, 330-31 (Ala. Civ.App.2004).
As noted above, a juvenile court's judgment terminating parental rights must be supported by clear and convincing evidence. Bowman v. State Dep't of Human Res., 534 So.2d 304, 305 (Ala.Civ.App. 1988). "Clear and convincing evidence" is "`[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.'" L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002) (quoting Ala.Code 1975, § 6-11-20(b)(4)). The juvenile court's factual findings, based on evidence presented ore tenus, in a judgment terminating parental rights are presumed correct. R.B. v. State Dep't of Human Res., 669 So.2d 187 (Ala.Civ.App. 1995).
Section 26-18-7(a), Ala.Code 1975, a part of the 1984 Child Protection Act ("the CPA"), § 26-18-1 et seq., Ala.Code 1975, specifies grounds for terminating parental rights:
"If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents."
In deciding whether a parent is unable or unwilling to discharge his or her responsibilities to and for the child, the juvenile court must consider such factors as:
"(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for needs of the child.
"(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat, or otherwise maltreat the child, or the child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by such treatment of a sibling.
"....
"(6) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed."
Ala.Code 1975, § 26-18-7(a). Additionally, when the child is not in the physical custody of the parent, the juvenile court shall consider:
"(1) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of its support, where the parent is able to do so.
"(2) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the department, or any public or licensed *62 private child care agency, and agreed to by the parent.
"(3) Failure by the parents to maintain consistent contact or communication with the child.
"(4) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review."
Ala.Code 1975, § 26-18-7(b).
In this case, the juvenile court originally removed the children from the mother's custody because she had failed to maintain a clean and suitable environment for the children. Although the children subsequently reunited with the mother, in late 2003 J.B. was transferred to a foster home because of the mother's inability to control his behavior and her inability to adapt to his special behavioral needs, including complying with his medication schedule. By August 2004, all the children had been removed from the mother's home because of her failure to correct their chronic head-lice problem, the overcrowded conditions of the home, the unsafe and unsanitary conditions of the yard and the home, and the mother's delegation of her parental responsibilities to whomever would care for the children. DHR later faulted the mother for failing to maintain steady employment and a stable residence.
As pointed out in the mother's brief on appeal, and by the mother's attorney at trial, by the time of the final hearing, the children no longer suffered from chronic head lice, the mother had remarried, the mother had maintained a clean and suitable home for over two years, the mother had cleared her residence to make room for her children, and the mother had indicated a willingness to care for the children by taking her medication to control her mood and attention problems. Based on this evidence, all of which was uncontradicted, the mother argues that she was making strides toward curing all the deficiencies that had led to the initial disruption of the family. The mother notes that "the existence of evidence of current conditions or conduct relating to a parent's inability or unwillingness to care for his or her children is implicit in the requirement that termination of parental rights be based on clear and convincing evidence." D.O. v. Calhoun County Dep't of Human Res., 859 So.2d 439, 444 (Ala.Civ.App. 2003). The mother argues that, pursuant to D.O., a juvenile court errs if it terminates parental rights prematurely at a time when the parent is making progress toward changing his or her circumstances and removing the barriers to reunification with the child. D.O., 859 So.2d at 444.
The problem with the mother's argument is that she assumes that, because she had thoroughly addressed some of the issues that had endangered the children during the more than two year period in which DHR had their custody, she was making significant progress toward reunification with the children. Both of the DHR representatives testified that, after DHR had obtained custody of the children, DHR's focus shifted away from the conditions of the home that had necessitated the removal of the children and toward the manner in which the mother interacted and treated the children. Having witnessed the mother's visitations with the children, Faircloth and Whatley concluded that the mother was emotionally abusive to J.B. and was neglectful of the other children, seeming to be more concerned with her own personal life than the needs of the children, conclusions they supported at trial with clear and convincing evidence. DHR attempted to address these problems *63 by providing counseling, parenting services, and other family services for the mother, to no avail. At the end of the process, the mother had identified a major factor in her problems, her bipolar disorder, and had stabilized her mood swings through medication, but she was still in a condition that led one mental-health professional to testify that the mother could not provide the necessary stability to properly care for and nurture the children and that led two others to opine that it would be detrimental to J.B. to be reunited with the mother. Although another mental-health professional indicated that the mother could and should regain custody of the children, it is the duty of the juvenile court to weigh the evidence and determine which expert opinion it believes. See State ex rel. D.K. v. R.T., 599 So.2d 627, 628 (Ala.Civ.App.1992).
Nolan indicated that the mother's psychiatric condition "might" be controlled sufficiently with medication to the point that she could resume custody of the children. "At some point, however, the child's need for permanency and stability must overcome the parent's good-faith but unsuccessful attempts to become a suitable parent." M.W. v. Houston County Dep't of Human Res., 773 So.2d 484, 487 (Ala. Civ.App.2000). When the juvenile court terminated the mother's parental rights, J.B. had been in DHR's custody and in various foster homes for almost four years and K.T. had been in foster care for almost two and one-half years. J.B. and K.T. had seen their two half siblings transferred to suitable relatives with stable home environments. The mother had been given ample time to rehabilitate herself so that she could regain custody of J.B. and K.T. The children should not have to spend further time in an uncertain home situation based on the mere hope that the mother may someday overcome her psychological inability to properly parent them. The juvenile court did not err in failing to grant the mother additional time to rehabilitate.
The mother further argues that the juvenile court erred by failing to consider viable alternatives to the termination of her parental rights. She argues that awarding custody to the maternal grandparents is a suitable alternative to the termination of her parental rights to both J.B. and K.T. DHR argues that the juvenile court properly rejected the maternal grandparents as viable relative resources because there was no evidence indicating that the maternal grandparents had maintained any relationship with the children and that the juvenile court had properly concluded that it would not be in the children's best interest to be placed with the maternal grandparents.
We have often cited Ex parte Beasley to explain the two-pronged test for terminating parental rights.
"A juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights. Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990)."
B.M. v. State, 895 So.2d at 331. Our supreme court has continued to adhere to the two-prong test, reversing a judgment terminating parental rights based on the failure to properly investigate and consider potential viable alternatives in cases like Ex parte T.V., 971 So.2d 1 (Ala.2007), and Ex parte J.R., 896 So.2d 416 (Ala.2004).
The mother insists that DHR failed to meet the second prong of that test, "the viable alternatives prong," because, the mother says, the maternal grandparents *64 could take custody of the children as a viable alternative to terminating her parental rights. The record reflects that the maternal grandparents had custody of the children from November 2002 until June 2003. According to the court report in evidence,[2] the children suffered from continued bouts of head lice during their stay with the maternal grandparents. In addition, the court report states that the day-care facility at which the children were enrolled reported that the children had problems with personal hygiene to the extent that workers actually bathed the children and shampooed their hair after they arrived at the day-care facility. Although the maternal stepgrandmother was not employed during the time the children were in her care, the children were enrolled in full-time day care and the maternal stepgrandmother was sometimes 15 to 30 minutes late in picking the children up from day care.
At the time of the termination hearings, the maternal grandfather was deployed overseas on active military duty. The maternal stepgrandmother injured her hip and had surgery shortly before the February 2007 hearing, and she had reinjured herself in a fall on the date of the March 2007 hearing. DHR had ruled out the maternal grandparents as potential relative resources as a result of their earlier experience as custodians of the children; the maternal grandfather's deployment overseas and the maternal stepgrandmother's hip surgery and continued health concerns are further reasons that awarding custody to the maternal grandparents was not a viable alternative to the termination of the mother's parental rights. The evidence supports the juvenile court's finding that awarding custody to the maternal grandparents was not a viable alternative to termination in the present case.
Because DHR proved, by clear and convincing evidence, grounds for termination of the mother's parental rights and that there existed no viable alternatives to termination, we affirm the judgment of the juvenile court.
AFFIRMED.
THOMPSON, P.J., and PITTMAN, J., concur.
BRYAN, J., concurs specially, with writing, which THOMAS, J., joins.
THOMAS, J., concurs specially.
MOORE, J., concurs in part and concurs in the result, with writing.
BRYAN, Judge, concurring specially.
Pursuant to Roe v. Conn, 417 F.Supp. 769, 779 (M.D.Ala.1976), a state must establish that it has a compelling governmental *65 interest before terminating a parent's parental rights. Under a strict-scrutiny analysis, the state is required to achieve this objective in a means that is least restrictive or drastic. As the Conn court stated: "The State's interest, however, would become `compelling' enough to sever entirely the parent-child relationship only when the child is subjected to real physical or emotional harm and less drastic measures would be unavailing." Id. (emphasis added).
After Conn, this court held that juvenile courts must inquire as to whether viable alternatives to terminating a parent's parental rights exist during the termination hearing. See Miller v. Alabama Dep't of Pensions & Sec., 374 So.2d 1370, 1373 (Ala.Civ.App.1979); Glover v. Alabama Dep't of Pensions & Sec., 401 So.2d 786, 789 (Ala.Civ.App.1981); and In re Shivers, 440 So.2d 1081 (Ala.Civ.App.1983). At the time Miller, Glover, and In re Shivers were decided, the Alabama Juvenile Justice Act ("AJJA"), codified at § 12-15-1, Ala.Code 1975 et seq., was the only statute that governed the termination of a parent's parental rights. See § 12-15-71(a), Ala. Code 1975; see also D.M.P. v. State Dep't of Human Res., 871 So.2d 77, 89 n. 9 (Ala.Civ.App.2003) (plurality opinion).
In 1984, our legislature enacted the Child Protection Act ("CPA"), codified at § 26-18-1 et seq., Ala.Code 1975. The purpose of the CPA is as follows:
"[T]o provide meaningful guidelines to be used by the juvenile court in cases involving the termination of parental rights in such a manner as to protect the welfare of children by providing stability and continuity in their lives, and at the same time to protect the rights of their parents."
§ 26-18-2, Ala.Code 1975. Section 26-18-7, Ala.Code 1975, explicitly sets forth grounds for terminating a parent's parental rights. Citing the CPA, this court stated in In re Colbert, 474 So.2d 1143, 1145 (Ala.Civ.App.1985):
"In order to terminate parental rights, the court must apply what is essentially a two-prong test. First, the court must find from clear and convincing evidence that the child is dependent. § 12-15-65(e), Code of Alabama 1975. See § 26-18-7(a), Code of Alabama 1975; Brown v. Alabama Department of Pensions and Security, [473 So.2d 533 (Ala.Civ. App.1985)]. Once dependency is found, our court has stated that the trial court must determine whether less drastic measures than termination of parental rights would best serve the interest of the child. See Glover v. Alabama Department of Pensions and Security, 401 So.2d 786 (Ala.Civ.App.1981); Miller v. Alabama Department of Pensions and Security, 374 So.2d 1370 (Ala.Civ.App. 1979)."
This court, citing pre-CPA cases in In re Colbert, continued to require juvenile courts to make a determination regarding the dependency of a child and to find that no viable alternatives to termination existed, applying the "two-prong" test in termination-of-parental-rights cases after the CPA was enacted.[3] Our supreme court then articulated the "two-prong" test in Ex parte Brooks, 513 So.2d 614, 617 (Ala. 1987). In overruling Ex parte Brooks insofar as it required a parent who sought to terminate the other parent's parental rights to establish the dependency of a child, our supreme court in Ex parte Beasley, 564 So.2d 950 (Ala.1990), also articulated *66 this "two-prong" test. Despite this court's and our supreme court's opinions requiring the application of the viable-alternatives prong at the termination proceeding, I agree with Judge Moore insofar as he concludes that there is no basis provided in the CPA or the AJJA for applying the "two-prong" test at the termination proceeding, as suggested in Ex parte Beasley.
In 1997, Congress enacted the Adoption and Safe Families Act ("ASFA"), codified at 42 U.S.C. §§ 671 and 675. Our legislature amended the AJJA in 1998 to comply with federal legislation to receive federal funding. Our legislature amended § 12-15-62, Ala.Code 1975, requiring our juvenile courts to comply with the ASFA. Specifically, § 12-15-62(c) requires juvenile courts to hold a permanency hearing within 12 months of the entry of an order placing a child in foster care. Furthermore, that section states, in pertinent part:
"The permanency hearing shall determine whether the plan will include placement in another planned permanent living arrangement in cases where the department [of human resources] has documented to the court a compelling reason for determining that it would not be in the best interests of the child to return home, be referred for termination of parental rights, be placed for adoption, or be placed with a fit and willing relative, or with a legal custodian."
(Emphasis added.) As Judge Moore states in his special writing, § 12-15-62(c) requires juvenile courts to determine whether placement of a child with a relative is a viable alternative before the termination-of-parental-rights proceeding, i.e., at the permanency hearing. Requiring juvenile courts to inquire of possible relative placements at this stage complies with the constitutional mandates set forth in Conn. Additionally, I agree with Judge Moore's determination that a juvenile court may bifurcate a trial, holding a permanency hearing before the termination proceeding, to consider a relative who presents himself or herself as a possible placement on the eve of a termination proceeding. However, juvenile court's should consider such relatives only in exceptional circumstances. First, DHR should have already inquired as to possible relative resources and should have conducted an investigation of those relatives before the permanency hearing. Second, a relative who is sincerely concerned about a child's welfare and is willing to serve as a placement should have already presented himself or herself as a viable alternative. I suggest that juvenile courts consider relatives who present themselves at "the eleventh hour" as a placement option only under extenuating circumstances that would render their untimely presentation justifiable, e.g., when the relative has recently recovered from a debilitating illness that prevented him or her from being a placement option earlier.
Furthermore, "[t]he purpose of imposing a time restriction [in the ASFA] was to shorten the amount of time children would remain in foster care." A.J.H.T. v. K.O.H., 983 So.2d 394, 403 n. 3 (Ala.Civ. App.2007) (Bryan, J., concurring specially) (citing Katherine A. Hort, Is Twenty-Two Months Beyond the Best Interest of the Child? ASFA's Guidelines for the Termination of Parental Rights, 28 Fordham Urb. L.J. 1879 (2001)). However, Alabama courts have continued to use the "two-prong" test in termination-of-parental-rights proceedings after the legislature amended the AJJA to include the time provisions of the ASFA. See A.H. v. State Dep't of Human Res., 763 So.2d 968, 969 (Ala.Civ.App.2000); C.W. v. State Dep't of Human Res., 826 So.2d 171, 172 (Ala.Civ. App.2002); J.M.O. v. State Dep't of Human *67 Res., 872 So.2d 174, 180 (Ala.Civ.App. 2003); Q.F. v. Madison County Dep't of Human Res., 891 So.2d 330, 335 (Ala.Civ. App.2004); and J.S. v. St. Clair County Dep't of Human Res., 969 So.2d 918 (Ala. Civ.App.2007). I believe that inquiring as to viable alternatives to terminationparticularly, inquiring as to the suitability of a relativeat the termination hearing is not in the best interest of a child, is not in accordance with the purposes of the ASFA, and does not promote a child's permanency and stability.
This court has held that "DHRnot the prospective custodianhas the burden of initiating investigations, and it is DHR's burden to prove the unsuitability of one who seeks to be considered as the custodian of a dependent child." D.S.S. v. Clay County Dep't of Human Res., 755 So.2d 584, 591 (Ala.Civ.App.1999). However, in Wilson v. State Department of Human Resources, 527 So.2d 1322, 1324 (Ala.Civ. App.1988), this court held: "In order to establish that termination of parental rights is the least drastic alternative, DHR should present evidence to the court of recent attempts to locate viable alternatives." (Emphasis added.) See also Bowman v. State Dep't of Human Res., 534 So.2d 304 (Ala.Civ.App.1988); V.M. v. State Dep't of Human Res., 710 So.2d 915, 921 (Ala.Civ.App.1998); and C.B. v. State Dep't of Human Res., 782 So.2d 781, 786 (Ala.Civ.App.1998).[4] Even after the 1998 amendments to the AJJA requiring DHR to present, and the juvenile courts to consider, a permanency plan for a child with 12 months of the entry of a court order placing a child in foster care, this court has continued to require DHR to present evidence of recent attempts to locate a viable alternative to termination. See B.S. v. Cullman County Dep't of Human Res., 865 So.2d 1188, 1196 (Ala.Civ.App.2003) (acknowledging caselaw argued on appeal stating that DHR has a duty to present evidence of recent efforts to locate a viable alternative); and J.B. v. Jefferson County Dep't of Human Res., 869 So.2d 475, 478 (Ala.Civ.App.2003) (same).
In my opinion, our juvenile statutes and caselaw regarding viable alternatives should be reconciled in view of the enactment of the CPA and the amendments to the AJJA.
THOMAS, J., concurs.
THOMAS, Judge, concurring specially.
I agree that the juvenile court's judgment terminating the mother's parental rights should be affirmed. Grounds for termination existed, the mother was not entitled to more time in which to rehabilitate herself, and awarding custody to the maternal grandparents was not truly a viable alternative to terminating the mother's parental rights. In addition, I agree with Judge Moore that the present method by which we terminate parental rights is not in accordance with either the Child Protection Act, codified at Ala.Code 1975, § 26-18-1 et seq., or the Adoption and Safe Families Act of 1997, codified at, among other places, 42 U.S.C. § 675, or portions of our Juvenile Justice Act, codified at Ala.Code 1975, § 12-15-1 et seq. I write specially to point out that the procedure outlined in our statutes, as explained by Judge Moore in his special writing, will improve the process by which our juvenile courts terminate parental rights.
The shift in procedure advocated by Judge Moore and supported by the language in our statutes will do little more than change the order in which our juvenile courts conduct proceedings in dependency *68 and termination cases. Our juvenile courts routinely hold permanency hearings, as required by § 12-15-62(c). If the juvenile courts were to follow the procedure outlined in our statutes and explained by Judge Moore, those hearings will continue but will become vitally important, as they should be. The Department of Human Resources routinely investigates potential relative resources for children who are removed from the custody of their parents from the time of removal and certainly at the first Individualized Service Plan ("ISP") meeting, both because of the shortage of suitable foster homes and because relative placements are viewed as being less traumatic for the children. Requiring that a juvenile court consider and either accept or reject relative placement at the 12-month permanency hearing when deciding whether the case should proceed to a termination hearing would place the emphasis at the permanency hearing where it belongson determining what permanent alternative serves the best interest of the children; likewise, this procedure will place the emphasis of the termination-of-parental-rights hearing where it rightfully belongson the grounds for termination.
MOORE, Judge, concurring in part and concurring in the result.
I fully concur in the main opinion's reasoning and its conclusion that the record contains clear and convincing evidence that the mother is unable or unwilling to discharge her parental responsibilities to and for the children. I concur in the result as to that portion of the main opinion upholding the juvenile court's judgment insofar as it finds that awarding custody to the maternal grandparents was not a viable alternative to the termination of the mother's parental rights. However, I write specially to explain why I do not believe the current procedure used in juvenile courts to determine the viability of relative placement complies with the applicable statutes.
Is it Appropriate to Decide the Viability of Alternative Custodial Arrangements in the Adjudicatory Proceeding?
By statute, if it is in the best interests of the child, see Ala.Code 1975, § 12-15-71, a juvenile court may, as an alternative to termination of parental rights, Ex parte J.R., 896 So.2d 416 (Ala.2004), place custody of a dependent child with a "fit and willing" relative, see Ala.Code 1975, § 12-15-62(c), who, "after study by the Department of Human Resources, is found by the court to be qualified to receive and care for the child." Ala.Code 1975, § 12-15-71(a)(3)c.
In Ex parte Beasley, 564 So.2d 950 (Ala. 1990), the supreme court stated:
"The two-prong test that a court must apply in a parental rights termination case brought by a custodial parent consists of the following: First, the court must find that there are grounds for the termination of parental rights, including, but not limited to, those specifically set forth in § 26-18-7. Second, after the court has found that there exist grounds to order the termination of parental rights, the court must inquire as to whether all viable alternatives to a termination of parental rights have been considered. (As earlier discussed, if a nonparent, including the State, is the petitioner, then such a petitioner must meet the further threshold proof of dependency.)
"Once the court has complied with this two-prong testthat is, once it has determined that the petitioner has met the statutory burden of proof and that, having considered and rejected other alternatives, a termination of parental rights *69 is in the best interest of the childit can order the termination of parental rights."
564 So.2d at 954-55. This excerpt seems to require juvenile courts to consider the question whether a dependent child should be placed in the custody of a relative after finding that grounds for termination exist, but before entering a judgment terminating parental rights. Routinely, therefore, juvenile courts have been deciding both prongs of the Beasley test in the same proceeding and subject to the same standard of proofi.e., "clear and convincing evidence, competent, material, and relevant in nature"see Ala.Code 1975, §§ 12-15-65(f) & 26-18-7(a); see also Ex parte State Dep't of Human Res., 890 So.2d 114, 118 (Ala.2004) (holding that juvenile court may only consider admissible evidence at termination-of-parental-rights hearing).
Putting aside the fact that the statement in Beasley regarding the procedure to be followed in termination-of-parental-rights cases does not appear to be supported by any statutory language in existence at the time it was decided,[5] it is clear that, as the law stands today, Beasley is no longer accurate. When the legislature amended the Alabama Juvenile Justice Act ("the AJJA"), Ala.Code 1975, § 12-15-1 et seq., in 1998 to comply with the Adoption and Safe Families Act ("the ASFA"), 42 U.S.C. § 671 and § 675, it mandated that juvenile courts hold a permanency hearing to determine a child's disposition within 12 months of the date the child first entered foster care. See Ala.Code 1975, § 12-15-62(c). In a permanency hearing, the juvenile court is to "determine" which of several custodial arrangements[6]return to the parent, referral for termination of parental rights and adoption, or placement with a relative or other legal custodian[7]"shall be" the permanency plan. Id. The purpose of requiring the 12-month permanency hearing is to comply with the policy behind the ASFA to ensure "that children are provided a permanent home as early as possible."[8] Kurtis A. Kemper, Annotation, Construction and Application by State Courts of the Federal Adoption and Safe Families Act and Its Implementing State Statutes, 10 A.L.R.6th 173, 193 (2006).
Based on the plain language of § 12-15-62(c), a juvenile court must, in a permanency *70 hearing, determine the issues of whether a "fit and willing" relativei.e., someone who is "qualified to receive and care for the child," § 12-15-71(a)(3)c. exists and whether placement with that relative serves the best interests of the child. Otherwise, the juvenile court could not make a determination as to whether relative placement should be the permanency plan for the child as required under § 12-15-62(c). Hence, the AJJA now expressly states that the determination of the viability of relative placement should take place in a proceeding separate from the hearing to determine whether grounds for termination of parental rights exist.[9]
Section 12-15-62(c) specifically requires a juvenile court to hold at least one permanency hearing within 12 months of when the child enters foster care; however, nothing in the law prohibits a juvenile court from holding more than one permanency hearing.[10] Thus, if, after the original permanency hearing, an interested party asserts that a material change of circumstances has occurred and that the permanency plan in effect is no longer in the best interests of the child, a juvenile court may conduct another permanency hearing for the purposes of reviewing the permanency plan and, if appropriate, modifying it. For example, if an interested party asserts on the eve of the termination hearing that placement with a relative has become a viable alternative due to intervening circumstances occurring since the last permanency hearing, the juvenile court may order another permanency hearing to immediately precede the hearing on the termination of parental rights. Upon proper notice to the parties, the juvenile court may bifurcate the trial by deciding, first, in the dependency action, the viability of relative placement, i.e., whether the relative is "fit and willing" and "qualified to receive and care for the child" and whether such placement would serve the child's best interests, and then, if still necessary, deciding, second, in the termination action, whether grounds for termination exist. However, under no circumstances does § 12-15-62(c) authorize a juvenile court to determine the question of the viability of relative placement during the adjudicatory phase, which is dedicated solely to determining whether grounds for termination exist.
What Evidentiary Standards Apply in Permanency Hearings?
In deciding which of the several custodial alternatives should be adopted as the permanency plan, a juvenile court should not be limited to admissible evidence. Alabama Code 1975, § 12-15-65(h), states, in pertinent part:
"In disposition hearings all relevant and material evidence helpful in determining the questions presented, including oral and written reports, may be received by the court and may be relied upon to the extent of its probative value, even though not competent in a hearing on the petition."
In Ex parte State Department of Human Resources, 890 So.2d 114 (Ala.2004), the *71 supreme court concluded that hearings to terminate parental rights are divided into two phasesa fact-finding, or adjudicatory, stage and a dispositional stage. 890 So.2d at 116 (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). At the adjudicatory stage, the juvenile court
"determines `from clear and convincing evidence, competent, material, and relevant in nature, that the parents are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct is unlikely to change in the foreseeable future.' § 26-18-7(a), Ala.Code 1975."
890 So.2d at 116. Accordingly, the juvenile court may only accept and consider admissible evidence relevant to the issues relating to the alleged grounds for termination. 890 So.2d at 117.
On the other hand, the questions of which of several dispositional options serves the best interests of the child and which of those options should be adopted as the permanency plan do not involve any determination as to the unfitness of the parent or the dependency of the child.[11] It is only at a dispositional hearing, see Annotation, supra (noting that the requirement of a 12-month "permanency hearing" in the ASFA replaces the requirement of an 18-month "dispositional hearing" in prior federal law), that, by statute, a juvenile court may consider all material and probative evidence, even if that evidence would be incompetent in the adjudicatory phase. See, e.g., In re Billy W., 387 Md. 405, 875 A.2d 734 (2005); and In re M.J.G., 168 N.C.App. 638, 608 S.E.2d 813 (2005).
The AJJA and the Child Protection Act ("the CPA"), Ala.Code 1975, § 26-18-1 et seq., both specifically state that DHR must prepare and submit to the juvenile court a "study" relating to the qualifications of the relative "to receive and care for the child." See Ala.Code 1975, §§ 12-15-71(a)(3)c. & 26-18-8.[12] Typically, home studies contain voluminous inadmissible information pertaining to the relative's family history, criminal background, income, mental and physical condition, past and present child-rearing abilities, drug and alcohol use, relationship with the child, and other similar topics. By mandating that juvenile courts receive and consider those reports, the legislature has clarified that a hearing to determine the viability of placing a child with a relative is a dispositional hearing under § 12-15-65(f).
Because DHR has the burden of initiating investigations and proving the unsuitability of prospective custodians, see Ex parte J.R., 896 So.2d at 428 (quoting D.S.S. v. Clay County Dep't of Human Res., 755 So.2d 584, 591 (Ala.Civ.App. 1999)), at a permanency hearing, DHR would bear the burden of proving that a prospective relative custodian is not fit or willing to receive and care for the child or that it would not be in the best interests of the child to place him or her with the relative. However, DHR would not have *72 to carry that burden by clear and convincing evidence.
In adjudicatory proceedings to determine dependency and whether grounds for termination of parental rights exist, the applicable statutes specifically require proof by clear and convincing evidence. See Ala.Code 1975, §§ 12-15-65(f) & 26-18-7. In Santosky v. Kramer, supra, the Supreme Court held that, as a matter of due process, states may only find a parent unfit for the purpose of terminating parental rights based on at least clear and convincing evidence. However, no Alabama statute requires clear and convincing evidence in a dispositional hearing aimed at determining whether placement with a relative, or some other placement option, is viable and in the best interests of the child. Likewise, the constitutional right to due process does not require clear and convincing evidence at a dispositional hearing in which the state is not deciding the fitness of the parents, but is actually considering whether it should forgo terminating parental rights in favor of another disposition that serves the best interests of the child. See, e.g., In re D.T., 212 Ill.2d 347, 818 N.E.2d 1214, 289 Ill.Dec. 11 (2004).
Current Alabama caselaw requires a juvenile court to assess the question of viable alternatives based on the clear-and-convincing-evidence standard. See, e.g., Ex parte T.V., 971 So.2d 1 (Ala.2007). The application of this standard arose directly from the fusing of the two prongs of the Beasley test into one proceeding. Properly separating the determination as to whether grounds for termination exist from the determination as to what disposition is in the best interests of the child clearly reveals the error of applying a clear-and-convincing-evidence standard to the viable-alternatives issue.
By following appropriate procedure, as outlined above, the juvenile courts will comply with both Beasley and the ASFA. The juvenile courts will still explore all viable alternatives before making a termination-of-parental-rights determination, as Beasley requires, but they will simply do so in a bifurcated manner that expedites the disposition of the dependent child in compliance with the ASFA.
Did the Juvenile Court Err in Excluding Awarding Custody to the Maternal Grandparents as a Viable Alternative?
Upon my first consideration of this case, I concluded that DHR had failed to adequately investigate the maternal grandparents and that DHR had failed to present sufficient evidence to prove the maternal grandparents' unsuitability to receive and care for the children.[13] The oral testimony presented at the hearing revealed nothing about the maternal grandparents to suggest their unsuitability to receive and care for the children. However, upon more thorough consideration, I am convinced that DHR presented sufficient evidence through court reports and other documents submitted to the juvenile court to prove that the maternal grandfather had abused the mother when she was a teenager and that the maternal grandparents had neglected the children while they were under *73 their care in 2002 and 2003. Although most of that evidence may not have been admissible within our rules of evidence, under the views I have expressed above, the juvenile court could have properly considered the content of those documents in deciding the viability of placing the children with the maternal grandparents. Alternatively, because the mother failed to object to the admission of those documents, the juvenile court could have considered those documents when concluding that clear and convincing evidence proved that placement with the maternal grandparents was not a viable alternative. See, e.g., Ex parte Williamson, 907 So.2d 407 (Ala.2004).
Although I concur in the main opinion's conclusion that the judgment of the juvenile court should be affirmed, I note that, had the juvenile court followed the statutory procedure set out above, the juvenile court would have decided the viability of placing J.B. with the maternal grandparents in late 2004 and would have decided that issue in regard to K.T. in August 2005. See Ala.Code 1975, § 12-15-62(c) (establishing circumstances that commence 12-month period to hold permanency hearing). Instead, the juvenile court did not adjudicate the viability of placing the children with the maternal grandparents until March 7, 2007. In my opinion, that delay violates the letter and the purpose of the law. With that said, the juvenile court cannot be placed in error for merely acting in accordance with our present caselaw.
NOTES
[1] The juvenile court also terminated the parental rights of the children's respective fathers. This court has already considered the appeal of B.B.T., K.T.'s father. See B.B.T. v. Houston County Dep't of Human Res., 985 So.2d 479, 480 (Ala.Civ.App.2007). J.B.'s father did not appeal the termination of his parental rights.
[2] The mother's attorney objected to the admission of the court report at the commencement of the termination trial. DHR's attorney stated that he was not offering the court report and directed the juvenile court's attention to the fact that the earlier court reports had been admitted into evidence at earlier proceedings. The juvenile court made no comment. The mother's attorney failed to object at this point and raised no objection that the earlier admission of the court reports in other proceedings would not permit the court to consider those documents as evidence in the termination trial. See Rule 105, Ala. R. Evid. (indicating that, in situations in which evidence is admissible for one purpose but not another, a court, "upon request, shall restrict the evidence to its proper scope...." (emphasis added)). Compare Ala.Code 1975, § 12-15-65(f) (requiring evidence in an adjudicatory phase of a dependency proceeding to be "competent, material, and relevant") with § 12-15-65(h) (permitting the juvenile court to consider "all relevant and material evidence," even if it is "not competent in a hearing on the petition" in disposition hearings); see also Y.M. v. Jefferson County Dep't of Human Res., 890 So.2d 103 (Ala.Civ.App. 2003), aff'd, Ex parte State Dep't of Human Res., 890 So.2d 114 (Ala.2004).
[3] Later cases have stated that the determination of grounds for termination pursuant to § 26-18-7 is the first prong of the "two-prong" test and that the issue of dependency is a threshold issue. See Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990).
[4] The 1998 amendments to § 12-15-62 of the AJJA became effective on April 22, 1998, and were inapplicable at the time this court decided V.M. and C.B.
[5] By its plain language, Ala.Code 1975, § 26-18-7, limits an adjudicatory hearing to consideration of whether grounds for termination exist based on a review of evidence supporting the factors set out in that statute and other relevant evidence. Whether a dependent child may be placed with a relative is irrelevant to the determination of whether the parent is unwilling and unable to properly care for the child or whether the parent's conduct or condition that renders him or her unfit is likely to change in the foreseeable future. Hence, the statute does not refer to relative placement as an alternative to termination of parental rights as a factor to be considered at the adjudicatory hearing.
[6] The applicable statute allows the juvenile court to order DHR to make reasonable efforts to place the child for adoption or with a legal custodian while concurrently making reasonable efforts to reunite the child with the parent. See Ala.Code 1975, § 12-15-65(n).
[7] Alabama Code 1975, § 12-15-62(c), provides, in part:
"The permanency hearing shall determine whether the plan will include placement in another planned permanent living arrangement in cases where the department has documented to the court a compelling reason for determining that it would not be in the best interests of the child to return home, be referred for termination of parental rights, be placed for adoption, or be placed with a fit and willing relative, or with a legal custodian."
[8] See Ala.Code 1975, § 12-15-65(m), which is virtually identical to 42 U.S.C.A. § 671(a)(15)(C), a part of the ASFA.
[9] Alabama Code 1975, § 26-18-8, which was enacted in 1984, authorizes the juvenile court to transfer custody of the child to a qualified relative following a judgment terminating parental rights, but it does not describe the procedure for determining the qualifications of the relative. Construing § 26-18-8 together with § 12-15-62(c), it appears that the legislature now requires that that determination be made in a permanency hearing.
[10] In fact, 42 U.S.C. § 675(5)(C), upon which Ala.Code 1975, § 12-15-62(c)., is based, specifically requires additional permanency hearings at least every 12 months after the first 12-month permanency hearing if the child continues in foster care.
[11] Alabama Code 1975, § 12-15-65(f), establishes that hearings to decide the dependency of a child also are adjudicatory proceedings. That section provides, in pertinent part:
"If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the child is dependent..., the court may proceed immediately, in the absence of objection showing good cause or at a postponed hearing, to make proper disposition of the case."
[12] In Wallace v. Pollard, 532 So.2d 632 (Ala. Civ.App.1988), this court held that DHR is not required to perform a formal home study, but DHR often does prepare such studies.
[13] Also, at one point, the juvenile court appeared to indicate that it could not consider the maternal grandparents as a placement alternative because they had not filed a custody petition. That understanding is erroneous because DHR has the burden of investigating the suitability of relatives regardless of whether they have filed a custody petition. See Ex parte J.R., supra. However, any error the juvenile court may have committed in this regard did not affect the outcome because the evidence supported its final determination that awarding custody to the maternal grandparents was not a viable alternative. See Rule 45, Ala. R.App. P. (stating that a judgment will not be reversed based on harmless error). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596919/ | 638 So.2d 106 (1994)
CHICAGO INSURANCE COMPANY, Appellant,
v.
Bernard TARR and Patricia Tarr, his Wife, Appellees.
No. 93-640.
District Court of Appeal of Florida, Third District.
May 24, 1994.
Rehearing Denied July 5, 1994.
*107 Fertig and Gramling and Frank R. Gramling, Fort Lauderdale, for appellant.
Brumer, Cohen, Logan, Kandell & Kaufman, Perse & Ginsberg and Arnold R. Ginsberg, Miami, for appellees.
Before HUBBART, GERSTEN and GODERICH, JJ.
PER CURIAM.
Chicago Insurance Company [Chicago] appeals from a final summary judgment entered in favor of the plaintiffs, Bernard Tarr and Patricia Tarr, and an order enforcing an ex parte arbitration award in favor of the Tarrs. We reverse.
Mr. Tarr was involved in an automobile accident which allegedly occurred when a phantom vehicle ran a stop sign. At the time of the accident, Mr. Tarr had primary uninsured motorist coverage with Travelers Insurance Company [Travelers] and excess underinsured/uninsured motorist coverage with Chicago.
The Tarrs asserted uninsured/underinsured motorist claims against Chicago and Travelers seeking arbitration. In response, Chicago denied coverage and refused to arbitrate based on its belief that, pursuant to its policy, it was not required to arbitrate. It was the Tarrs' position that Chicago was bound by Travelers' arbitration clause since Chicago's policy mandated that Chicago be bound by the "terms and conditions" of Travelers' policy.[1]
Subsequently, the Tarrs sought arbitration only against Travelers; Chicago was not made a party to the arbitration. Moreover, the Tarrs never made any efforts to compel Chicago to arbitrate. Shortly before the scheduled arbitration, Travelers settled with the Tarrs and withdrew its defense arbitrator. As a result, the arbitration was conducted ex parte. The arbitration resulted in an award of approximately $300,000.00 in favor of the Tarrs.
The Tarrs filed a second amended motion to enforce the arbitration award. The parties filed cross-motions for summary judgment. The trial court granted the Tarrs' motion for summary judgment and motion to enforce the ex parte arbitration award against Chicago. This appeal follows.
Ex parte arbitration awards will not be enforced unless the insurance policy provides for ex parte arbitration. Cooper v. State Farm Fire & Casualty Co., 266 So.2d 181 (Fla. 3d DCA 1972). In the instant case, *108 there is no doubt that neither Chicago's or Travelers' policies provided for ex parte arbitration. Instead of knowingly proceeding with an ex parte arbitration, it would have been appropriate for the Tarrs to file an application to compel arbitration with the court to resolve the dispute as to whether Chicago is obligated to submit to arbitration. See §§ 682.03, 682.17, Fla. Stat. (1991); Thomas W. Ward & Assoc., Inc. v. Spinks, 574 So.2d 169 (Fla. 4th DCA 1990), rev. denied, 583 So.2d 1037 (Fla. 1991); Cooper, 266 So.2d at 183; see also 4 Fla.Jur.2d Arbitration and Award §§ 43-50 (1994). "The trial court's role when considering applications to compel arbitration under Section 682.03, Florida Statutes (1987), is limited to determining (1) whether a valid written agreement exists containing an arbitration clause, (2) whether an arbitrable issue exists, and (3) whether the right to arbitrate was waived." Piercy v. School Bd. of Washington County, Fla., 576 So.2d 806, 807 (Fla. 1st DCA 1991).
Accordingly, we reverse and remand for further proceedings consistent with this opinion.[2]
NOTES
[1] Chicago's policy provided as follows: "The company agrees to pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured or underinsured automobile, in excess of the underlying limits, provided coverage hereunder for loss involving such uninsured or underinsured automobile apply only in accordance with the terms and conditions of the underlying uninsured and underinsured motorists insurance provided to the insured at the time of loss."
[2] As a result of the disposition of this case, we do not reach the remaining points raised on appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596924/ | 28 So.3d 502 (2009)
STATE of Louisiana
v.
Richard BELL.
No. 2009-K-0574.
Court of Appeal of Louisiana, Fourth Circuit.
December 9, 2009.
*505 Autumn Snyder Harrell, Justin C. Harrell, Orleans Indigent Public Defenders, New Orleans, LA, for Richard Bell.
Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
(Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
PAUL A. BONIN, Judge.
Richard Bell moved to suppress from evidence at his trial a .357 Magnum and a marijuana "cigar" seized from his bedroom by a police officer who had entered his apartment without a warrant. La. C. Cr. P. art. 703 A. The district court denied the motion to suppress and Mr. Bell applied for supervisory writs in this court. See La. Const. Art. V, § 10(A) and La. C. Cr. P. art. 912.1 C(1). We ordered additional briefing as well as oral argument in order to more closely examine Mr. Bell's contention that the prosecution had not established one of the limited and well-recognized exceptions for entry into his home without a warrant and for conducting a "protective sweep" of his bedroom once inside the home. We conclude that an exception to the search warrant requirement justified the warrantless entry, but that the police, having accomplished the purpose for their entry, were nevertheless unreasonable in later entering into Mr. Bell's bedroom. For the reasons which follow, we grant the writ and reverse the trial court's ruling.
I
Richard Bell was in the bedroom of his apartment on the evening of August 19, 2008. At approximately 10:50 p.m., Mr. Bell and his girlfriend, Unique Tolliver, were roused. Six police officers had entered the apartment and announced their presence. Ms. Tolliver left their bedroom to speak with the police and closed the door behind her. Along with their two minor children, Mr. Bell remained in the bedroom.
Six police officers had been on patrol in the apartment complex when they observed a man, one Cameron Mack, smoking a marijuana joint in the hallway. When Mr. Mack noticed the officers observing him, he discarded the joint and dashed into Mr. Bell's apartment. The officers pursued him into the apartment through the unlocked front door. Mr. Mack was seized inside and immediately brought outside the apartment by some of the officers. It was at this point that Ms. Tolliver left her bedroom and shut the door behind her. Ms. Tolliver told the officers that she knew Mr. Mack, but that he was not a resident of her apartment. Officers were in the midst of interviewing Ms. Tolliver when they heard a noise coming from the back area of the apartment, prompting them to enter the bedroom where they found Mr. Bell with the contraband. Once the officers learned that Mr. Bell previously had been convicted of a felony, he was arrested for violating La. R.S. 14:95.1 and for simple possession of marijuana, a violation of La. R.S. 40:966 D(1).[1] This prosecution ensued.
*506 Mr. Bell argues that the trial court erred in denying his motion to suppress on two grounds: (1) that the Fourth Amendment does not allow for a warrantless entry into a home when the police, even with probable cause, are in "hot pursuit" of a wanted person whose offense is a misdemeanor, and (2) that the Fourth Amendment does not extend to the full "sweep" of his apartment, and especially his bedroom, which the officers conducted under the particular circumstances of this case. The prosecution argues that there is no constitutional distinction between a felony and a misdemeanor when officers are in "hot pursuit" of a person whom the police have probable cause to believe committed a crime. The prosecution also argues that the officers, once lawfully inside the apartment, were authorized to conduct a "protective sweep" of the entire apartment to ensure their personal safety during the investigation.
At the outset of the discussion, we emphasize that there is no dispute that the police officers had probable cause to believe that Mr. Mack had committed a misdemeanor.[2] There is also no dispute that the officers had removed Mr. Mack from the apartment at least some short while before other officers approached Mr. Bell's bedroom. Finally, there is no suggestion that Ms. Tolliver was viewed by any of the officers as a confederate of Mr. Mack or as a threat to the officers' safety.
II
The Fourth Amendment protects "the right of the people to be secure in their ... houses ... against unreasonable searches and seizures." U.S. Const. amend. IV. "At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961) (emphasis added). The Louisiana Constitution similarly protects the right of each person to keep his home free of unreasonable searches or seizures. La. Const. Art. I § 5. Warrantless searches are per se unreasonable under the Fourth Amendment, "subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Because the evidence sought to be suppressed in this case was seized from within Mr. Bell's home without a warrant as ordinarily required by the federal and Louisiana constitutions, the prosecution bears the burden of establishing that the evidence was seized pursuant to one of the limited exceptions to the warrant requirement. Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); State v. Tatum, 466 So.2d 29, 31 (La.1985); State v. Kelly, 06-0475, pp. 1-2 (La.App. 4 Cir. 11/21/06), 946 So.2d 222, 223; La. C. Cr. P. art. 703 D.
To penetrate the broad protections afforded the home, the police must show probable cause and exigent circumstances to justify warrantless entry into the premises. Payton v. New York, 445 U.S. 573, 589-90, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). In Payton, the United States Supreme Court expressed this principle:
In terms that apply equally to seizures of property and to seizures of persons, *507 the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.
Id. Of course, "the Fourth Amendment protects people, not places." Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Although the actions of Mr. Mack must be considered, our discussion is limited to Mr. Bell, the householder, and emphasize that it is his home which the police entered. The Fourth Amendment only protects persons against unreasonable searches and seizures. See Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) ("As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is reasonableness."). For the police to violate a defendant's Fourth Amendment protection, the defendant must have had a "reasonable expectation of privacy" which involves both a person's subjective expectation of privacy and an expectation that society is prepared to recognize as "reasonable." See Katz, at 361, 88 S.Ct. 507 (Harlan, J., concurring). The determination of a motion to suppress involves "the substantive question of whether or not the proponent of the motion to suppress has had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge." Rakas v. Illinois, 439 U.S. 128, 133, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). In order to obtain the remedial benefits of a Fourth Amendment violation through the suppression or exclusion of evidence, it is necessary to establish not only that the search was illegal, but "also that [the defendant] had a legitimate expectation of privacy" in the premises searched. See Rawlings v. Kentucky, 448 U.S. 98, 104-105, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980) (citing Rakas, at 131, n. 1, 99 S.Ct. 421). Mr. Bell's expectation of privacy is at its height in his own home, for it is the "physical entry of the home that is the chief evil against which the wording of the Fourth Amendment is directed." United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). Having determined that Mr. Bell had a legitimate expectation of privacy in the premises searched, we now turn to the question of whether the police properly entered Mr. Bell's home in pursuit of Mr. Mack after observing Mr. Mack commit a crime.
III
Mr. Bell first argues that the Fourth Amendment does not allow for a warrantless entry into a home when the police are in "hot pursuit" of a wanted person whose offense is a misdemeanor. We find it helpful in our resolution of this controversy to distinguish between the attributes of offenses classified as misdemeanors and as felonies. Possession of marijuana, by way of illustration, is a misdemeanor offense for first-time offendersa relatively minor offense punishable by a fine of not more than five hundred dollars, a prison sentence of not more than six months, or both. Because a person convicted on that charge is not subject to punishment at hard labor, a person charged with possession of marijuana is not entitled to a jury trial. La. R.S. 14:2 A(6) and La. R.S. 40:966 E. Further, a person convicted of a first-time marijuana charge will not be entitled to an appeal, because appellate jurisdiction extends only to those cases that are triable by jury. La. Const. art. 5 § 10; La. C. Cr. P. art. 912.1. Cases for ordinary street crimes like possession of marijuana must be processed and brought to trial quickly, as the constitution tolerates relatively brief delays for simple misdemeanor offenses. *508 State v. Reaves, 376 So.2d 136, 138 (La. 1979) (citing Barker v. Wingo, 407 U.S. 514, 531, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)) ("[T]he delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.").
Felony offenses, on the other hand, require considerably more process, as felony offenders may be punished by death or imprisonment at hard labor. La. R.S. 14:2 A(4). A person charged with a felony must be present at all critical stages of the prosecution. La. C. Cr. P. art. 831. He has a right to an adversarial preliminary hearing and a trial by jury of at least six jurors. See La. Const. art. I, §§ 14, 17; La. C. Cr. P. arts. 291, 782. Along with possible punishment at hard labor, felony convictions carry collateral political and civil ramifications: limiting the right to vote while incarcerated and precluding felons from qualifying for elective public office. La. Const. art. I § 10. There are, then, clear differences in procedural, substantive, and collateral consequences depending upon whether the offense is classified as a misdemeanor or felony.
We now turn to the effect of the nature of the underlying offense on a police officer's ability to immediately pursue an offender from a public place into a private place when the offense was committed in the officer's presence.
Relying on language in Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984), Mr. Bell argues that the "hot pursuit" exception to the warrant requirement is confined to circumstances in which the underlying offense is a felony. The United States Supreme Court noted that "it is difficult to conceive of a warrantless home arrest that would not be unreasonable under the Fourth Amendment when the underlying offense is extremely minor." Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). The holding in Welsh, however, did not exclude misdemeanor offenses entirely. Instead, the Court only held that "an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made." Id. No bright line was drawn distinguishing an exigency based upon a misdemeanor rather than a felony. The police officers may have had reasonable suspicion that Mr. Mack was committing a felony, but they only had probable cause that he had committed a misdemeanor. In Louisiana, a first offense possession of marijuana charge is, as we have noted, a relatively minor offense, but it is punishable with incarceration. It is, therefore, more serious than the offense in Welsh, which involved a non-jailable traffic offense.
In United States v. Santana, the United Stated Supreme Court recognized the exigent circumstances inherent in a true hot pursuit situation, holding that by escaping to a private place, "a suspect may not defeat an arrest which has been set in motion in a public place." United States v. Santana, 427 U.S. 38, 43, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). We have defined exigent circumstances as those "exceptional circumstances which, when coupled with probable cause, justify an entry into a `protected' area that, without those exceptional circumstances, would be unlawful." State v. Fournette, 08-0254, p. 19 (La.App. 4 Cir. 7/2/08), 989 So.2d 199, 211, writs denied, 08-1815, 08-1824 (La.4/17/09), 6 So.3d 789. Santana, Payton, and Fournette, however, only applied the hot pursuit exigency to an arrest for a felony. Santana, 427 U.S. at 41, 96 S.Ct. 2406; Payton, 445 U.S. at 574, 100 S.Ct. 1371, and Fournette, 08-0254 p. 1, 989 So.2d at 200. Payton left to the lower courts the application of the exigent circumstances *509 exception, by expressly declining to consider the scope of the exigent circumstances exception that may justify a warrantless home arrest. Payton, 445 U.S. at 583, 100 S.Ct. 1371. Accordingly, our jurisprudence does not preclude a finding of exigency under the circumstances of the case at bar. See, e.g., State v. Robinson, 08-0652, p. 21 (La.App. 4 Cir. 5/13/09), 11 So.3d 613, 625 (finding the totality of the circumstances and the inherent necessities of the situation objectively established exigent circumstances in an in-home arrest for marijuana possession where it was unknown whether other narcotics were on the premises that might be destroyed); State v. Brown, 99-0640, p. 10 (La.App. 4 Cir. 5/26/99), 733 So.2d 1282, 1288 (finding exigent circumstances when police pursued a defendant to arrest him for driving without a license); State v. Ennis, 96-0811 (La.App. 4 Cir. 6/12/96), 676 So.2d 196, 199 ("Exigent circumstances arose when the officers observed [the defendant] take a small plastic bag from his mouth and place it in his hand and flee into the residence"); State v. Byas, 94-1999 (La.App. 4 Cir. 12/15/94) 648 So.2d 37, 39 (finding exigent circumstances where the subject of the pursuit "could have escaped or destroyed contraband if the officers did not follow him into the house").
The United States Supreme Court has addressed the difference between a felony and a misdemeanor offense as it informs police authority to undertake a custodial arrest in Atwater v. City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). The police officer in Atwater performed a full custodial arrest on Mrs. Atwater after observing her driving a vehicle with her children while none of them were wearing seatbelts. The Supreme Court rejected Mrs. Atwater's contention that the Court should forbid custodial arrest in the case of offenses that do not authorize jail time as punishment. Atwater pointed to common law and founding-era principles that officers had no authority to conduct a warrantless arrest for a misdemeanor offense that did not qualify as a "breach of the peace." Id. at 328, 121 S.Ct. 1536, citing Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The Court in Atwater disagreed with that position, noting that this common-law rule was only "sometimes expressed" that way. Id. Indeed, the Court explained that the Carroll decision "conspicuously omitted any reference to a breach-of-the-peace limitation in stating that the `usual rule' at common law was that `a police officer [could] arrest without warrant ... one guilty of a misdemeanor if committed in his presence.'" Id., citing Carroll at 156-157, 45 S.Ct. 280. Thus, the Court in Atwater concluded, "what Carroll illustrates, and what others have recognized, is that statements about the common law of warrantless misdemeanor arrest simply are not uniform." Id. at 329, 121 S.Ct. 1536. The Atwater Court, after a thorough discussion of founding-era principles leading to the drafting and ratification of the Fourth Amendment, further stated: "[w]e simply cannot conclude that the Fourth Amendment, as originally understood, forbade peace officers to arrest without a warrant for misdemeanors not amounting to or involving breach of the peace." Id. at 340, 121 S.Ct. 1536 (discussion of original intent at 336-340). Accordingly, we cannot agree with Mr. Bell's contention that a bright-line rule exists that precludes officers from pursuing an offender into a home for a crime committed in their presence simply because the underlying offense is not a felony.
Mr. Bell also argues that State v. Lala, 08-0484, (La.App. 4 Cir. 12/3/08), 1 So.3d 606, further supports his argument that a distinction between a felony and a misdemeanor if not made ought to be made. In *510 Lala, police pursued a woman into her home after observing her yelling in the street and attempting to get the attention of passing drivers. Assuming that Ms. Lala was publicly intoxicateda violation of Section 54-405 of the New Orleans Municipal Codethe police followed her into her home and recovered cocaine therein. This court found that the police's pursuit of Ms. Lala into her home was unreasonable not simply because public intoxication is a minor offense but because police failed to demonstrate a sufficient State interest to overcome the unreasonableness of a warrantless home entry. Lala, supra at 615. The most important and dispositive factor, however, in Lala is that Ms. Lala's behavior, strange as it was, only gave rise to reasonable suspicion warranting further police investigation; the police lacked the probable cause essential to arrest her on that charge, and once she "retreated into the home, any concern for public safety was alleviated." Id. It is a crucial distinction in our case that the police had probable cause to arrest Mr. Mack when they immediately pursued him into Mr. Bell's home to complete an arrest for a crime committed in their presence.
Moreover, in a case with facts more akin to ours, the Louisiana Supreme Court approvingly noted police authority to pursue a fleeing criminal from a public place into a private place when there is probable cause to arrest him. State v. Walker, 06-1045, p. 5-6 (La.4/11/07), 953 So.2d 786, 790. In Walker (which upheld evidence seized pursuant to the arrest of a man suspected of taking part in a drug transaction who fled into a third person's home when the police approached him), the court explained:
[E]ven granting "the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic," Payton, 445 U.S. at 601, 100 S.Ct. 1371 (footnote omitted), it has long been settled that a person may not frustrate an otherwise lawful arrest on probable cause which the police are entitled to make in a public place without a warrant, United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), simply by stepping across the threshold of his home. United States v. Santana, 427 U.S. 38, 43, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976) ("[A] suspect may not defeat an arrest which has been set in motion in a public place, and is therefore proper under Watson, by the expedient of escaping to a private place.").
Id.[3] Here, officers observed Mr. Mack smoke and discard a marijuana joint in a public place, giving rise to probable cause for his arrest. Mr. Mack may not, under Santana, elude capture for a valid arrest that was set in motion in a public place by escaping to a private place. Mr. Bell's privacy was infringed upon first by Mr. Mack, and then by the police. The Louisiana Supreme Court in Walker acknowledged that the officer's "intrusion on the owner's privacy interests by entering her residence on the heels of an intruder and removing him without her express consent scarcely added to the initial disruption caused by the defendant's unauthorized entry into the home after he ignored the officer's attempt to stop him outside the premises." Id. at 791. Under similar circumstances here, the police were justified in pursuing Mr. Mack into Mr. Bell's apartment for the limited purpose of effecting *511 his arrest for a crime he committed in their presence in a public place.
IV
The second issue in this case is whether officers conducted a valid "protective sweep" of Mr. Bell's apartment after gaining entry in pursuit of Mackand after Mack had been apprehended and taken outside of the apartment. Police may conduct a protective sweep of the premises as part of permissible "reasonable steps to ensure their safety after, and while making, the arrest." Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). The Supreme Court in Buie confected a two-tiered system of justification for such sweeps, analogizing them to searches incident to arrest and to stops and frisks, holding that:
[A]s an incident to arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.
Id. at 334, 110 S.Ct. 1093. From the two tiers described above, this case presents an issue regarding the second tier, in which the area searched expands beyond the area immediately adjoining the place of arrest, and for which an officer must offer articulable suspicion in justification. In this case, police entered the premises in pursuit of only one offender, Mr. Mack, for the limited purpose of apprehending him for a relatively minor, nonviolent offense. Once Mr. Mack was secured and taken from the residence, officers collected a plastic bag of marijuana on the kitchen table, which Mr. Mack confessed belonged to him. Other officers remained inside to interview Ms. Tolliver, who was the only other person that officers encountered upon pursuing Mr. Mack into his intended refuge. Mr. Mack had been arrested and removed from the residence when other officers interviewed Ms. Tolliver, who was not suspected of any crime. Some time later, police heard a "noise," prompting a sweep of the back bedroom of the residence. In this sweep, officers discovered Mr. Bell in a back bedroom, where next to himin plain viewwere both a firearm and a cigar containing marijuana.
The protective sweep doctrine allows officers to protect themselves in arrest situations that implicate danger. The second tier of Buie permits an extended sweep of the premises when officers demonstrate articulable facts giving rise to a reasonable belief that the premises harbor an individual posing a danger to those on the scene. Buie, supra at 334, 110 S.Ct. 1093. Requiring this from officers ensures that the scope of such a sweep remains closely tied to its protective purposes. See Buie, supra at 336, n. 3, 110 S.Ct. 1093 (comparing a protective sweep to a Terry pat-down, noting that, while both constitute "searches" under the Fourth Amendment, they are permitted on less than probable cause because of their limited scope for officer safety). Here, six police officers pursued Mack into a private residence for the narrow purpose of arresting him for a minor criminal offense committed in their presence. Officers did not conduct the protective sweep until after they had accomplished this objective and Mack had been taken from the residence. Officers conducted the sweep in the midst of interviewing Ms. Tolliver, a witness, at her kitchen table. The officers *512 only asserted that an unelaborated "noise" gave rise to their sweep of Mr. Bell's apartment. Officers had gained warrantless entry to Mr. Bell's residence for a limited purpose: to arrest Mr. Mack on probable cause for being in possession of marijuana. Officers had probable cause to arrest only Mr. Mack; they did not suspect Ms. Tolliver of any crime and had no reason to believe that Mr. Mack was accompanied by hidden confederates. Mr. Mack was arrested for only this offense, and to be reasonable, a full-blown protective sweep of Mr. Bell's entire home must be supported by articulable facts indicating that the area to be swept harbors an individual posing a danger to those on the arrest scene. In the absence of facts implicating such a danger, the officers have neither articulated nor demonstrated that, once Mack was apprehended and secured outside the apartment, a protective sweep was still necessary for their safety. The officers must articulate their sense of danger and not a sense of mere curiosity. Under the circumstances here, the officers' protective sweep of Mr. Bell's bedroom was unreasonable. Reasonableness is always the touchstone in striking the balance between legitimate law enforcement concerns, such as officer safety, and protected individual privacy interests. See Maryland v. Buie, supra at 337, 110 S.Ct. 1093; Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889; Richards v. Wisconsin, 520 U.S. 385, 395-396, 117 S.Ct. 1416, 137 L.Ed.2d 615, and see generally Atwater v. City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549.
V
The prosecution asserts that the officers were authorized to seize the evidence found in Mr. Bell's bedroom because it was in "plain view." It is established that there are certain circumstances under which the police may seize evidence in plain view without a warrant. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). To determine whether these circumstances exist, there is a two-fold inquiry: first, whether there was a valid prior intrusion, and second, whether the observation was made within the permitted scope of the intrusion. See, e.g., Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).
An essential predicate to a valid warrantless seizure of incriminating evidence is "that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed." Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). In this case, there are two intrusions by the police into Mr. Bell's home: the initial entry through the front door in pursuit of Mr. Mack and the subsequent entry into Mr. Bell's bedroom. The "prior intrusion" at issue here is the officers' entrance not into his apartment but into Mr. Bell's bedroom. The officers were not in a position to observe Mr. Bell or the evidence until they opened his bedroom door. Since we find this intrusion unreasonable, the evidence will be suppressed because the police were not validly in a position to make the observation to begin with.
While we find that officers were reasonable in apprehending Mr. Mack pursuant to a chase in hot pursuit, the officers were not justified in lingering in the residence once they had accomplished their purpose. Under these circumstances, the police have not articulated a reasonable suspicion of danger. It is unreasonable to extend to the police the authority to conduct a protective sweep when officers are unable to demonstrate a basis for the belief that their safety might be in jeopardy. *513 While the officers were narrowly authorized to intrude into Mr. Bell's home (and privacy) in pursuit of Mr. Mack, subsequent entry into Mr. Bell's bedroom was not within the scope of that limited intrusion. Furthermore, there was not a valid prior intrusion into the back bedroom because the officers failed to articulate facts that would necessitate a protective sweep under Buie. It was pursuant to this unreasonable intrusion into Mr. Bell's bedroom that the officers seized evidence in plain view. Because the intrusion into Mr. Bell's bedroom was not within the scope of the officers' initial limited intrusion into his home, and because the officers did not independently offer a reasonable basis for intrusion into the bedroom, the officers were never validly in a position to observe the evidence in plain view. Therefore, the plain view "exception" is unavailing under these facts.
VI
Having captured their suspect and removed the intruder from Mr. Bell's home, the police were unreasonable under these circumstances in advancing deeper into the recesses of his home. Accordingly, we reverse the trial court's ruling. The evidence seized from the bedroom of Mr. Bell's residence is suppressed. The matter is remanded to the trial court for further proceedings consistent with our decision.
WRIT GRANTED; REVERSED AND REMANDED.
NOTES
[1] Mr. Mack was also arrested for simple possession of marijuana. There is nothing in the record about the disposition of the marijuana in the plastic bag, which was found on the kitchen table of the apartment and of which Mr. Mack confessed ownership.
[2] The trial court emphasized that the apartment complex was in a high crime area. The officers may have had reasonable suspicion to believe that Mr. Mack was committing or had committed a felony, such as possession with intent to distribute marijuana.
[3] Although the court's holding in Walker was based on the fact that the defendant did not have a reasonable expectation of privacy when he fled into a third person's home, we find helpful guidance in the factual similarities and the court's discussion of hot pursuit. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596930/ | 28 So.3d 894 (2009)
THREE KEYS, LTD. and Brad Muller, as Successor Trustee of the Corinne R. Muller Trust, Appellants/Cross-Appellees,
v.
KENNEDY FUNDING, INC., Kennedy Funding, LLC, and Anglo-American Financial, LLP, Appellees/Cross-Appellants.
Nos. 5D08-802, 5D08-3884.
District Court of Appeal of Florida, Fifth District.
November 20, 2009.
Rehearing Denied February 18, 2010.
*896 Kenneth P. Hazouri, David H. Simmons and Bart R. Valdes, of DeBeaubien, Knight, Simmons, Mantzaris & Neal, LLP, Orlando, for Three Keys, Ltd., and Corinne R. Muller Trust.
Robert D. Gatton of Robert D. Gatton, P.A., and Keith F. White of Keith F. White, P.A., of Broad and Cassel, Orlando, for Kennedy Funding, Inc., and Kennedy Funding, LLC.
Irvin R. Gilbert of Gilbert, Eavenson & Kairalla, and Bryan J. Yarnell of Bryan J. Yarnell, PLLC, Palm Beach Gardens, for Anglo-American Financial, LLP.
COHEN, J.
We review the consolidated appeals of the trial court's directed verdict and final judgment in case no. 5D08-802, together with the trial court's posttrial order denying a motion for attorney's fees in case no. 5D08-3884. Three Keys, Ltd., and the Corinne R. Muller Trust (collectively the "Participant"), appeal the entry of a directed verdict and final judgment in favor of Kennedy Funding, Inc., Kennedy Funding, *897 LLC, and Anglo-American Financial, LLP (collectively the "Lead"), following a $5,345,000 jury verdict in favor of the Participant on its claims of breach of contract and breach of the covenant of good faith and fair dealing. The Lead cross-appeals the denial of its counterclaim seeking supplemental and equitable relief, as well as its request for additional interest before an amended certificate of title issued. The Lead also appeals the trial court's order denying its motion to determine entitlement to attorney's fees and costs under the offer of judgment statute. We affirm in all respects.
Background
The Feinstein Family Partnership ("Feinstein") owned a mixed-use development of regional impact in Ft. Myers, Florida (the "Colonial DRI"), which it developed with roads, street lights, and utility system infrastructure. The Colonial DRI included twenty-two saleable parcels of real estate, one out-parcel, and $5.4 million in impact fee credits (the "Property" or "Collateral"). In the wake of a foreclosure judgment in favor of the City, which funded the infrastructure development, Feinstein filed for bankruptcy protection under Chapter 11. To proceed with the project, Feinstein, using a loan from the Muller Trust, sought to free the project from the bankruptcy trustee by negotiating a settlement of the City's judgment and then seeking a loan to pay off the City and the Muller Trust. Ultimately, the Lead and the Participant joined to loan Feinstein $16,128,210, secured by a note, mortgage, and security agreement on the Property. The mortgage granted the Lead and Participant, as lenders, a super-priority security interest above all of Feinstein's creditors, except for the Lee County Tax Collector. To fund the loan, the Lead advanced $11 million, and the Participant advanced $5,128,210; their respective interests in the loan were 68.2% and 31.8%.
Inter-Creditor Agreement
In addition to executing the loan documents with Feinstein, the Lead and the Participant entered into an Inter-Creditor Agreement ("Agreement") that defined their relationship as co-lenders. According to the Agreement, the Lead held the loan documents and was charged with prosecuting any necessary foreclosure action. If Feinstein defaulted, the Agreement required any monies recovered to first be applied to satisfy the Lead Debt,[1] and any remainder divided pro rata between the Lead and the Participant. The Agreement also required the parties to share all reasonable costs, fees, and expenses necessary to foreclose, preserve, or liquidate the Property according to their pro rata interests in the loan.
Feinstein subsequently defaulted on the loan, and the Lead filed a foreclosure action. Feinstein's earlier Chapter 11 bankruptcy was converted to Chapter 7. In addition to the foreclosure suit, the Property was also the subject of environmental litigation involving allegations that Feinstein violated the Federal Clean Water Act. The Lead incurred considerable attorneys' fees, consultants' fees for environmental mitigation plans, and costs in defending and settling this litigation. Attorneys with Greenberg, Traurig, representing the Lead in the bankruptcy and foreclosure proceedings, agreed to indefinitely *898 defer payment of $200,000 in attorneys' fees until the Lead recovered all monies due it under the loan. Additionally, Greenberg, Traurig capped all attorneys' fees incurred after November 1, 1999, in the Feinstein matters at $100,000. The Lead did not inform the Participant about either of these agreements. Ultimately, the Lead paid the bankruptcy trustee $600,000 and the subordinate lenders a total of $217,500 to settle the foreclosure action and reach a stipulation for entry of a final judgment of foreclosure. This concluded the foreclosure action. The Lead also agreed to pay $1,198,400 for offsite environmental mitigation and $31,000 to grant a conservation easement on a small portion of the Property, for a total of $1,229,400 to settle the environmental litigation.
On November 21, 2000, the circuit court entered a final judgment of foreclosure in favor of the Lead and determined $22,291,635.66 was owed, representing $16,128,210 in principal and accrued interest of $6,163,425.66. The final foreclosure judgment provided that the Property would be sold subject to the lien for unpaid real estate taxes, NationsBank's first lien on the impact fee credits, and the claims arising out of the environmental litigation. The final judgment also reserved jurisdiction to award the Lead "additional sums for costs, attorney's fees, real estate taxes, and other charges and expenses incurred in preserving its collateral or enforcing its rights under the mortgage documents." Pursuant to their respective loan interests, the Lead's share of the judgment was $15,202,895 or 68.2%, and the Participant's share was $7,088,740 or 31.8%.
At the foreclosure sale, Kennedy Funding, LLC, formed by the Lead to take title, purchased the Property with a credit bid. On January 4, 2001, the clerk issued a certificate of title vesting title to the Property in Kennedy Funding, LLC. As of that date, the Lead's share of the foreclosure judgment plus postjudgment interest was $15,386,000, the final amount of Lead Debt which the Participant contended it was subordinated under the Agreement.
When Kennedy Funding, LLC purchased the Property, there was approximately $2.5 to $3 million in unpaid real estate taxes, along with a host of other problems. The development approvals were about to expire and required renewal in order to develop the Property in accordance with the Colonial DRI. Further action was taken to obtain the City's approval to amend some of the proposed uses to residential. There were also title problems and fines assessed by the City. The Lead paid attorneys' fees, engineering fees, and other fees and costs to solve the problems, maintain, and market the Property.
Issues regarding expense reimbursement arose early when the Lead demanded in November 1999 that the Participant reimburse the Lead for its share, or $193,369.87, of expenses totaling $608,157.87 allegedly due under the Agreement. The total expenses included the legal fees deferred by Greenberg, Traurig, as well as other amounts the Participant deemed unrelated. The Lead threatened to hold the Participant in default if it did not pay the expenses. Upon receiving this demand, Basciano, Three Keys' principal, requested, but did not receive, supporting documentation for the expenses claimed.
Disagreements also centered on the parties' duty to consult regarding the liquidation of the Property. Based upon the description of the co-lenders' rights and duties in section 6 of the Agreement, the Participant asserted that the Lead owed a duty to consult. The Agreement provides that the "Lead and Participant shall consult," but in the case of disagreement, *899 vested sole discretion in the Lead concerning the terms of any liquidation. Despite the language requiring the Lead consult with the Participant regarding the Property's liquidation, the Lead refused to do so. The Lead contends that any failure to consult with the Participant was immaterial.
The Lead's original real estate broker was unsuccessful at selling any of the parcels during 2001 or 2002. Subsequently, the Lead hired CBRE, a national real estate brokerage firm, which ultimately succeeded in selling all of the Colonial DRI parcels. Despite repeated requests for sales information, appraisals, and listing agreements on the Property, almost four years passed before CBRE provided sales information to the Participant. Meanwhile, the Lead, reacting to the Participant's continued demands for sales information, demanded the Participant pay its share of ever increasing expenses and declared that the Participant was in default for failing to pay $193,369.87 in expenses.
Lawsuit
Consequently, the Participant filed this lawsuit,[2] together with a lien on the Property, and the Lead counterclaimed, seeking damages for the Participant's failure to pay its pro rata share of expenses.
The Lead sold all the marketable impact fee credits without notice to the Participant and kept the proceeds. From February 2003 to September 2005, the Lead also sold the twenty-two parcels in the Colonial DRI without any significant input from, or consultation with, the Participant. By stipulation, the Participant released the lis pendens on the parcels in exchange for the Lead's agreement to deposit the sales proceeds into an escrow account and that the release would not, in any way, prejudice or impair its claims against the Lead.
Subsequently, the trial court granted the Lead's motion for partial summary judgment and ordered that, with the exception of the Participant's share of the impact fee credit sale proceeds, 68.2% of the escrowed proceeds be disbursed to the Lead and 68.2% of all future sales proceeds be disbursed directly to the Lead. Further, the trial court ordered that 31.8% of the deposited monies remain in escrow and that 31.8% of all future sales proceeds be deposited into the escrow account.
In another pretrial partial summary judgment motion, the Lead claimed entitlement to a 100% reimbursement of $3,404,580, consisting of environmental mitigation expenses and unpaid property taxes before any sales proceeds were distributed to the Participant. Although declining to order immediate disbursement, the trial court ruled that the Lead was "entitled to reimbursement of amounts they paid for property taxes and mitigation credits from the proceeds from the sales of the Property prior to any payment to [the Participant], which amount will be determined at the conclusion of this case."
The case was tried before a jury. The parties and trial court originally understood that the jury would decide the respective damages claims, and the trial court would make a posttrial determination on the Participant's claim for declaratory relief regarding the proper distribution of the sales proceeds under the Agreement. During trial, the Lead made motions for directed verdict on the Participant's breach of contract claim, which the *900 trial court granted in part and reserved in part.
The Participant's breach of contract claim was based on two related breaches of the Agreement: the Lead's refusal to consult with the Participant regarding the Property's liquidation and the Lead's breach of its implied covenant of good faith and fair dealing in liquidating the Property. The Participant introduced expert testimony that the Lead's management of the parcels was grossly negligent. The Lead disputed the real estate appraiser's opinion and concluded that he valued the commercial reasonableness of the sale of lots in a development context rather than from a liquidation perspective, as provided in the Inter-Creditor Agreement.
On its claim, the Lead presented evidence that, after deducting $5,466,636 in expenses and an additional $15,385,270 for Lead Debt, no sales proceeds remained for distribution to the Participant. In fact, the Lead explained that under its formula for distributing the sales proceeds, the Participant owed $701,000 in expenses, representing the damages sought in the counterclaim. Central to the Lead's argument was the trial court's partial summary judgment ruling that the Lead was entitled to full reimbursement for $5,466,636 in property taxes and mitigation expenses from the sales proceeds before any distribution to the Participant.
In contrast, the Participant's proposed formula for distributing the sales proceeds first deducted Lead Debt of $15,386,000 from the gross sales proceeds of $24,047,000, to net $8,661,000 payable to the Participant. Then, the Participant subtracted its share of the total expenses incurred by the Lead, or $3,316,309, from the $8,661,000 for a net $5,344,691 payable to it. Not only did the Participant argue that it was not responsible for 100% of the Lead's expenses, but it also contended that it suffered actual damages of $7,174,193, the total amount due it on the loan, as a result of the Lead's breach of both its duty to consult and the implied covenant of good faith and fair dealing.
Verdict and Posttrial Proceedings
The jury returned a verdict for the Participant, finding that the Lead breached its duty to consult with the Participant regarding the Property's liquidation, that it was a material breach, and, further, that the Lead breached its covenant of good faith and fair dealing in liquidating the Property. The jury awarded the Participant damages in the amount of $5,345,000. The jury also found that the Participant did not breach any duty to pay expenses under the Agreement and therefore awarded nothing to the Lead on its counterclaim.
Following trial, the Lead filed a motion for judgment in accordance with a motion for directed verdict asserting that there was insufficient evidence to support the jury's verdict on the Participant's claim for breach of the Agreement. The Lead characterized the jury's verdict as an improper declaratory judgment on the distribution of the sales proceeds. The Lead did not move for a directed verdict on its counterclaim or the Participant's claim for declaratory relief. The trial court directed further briefing on whether the declaratory judgment claim was submitted to the jury, which resulted in additional posttrial motions.[3]
*901 After hearing extensive argument and considering additional motions and briefing, the trial court issued two orders that together granted the Lead a directed verdict on the Participant's claim for breach of the Agreement and denied the Participant's motion for final judgment. The trial court concluded that the June 2007 partial summary judgment order rejected the Participant's argument against first subtracting environmental expenses and real estate taxes before distribution and declined to revisit the issue. It reaffirmed the partial summary judgment reimbursing the Lead in full for property taxes and mitigation expenses and ruled that the declaratory judgment claim was not submitted to the jury.
Final Judgment
On March 13, 2008, the trial court entered a final judgment for the Lead on the Participant's breach of contract claim, rejected the Lead's counterclaim, and declared the Lead was entitled to 100% of the sales proceeds on the Participant's claim for declaratory relief. The trial court concluded, as a matter of law, that the Agreement granted the Lead sole discretion over the Property's liquidation, even to the extent the Participant failed to recoup its investment. It reasoned that leaving the question to the jury would effectively rewrite the terms of the parties' Agreement. This appeal ensued.
Discussion
Propriety of Directed Verdict
"`In considering a motion for directed verdict for the defendant, the court is required to evaluate the testimony in the light most favorable to the plaintiff, indulging every reasonable inference deduced from the evidence in the plaintiff's favor.'" Goolsby v. Qazi, 847 So.2d 1001, 1002 (Fla. 5th DCA 2003) (quoting Cecile Resort Ltd. v. Hokanson, 729 So.2d 446, 447 (Fla. 5th DCA 1999)). This is the standard used by the trial court as well as this court on appeal. Id. at 1003. If no view of the evidence could sustain a verdict for the nonmoving party, then the directed verdict was properly entered. Ritz v. Fla. Patient's Comp. Fund, 436 So.2d 987, 988 (Fla. 5th DCA 1983). A directed verdict should be granted only where there is no evidence upon which a jury could properly rely in finding for the plaintiff. Johnson v. Swerdzewski, 935 So.2d 57, 60 (Fla. 1st DCA 2006). A motion for directed verdict "should be treated with special caution, and this is especially true in negligence cases, where the function of a jury to weigh and evaluate the evidence is particularly important since reasonable people can draw various conclusions from the same evidence." Id.
The Participant argues that the trial court erred in directing a verdict because it presented overwhelming evidence supporting the jury's verdict on the factual question of whether the Lead breached both its duty to consult and the implied covenant of good faith and fair dealing in liquidating the Property. The Lead contends the Participant failed to prove that it did not consult, that any failure to consult was not a material breach of the Agreement, and, further, that it failed to meet the exceedingly high standard necessary to recover for breach of the implied covenant of good faith and fair dealing.
The trial court, relying on Haiman v. Gundersheimer, 130 Fla. 109, 177 So. 199 (1937), and Video Electronics, Inc. v. Tedder, 470 So.2d 4 (Fla. 1st DCA 1985), ruled, as a matter of law, that any breach of the duty to consult, particularly where the Lead had sole discretion to dispose of the Property, was not material, thereby foreclosing any damages inquiry. Rejecting the Participant's expert's opinion of below market sales, the trial court concluded *902 that the Participant failed to present any evidence that no other lender, under the circumstances of this case, would have acted similarly to the Lead. Consequently, the trial court found the Participant did not meet its burden of showing a breach of the implied covenant of good faith and fair dealing.
Section 6 of the Agreement grants the Lead sole discretion in dealing with the Property and states in pertinent part:
The parties acknowledge that if title to any such Collateral is obtained by the Lead, then the same will not be held as a permanent investment but will be liquidated as soon as practicable, taking into account current economic and market conditions. The Participant agrees that following the acquisition of the Collateral, or any part thereof, the Lead and the Participant shall consult in an effort to determine a mutually acceptable course of action relating to the Collateral; provided, however, if the parties cannot agree on a mutually acceptable course of action, the Lead shall take the course of action determined by Lead in its sole discretion, which may include the sale of the Collateral for whatever price and on whatever terms as may be determined by Lead in its sole discretion, notwithstanding the fact that the net proceeds received from any such sale may not be sufficient to repay fully the Lead and the Participant.
The Participant acknowledges that the trial court correctly recognized that the implied covenant of good faith and fair dealing circumscribed the Lead's "sole discretion" with an element of reasonableness. See Cox v. CSX Intermodal, Inc., 732 So.2d 1092 (Fla. 1st DCA 1999); Sepe v. City of Safety Harbor, 761 So.2d 1182 (Fla. 2d DCA 2000). The Participant, nonetheless, questions the trial court's use of the Sepe instruction,[4] contending the duty to consult was a condition precedent to the Lead exercising its sole discretion. Further, the failure of the condition precedent weakens the trial court's conclusion that the duty to consult was not, as a matter of law, material because the parties acknowledged the possible inadequacy of the net proceeds to repay them.
Although we acknowledge that the term "provided, however" in section 6 generally signals a condition, see Southern Colonization Co. v. Derfler, 73 Fla. 924, 75 So. 790, 792 (1917), a thorough analysis of the Agreement's overall terms shows this was not intended by the parties. The element of reasonableness in this case must be interpreted in conjunction with the sole discretion vested in the Lead to liquidate the Property. The Participant cites James v. James, 843 So.2d 304 (Fla. 5th DCA 2003), and Frostar Corp. v. Malloy, 63 Mass.App.Ct. 96, 823 N.E.2d 417 (2005), in arguing that the trial court erroneously directed the verdict. In Frostar, the alleged breach of an implied covenant of good faith and fair dealing was deemed a jury function, but in contrast, there was no sole discretion clause to interpret. In James, it was not disputed that the attorney-in-fact's quitclaim deed transferring the decedent's homestead to his children exceeded $10,000 per child permitted under the power of attorney and that he failed to consult with the Bank as required *903 in the power prior to making gifts. Observing the general rule that an agent cannot make gifts of his principal's property to himself or others unless it is expressly authorized and strictly construing the terms of the powers, this court held that the attorney-in-fact clearly exceeded his authority. James, 843 So.2d at 308. There was no sole discretion vested in the attorney-in-fact and his authority was limited to make a gift "so long as the gifts were consistent `with prudent estate planning and financial management, and after consultation with Mellon Bank, N.A.'" Id. at 306.
The purpose of the implied covenant of good faith is to protect the reasonable expectations of the contracting parties. Cox, 732 So.2d at 1097. The covenant, however, is not a stated contractual term and, to operate, it attaches to the performance of a specific or express contractual provision. Snow v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 896 So.2d 787, 792 (Fla. 2d DCA 2005). Further, the implied covenant of good faith cannot be used to vary the terms of an express contract. Beach Street Bikes, Inc. v. Bourgett's Bike Works, Inc., 900 So.2d 697, 700 (Fla. 5th DCA 2005). To view the duty to consult as a condition precedent would negate the overall intent of the parties.
The trial court correctly concluded that the Participant presented no evidence that no reasonable party in the position of the Lead would have made the same discretionary decision that the Lead made. The Participant's real estate appraiser testified to the property's fair market value, but the trial court agreed with the Lead that the expert's valuation fell outside the purpose expressed in the Agreement, which was not to develop the Property, but instead, to liquidate it.[5] The trial court concluded, therefore, as a matter of law, that no view of the evidence could sustain a verdict for the Participant and the directed verdict was properly entered.
Declaratory judgment
We agree with the trial court that the declaratory judgment claim was not determined by the jury. The jury was not instructed on the declaratory judgment, nor did the verdict form include special interrogatories pertinent to a finding of the parties' entitlement to the sales proceeds under the Agreement.
Although a declaratory judgment is accorded a presumption of correctness, Williams v. General Insurance Co., 468 So.2d 1033, 1034 (Fla. 3d DCA 1985), because the trial court's decision rests on a question of law in interpreting the contract, the standard of review is de novo. See Reform Party of Fla. v. Black, 885 So.2d 303, 310 (Fla.2004).
The hallmark in the construction of a contract is the parties' intent, and courts should ascertain such intention and effectuate it. St. Augustine Pools, Inc. v. James M. Barker, Inc., 687 So.2d 957, 958 (Fla. 5th DCA 1997). To determine the parties' intent, "a court should consider the language in the contract, the subject matter of the contract, and the object and purpose of the contract." Huntington on the Green Condo. v. Lemon Tree I-Condo., 874 So.2d 1, 4 (Fla. 5th DCA 2004). The interpretation of a contract is a question of law and, therefore, this court is not bound by the conclusions reached by the trial court in construing a contract. WSOS-FM, Inc. v. Hadden, 951 So.2d 61, 63 (Fla. 5th DCA 2007). An interpretation giving a *904 reasonable meaning to all provisions of a contract is preferred to one that renders part of the contract meaningless. Premier Ins. Co. v. Adams, 632 So.2d 1054, 1057 (Fla. 5th DCA 1994). "A court is not empowered to rewrite a clear and unambiguous provision, nor should it attempt to make an otherwise valid contract more reasonable for one of the parties." N. Am. Van Lines v. Collyer, 616 So.2d 177, 179 (Fla. 5th DCA 1993).
The Agreement defines the relationship between the Lead and the Participant in connection with their loan to Feinstein and incorporates the related promissory note. The note, mortgage and security agreement, guaranties, and all other documents and agreements relating to the loan are collectively referred to as the "Loan Documents." Section 2, "Funding of Loan; Priority of Interest," mandates that any payments the Lead receives from the Borrower be first applied to reduce Lead Debt. Further, "[a]t all times prior to the date on which Lead has been paid in full ... Participant's right to receive repayment of its Advance ... is expressly subordinated and junior in right of payment to the prior payment and satisfaction in full in cash of Lead Debt...." By cross-referencing section 2 in section 6, "Acquisition of Title to Collateral," the proceeds from any sale of collateral are treated the same.
The parties agree that the principal and interest portion of Lead Debt is $15,385,270, but disagree whether other expenses for real estate taxes, attorneys' fees, and environmental mitigation are characterized as Lead Debt and, therefore, deducted from the sales proceeds before distributing the Participant's share.
The Participant contends that the Lead has taken contradictory positions regarding the extent of the Participant's obligations for expenses. After the Lead acquired title to the Property, it originally demanded the Participant pay 31.8% of the expenses incurred; at summary judgment and through trial, the Lead asserted that the Participant was obligated to pay a far greater sum before becoming entitled to a return of its advance. A comparison of the Participant's obligations under sections 2, 5, and 6 resolves this contradiction. Section 2 applies to payments made by the Borrower, and, as discussed, requires the Participant to first repay all of the Lead Debt. Section 5 requires the Participant to promptly reimburse the Lead for its pro rata share of "all reasonable costs and expenses, including, without limitation, fees of receivers or trustees, court costs, filing and recording fees, appraiser's fees and fees and expenses of counsel, incurred by Lead in connection with its enforcement of any rights or remedies under the Loan Documents, regardless of whether Lead acquires title to any Collateral," to the extent that such costs are not recovered from Borrower or other responsible entity. Section 6 comes into play once the Lead acquires title to any collateral and proceeds from the eventual sale and cross references section 2 with respect to proceeds from liquidation.
We interpret section 5(b) of the Agreement to require the Participant to pay its pro rata 31.8% share of expenses regardless of whether the Borrower made any payments or the Lead ever acquired title to the Property. Alternatively, if the Lead received payments from the Borrower or proceeds from the sale of Property, sections 2 and 6 require the Lead Debt be repaid first before the Participant may receive repayment on its loan. Section 6 requires the Participant to pay its share of all reasonable costs of foreclosing, protecting, preserving, and/or liquidating the Property, and, by cross-referencing section 2, subjects the proceeds from any sale of Property to Participant's payment of Lead Debt to trigger its right to receive repayment of its Advance. Thus, the Lead's *905 position on payment of expenses is not contradictory and expressed the intent of the Agreement.
The trial court, in its order on various posttrial motions, found in favor of the Lead on the declaratory judgment claim and specifically found that the Agreement unambiguously provided that once the Property was obtained by the Lead, the Participant would be paid, if at all, from the "net proceeds" from any sale. The final judgment analyzes the interplay of the various provisions and concludes that the Lead must be paid in full first from the proceeds of the liquidation of Property before the Participant receives any money. The trial court concluded that the last sentence of section 6, providing that the proceeds of any Property are to be distributed in accordance with the provisions of section 2 of the Agreement, ties directly into the language of section 2(b), stating that "payments made by Borrower to Lead under the Note (including without limitation any payments received in respect of the sale of any Collateral), shall be disbursed hereunder as follows." Under section 2(b), once an event of default occurs under the Loan documents, the "Participant's rights shall be expressly subordinated and junior in right of payment" to that of the Lead. Therefore, the Lead's expenses for taxes and environmental mitigation are properly deducted first from the proceeds before the Participant becomes entitled to repayment.
We agree with the trial court's interpretation of the Agreement and, therefore, affirm the declaratory judgment. Despite recognizing the harshness of the result, we, like the trial court, are not free to rewrite the terms of the Agreement.
Cross-appeal
Request for equitable and supplemental relief
The Lead challenges the trial court's denial of its request for equitable and supplemental relief in the form of statutory interest under section 55.03, Florida Statutes, on the sales proceeds deposited into the escrow account. This court reviews for an abuse of discretion the trial court's denial of supplemental and equitable relief. See Friendship Park Prop. Corp. v. Shaw, 505 So.2d 456, 457 (Fla. 1st DCA 1987).
Further relief based on a declaratory judgment may be granted when necessary or proper. § 86.061, Fla. Stat. (2007). We cannot say that no reasonable person would take the view adopted by the trial court. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). Accordingly, we affirm the trial court's ruling.
Motion for attorneys' fees under section 768.79, Florida Statutes
The trial court denied the Lead's request for attorneys' fees based upon an offer of judgment conditioned upon a joint acceptance by both Three Keys and the Muller Trust. Based upon the Second District's reasoning and conclusion in Attorneys' Title Insurance Fund, Inc. v. Gorka, 989 So.2d 1210, 1213-14 (Fla. 2d DCA 2008), rev. granted, 10 So.3d 631 (Fla.2009), we agree with the trial court that the Lead's proposal for settlement was invalid and unenforceable for the purpose of imposing fees against the Participant.
Accordingly, we affirm the trial court's final judgment in its entirety.
AFFIRMED.
SAWAYA, J., and HARRIS, C., Senior Judge, concur.
NOTES
[1] The Agreement defines "Lead Debt" as "all indebtedness, liabilities and obligations now or at any time ... hereafter owing by Borrower to Lead under the Loan Documents ... whether for principal, interest, ... fees, costs or expenses ... and all other demands, claims, liabilities or causes of action for which Borrower may now or at any time ... hereafter in any way be liable to Lead under any of the Loan Documents...."
[2] The remaining counts tried by jury were the Participant's claims of breach of contract and breach of the covenant of good faith and fair dealing and the Lead's counterclaim for damages attributable to the Participant's failure to pay its pro rata share of expenses. Also on appeal is the issue of whether the trial court submitted to the jury the Participant's claim for declaratory relief regarding the sales proceeds.
[3] The Participant filed a motion for entry of final judgment and subsequently an "amended motion for entry of final judgment based on the jury's verdict on the evidence presented, or in the alternative, motion for summary judgment, or in the further alternative motion for clarification and rehearing." The Lead filed its own motion for final judgment requesting a declaration that it was entitled to all of the sales proceeds.
[4] The jury instruction on the covenant of good faith and fair dealing read:
You are instructed that the Lead was authorized to act in its sole discretion under the Inter-Creditor Agreement. You are instructed that the implied duty of good faith and fair dealing means that the Lead could take any course of action relating to the Collateral (i.e., the Property) unless no reasonable party in the position of the Lead would have made the same discretionary decisions that the Lead made.
[5] Section 6 provides, in part: "The parties acknowledge that if title to any such Collateral is obtained by the Lead, then the same will not be held as a permanent investment but will be liquidated as soon as practicable, taking into account current economic and market conditions." | 01-03-2023 | 10-30-2013 |
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